[ORAL ARGUMENT NOT SCHEDULED]

No.
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
IN RE KHALID SHAIKH MOHAMMAD,
Petitioner
On Petition for a Writ of Mandamus to Order Abatement
of Petitioner’s case in the Military Commissions

PETITION FOR A WRIT OF MANDAMUS
Rita J. Radostitz
(admitted to the Bar of Texas)
U.S. Department of Defense
Military Commissions Defense
Organization
1620 Defense Pentagon
Washington, D.C. 20301
Tel: (703) 571-0723
Email: rita.j.radostitz.civ@mail.mil
Gary D. Sowards
(admitted to the Bar of California)
McBreen & Senior
1900 Avenue of the Stars
11th Floor
Los Angeles, CA 90067
Tel: (310) 552-5300
Email:
gsowards@mcbreensenior.com
Counsel for Petitioner

David Z. Nevin
(admitted to the Bar of Idaho)
Nevin, Benjamin, McKay
& Bartlett LLP
303 W. Bannock
Boise, ID 83702
Tel: (208) 343-1000
Email: dnevin@nbmlaw.com
Derek A. Poteet
LtCol, U.S. Marine Corps
U.S. Department of Defense
Military Commissions Defense
Organization
1620 Defense Pentagon
Washington, D.C. 20301
Tel: (703) 695-5293
Email: derek.a.poteet.mil@mail.mil

 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
I.

PARTIES AND AMICI APPEARING BELOW
The parties who appeared before the Military Commission were:
1. Khalid Shaikh Mohammad, Defendant
2. Walid Muhammad Salih Mubarek bin ‘Attash, Defendant
3. Ramzi bin al Shibh, Defendant
4. Ali Abdul-Aziz Ali, AKA Ammar al Baluchi, Defendant
5. Mustafa Ahmed Adam al Hawsawi, Defendant
6. United States of America

II.

PARTIES AND AMICI APPEARING IN THIS COURT
1. Khalid Shaikh Mohammad, Petitioner
2. Military Judge Colonel Keith A. Parrella, U.S. Marine Corps, Respondent

III.

RULINGS UNDER REVIEW
This case involves a petition for a writ of mandamus to abate Military

Commission proceedings in this case unless and until the United States Court of
Military Commissions Review (USCMCR) is able to assign a panel to address the
merits of contested issues raised in the Military Commission case of United States
v. Khalid Shaikh Mohammad et al. Mandamus is the only available remedy to
address motions seeking discovery and recusal of the Military Judge, Colonel
Keith A. Parrella, from serving as a judge in Mr. Mohammad’s Military
i

 Commission because, as described more fully below, Mr. Mohammad has no
remedy or availability of redress in the USCMCR.
IV.

RELATED CASES

U.S. Court of Appeals for the District of Columbia Circuit:
In re Khalid Shaikh Mohammad, D.C. Cir. case no. 17-1156, granting writ
of mandamus and vacating United States v. Khalid Shaikh Mohammad et al.,
USCMCR case no. 17-002, June 29, 2017 decision. See In re Mohammad, 866
F.3d 473, 475 (August 9, 2017).
In re Mohammad et al., D.C. Cir. case no. 17-1179, denied October 19,
2018.
U.S. Court of Military Commission Review:
United States v. Khalid Shaikh Mohammad et al., USCMCR No. 17-003,
designated Oct 27, 2017. (No substantive action has been taken in case number
17-003, the USCMCR designation for the interlocutory appeal proceedings
following this Court’s vacatur of the June 12, 2017 USCMCR decision in case no.
17-002.)
In re Ammar al Baluchi, USCMCR case no. 18-001, filed February 9, 2018.
(The USCMCR has taken no substantive action on this petition filed by a codefendant of Mr. Mohammad, despite Mr. al-Baluchi’s notice to the USCMCR that
the underlying matter has subsequently become moot.)
ii

 In re Ammar al Baluchi, USCMCR case no. 18-003, filed May 17, 2018.
(The USCMCR has taken no substantive action on this petition filed by a codefendant of Mr. Mohammad.)
In re Mustafa Ahmed Adam al Hawsawi, USCMCR case no. 18-004, filed
November 27, 2018. (The USCMCR has taken no substantive action on this
petition filed by a co-defendant of Mr. Mohammad.)

Dated: January 18, 2019
By:
Rita J. Radostitz
Counsel for Petitioner

iii

 TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES ...........i
TABLE OF AUTHORITIES ...............................................................................vi
GLOSSARY OF TERMS ................................................................................. viii
JURISDICTION.................................................................................................... 1
RELIEF SOUGHT ................................................................................................ 1
ISSUES PRESENTED.......................................................................................... 1
SUMMARY OF ARGUMENT ........................................................................... 2
STATEMENT OF FACTS ................................................................................... 4
A. Procedural History ................................................................................ 4
B. The USCMCR is Unable to Assign a Panel of Judges to Review Issues
Raised by Mr. Mohammad .................................................................................. 7
C. Factual Support for Recusal or Further Discovery ............................ 11
1. Military Judge Parrella’s Relationship to Trial Counsel ..................... 11
2. Military Judge Parrella’s Involvement with the Government Agencies
Responsible for the Prosecution and Torture of Mr. Mohammad. .......... 14
REASONS FOR GRANTING THE WRIT........................................................ 16
There Is No Other Adequate Means Of Obtaining Relief.
A. A writ of mandamus from this Court is required because the
unavailability of a remedy in the USCMCR renders the Military
Commission system constitutionally infirm. ...................................... 19
iv

 B. Military Judge Parrella apparently has an unresolvable conflict of

loyalties that require discovery pertaining to his conflict and potential
disqualification. .................................................................................. 25
CONCLUSION .................................................................................................. 31
CERTIFICATE OF SERVICE ........................................................................... 32
APPENDIX

v

 TABLE OF AUTHORITIES
*Authorities upon which Petitioner chiefly relies are marked with an asterisk.
Cases
Berger v. United States, 255 U.S. 22, 36 (1921).....................................................20
Burger v. Kemp, 483 U.S. 776, 785 (1987).............................................................30
Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 881 (2009)..............................26
Carey v. Piphus, 435 U.S. 247, 259-262, 266-267
(1978).......................................................................................................................26
Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004).............................17
Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003)....................................................19
Griffin v. Illinois, 351 U.S. 12, 18 (1956)...............................................................23
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).............................................................21
In re Abd Al-Rahim Hussein Muhammed Al-Nashiri, Petitioner D.C. Circuit Case
No. 18-1279.............................................................................................................24
In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004)........................................................19
In re IBM, 618 F.2d 923, 926-27 (2d Cir. 1980).....................................................18
In re Khadr, 823 F.3d 92, 97 n.2 (D.C. Cir. 2016)..................................................17
In re Kempthorne, 449 F.3d 1265 (D.C. Cir. 2006)................................................19
In re Mohammad, 866 F.3d 473 (D.C. Cir. 2017).................................................7, 8
In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017)........................................7, 8
In Re Mustafa Ahmed Adam al Hawsawi (USCMCR Case No.18-004).................11
In re Al-Nashiri, 791 F.3d 71, 75-76 (D.C. Cir. 2015)...........................................17
In re al-Nashiri (“al-Nashiri II”), 835 F.3d 110, 122 (D.C. Cir. 2016)..................22
vi

 In re Murchison, 349 U.S. 133, 136 (1955).............................................................27
In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d Cir.1992)...................................20
In re United States, 666 F.2d 690, 694 (1st Cir. 1981).....................................18, 20
Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172 (1951)....................26
Law v. Howard University, Inc., 558 A.2d 355, 356 (D.C. 1989)...........................19
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988)..................20, 27
Liteky v. United States, 510 U.S. 540, 551 (1994)...................................................27
Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980)..............................................25
Mathews v. Eldridge, 424 U.S. 319, 344 (1976).....................................................26
McKane v. Durston, 153 U. S. 684, 153 U. S. 687-688..........................................22
United States v. Horton, 98 F.3d 313, 316 (7th Cir. 1996).....................................18
Union Carbide v. U.S. Cutting Service, 782 F.2d 710, 712 (7th Cir.1986).............18
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).....................................27
United States v. Roach, 69 M.J. 17 (CAAF 2010)....................................................8
Weinberger v. Wiesenfeld, 420 U.S. 636, 641 n.8 (1975).......................................19
Woodson v. North Carolina, 428 U.S. 280 (1976)..................................................27
Zant v. Stephens, 462 U.S. 862, 884 (1983)...........................................................27
Statutes
10 U.S.C. § 950f ........................................................................................... 10, 18, 22
10 U.S.C. § 950g ........................................................................................................ 1
28 U.S.C. § 1651 ....................................................................................................... 1

vii

 GLOSSARY OF TERMS
2006 Act ........................ Military Commissions Act, Pub. L. No. 109-366 (2006)
2009 Act .......................... Military Commissions Act, Pub. L. No. 111-84 (2009)
USCMCR ........................... United States Court of Military Commission Review
DOD .................................................................................. Department of Defense
MMC .................... U.S. Dep’t of Def., Manual for Military Commissions, Part 2,
R.M.C. ...................................................... Rules for Military Commissions (2012)
RTMC ............................................. Regulation for Trial by Military Commission

viii

 JURISDICTION
This Court has exclusive supervisory jurisdiction over Military
Commissions and the USCMCR pursuant 10 U.S.C. § 950g. This Court has
jurisdiction to issue all writs necessary and appropriate in aid of that jurisdiction
pursuant to 28 U.S.C. § 1651.
RELIEF SOUGHT
Petitioner, Khalid Shaikh Mohammad, asks this Court to issue a writ of
mandamus directing abatement of his Military Commission proceedings unless and
until the United States Court of Military Commissions Review is constituted as
required by the Military Commissions Act of 2009 and the United States
Constitution, and is able to assign a panel to address the merits of issues raised in
the case of United States v. Khalid Shaikh Mohammad. Mr. Mohammad further
requests a writ of mandamus issue disqualifying Military Judge Colonel Keith A.
Parrella, or, in the alternative ordering him to provide further information
regarding his actual or apparent conflict of interest in order to determine whether
he should recuse himself from serving as a judge in Petitioner’s case below.
ISSUES PRESENTED
1. Whether a writ of mandamus should issue because the unavailability of a
remedy in the USCMCR renders the Military Commission inconsistent
with the Military Commissions Act of 2009 and constitutionally infirm.

1

 2. Whether a judge who (1) has worked for, and provided “memoranda on
topics of current relevance to counterterrorism prosecutors, which were
widely distributed and read within” the Counterterrorism Section of the
National Security Division of the Department of Justice, which is the
same entity that is directly involved in prosecuting Mr. Mohammad; (2)
has a long-standing relationship with one of the government attorneys
currently prosecuting Mr. Mohammad; and (3) believes he has a
continuing duty of loyalty and confidentiality to the government agencies
responsible for the prosecution and torture of Mr. Mohammad, creates an
actual or apparent bias where “his impartiality might reasonably be
questioned” requiring his recusal from serving as a judge in Mr.
Mohammad’s case, and in the alternative, whether the Military Judge
should have provided further discovery regarding his potential conflict of
interest.
SUMMARY OF ARGUMENT
Petitioner, Khalid Shaikh Mohammad (Mr. Mohammad) asks this Court to
issue a writ of mandamus abating his Military Commission until there is a fully
functioning USCMCR as mandated by both statutory authority and the United
States Constitution. Due to the lack of a functioning USCMCR, Mr. Mohammad
also seeks a writ of mandamus vacating the order issued by Judge Keith A. Parrella
2

 in the Military Commissions denying recusal and further discovery regarding the
potential conflict of interest resulting from his involvement with the very division
of the DOJ that is prosecuting Mr. Mohammad in this capital case.
Mandamus is an appropriate remedy where, as here, proceedings in a
constitutionally invalid system amount to a violation of due process and equal
protection that cannot be remedied on appeal, and the underlying issue is one as to
whether the lower court judge should have provided further discovery regarding
and/or recused himself on the basis of his actual bias and/or an appearance of bias
due to the fact that he has worked for, and provided “memoranda on topics of
current relevance to counterterrorism prosecutors, which were widely distributed
and read within”1 the Counterterrorism Section of the National Security Division
of the Department of Justice, which is the same entity that is directly involved in
prosecuting Mr. Mohammad; has a long-standing relationship with one of the
government attorneys currently prosecuting Mr. Mohammad; and believes he has a
continuing duty of loyalty and confidentiality to the government agencies
responsible for the prosecution and torture of Mr. Mohammad. Accordingly,
granting mandamus relief now supports the preservation of this Court’s
jurisdiction.

1

App 135 (Transcript at 20497).
3

 STATEMENT OF FACTS
A. Procedural History.
Petitioner, Khalid Shaikh Mohammad (“Mr. Mohammad”) is one of five codefendants in a joint capital Military Commission at Guantanamo Bay, Cuba. He
faces various charges arising from the government’s assertions that he is
responsible for planning and carrying out the attacks of September 11, 2001.
Mr. Mohammad was arrested in Rawalpindi, Pakistan, on March 1, 2003,
tortured and detained incommunicado for some three-and-one-half years in
overseas detention facilities known as “black sites” operated by the Central
Intelligence Agency (“CIA”). Mr. Mohammad was transferred to U.S. Naval
Station Guantanamo Bay, Cuba in September 2006. He was not permitted access
to counsel from the time of his arrest until early 2008.
Capital charges against Mr. Mohammad and his four co-defendants were
referred to a Military Commission at Guantanamo Bay, Cuba on May 9, 2008. In
January 2009, then-President Obama announced his decision to close the detention
facility at Guantanamo Bay and to freeze Military Commission proceedings.
Eventually in January 2010, the then-pending capital charges against Mr.
Mohammad were withdrawn and dismissed without prejudice. In November 2009,
then-Attorney General Holder announced the administration’s intention to transfer
Mr. Mohammad and his co-defendants for prosecution in the United States District

4

 Court for the Southern District of New York. Bowing to political pressure,
President Obama reversed this decision. The government then in April 2011
unsealed and obtained dismissal of the federal indictment of Mr. Mohammad and
his co-defendants, and a second Military Commission prosecution was
subsequently initiated.
On April 8, 2012, Colonel James Pohl, U.S. Army, was detailed as the
Military Judge to preside over this Military Commission.2 On May 5, 2012, Mr.
Mohammad and the other co-defendants were arraigned again, on eight charges,
six of which are capital.
Military Judge Pohl presided over this Military Commission case until
August 2018. On August 27, 2018, Colonel Keith A. Parrella, U.S. Marine Corps,
was detailed as the Military Judge for this Military Commission, effective that
date.3 On September 7, 2018 the defense filed a Motion to Compel Discovery for
the Voir Dire of Colonel Parrella. That motion was denied.4 On September 10,
2018, Military Judge Parrella was subject to voir dire and questioned by counsel
for Mr. Mohammad and other defense counsel regarding his qualifications to serve

2

App at A41 (AE 001)
App at A42 (AE 001A)
4
App at A257-A262 (AE 595G RULING Defense Motion to Compel Material
and Information Related to the Qualifications of Judge Keith Parrella and
Defense Request for Voir Dire of Military Judge in a Closed Ex Parte Hearing
Filed 10 October 2018).
3

5

 as military judge in this case.5 At the end of voir dire, Mr. Mohammad moved
Military Judge Parrella to recuse himself,6 and separately moved that the
proceedings be abated until Military Judge Parrella had fully reviewed the
extensive prior proceedings and was genuinely prepared to proceed.7 Military
Judge Parrella denied both motions.8
On October 19, 2018, one of Mr. Mohammad’s co-defendants, Mustafa
Ahmed Adam al Hawsawi, filed a “Defense Motion to Recuse Military Judge,
Colonel Parrella” to which Mr. Mohammad was automatically joined.9 On
November 19, 2018, Military Judge Parrella denied the motion to recuse and
denied a defense motion to abate proceedings pending an appeal of that decision.
On November 27, 2018, Mr. al Hawsawi, filed a Petition for Extraordinary
Relief in the Nature of a Writ of Mandamus and Application for Stay of
Proceedings, in the USCMCR.10 For the past two months, no substantive action
has been taken by the USCMCR on that petition.

5

App at A58-A206 (Transcript 20420-20568).
App at A206 (Transcript 20568).
7
App at A211, A226 (Transcript 20573, 20588). Other counsel sought abatement
in order to provide further investigation and briefing of the issues raised by the voir
dire. Tr. 20578-79.
8
App at A243 (Transcript 20605).
9
Military Commission Trial Judiciary Rules of Court (RC) 3.5.i.(4).
10
App at A1 (USCMCR Case No. 18-004). Mr. al Baluchi joined that Petition in
the USCMCR.
6

6

 B. The USCMCR is Unable to Assign a Panel of Judges to Review Issues
Raised by Mr. Mohammad
On April 7, 2017, Military Judge Pohl dismissed all of the non-capital
charges pending against Mr. Mohammad due to the expiration of the statute of
limitations. The government appealed to the USCMCR immediately thereafter. In
the course of that interlocutory appeal, Mr. Mohammad moved that Judge Scott
Silliman recuse himself from the panel due to a number of comments Judge
Silliman had made indicating an actual or apparent bias against Mr. Mohammad.
Judge Silliman declined to recuse himself. While the government’s appeal was
pending in the USCMCR, Mr. Mohammad filed a petition for writ of mandamus
and prohibition in this Court seeking the recusal of Judge Silliman from
participating in Mr. Mohammad’s case in the USCMCR, and a motion to stay
proceedings in the USCMCR pending this Court’s review. While that petition and
motion for stay were still pending, the USCMCR issued its decision on the
government’s interlocutory appeal, and reversed and reinstated the non-capital
charges. On August 9, 2017, this Court issued a writ disqualifying Judge Silliman
and vacating the opinion in which he had participated.11 Accordingly, on October
20, 2017, Military Judge Pohl reinstated his order dismissing the charges.

11

In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017).
7

 On October 25, 2017, the government filed a second interlocutory appeal,
again challenging the dismissal. On November 17, 2017 briefing on that appeal
was suspended. In the suspension order, it was revealed that the other two judges
who had served on the panel with Judge Silliman had recused themselves from
further participation in United States v. Khalid Shaikh Mohammad, et al. That
appeal is still pending because there is no judge on the USCMCR who can serve to
appoint a panel for any matter pertaining to Mr. Mohammad or his co-defendants.
As the Clerk of the USCMCR wrote in a “MEMORANDUM THRU
DEPARTMENT OF DEFENSE GENERAL COUNSEL FOR SECRETARY OF
DEFENSE” attached to the order suspending briefing in the case:
On August 9, 2017, the Court of Appeals for the District of Columbia
Circuit disqualified Deputy Chief Judge Scott Silliman from
participation in any appeal involving Khalid Shaikh Mohammad and
vacated a previous decision of the CMCR in an appeal brought by the
Government. In re Mohammad, 866 F.3d 473 (D.C. Cir. 2017). The
Government’s appeal must be heard by the CMCR de novo. The other
two CMCR Judges on the panel who heard and decided this appeal
were Chief Judge Paulette V. Burton and Judge James Wilson
Herring, Jr. Chief Judge Burton and Judge Herring subsequently
recused themselves from further participation in United States v.
Khalid Shaikh Mohammad, et. al. Because of Chief Judge Burton’s
recusal and Deputy Chief Judge Silliman’s disqualification, a panel to
hear the pending appeal cannot be appointed unless you appoint an
Acting Chief Judge for United States v. Khalid Shaikh Mohammad, et.
al. See United States v. Roach, 69 M.J. 17 (CAAF 2010). This request
also asks that any appointment of an Acting Chief Judge extend for
the period in which the Chief Judge and Deputy Chief Judge cannot
8

 act on behalf of the Court with respect to case of Khalid Shaikh
Mohammad.
Id.12
Six months after that Memorandum issued, it became clear that the inability
of the USCMCR to designate a panel had not been resolved. On May 17, 2018,
Mr. Mohammad’s co-defendant Ammar al Baluchi, sought a writ of mandamus
with the USCMCR to “prevent the further destruction of material evidence crucial
to the guilt-innocence and sentencing phases of the pending Military Commission
trial.” Upon receipt of the petition, the Clerk of Court for the USCMCR issued a
“MEMORANDUM TO THE PARTIES” noting that the Court “cannot address the
merits of the issues raised by Petitioner.”13 The Memorandum states:
Deputy Chief Judge Scott Silliman is disqualified from hearing matters
related to Khalid Shaikh Mohammad. See In re Khalid Shaikh
Mohammad, 866 F.3d 473 (D.C. Cir. 2017). Subsequently, he recused
himself from all matters related to United States v. Khalid Shaikh
Mohammad, et al. Chief Judge Paulette V. Burton and Judge James W.
Herring, Jr. were on the panel with Deputy Chief Judge Silliman that
heard the appeal in Khalid Shaikh Mohammad that lead to Deputy
Chief Judge Silliman’s disqualification. Both have recused themselves
from all matters involving that case. . . . This leaves only Judge
William B. Pollard, III and Judge Larss G. Celtnieks available to
consider the present petition and contested motions. By statute, our

12

App at A247 United States v. Khalid Shaikh Mohammad et. al, USCMCR Case
No. 17-003, SCHEDULING ORDER, issued November 17, 2017.
13
App at A249 (CMCR Case No. 18-003, MEMORANDUM TO THE PARTIES).
9

 panels must be “composed of not less than three judges on the Court.”
10 U.S.C. § 950f(a). Thus, the Court lacks a quorum.

Since the issuance of that Memorandum, Judge Herring has retired from the Court,
and two new judges were assigned.14 However, as the Memorandum goes on to
point out:
Moreover, only the Chief Judge and the Deputy Chief Judge have the
authority to appoint panels even if three judges were available. See
Manual for Military Commissions (2016 rev. ed.), Rule for Military
Commission 1201(b)(5); Regulation for Trial by Military Commission
(2011 ed.), ¶¶ 25-2d, 25-2e; Rules of Practice for the U.S. Court of
Military Commission Review (Feb. 3, 2016), Rule 4. Accordingly,
without a panel appointment, no single judge can act on the motions
before the Court. See Rules of Practice for the U. S. Court of Military
Commission Review, Rules 4(b), 21(f).15
Finally, as is evidenced by the lack of an appointment of a panel in Mr. al
Hawsawi’s Petition for Extraordinary Relief in the Nature of a Writ of Mandamus
and Application for Stay of Proceedings, which was filed almost two months ago,

14

Judge Frank D. Hutchison, Captain, U.S. Navy (Sworn as USCMCR Judge:
November 2, 2018) and Judge Marcus N. Fulton, Captain, U.S. Navy (Sworn as
USCMCR Judge: November 2, 2018). See
https://www.mc.mil/ABOUTUS/USCMCRJudges.aspx Accessed 14 January 2019.
15
App. at A250 (CMCR Case No. 18-003, MEMORANDUM TO THE PARTIES).

10

 the USCMCR remains unable to proceed in any matter involving Mr.
Mohammad.16

C. Factual Support for Recusal or Further Discovery.
1. Military Judge Parrella’s Relationship to Trial Counsel
During voir dire of the Military Judge and through discovery provided by
the Military Judge,17 Mr. Mohammad learned that Military Judge Parrella had been
employed in the same component of the Department of Justice as members of the
trial team that is prosecuting Mr. Mohammad – the Counterterrorism Section
(CTS) of the National Security Division (NSD) of the Department of Justice
(DOJ). Mr. Mohammad also learned that while assigned to the CTS, Military
Judge Parrella litigated cases involving terrorism, including those involving
“material support of terror.”18 Military Judge Parrella also had a close association
with fellow Marine Corps Judge Advocate Jeff Groharing, one of the DOJ

16

In Re Mustafa Ahmed Adam al Hawsawi (USCMCR Case No.18-004); While
the parties have filed briefs in the matter, the docket does not contain any
indication of the appointment of a panel. See
https://www.mc.mil/Cases.aspx?caseType=cmcr (last accessed 16 January 2019).
17
App at A251 (AE 001B).
18
App. at A116 (Transcript, 20478).

11

 attorneys actively prosecuting Mr. Mohammad19 and “may have” socialized with
another member of the trial counsel team, Mr. Clayton Trivett. Id.
Military Judge Parrella and Mr. Groharing have a relationship spanning
nearly two decades.20 They began a friendship after meeting through a mutual
friend while they were both stationed in San Diego during the late 1990s and early
2000s, including at the time of the attacks of September 11, 2001.21 Although
Military Judge Parrella recalls where Mr. Groharing was stationed in September
2001 and what he himself was doing at the time,22 Military Judge Parrella claimed
that he had no memory of his feelings on September 11, 2001.23 He did not
remember if he ever expressed an opinion on what should happen to the
perpetrators of the attacks, saying only that he “probably felt similar to what
everybody else felt in the country.”24 Military Judge Parrella then denied defense
counsel the opportunity to ask further questions regarding his reaction to the
attacks, stating only that his feelings could be left “outside.”25

19

App. at A93-A94, A170-A171 (Transcript, 20455-20456, 20532-20533).
App. at A141 (Transcript, 20503).
21
App. A147 (Transcript, 20509).
22
App. at A142 (Transcript, 20504).
23
App. at A199-201 (Transcript, 20561-20563).
24
Id.
25
App. at A199-A201 (Transcript, 20561-20563).
20

12

 Over the years, the relationship between Military Judge Parrella and Mr.
Groharing developed further. For two years, Military Judge Parrella specifically
selected Mr. Groharing to compete with him in the All-Military Wilderness
Challenge on a four-person team they called the Dale Milton Racing Team.26 The
two other people on the team were described by Military Judge Parrella as his
friends.27 In a Navy News Service story, then-Major Parrella explained that the
Wilderness Challenge “is all about teamwork. . . . That’s what we do every day in
real life. You’ve got to work as a team.”28
Referring to the 2008 competition, in which then-Major Parrella’s and thenMajor Groharing’s team placed second,29 Marine Major Jason Gaddy described the
nature of the relationships that were reinforced by participating in the event: “‘This
works right in the Marine Corps hands,’" Gaddy said. “‘We form in fire teams of
four, that’s how we fight, that’s how we train, so this works right up our alley.’"30

26

App. A144-A147 (Transcript, 20506- 20509).
App. at A145 (Transcript, 20507).
28
Camp Lejune [sic] Marines Win 2009 All-Military Wilderness Challenge, Navy
News Service, Oct. 20. 2009, available at
https://www.navy.mil/submit/display.asp?story_id=48961.
29
The Call of the Wild, Army Times, October 8, 2008, available at
https://static1.squarespace.com/static/5796de416b8f5b7c2ec12a2d/t/579ac7e437c5
81ffa04c4af8/1469761519298/JasonWatkinsWritingSamples.pdf
30
2008 All-Military Wilderness Challenge Tests Service Teams, Navy News
Service, Story Number: NNS081016-20Release Date: 10/16/2008 6:16:00 AM,
available at https://www.navy.mil/submit/display.asp?story_id=40350.
27

13

 In 2014, both Military Judge Parrella and Mr. Groharing were assigned to
the Counterterrorism Section at the National Security Division of DOJ.31 During
this time, they socialized at Christmas parties, going-away parties, the Marine
Corps Ball, and other social functions several times a year. 32 Military Judge
Parrella knew that Mr. Groharing was then a member of the prosecution team for
the 9/11 case.33
2. Military Judge Parrella’s Involvement with the Government Agencies
Responsible for the Prosecution and Torture of Mr. Mohammad.
According to his military evaluation, or Fitness Report, during Military
Judge Parrella’s time at the DOJ National Security Division Counter Terrorism
Section, he “seamlessly integrated as a counterterrorism prosecutor.”34 His duties
there included “work with partners in the intelligence community including FBI,
CIA, NSA, and DOD.”35 The NSD official for whom then-Lieutenant Colonel
Parrella worked reports that he “provided guidance in highly sensitive FBI
operations, and drafted legal memoranda and recommendations for the Assistant
Attorney General that assessed the prosecutorial merit of terrorism cases.” The
same letter further details that he “prepared memoranda on topics of current

31

App. A169 (Transcript, 20531-20532).
App. A94 (Transcript, 20456).
33
App. A93-A94, 173 (Transcript, 20455-20456, 20535).
34
App. at A254 (AE 595B).
35
Id.
32

14

 relevance to counterterrorism prosecutors, which were widely distributed and read
within CTS.”36
Because of his work with the CTS, Military Judge Parrella believes he still
holds a duty of loyalty and confidentiality to the FBI, the CIA, and the Department
of Justice. His voir dire testimony is as follows:
Learned Defense Counsel (LDC) [MR. RUIZ]:
I understand. So as you sit here as a member -- as a judge on
this case, you do still have an obligation to protect classified
information that may have come from the CIA?
MJ [Col PARRELLA]: Yes. I mean, as far as I know, that
obligation hasn’t ended.
LDC [MR. RUIZ]: And the obligation would also extend to any
privileged communications, work product that you worked on
during your time with the Federal Bureau of Investigation? You
still have a duty of loyalty and confidentiality to that
organization, correct?
MJ [Col PARRELLA]: Yes.
LDC [MR. RUIZ]: Judge, this goes to a challenge based on
your alignment with a party to this litigation. The CIA’s
involvement in this case is extensive and well documented. To
the extent that you were embedded with the Department of
Justice and had ease of access to CIA facilities, it’s directly
relevant to the questions that I’m asking. I don’t see how that
couldn’t be more relevant.
MJ [Col PARRELLA]: Because I’ve answered the question
several times now about my relationship with any of those
36

Id.
15

 agencies, the extent that I had any involvement with those
agencies, what that involvement was, and all of what I did or
didn’t do while I was at the Department of Justice.37
The involvement of the NSD, CIA and FBI in this case makes Military Judge
Parrella’s work with the NSD Counterterrorism Section especially noteworthy, and
disqualifying. The Counterterrorism Section, along with the FBI, the NSA and the
CIA, have been intricately involved in conducting the prosecution in this case,
including numerous examples of misconduct.38 Further, those agencies serve as
the original classification authorities for classified information review for all
materials created, presented, and disclosed as discovery in Mr. Mohammad’s case.
CTS attorneys appear before the presiding military judge, outside the presence of
any defense counsel, to determine what discovery will be produced to the defense
and what “substitutions” will be authorized under Rules of Military Commissions
505 proceedings. A reasonable person, knowing of Military Judge Parrella’s work
with the Counterterrorism Section would reasonably question his impartiality.
REASONS FOR GRANTING THE WRIT
In the Military Commission context, the All Writs Act empowers this Court
to “issue all writs necessary or appropriate in aid of our jurisdiction such that we
can issue a writ of mandamus now to protect the exercise of our appellate

37
38

App. at A201-203 (Transcript 20563 – 65).
App. at A263-272 (AE 530S pp. 14-23).
16

 jurisdiction later.” In re Al-Nashiri, 791 F.3d 71, 75-76 (D.C. Cir. 2015) (internal
quotations omitted) (original emphasis). In particular, this Court has reaffirmed
“[m]andamus is an appropriate vehicle for seeking recusal of a judicial officer
during the pendency of a case, as ordinary appellate review following a final
judgment is insufficient to cure the existence of actual or apparent bias— with
actual bias ... because it is too difficult to detect all of the ways that bias can
influence a proceeding and with apparent bias because it fails to restore public
confidence in the integrity of the judicial process.” In re Mohammad, 866 F.3d 73,
475 (D.C. Cir. 2017) (internal quotation marks and citations omitted.) See also In
re Khadr, 823 F.3d 92, 97 n.2 (D.C. Cir. 2016).
While mandamus is often described as a “drastic and extraordinary remedy
reserved for really extraordinary causes,” Cheney v. United States Dist. Court, 542
U.S. 367, 380 (2004), this is an extraordinary case in two respects. First, the
inability of the statutorily required intermediate appellate court to hold proceedings
involving Mr. Mohammad – for more than a year – raises significant constitutional
questions that can be resolved in no other forum.
Second, questions of judicial disqualification present a special case in the
law of mandamus. This is because questions of judicial ethics cast “a shadow not
only over the individual litigation but over the integrity of the federal judicial
process as a whole. … In recognition of this point we have been liberal in allowing

17

 the use of the extraordinary writ of mandamus to review orders denying motions to
disqualify.” Union Carbide v. U.S. Cutting Service, 782 F.2d 710, 712 (7th
Cir.1986); see also In re IBM, 618 F.2d 923, 926-27 (2d Cir. 1980); In re United
States, 666 F.2d 690, 694 (1st Cir. 1981); 9 MOORE’S FEDERAL PRACTICE ¶
110.13[10]. In fact, when matters of judicial disqualification arise, some circuits
hold that a litigant is obliged, on pain of waiver, to petition for mandamus. See,
e.g., United States v. Horton, 98 F.3d 313, 316 (7th Cir. 1996).
On the merits, writs of mandamus turn on the three factors enumerated in
Cheney, 542 U.S. at 380-81. And here, all three factors are readily satisfied. First,
the issuance of the writ is the only means by which Mr. Mohammad can seek a
remedy for Military Judge Parrella’s disqualifying apparent or actual bias because
the USCMCR is not a functioning court due to the lack of a judge who can appoint
a panel to hear writs or appeals in Mr. Mohammad’s case. Second, a fully
functioning court system is clearly and indisputably required by both the 2009
Military Commissions Act and the due process and equal protection clauses of the
Constitution. Third, issuance of the writ under these circumstances is not only
appropriate, but necessary, to protect the integrity of the judicial system.
The Military Commissions Act of 2009 is structured to ensure an
intermediate appellate court –the USCMCR -- is available to review interlocutory
appeals by the government. 10 U.S.C. § 950f(a). Additionally, the USCMCR is

18

 empowered under the All Writs Act to issue writs in aid of its jurisdiction. In re Al
-Nashiri, 791 F.3d 71, 75-78 (D.C. Cir . 2015); USCMCR Rules of Practice Rule
22. However, since at least November 17, 2017 – more than a year ago – the
USCMCR has been unable to proceed in the case of Mohammad et. al. Thus, as to
Mr. Mohammad and his co-defendants, no intermediate appellate court exists
despite the statutory requirements of the 2009 Act. This does two things: it makes
it futile and therefore unnecessary for Mr. Mohammad to file this writ initially in
the USCMCR,39 and it renders constitutionally invalid the entire Military
Commission system as pertains to this case, necessitating abatement until the
USCMCR is restored in full as to this case.
THERE IS NO OTHER ADEQUATE MEANS OF OBTAINING RELIEF.
This Court has consistently recognized that challenges to a judge’s fitness
can and should be raised as via a writ of mandamus at the earliest opportunity.
Mohammad, 866 F.3d at 473; see also In re Kempthorne, 449 F.3d 1265 (D.C. Cir.
2006) (mandamus disqualifying a special master); In re Brooks, 383 F.3d 1036
(D.C. Cir. 2004) (same); Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003)
(mandamus disqualifying a court monitor). This is because “[w]hen the relief

39

See e.g. Law v. Howard University, Inc., 558 A.2d 355, 356 (D.C. 1989) ("It is
well settled that no requirement of exhaustion of … administrative remedies exists
in … disputes involving the government if the attempt to exhaust such remedies
would be futile.") and Weinberger v. Wiesenfeld, 420 U.S. 636, 641 n.8
(1975)(administrative appeal “would have been futile”).
19

 sought is recusal of a disqualified judicial officer … the injury suffered by a party
required to complete judicial proceedings overseen by that officer is by its nature
irreparable.” Cobell, 334 F.3d at 1139. And it is this “irreparable injury that
justified mandamus.” Al-Nashiri, 791 F.3d at 79.
With actual bias, ordinary appellate review is insufficient because it is too
difficult to detect all of the ways that bias can influence a proceeding. See id. (“[I]f
prejudice exist[ed], it has worked its evil and a judgment of it in a reviewing
tribunal is precarious. It goes there fortified by presumptions, and nothing can be
more elusive of estimate or decision than a disposition of a mind in which there is
a personal ingredient.”) (quoting Berger v. United States, 255 U.S. 22, 36 (1921)).
With apparent bias, ordinary appellate review fails to restore “public confidence in
the integrity of the judicial process,” Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 860 (1988) — confidence that is irreparably dampened once “a case
is allowed to proceed before a judge who appears to be tainted.” In re Sch.
Asbestos Litig., 977 F.2d 764, 776 (3d Cir.1992); accord In re United States, 666
F.2d 690, 694 (1st Cir.1981) (“Public confidence in the courts requires that [bias]
question[s] be disposed of at the earliest possible opportunity.” (Alterations
omitted.))
Normally, these issues would have been first resolved by the intermediate
appellate court, the USCMCR. However, because that Court has been unable to

20

 appoint a panel of judges in any matter involving Mr. Mohammad, it cannot do so.
Leaving these issues to the future appellate review is especially inadequate here,
given the current state of the USCMCR being unable to proceed on any substantive
matters relating to Mr. Mohammad’s case. Accordingly, a writ of mandamus
should issue.
A. A writ of mandamus from this Court is required because the
unavailability of a remedy in the USCMCR renders the Military
Commission system constitutionally infirm.
Congress authorized the creation of the USCMCR in the Military
Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, 120 Stat. 2600,
enacted in response to Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Although the
D.C. Circuit had previously had direct appellate jurisdiction over certain Military
Commission proceedings,40 the MCA of 2006 directed the Secretary of Defense
to establish the Court of Military Commissions Review (CMCR) as an
intermediate appellate tribunal between the Guantanamo commissions and the
D.C. Circuit, 10 U.S.C§950f(a) (2006) just as individual military branch Courts of
Criminal Appeals (CCA) sit between trial level courts-martial and the United

40

In the Detainee Treatment Act of 2005, Congress had for the first time conferred
appellate jurisdiction over a Military Commission—although the scope of the D.C.
Circuit’s review under the Act was quite narrow. See Pub. L. No. 109-148, §
1005(e)(3), 119 Stat. 2680, 2743; cf. Ex parte Vallandigham, 68 U.S. (1 Wall.) 243
(1864) (holding that Congress had not conferred appellate jurisdiction over
Military Commissions).
21

 States Court of Appeals for the Armed Forces (“CAAF”).
The CMCR was not just meant to play a similar hierarchical role as the
CCAs; it was expressly modeled on them. See In re al-Nashiri (“al-Nashiri II”),
835 F.3d 110, 122 (D.C. Cir. 2016), cert. denied, No. 16-8966, 2017 WL
1710409 (U.S. Oct. 16, 2017).
When Congress revised the MCA in 2009, Military Commissions Act of
2009, Pub. L. No. 111-84, § 1802, 123 Stat. 2190, 2603, a number of the reforms
were directed toward bolstering the independence of the CMCR vis-à-vis the
Executive Branch. The 2009 Act therefore moved away from the CCA model in
numerous, intentional respects, including the reconstitution of the intermediate
appellate court as an Article I “court of record”41 and designating it as the United
States Court of Military Review.42 These changes further evidenced Congress’
intention to provide intermediate appellate review for cases in the Military
Commissions at Guantanamo Bay, Cuba.
It is true that the Federal Constitution does not require an appellate court or a
right to appellate review at all in a court system. See, e.g., McKane v. Durston, 153
U. S. 684, 153 U. S. 687-688. However, once the legislative body does create an
appellate system and a right to appellate review, it cannot discriminate among

41
42

10 U.S.C. § 950f(a)
Hence the new acronym USCMCR.
22

 those who seek to avail themselves of such review. Griffin v. Illinois, 351 U.S. 12,
18 (1956).
“[A] country dedicated to affording equal justice to all and special privileges
to none in the administration of its criminal law” cannot continence a system where
one set of defendants has intermediate appellate review and another set of
defendants do not. Id. at 19.
After the Court ordered the recusal of Judge Silliman from the matter
involving Mr. Mohammad due to his extra-judicial comments regarding Mr.
Mohammad’s guilt and appropriate penalty, the other two judges on the panel
assigned to his case recused themselves.43 Although there are five judges currently
appointed to the USCMCR, the statute requires the USCMCR to sit in panels of
three judges, and requires that the Chief Judge or Deputy Chief Judge appoint a
panel. However, as both the Chief Judge Paulette Burton and the Deputy Chief
Judge Scott Silliman have been recused, as currently constituted, the USCMCR is
not able to form a panel to adjudicate any claims raised by Mr. Mohammad.44
Accordingly, Mr. Mohammad and his co-accused are left without meaningful

43

App at A249-A250 (UCMCR 18-003 Memorandum).
See RTMC 25-2.d. “Chief Judge and Deputy Chief Judge. The Secretary of
Defense, or designee, will designate from among those individuals nominated by
the Judge Advocates General and from among others qualified to serve as appellate
military judges, individuals to serve as the Chief Judge and Deputy Chief Judge of
the USCMCR.”
44

23

 appellate review in the USCMCR. Because this is in contrast with other defendants
being tried in the Military Commissions at Guantanamo Bay, Cuba45, an unequal
system has been created. The Due Process and Equal Protection Clauses, which
“protect persons like petitioner” from disparate treatment, are violated by a system
that provides intermediate appellate review to some detainees and not to others.
See Griffin, 351 U.S. at 18.
It should be noted that the remedy for this structural error rests completely
within the government’s control. Since November of 2017 – more than fourteen
months ago – the Secretary of Defense has been on notice that unless and until he
designated an Acting Chief or Deputy Chief Judge who can assign a panel, no
further action could be taken by the USCMCR in what has been often called
biggest terrorism trial in U.S. history.
Further, the government affirmatively chose not to do so – two new military
judges were assigned to the USCMCR in November 2018, neither was designated
as the Chief or Deputy Chief Judge. Further, in August, 2018, George Washington
Law School Associate Dean Lisa M. Schenck was nominated by the President for a

45

See e.g. United States v Abd Al Rahim Hussayn Muhammad Al-Nashiri,
USCMCR No. 18-002, currently pending in this Court (In re Abd Al-Rahim
Hussein Muhammed Al-Nashiri, Petitioner D.C. Circuit Case No. 18-1279).

24

 position on the USCMCR, also without designation as Chief or Deputy Chief
Judge, and her nomination lapsed at the end of the 115th Congress.46
Because Mr. Mohammad’s due process and equal protection rights47 have
been violated, a writ of mandamus must issue, and Mr. Mohammad’s concurrently
filed motion for stay must be granted.
B. Military Judge Parrella apparently has an unresolvable conflict of
loyalties that require discovery pertaining to his conflict and potential
disqualification.
Due process entitles Mr. Mohammad to “a proceeding in which he may
present his case with assurance” that no member of the court is “predisposed to
find against him.” Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980). When
reviewing an assertion that a judge should be recused, “the Court asks not
whether” a judge harbors an actual, subjective bias, but instead whether, as an

46

Judge Frank D. Hutchison and Judge Marcus N. Fulton were sworn as USCMCR
Judges on November 2, 2018. Dean Schenck was nominated, but not confirmed,
and now her nomination has lapsed by Senate rule. See
https://www.congress.gov/nomination/115thcongress/2464?q=%7B%22search%22%3A%5B%22Lisa+M.+Schenck%22%5D
%7D&s=4&r=1
47
It should also be noted that under the Geneva Conventions, the United States is
required to try prisoners in a “regularly constituted court.” Arguments might be
made about whether anything involved in the Military Commissions at
Guantanamo Bay, Cuba are “regularly constituted” but even if they are, a system
which authorizes an intermediate appellate court on the one hand, and fails to
properly staff that court thereby making it unavailable to some litigants, cannot
meet the requirements of the Conventions.
25

 objective matter, “the average judge in his position is ‘likely’ to be neutral, or
whether there is an unconstitutional ‘potential for bias.’” Caperton v. A. T.
Massey Coal Co., 556 U.S. 868, 881 (2009). Given Military Judge Parrella’s prior
employment with the very division of the government that is now prosecuting Mr.
Mohammad, and his self-described friendly association with a member of the
prosecution team, any objective observer would see an unconstitutional potential
for bias.
Further, as the Supreme Court noted in Marshall v. Jerrico, Inc., 446
U. S. 238, (1980):
The Due Process Clause entitles a person to an impartial and
disinterested tribunal in both civil and criminal cases. This
requirement of neutrality in adjudicative proceedings safeguards the
two central concerns of procedural due process, the prevention of
unjustified or mistaken deprivations and the promotion of
participation and dialogue by affected individuals in the decision
making process. See Carey v. Piphus, 435 U.S. 247, 259-262, 266267 (1978). The neutrality requirement helps to guarantee that life,
liberty, or property will not be taken on the basis of an erroneous or
distorted conception of the facts or the law. See Mathews v. Eldridge,
424 U.S. 319, 344 (1976). At the same time, it preserves both the
appearance and reality of fairness, "generating the feeling, so
important to a popular government, that justice has been done," Joint
Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172
(1951) (Frankfurter, J., concurring), by ensuring that no person will be
deprived of his interests in the absence of a proceeding in which he
may present his case with assurance that the arbiter is not predisposed
to find against him.
Marshall 446 U. S. at 242.
Mr. Mohammad acknowledges that “Judicial rulings alone almost never
26

 constitute a valid basis for a bias or partiality motion.” United States v. Grinnell
Corp., 384 U.S. 563, 583 (1966). However, the Supreme Court later clarified this
holding: “A favorable or unfavorable predisposition can also deserve to be
characterized as "bias" or "prejudice" because, even though it springs from the
facts adduced or the events occurring at trial, it is so extreme as to display clear
inability to render fair judgment. (That explains what some courts have called the
"pervasive bias" exception to the "extrajudicial source" doctrine.)” Liteky v.
United States, 510 U.S. 540, 551 (1994)
Mr. Mohammad would note that this “stringent rule may sometimes bar
trial by judges who have no actual bias and who would do their very best to weigh
the scales of justice equally between contending parties,” In re Murchison, 349
U.S. 133, 136 (1955). As the Supreme Court noted, the disqualifying criteria
“cannot be defined with precision. Circumstances and relationships must be
considered.” Here, the circumstances of Military Judge Parrella’s prior service in
the very division of the DOJ, and his close relationship with one of trial counsel,
when considered together, and in light of the “heightened reliability” required in a
capital case, 48 render his service as a judge disqualifying, and is required, under
the holding of Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860

48

See e.g. See, e.g., Zant v. Stephens, 462 U.S. 862, 884 (1983). In Woodson v.
North Carolina, 428 U.S. 280 (1976).
27

 (1988) in order to restore “public confidence in the integrity of the judicial
process.”
While Mr. Mohammad does not aver that Military Judge Parrella has an
explicit bias against him or the issues before him, the question of “implicit bias”
due to his close relationship with the prosecution team is an area of concern.
When queried by the Learned Counsel for co-defendant Ramzi bin al Shibh,
James Harrington regarding implicit bias, Military Judge Parrella refused to
answer the question:
LDC [MR. HARRINGTON]: Judge, do you know what implicit
bias is?
MJ [Col PARRELLA]: Mr. Harrington, I want to know where
we're going with this, so why don't we just get to where we're
going. I'm not going to answer that question.49
Military Judge Parrella did continue a colloquy with Mr. Harrington on the topic,
but refused to acknowledge, or allow further questions on the topic of whether his
prior work with the CTS of the DOJ and his relationship with the prosecution
team could possibly have an impact on his consideration in the case.50
Even in the brief time since Military Judge Parella refused to recuse himself

49
50

App. A106 Transcript 20467.
App. A106-A107 Transcript 20467-68.
28

 and refused to grant a stay of proceedings while higher courts reviewed the issue
of his recusal, he has issued orders in which his bias for the prosecutors and the
government can be seen. Military Judge Parella dismissed a serious allegation of
unlawful influence, one he recognized had the potential of “upending [this]
historical capital trial,” 51 finding it categorically incredible that “senior DoD
officials” would perjure themselves in denying the allegations given that these
officials had alternative “safe” (i.e., insusceptible of unfair influence allegations)
alternative ways to accomplish their goal. In his ruling, he denied the defense
request to call witnesses whose testimony would in fact defeat the “safety” of
those alternatives. Most importantly, Military Judge Parella preemptively ruled
before the defense reply brief was due, and without hearing defense arguments.
He could not more clearly evince a biased attitude toward the defense: at best,
disinterest, at worst, contempt. Attention to completion of the briefing cycle is a
daily occurrence in the Military Commissions, and it was the previous military
judge’s position that a matter was not ripe for argument or adjudication until
either the briefing cycle was complete, or the right to do so had been waived by
the affected party. This was not an error or oversight: Military Judge Parella ruled

51

App at A301 (AE 555EEE RULING Mr. al Baluchi's Motion to Dismiss For
Unlawful Influence over Convening Authority and Legal Advisor, (10 January
2019) at p. 29.

29

 against the defense before the defense brief was due.52
Judge Parella’s unequal treatment of the government and the defense
extends as well to his view of the nature of proffers. In AE 579L53 the Military
Commission accepted the government proffer for a material issue of fact (whether
CIA Director Haspel makes decisions about torture evidence that is tendered to
the defense). Yet in 555EEE Judge Parella dismissed a defense proffer thus:
“[E]ven assuming those proffers to be true ….” (emphasis supplied). This after
admonishing the defense in open court that “proffers are not evidence.” This
disparate treatment of assertions by defense counsel, and those by the prosecutors
is not, in and of itself, proof of actual bias, but it is one factor this Court should
consider in determining whether further discovery is needed to ensure that the
public’s perception of the fairness of the Military Commissions is not tainted by a
Military Judge serving who has such strong ties to the government entities and
prosecution team that is seeking the execution of Mr. Mohammad. As the
Supreme Court reminds us, “Our duty to search for constitutional error with
painstaking care is never more exacting than it is in a capital case.” Burger v.
Kemp, 483 U.S. 776, 785 (1987).

52

See App at A319 (AE 615B, specifically fn 2).

53

AE 579L RULING Motion to Dismiss All Charges For Unlawful Influence by
Director of Central Intelligence Agency (3 December 2018) at 11.

30

 CONCLUSION
For the reasons provided above, this Court should grant the writ of
mandamus ordering abatement of Military Commission proceedings in this case
unless and until the USCMCR is able to assign a panel to address the merits of
contested issues raised in the Military Commission case of United States v. Khalid
Shaikh Mohammad et al. Mandamus is the only available remedy to address
motions seeking discovery and recusal of the Military Judge, Colonel Keith A.
Parrella, from serving as a judge in Mr. Mohammad’s Military Commission
because Mr. Mohammad has no remedy or availability of redress in the USCMCR.

Respectfully submitted,
//s//
DAVID Z. NEVIN
Learned Counsel

//s//
GARY D. SOWARDS
Defense Counsel

//s//
DEREK A. POTEET
Major, U.S. Marine Corps
Defense Counsel

//s//
RITA RADOSTITZ
Defense Counsel

Counsel for Mr. Mohammad

31

 CERTIFICATE OF SERVICE
I hereby certify that on January 18, 2019, copies of the foregoing Motion for Stay of
Proceedings were served by electronic mail to:
Military Judge, Col Keith A. Parrella, U.S. Marine Corps
c/o Chief Clerk,
Military Commissions Trial Judiciary
osd.pentagon.OMC.mbx.tj-pleadings@mail.mil
Joseph F. Palmer
Danielle S. Tarin
U.S. Department of Justice
joseph.palmer@usdoj.gov
(202) 353-9402
danielle.tarin@usdoj.gov
(202) 532-4493
Michael J. O’Sullivan
Appellate Counsel for the United States
Office of the Chief Prosecutor
michael.j.osullivan14.civ@mail.mil
(703) 275-9033
Counsel for Respondent the United States
Ms. Cheryl Bormann
Military Commissions Defense Organization
cheryl.t.bormann.civ@mail.mil
Mr. James G. Connell, III
jconnell@connell-law.com
james.g.connell7.civ@mail.mil
Mr. James Harrington
Military Commissions Defense Organization
jph@harringtonmahoney.com

32

 Mr. Walter Ruiz
Military Commissions Defense Organization
jph@harringtonmahoney.com
//s//________________
Rita J. Radostitz
Defense Counsel
Counsel for Petitioner

33

 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT
This document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
Petition was composed using Microsoft Word 2016 in 14- point Times New
Roman font, a proportionally spaced font. The word count is 7513 total words,
excluding the accompanying documents and items authorized by Rules
27(a)(2)(B) and 32(f).

//s//
Rita J. Radostitz
Defense Counsel

34

 UNITED STATES COURT
OF MILITARY COMMISSION REVIEW

IN RE
MUSTAFA AHMED ADAM
AL HAWSAWI,
Petitioner.

Mr. al Hawsawi’s Petition
for Extraordinary Relief
in the Nature of a Writ of Mandamus
and
Application for Stay of Proceedings
U.S.C.M.C.R. No.---------_____________
Arraigned at Guantanamo
Bay Naval Station, Cuba,
on May 5, 2012
Presiding Judge:
Colonel Keith Parrella, U.S.M.C.

A1

 PETITION FOR WRIT OF MANDAMUS
Table of Contents

Table of Authorities ............................................................................................................ ii
Statement of the Issue and Specific Relief Sought ..............................................................1
Application for Stay of Proceedings ....................................................................................1
Previous History of the Case................................................................................................2
Statement of Facts ................................................................................................................5
Statement of Jurisdiction....................................................................................................14
Reasons for Granting the Writ ...........................................................................................14
A. Due Process Protects Against Even the Appearance of Bias from a Judge .....14
B. Col. Parrella’s Role as a Prosecutor with the NSD, and his Familiarity with a
Current Case Prosecutor, Create at least the Appearance of Bias, Such that
Recusal Is Necessary to Protect Due Process ..................................................19
C. The Extensive Ex Parte Communication Which this Case Engenders Between the
Judge and the Prosecution Itself Warrants Recusal Given Colonel Parrella’s
Associations with the Prosecution ...................................................................27
D. Colonel Parrella Has Conflicting Duties of Loyalty and Professional
Responsibility That Require His Recusal ........................................................29
E. Conclusion: Colonel Parrella’s Recusal is Required to Protect
Due Process .......................................................................................................31

A2

 TABLE OF AUTHORITIES
Constitution
U.S. Const. Amend. V ............................................................................................... passim
U.S. Const. Amend VI .......................................................................................................17
U.S. Const. Amend. VIII .....................................................................................4, 5, 17, 19
Statutes and Regulations
10 U.S.C. § 950g(a) ...........................................................................................................14
28 U.S.C. § 1651(a) .......................................................................................................1, 14
28 U.S.C. § 455(a), (b) .......................................................................................................23
USA PATRIOT Reauthorization and Improvement Act, Pub. L. No. 109-177,
§ 507A, 120 Stat. 192 (2006). ..............................................................................................6
R.M.C. 109(a) ....................................................................................................................17
R.M.C. 505.........................................................................................................................12
R.M.C. 902(a)) ...................................................................................................................18
Dept. of the Navy, Judge Advocate General Instruction 5803.1E (2015) ....... 17-18, 24, 30

Cases
Supreme Court
Caldwell v. Mississippi, 471 U.S. 320 (1985)..............................................................17, 19
Caperton v. AT Massey Coal Co. Inc., 556 U.S. 868 (2009) ............................................25
Estelle v. Smith, 451 U.S. 430 (1981) ................................................................................17
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988)................... 15-17, 31
Liteky v. United States, 510 U.S. 540 (1994) ...............................................................17, 25
Peters v. Kiff, 407 U.S. 493 (1972) ....................................................................................16
Ward v. Village of Monroeville, 409 U.S. 57 (1972) .........................................................16

A3

 Williams v. Pennsylvania, __U.S. __, 136 S.Ct. 1899 (2016) ................................... passim
Woodson v. North Carolina, 428 U.S. 280 (1976) ..................................................5, 17, 19
Federal
In re Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015) .............................................................1, 14
In re Marshall, 403 B.R. 668 (C.D. Cal. 2009) .................................................................16
Philip Morris USA, Inc. v. United States FDA, 156 F. Supp. 3d 36
(D.D.C. 2016) ........................................................................................................16, 26, 33
Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th Cir. 1980).................................32
Preston v. United States, 923 F.2d 731 (9th Cir. 1991) ............................................... 23-24
United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) ................................................13, 28
United States v. al Bahlul, 840 F.3d 757 (D.C. Cir 2016) ...............................15, 18, 26, 31
United States v. Bremers, 195 F.3d 211 (5th Cir. 1999) .........................................16, 20, 32
United States v. Furst, 886 F2d 558 (3rd Cir. 1989) ..............................................16, 20, 32
United States v. Laureano-Perez, 797 F.3d 45 (1st Cir. 2015)..............................16, 20, 32
Military
Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012) ............................................................17, 32
United States v. al Bahlul, 807 F. Supp. 2d 1115 (C.M.C.R. 2011) ................15, 18, 26, 31
United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001) ................................................17
United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) ........................................16, 26, 33
Codes, Model Rules
Annotated Model Rules of Professional Conduct (7th ed. 2011), Center for Professional
Responsibility, American Bar Association,
Rule 1.9 (Duties to Former Clients)...................................................................................29
Model Code of Judicial Conduct, American Bar Association,
Rule 2.11 (A)(6) ................................................................................................ 17-18, 24-25

A4

 Other Authorities
Alliance for Justice, “Will Military Commissions Act Gain Legitimacy?”
July 7, 2009 ........................................................................................................................26
Anderson, S.R., “Something Is Rotten with the State of Military Commissions,”
Lawfare, Mar. 2, 2018........................................................................................................26
Carlin, J. P., Assistant Attorney General, Remarks, 10-year Anniversary Conference of the
National Security Division, Sept. 14, 2016 .........................................................................7
Corn, G.S., Hansen, V., “Military Commissions: War Crimes Courts or Tribunals of
Convenience?” Jurist, Feb. 21, 2007 .................................................................................31
Finn, P., “At Guantanamo, microphones hidden in attorney-client meeting rooms,”
Washington Post, Feb. 12, 2013 ........................................................................................31
Mazzetti, M., Hulse, C., “Inquiry by CIA Affirms It Spied on Senate Panel,” New York
Times, July 31, 2014 ..........................................................................................................30
Navy News Services, “Camp Lejune [sic] Marines Win 2009 All-Military Wilderness
Challenge,” Oct. 20, 2009 .................................................................................................11
Rhode, D., “Special Report: How a 5-minute phone call put 9/11 trial on hold for more
than a year,” Reuters, Oct. 2, 2015 ...................................................................................31
Rosenberg, C., “Guantanamo Judge Furious After Surprise Censorship During ‘Black
Sites” Testimony,” Miami Herald, Jan. 29, 2013 .............................................................31
Sorkin, A.D., “A Red Light at Guantanamo,” The New Yorker, Jan. 29, 2013 ................31
Watkins, J., “The Call of the Wild,” Military Times, Oct. 20, 2008 .............................2, 23
Wittes, B., “Trial by Fire: How Military Commission Work, and Why They Fail,” Brookings
Institution, Feb. 14, 2008 ..................................................................................................31

A5

 UNITED STATES COURT
OF MILITARY COMMISSION REVIEW

IN RE
MUSTAFA AHMED ADAM
AL HAWSAWI,

Mr. al Hawsawi’s Petition
for Extraordinary Relief
in the Nature of a Writ of Mandamus
and
Application for Stay of Proceedings
U.S.C.M.C.R. No.---------_____________

Petitioner.

Arraigned at Guantanamo
Bay Naval Station, Cuba,
on May 5, 2012
Presiding Judge:
Colonel Keith Parrella, U.S.M.C.

PETITION FOR A WRIT OF MANDAMUS, AND INCORPORATED BRIEF TO
ENJOIN THE MILITARY COMMISSION FROM PROCEEDING ABSENT RECUSAL
OF THE MILITARY JUDGE

Statement of the Issue and Specific Relief Sought
Pursuant to the U.S. Constitution, 28 U.S.C. § 1651(a), and In re Al-Nashiri, 791 F.3d 71,
75-78 (D.C. Cir 2015), the defense for Mr. Mustafa al Hawsawi requests that this Court order the
recusal of Military Judge Parrella from the case of United States v. Khalid Sheikh Mohammad, et
al., based on the appearance of bias.
Application for Stay of Proceedings
A separate pleading seeking a stay of the proceedings and rulings below is being filed
concurrently with the present Petition.
A6

 Previous History of the Case
For an entire year, from 2014 to 2015, Colonel Parrella worked in the very same division
that is inextricably intertwined with the prosecution of this case -- the National Security Division
(NSD) of the U.S. Department of Justice, which has been materially supporting the prosecution
of Mr. al Hawsawi since the inception of this case.1 During the same year that Colonel Parrella
worked at the NSD, prosecutors who belong to that division were actively prosecuting Mr. al
Hawsawi and his co-accused. Those same attorneys continue to prosecute Mr. al Hawsawi today.
It matters not whether Colonel Parrella worked directly on the case, for he worked in that office
– in essence, in the same “firm” as the prosecution. One of those prosecutors moreover, a longstanding member of the prosecution team, was teammates with Colonel Parrella (in 2007-2008)
on a four-member team of Marines that Colonel Parrella captained, competing in the Wilderness
Challenge. This two-day all-military team athletic endurance event in which they competed
together promised that there is “perhaps no better way to build camaraderie and teamwork than
to endure a collective physical and psychological beating.”2 During voir dire conducted in the
military commission, Colonel Parrella himself agreed that this event built camaraderie and
teamwork.3
While Colonel Parrella was with the National Security Division – barely more than three
years ago -- he worked hand-in-hand with the FBI and CIA.4 It is uncontested that these agencies
are heavily invested in the prosecution of this case; they are both, moreover, incontrovertibly
documented as having improperly interfered with the on-going Military Commissions

1

In voir dire, Judge Parrella estimated that the National Security Division’s Count Terrorism Section had
approximately 60-70 attorneys while he was there. App. 1 (Transcript, 20491).
2
App. 2-3 (Watkins, J., “The Call of the Wild,” Military Times, Oct. 20, 2008).
3
App. 107-111 (Transcript, 20506 - 20510)
4
App. 153-154 (Transcript, 20557 - 20558).

A7

 proceedings. The CIA was caught manipulating the external audio and video feed of the
Commissions in January 2013. 5 The FBI was caught infiltrating and monitoring a defense team
in rank violation of the attorney-client privilege.6 Furthermore, the CIA is a central figure and, in
effect, a party to these proceedings, as that agency was directly responsible for the rendition,
torture and interrogation of Mr. al Hawsawi from early 2003 to late 2006 – a key aspect of this
case.7
When pressed during voir dire concerning his access to CIA facilities while he was with
the National Security Division, Colonel Parrella was evasive and refused to answer counsel’s
questions.8 Colonel Parrella also admitted on the record that he has a continuing duty of loyalty
and confidentiality arising from his former work with the National Security Division, including
his association with the CIA.9 While he minimized this admission and fact in his ruling denying
Petitioner’s motion to recuse, the fact remains that he has on-going obligations to these agencies.
Additionally, Colonel Parrella does not rule out the Department of Justice or the FBI in his future
job searches.10
Colonel Parrella’s answers during voir dire underscore the reasons for concerns about the
appearance and reality of bias. His conspicuous evasiveness regarding his access to the CIA
while he was working there on litigation for the NSD presents one concern; his inability to
answer logical questions about how he felt on 9/11,11 strains credibility. Moreover, one of
Colonel Parrella’s first orders of business as a judge in the military commission has accentuated

5

App. 94-95 (1445 - 1446).
App. 91-93 (AE 292H).
7
See Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and
Interrogation Program (Dec. 9, 2014) (hereinafter “SSCI Executive Summary.”).
8
App. 86-89 (Transcript, 20563 – 20566).
9
App. 87 (Transcript, 20564).
10
App. 100-101 (Transcript at 20545 - 20546); App. 7 (AE 595O, at 4): App. 28 (AE 595I (MAH), at 15).
11
App. 100-101 (Transcript, 20558 - 20563).
6

A8

 the already prevalent appearance of bias, as he has sua sponte conducted an ex parte session with
the prosecution in which he specifically asked the prosecution to provide him with an
unchallenged, private recitation of critical facts surrounding the history of classified litigation in
this case;12 contrary to his assertion, Judge Parrella did, in fact, issue an order to vastly expand
the ex parte proceeding initially planned.13
From Colonel Parrella’s prior work in the same prosecution office, to his teaming up
socially with a long-standing prosecutor, to his on-going duties of loyalty and confidentiality to
the FBI -- the appearance of bias cannot be cleansed here. These facts, individually or taken
together, create an irreparable and unacceptable appearance of bias, particularly in these military
commissions that are especially sensitive to public scrutiny of how justice will be done with
respect to a seminal event that impacted the entire nation. The Guantanamo military commissions
are observed by non-governmental organizations, victim family members and the press, who
travel to the remote location; the proceedings are also broadcast by closed-circuit television to
three locations in the United States, where members of the public and press can watch live. It is
not an overstatement to say that these military commissions, created for the purpose of
adjudicating the crime of the century, will be studied in perpetuity and the quality of justice
delivered will stand as either a testament to long-cherished principles of justice, or as an indelible
stain to be regretted forever. Furthermore, because this is a capital case in which the prosecution
aims to kill Mr. al Hawsawi, the Supreme Court unequivocally mandates heightened scrutiny and
reliability; a case rife with the appearance of bias will not withstand such scrutiny nor deliver the

12

App. 64-64 (AE 542Q (Amended Order).
The Government sought an ex parte proceeding for purposes of having the Commission review potential
summaries of classified information to be turned over to the Defense. Colonel Parrella’s Order (AE 542Q), however,
instructed the Prosecution to give him an expanded, ex parte presentation about the history of classified litigation in
the case.

13

A9

 necessary reliability.14
Recusal is necessary because the circumstances are such that Colonel Parrella’s
impartiality is reasonably in question – the facts fully meet the standard for recusal. Colonel
Parrella’s personal assessment and assertions of impartiality cannot cure the indelible appearance
of bias. The law provides that the rules for recusal must be broadly construed as they are
intended to promote public confidence in the integrity of the military judicial process. Given this
mandate in the law and the facts present here, Colonel Parrella must be recused from
adjudicating this case to protect Due Process and assure the heightened standards constitutionally
required of a capital prosecution.15
Statement of Facts
In the Military Commission, Mr. al Hawsawi moved for Military Judge, Colonel Keith
Parrella, to recuse himself based on the appearance of bias.16 On November 19, 2018, Colonel
Parrella denied Mr. al Hawsawi’s motion.17
The facts and background leading to the present writ are largely undisputed.18 Colonel
Keith Parrella, USMC, was detailed as a judge to the Military Commission case of United States
v. Khalid Sheikh Mohammad, et al., on August 27, 2018. He took over following more than six
years of pretrial litigation; Colonel James Pohl, USA, had presided as the military judge from
arraignment, in May 2012.
Colonel Parrella’s biography reveals that:
In July 2014, Lieutenant Colonel Parrella was selected for the
Commandant of the Marine Corps’ (CMC) Fellowship program in
fulfillment of his top-level school requirement. As a CMC Fellow,
14

See Woodson v. North Carolina, 428 U.S. 280, 305 (1976); U.S. Const. Amend. VIII.
Id.; U.S. Const. Amend V.
16
App. 14-62 (AE 595I (MAH)); App. 65-73 (AE 595K (MAH)).
17
App. 4-13 (AE 595O).
18
App. 5 (AE 595O, at 2, where Colonel Parrella sets out the facts he adopts in his ruling.)
15

A10

 Lieutenant Colonel Parrella worked in the Department of Justice’s
(DOJ) National Security Division as a Counterterrorism Prosecutor
and with the Office for Overseas Prosecutorial Development
Assistance and Training (OPDAT) within DOJ’s Criminal
Division.19
Notably, during the application process for placement in this fellowship, then-Lieutenant Colonel
Keith Parrella specifically listed the Department of Justice as one of his preferences for
assignment.20
The National Security Division is a product of post-9/11 congressional action. The
Congress mandated the creation of the Department of Justice’s National Security Division (NSD)
in 2006, with passage of a reauthorization of the PATRIOT Act.21 Per its own mission statement,
the focus of the NSD Counterterrorism Section is on:
[…] the design, implementation, and support of law enforcement
efforts, legislative initiatives, policies and strategies relating to
combating international and domestic terrorism. The Section seeks
to assist, through investigation and prosecution, in preventing and
disrupting acts of terrorism anywhere in the world that impact on
significant United States interests and persons. The Section's
responsibilities include:
i.

investigating and prosecuting domestic and international
terrorism cases;

ii.

investigating and prosecuting terrorist financing matters,
including material support cases;

iii.

participating in the systematic collection and analysis of
data and information relating to the investigation and
prosecution of terrorism cases;

iv.

[. . .]
investigating and prosecuting matters involving torture,
genocide and war crimes that are linked to terrorist groups
and individuals;
[. . .]

19

App. (AE 001B).
App. 74 (Transcript, 20544).
21
See USA PATRIOT Reauthorization and Improvement Act, Pub. L. No. 109-177, § 507A, 120 Stat. 192 (2006).
20

A11

 v.

assisting the Anti-Terrorism Task Force Coordinators in the
U.S. Attorney's Offices through the Regional Coordinator
system by facilitating information sharing between and
among prosecutors nationwide on terrorism matters, cases
and threat information;
[. . .]
vi.
sharing information and trouble-shooting issues with
international prosecutors, agents and investigating
magistrates to assist in addressing international threat
information and litigation initiatives; and
vii.

providing legal advice to federal prosecutors concerning
numerous federal statutes.22

Since at least the beginning of the prosecution of this case in April 2012, when charges
were referred, the NSD’s Counter Terrorism Section has been inextricably involved with the
prosecution of Mr. al Hawsawi. The NSD has been and continues to be represented by a number
of prosecutors on this case.23 Although Colonel Parrella asserts as the only relevant fact that he
did not work directly on the prosecution of the case against Mr. al Hawsawi, the reality remains
that when he was working with the NSD’s Counter Terrorism Section and collaborating with the
FBI and Central Intelligence Agency (CIA) in that work -- as he acknowledges having done in
his own ruling24 -- while the NSD was prosecuting this case.
It is well established on the record that, along with the NSD, the FBI, the National
Security Agency (NSA) and the CIA are heavily implicated in the prosecution of this case. The

22

DOJ, National Security Division, About the Office, available at: https://www.justice.gov/legal-careers/job/lawstudent-volunteer-springsummerfall-counterterrorism-section; see also, Remarks of Assistant Attorney General John
P. Carlin, 10-year Anniversary Conference of the National Security Division, Sept. 14, 2016, available at:
https://www.justice.gov/opa/speech/assistant-attorney-general-john-p-carlin-delivers-opening-remarks-nationalsecurity.
23
App. 85 (AE 003D) (indicating that DOJ prosecutors Mr. Edward Ryan, Joanna Baltes, Jeffrey Groharing, and
Clayton Trivett were detailed to this case, with at least three of these specifically assigned to the NSD CounterTerrorism Section); see also, AE 003D, Trial Counsel Detailing Memorandum, dated 28 April 2014 (detailing a LT
Kiersten Korczynski to this case). While then-Lieutenant Colonel Parrella was at the NSD Counter Terrorism
section, Ms. Korczynski went from prosecuting the present case as military attorney, to becoming a civilian
prosecutor with NSD, working this case. See United States v. Mohammad et al., Transcript, at 20567 (10 Sept.
2018).
24
App. 5 (AE 595O, at 2); App. 20 (AE 595I (MAH), at 7).

A12

 FBI’s improper embroilment with this case has included its well-documented recruitment of an
informant, inside one of Mr. al Hawsawi’s co-accused’s legal team, who systematically informed
on the activities of the 9-11 defense teams and siphoned attorney-client privileged information to
the FBI.25 Investigation regarding this infiltration of the defense took place specifically when
Colonel Parrella was at NSD. Similarly, the CIA was implicated in the unauthorized monitoring
and censoring of Military Commission hearings when, in January 2013, the CIA unilaterally cut
the live feed to civilian observers of this case, including the media, victim family members and
non-governmental organizations; the military judge, who had till then been kept unaware of the
CIA’s control of the courtroom, admonished this misconduct publicly on the record.26
Colonel Parrella “seamlessly integrated as a counterterrorism prosecutor,” according to
his military “Fitness Report” from his time at NSD. 27 The report also lists his primary duties,

25

See AE 292, series, arising from an Emergency Joint Defense Motion to Abate Proceedings and Inquire into
Existence of Conflict of Interest Burdening Counsel’s Representation of Accused, filed 13 Apr. 2014, available at
www.mc.mil; App. 14 (AE 292H) (ordering the appointment of a Special Review Team upon finding that a member
of a defense team was interrogated by the FBI and required to sign a non-disclosure agreement regarding his passing
information to the FBI about the defense team.)
26
App. 94-95 (Transcript 1445 – 1446) (emphasis added):
[Due to the security button being pushed, chief security
advisor and attorney advisor conferred with the military
judge.]
Military Judge [COL POHL]: Trial counsel, note for the
record that the 40-second delay was initiated, not by me. I’m
curious as to why. What Mr. Nevin said is, if we need to go
into – I got the issue. What Mr. Nevin said is simply on the
caption of his motion that is unclassified. If you don’t feel we
can discuss this now, let me know, but I’m just trying to figure
out.
Trial Counsel [MS. BALTES of the National Security
Division Counter Terrorism Section]: We can address it in
505(h).
MJ [COL POHL]: I want to address this too because I want -if some external body is turning the commission off under their
own view of what things ought to be, with no reasonable
explanation because I, there is no classification on it, then we
are going to have a little meeting about who turns that light on
or off.
TC [MS. BALTES]: I understand and I can provide additional
explanation at the 505(h) hearing.
27
App. 96-97 (AE 595B).

A13

 which included “work with partners in the intelligence community including FBI, CIA, NSA,
and DOD.” An evaluation letter from the civilian NSD official for whom Colonel Parrella
worked at NSD reports that he “provided guidance in highly sensitive FBI operations, and
drafted legal memoranda and recommendations for the Assistant Attorney General that assessed
the prosecutorial merit of terrorism cases.” The same letter further details that he “prepared
memoranda on topics of current relevance to counterterrorism prosecutors, which were widely
distributed and read with the CTS [the Counter Terrorism Section].”28
With regard to his access to the CIA during his time at NSD, Colonel Parrella was
evasive in the face of counsel’s voir dire questions. While Judge Parrella, in ruling on
Petitioner’s motion to recuse him, disputed this point,29 the transcript demonstrates that he
refused to answer counsel’s voir dire questions, after he had acknowledged carrying out a
document review at the CIA:
Learned Defense Counsel (LDC) [MR. RUIZ]: Okay. The -- a little
bit more about your document review. I think you indicated you
conducted a document review at a CIA facility or a warehouse?
MJ [Col PARRELLA]: Correct.
LDC [MR. RUIZ]: Can you tell us a little bit more about that?
MJ [Col PARRELLA]: No.
LDC [MR. RUIZ]: Is that because you don’t want to or you just
don’t remember or you’ve got a duty to protect that information?
MJ [Col PARRELLA]: I don’t remember. I don’t remember which
case it was. And yeah, I honestly don't know that I could give you
much details, and to the extent I might be able to, they are
probably classified.
LDC [MR. RUIZ]: I understand. So as you sit here as a member -as a judge on this case, you do still have an obligation to protect
28
29

Id.
App. 6 (AE 595O, at 3).

A14

 classified information that may have come from the CIA?
MJ [Col PARRELLA]: Yes. I mean, as far as I know, that
obligation hasn’t ended.
LDC [MR. RUIZ]: And the obligation would also extend to any
privileged communications, work product that you worked on
during your time with the Federal Bureau of Investigation? You
still have a duty of loyalty and confidentiality to that organization,
correct?
MJ [Col PARRELLA]: Yes.
LDC [MR. RUIZ]: In terms of the -- I understand you don’t
remember much about the CIA facility. Do you remember if you
had to be escorted or if you had the opportunity to enter that
facility say, for instance, with your own swipe card or if there were
particular procedures ---MTC [MR. TRIVETT]: Objection, relevance.
MJ [Col PARRELLA]: Sustained. Let’s move on, Mr. Ruiz.
LDC [MR. RUIZ]: Judge, this goes to a challenge based on your
alignment with a party to this litigation. The CIA’s involvement in
this case is extensive and well documented. To the extent that you
were embedded with the Department of Justice and had ease of
access to CIA facilities, it’s directly relevant to the questions that
I’m asking. I don’t see how that couldn’t be more relevant.
MJ [Col PARRELLA]: Because I’ve answered the question
several times now about my relationship with any of those
agencies, the extent that I had any involvement with those
agencies, what that involvement was, and all of what I did or
didn’t do while I was at the Department of Justice.
LDC [MR. RUIZ]: Well, the question was: Did you have
access to their facility without an escort? Could you come
and go as you pleased?
MJ [Col PARRELLA]: But that’s -- I don’t see that as
relevant, so we’re going to move on. I’ve described my
relationship with that agency, what it was and what it wasn’t.
So whether I had access to the facility unescorted or escorted
I don’t see as relevant.30
30

Transcript, at 20563 – 65.

A15

 Colonel Parrella is retirement eligible from the U.S. Marine Corps and, according to his
voir dire responses and by his own recognition in his ruling,31 he has not determined whether,
upon leaving the Marine Corps, he would seek employment with the Department of Justice,
including the Federal Bureau of Investigation, or the National Security Agency.32 Also during
voir dire, Colonel Parrella admitted knowing and/or having worked at NSD when several current
and a former prosecutor appearing in this case were working there as well.33 His contacts with a
NSD prosecutor on this case are long-standing. In 2007 and 2008, then-Major Jeff Groharing and
then Lieutenant-colonel Parrella, fellow Marine attorneys, joined a four-member team of Marines
which Lieutenant-colonel Parrella organized to compete in a two-day athletic endurance event.34
Both years, with judge Parrella as team captain, he competed alongside Mr. Groharing35 on the
Dale Milton racing team in this Wilderness Challenge, a race the military’s Morale, Welfare and
Recreation office holds in West Virginia for active duty military members. Colonel Parrella has
publicly emphasized the team-building value of this race: “What we do day-to-day is a lot about
teamwork and this [Wilderness Challenge] is all about teamwork…That’s what we do every day
in real life. You’ve got to work as a team.”36 In voir dire, Colonel Parrella acknowledged the
camaraderie and teamwork that existed with Mr. Groharing and his team.37 Notably also in 2008,
while he was still an active duty Marine and while he was on Colonel Parrella’s team, Major

31

App. 8 (AE 595O, at 4); App. 28 (AE 595I (MAH), at 15).
Transcript, at 20545–46.
33
Transcript, at 20455–57; 20502–10; 20566–67.
34
App. 107 (Transcript, 20506).
35
Mr. Groharing is now a civilian attorney on this case; he continues to serve in the Marine Reserves, notably as
Military Judge.
36
App. 112-113 (“Camp Lejune [sic] Marines Win 2009 All-Military Wilderness Challenge,” Navy News Services,
Oct. 20, 2009, available at https://www.navy.mil/submit/display.asp?story_id=48961).
37
App. 110 (Transcript, 20509).
32

A16

 Groharing – who now is one of the lead prosecutors litigating this case -- was a military
prosecutor detailed to the first round prosecution of this case.
Colonel Parrella’s voir dire answers about the 9/11 attacks were evasive. At the time of
the attacks on 11 September 2001, he was on active duty in the U.S. Marine Corps. He claimed,
in answer to a question about his reaction after 9/11, that it was difficult for him to remember his
exact emotions. He said “I probably felt similar [sic] to what everybody else felt in the country,”
and “I don’t have a specific recollection.” 38 When pressed further on this issue, he said “I think
the feeling is – of the country, if you want me to try to ascribe, you know, what that was, I think
it was probably anger and just shock.”39
The involvement of the NSD, CIA and FBI in this case makes Colonel Parrella’s work
with the NSD Counter Terrorism Section especially noteworthy, and absolutely disqualifying.
The Counter Terrorism Section, along with the FBI, the NSA and the CIA, are steeped in the
process of reviewing information and determining what discovery in this case, including
classified discovery, falls within the Government’s obligation to turn over to the defense. Under
the Rules for Military Commissions, NSD attorneys appear before the military judge, outside the
presence of any defense counsel (i.e., ex parte), to determine what discovery will be produced to
the defense.40 Thus, Colonel Parrella’s undue familiarity with the prosecution must be examined
with the context of the litigation in this specific case in mind. The volumes of information
associated with this case and which the government deems classified means that the prosecution
makes regular and extensive use of the ex parte process, under Military Commission Rule of
Evidence 505, for evaluating classified information that may be provided to the defense in

38

App. 114-115 (Transcript, 20468 – 69).
Id.
40
See R.M.C. 505.
39

A17

 discovery. To-date, there have been 116 notices of ex parte proceedings since the beginning of
the case.41 Because the defense is not permitted to be at these proceedings, the law puts the judge
in the shoes of the defense to look out for defense theories, defense interests, in the discovery
process.42 In the context of this procedural requirement, Colonel Parrella’s voir dire answers
about his on-going obligation to the FBI are particularly disconcerting. During voir dire about
whether he had access to information classified by the CIA, and whether he had signed nondisclosure agreements while working at NSD, Colonel Parrella acknowledged that he has an ongoing “duty of loyalty and confidentiality” to the FBI.43 He further admitted he has a continuing
duty to protect privileged and attorney-work product information he learned during his tenure at
the NSD.44
Although his history with the NSD, CIA and FBI are of sufficient concern to present
grounds for recusal, Colonel Parrella has also now made a ruling that demonstrates the practical
realities of the due process challenge raised in this petition, respecting the appearance of
impartiality. Colonel Parrella sua sponte ordered and conducted, over defense objections, an
expanded ex parte hearing regarding all prior ex parte sessions that already occurred before this
Commission.45 Specifically, Judge Parrella asked for an ex parte session so the prosecution
would give him a personal presentation. His order instructed that “[t]he presentation will include,
but shall not be limited to, the following topics:

41

App 234-236.
United States v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012).
43
App. 87 (Transcript, 20564).
44
Id.
45
In his ruling refusing to recuse himself, AE 595O, Colonel Parrella disputes the sua sponte nature of his order for
an expanded ex parte M.C.R.E. 505 hearing; his reasoning ignores the fact that he asked the government to answer
the above-listed broad line questions on an ex parte basis. But for his sua sponte order, the ex parte hearing would
have been about a discrete area of discovery and review of a discrete set of Government proposed summaries, in
conformance with the Rule, and as the prosecution initially requested. See AE 542K (Gov Amend), Unclassified
Notice of Ex Parte, In Camera Under Seal Classified Filing (25 Sep 2018) (the underlying ex parte filing is not
available to the Defense); AE 542Q, Order for Ex Parte Presentation (9 Oct 2018).
42

A18

 a. The general history and procedural posture of all Government
filings requesting summaries, substitutions, or other relief from
the Commission pursuant to M.C.R.E. 505;
b. The substance of all declarations of knowledgeable United
States officials possessing authority to classify information that
have been filed with the Commission; and
c. All systems or schemes used by the Government for the
protection of classified places or people used in M.C.R.E. 505
filings. 46
Under the factual circumstances laid out above, Colonel Parrella’s reaching out to and
relying on the prosecution for a private session about classified discovery litigation history in this
case, raises yet more due process problems.
Statement of Jurisdiction
Under the All Writs Act, this Court “may issue all writs necessary or appropriate in aid of
[its] … jurisdiction.”47 In conjunction with the All Writs Act, the Military Commissions Act,
gives this Court jurisdiction over a final judgement rendered by a military commission.48

REASONS FOR GRANTING THE WRIT
LAW AND ARGUMENT IN SUPPORT OF MR. AL HAWSAWI’S
PETITION FOR WRIT OF MANDAMUS
A. Due Process Protects Against Even the Appearance of Bias from a Judge.
For an entire year, Colonel Parrella worked with the very division that is materially
supporting the prosecution of this case, the National Security Division. And, during that very

46

App. (AE 542Q (Amended Order)), M.C.R.E. 505(f)(2)(B). In the face of defense objections to this sweeping
order for an ex parte hearing, Colonel Parrella amended his order to take out the phrase “shall not be limited to,”
from the prefatory language, leaving the remaining broad language above.
47
28 U.S.C. § 1651(a) (“The Supreme Court and all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”).
48
See 10 U.S.C. § 950g(a); see also, In re al Nashiri, 791 F.3d at 75 (finding the MCA gives this Court the
independent grant of jurisdiction necessary to consider a Petition for a Writ of Mandamus).

A19

 same year, prosecutors past and present on this case who work in that division were prosecuting
Mr. al Hawsawi and his co-accused. Even as he sits on the bench below now, he retains duties of
confidentiality with respect to the agencies he worked for during that time, duties which can
conflict with his obligations as a judge. Moreover, Colonel Parrella is personally familiar, and is
closely acquainted through shared experience, with at least one of the long-standing NSD
prosecutors on this case. During the same time he was at NSD -- which was barely more than
three years ago -- Colonel Parrella also worked along-side agencies, notably the FBI and CIA,
which have actively interfered with the prosecution of this case; investigation regarding aspects
of these infiltrations was conducted specifically when Colonel Parrella was with the NSD.
“[T]he promotion of public confidence in the integrity of the judicial process is an
important public policy,”49 and “[t]he Military Commission process by any measure is a unique
circumstance meriting heightened consideration of the public confidence.”50 Judge O’Toole sofound in recusing himself before this Court, even when actual bias and the appearance of bias
were not directly in question as to him. In that case, United States v. al Bahlul, appellant
challenged Judge O’Toole because he was no longer a judge on the Navy-Marine Corps Court of
Criminal Appeals, a status that appellant argued was a requirement to be a judge in the Court.51
Without conceding appellant’s argument, Judge O’Toole recognized and focused his ground for
self-recusal on the importance of preserving the validity of the system and public trust. He
reasoned that “the greater context of the Military Commission process” must be considered.”52

49

United States v. al Bahlul, 807 F. Supp. 2d 1115, 1122 (C.M.C.R. 2011), vacated on other grounds in United
States v. al Bahlul, 840 F.3d 757 (D.C. Cir 2016) (en banc), citing Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 860 (1988).
50
Bahlul, 807 F.Supp. 2d at 1123.
51
Id. at 1118-19 (C.M.C.R. 2011), vacated on other grounds in United States v. al Bahlul, 840 F.3d 757 (D.C. Cir
2016) (en banc).
52
Bahlul, 807 F. Supp. 2d at 1123.

A20

 At the fundamental outset, it is undeniable that a defendant has a constitutional right to an
impartial judge.53 But actual lack of impartiality is not the sole question. The U.S. Supreme
Court holds that “due process is denied by circumstances that create the likelihood or the
appearance of bias.”54 In remanding a capital case due to a Pennsylvania Supreme Court judge’s
failure to recuse himself, the U.S. Supreme Court recently admonished:
An insistence on the appearance of neutrality is not some artificial
attempt to mask imperfection in the judicial process, but rather an
essential means of ensuring the reality of a fair adjudication. Both
the appearance and reality of impartial justice are necessary to the
public legitimacy of judicial pronouncements and thus to the rule
of law itself.55
The insistence on the appearance and reality of impartial justice must be unwavering,
especially here, where the quality of justice will be measured in large part by the manner in
which it is delivered. Federal courts emphasize that the question to ask in determining when a
judge should be recused is not whether the judge was specifically involved in the litigation at
issue; rather, as the Supreme Court has held, the focus is “whether the relationship between the
judge and an interested party was such as to present a risk that the judge’s impartiality in the case
at bar might reasonably be questioned by the public.”56 Claims of judicial bias must be assessed
not only individually, but in the aggregate.57 “In considering whether this standard is met, the
Court must consider the totality of the circumstances and cannot pick apart the alleged basis for
recusal.” 58 Here, this standard applies with greater force because of the capital context of this

53

Ward v. Village of Monroeville, 409 U.S. 57 (1972).
Peters v. Kiff, 407 U.S. 493, 502 (1972).
55
Williams v. Pennsylvania, __U.S. __, 136 S.Ct. 1899, 1909 (2016).
56
Liljeberg, 486 U.S. at 858–62; see also, United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015); Philip
Morris USA, Inc. v. United States FDA, 156 F. Supp. 3d 36 (D.D.C. 2016).
57
See United States v. Laureano-Perez, 797 F.3d 45, 74 (1st Cir. 2015) (holding that claims of judicial bias must be
considered individually, and in the aggregate as well.).
58
In re Marshall, 403 B.R. 668 (C.D. Cal. 2009) (citing United States v. Bremers, 195 F.3d 211, 227, note 2 (5th Cir.
1999) (applying a totality of the circumstances test to recuse a trial judge in a criminal case), United States v. Furst,
886 F.2d 558, 583 (3rd Cir. 1989) (same)).
54

A21

 case, where the Eighth Amendment requires heightened need for reliability in the process as a
whole.59
The precedents from the highest military court, the Court of Appeals of the Armed Forces
(CAAF), are clear about the perniciousness of the appearance of bias, as that court holds that
“‘what matters is not the reality of bias or prejudice but its appearance.’”60 The CAAF instructs
that “recusal based on the appearance of bias is intended to ‘promote public confidence in the
integrity of the judicial process.’”61 The policy reason behind this broad recusal standard is that
the military justice system is particularly susceptible to outside interference, and the “military
judges serve as the independent check on the integrity of the court-martial process. The validity
of this system depends on the impartiality of military judges in fact and in appearance.”62
The American Bar Association’s (ABA) Model Code of Judicial Conduct offers further
direction regarding the recusal obligation of a military judge. And, of note here where the judge
is a military judge, the ABA Code of Judicial Conduct is adopted in the Rules of Professional
Conduct for military attorneys, and is relied on by military courts.63 It requires that:
A judge shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to the following circumstances:
[…]

59

See Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (finding that “the penalty of death is qualitatively
different from a sentence of imprisonment.”). Subsequent capital cases before the Supreme Court have recognized
this heightened standard in adjudicating questions about Sixth Amendment rights, and Due Process. See Estelle v.
Smith, 451 U.S. 430 (1981); Caldwell v. Mississippi, 471 U.S. 320 (1985).
60
Hasan v. Gross, 71 M.J. 416, 419 (C.A.A.F. 2012), quoting Liteky v. United States, 510 U.S. 540, 548 (1994).
61
Id. at 418, quoting Liljeberg, 486 U.S. at 858, n.7.
62
Id. at 418–19.
63
See United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001) (citing ABA Code of Judicial Conduct Canon 3
(2000), which mandates a judge “shall perform the duties of judicial office impartially…”); Dept. of the Navy JAG
Instruction 5803.1E (2015), para. 7 (“7. Judicial Conduct. To the extent that it does not conflict with statutes,
regulations, or these Rules, the American Bar Association Model Code of Judicial Conduct (Code of Judicial
Conduct) (reference (k)) applies to all military and appellate judges and to all other covered USG attorneys
performing judicial functions under the JAG’s supervision within the DON [Department of the Navy].”); cf. R.M.C.
109(a) (making the Judge Advocate of each military service responsible for the professional supervision and conduct
of military judges in Military Commissions).

A22

 (6) The judge: (a) served as a lawyer in the matter in controversy,
or was associated with a lawyer who participated substantially as
a lawyer in the matter during such association.64
The commentary to this Rule further specifies that ‘a judge is disqualified whenever the judge’s
impartiality might reasonably be questioned, regardless of whether any of the specific provisions
[outlining bases for disqualification] apply.”65 Colonel Parrella acknowledged during voir dire
that the ABA Code of Judicial Conduct applies to him, since it forms the basis for the ethical
rules applicable to attorneys with the Department of the Navy.66
In the Military Commission system, Congress itself declared that protecting against the
appearance of bias is central, when Congress included safeguards against the same in the
Military Commissions Act (MCA). The MCA of 2009 codifies the importance of avoiding bias
and the appearance of bias, instructing that “a military judge shall disqualify himself or herself in
any proceeding in which that military judge’s impartiality might reasonably be questioned.”67
Again, this statutory language shows what the Supreme Court already said: that appearance
matters in the drive to achieve justice, and that a demonstration of actual bias is not necessary for
there to be a violation. 68 Furthermore, “the greater context of the Military Commission process”
matters, as Judge O’Toole ruled in this Court, and it constitutes “by any measure […] a unique
circumstance meriting heightened consideration of the public confidence.”69
Ultimately, it is this Court’s very own precedent which demonstrates how to properly
apply the rules to protect the integrity of Military Commissions proceedings. The al Bahlul
decision highlights the importance of avoiding provoking further questions about the legitimacy

64

App. 148 151 (ABA Model Code of Judicial Conduct, Rule 2.11 (Disqualification), para. (A)(6)(emphasis added).
Id.
66
App. 152 (Transcript, 20484), wherein Colonel Parrella refers to Navy JAG Instruction 5803.1E.
67
R.M.C. 902(a) (emphasis added).
68
Williams, 136 S.Ct. at 1909.
69
Id. at 1123.
65

A23

 of the system. In recusing himself even where actual bias and the appearance of bias were not
directly at issue, Judge O’Toole rightly concluded:
I will not permit the distraction of a collateral issue related to the
legitimacy of one judge, and by extension, the legitimacy of the
USCMCR, to intrude into the time and resources of this Court. I
am equally unwilling to contribute to anything less than full public
confidence in the integrity of the military commission process, and
the legitimacy of this Court as it renders its first substantive
rulings.70
The issue here, however, is not collateral; it is of direct impact, and Judge O’Toole’s
rationale has greater importance where the case serves as a crucible for the legitimacy of the
commission system, and the death penalty hangs in the balance. Moreover, the heightened
scrutiny owed in a capital case is a vital component of the analysis necessary here to protect Due
Process.71
B. Col. Parrella’s Role as a Prosecutor with the NSD, and his Familiarity with a
Current Case Prosecutor, Create at least the Appearance of Bias, Such that
Recusal Is Necessary to Protect Due Process.
The likelihood of bias, or at least the appearance of bias, is indelible here because
Colonel Parrella worked with the same office that has been materially supporting the prosecution
of Mr. al Hawsawi throughout the pendency of these proceedings. That office was prosecuting
Mr. al Hawsawi and his co-accused at the time Colonel Parrella was there; Colonel Parrella
participated in repeated social activities with one of the current prosecutors,72 who was
prosecuting this very case at the time;73 Colonel Parrella worked hand-in-hand with the FBI and
the CIA, and has acknowledged a continuing duty of loyalty and confidentiality;74 he was

70

Id.
See Woodson, 428 U.S. at 305; Caldwell, 471 U.S. 320.
72
App. 107-109 (Transcript, 20506-20509).
73
App. 84 (AE 003).
74
App. 87 (Transcript, 20564).
71

A24

 evasive in answering questions regarding his access to CIA facilities;75 and, he was unbelievably
forgetful and reluctant, in regards to questions about his feelings at the time of the 9/11 events.76
These circumstances alone violate Due Process and eviscerate the appearance of fairness
required by law.77 Colonel Parrella, who worked in the same office as prosecutors on this case,
now erroneously believes he can preside, and project the appearance of fairness and impartiality
which the law demands. However, affirmations that he had no direct involvement with this
prosecution while at NSD, and boilerplate assertions of impartiality, cannot cure the indelible
appearance of bias that arises from his relationship to the prosecution and to the NSD.
The National Security Division is an interested party here, as the entity that has been
materially supporting the prosecution of Mr. al Hawsawi and his co-accused since at least 2012.
The NSD counts two present court-room prosecutors on this case,78 and two former prosecutors,
all of whom were with the NSD when Colonel Parrella was there. As the transcripts in this case
prove, these prosecutors have been directly aware and involved in extrajudicial control of the
courtroom; one of them took charge and later briefed the judge, after the live-feed was cut by
outside government parties who acted without the judge’s knowledge or oversight.79
Furthermore, Colonel Parrella’s own biography and evaluation underscore that the NSD
performs its functions alongside the FBI and other agencies, including the CIA. His U.S. Marine
Corps evaluation demonstrates that he played an integral role in supporting the NSD mission,

75

App. 86-65 (Transcript 20563-65).

77

See Laureano-Perez, 797 F.3d at 74(claims of judicial bias must be considered individually, and in the aggregate
as well.); Bremers, 195 F.3d at 227, note 2 (applying a totality of the circumstances test to recuse a trial judge in a
criminal case), Furst, 886 F.2d at 583 (same).
78
The Defense is aware that government prosecutors not appearing in court also work on this case; the Defense is
not apprised, however, of the specific additional number of NSD prosecutors who fit in that category.
79
App. 94-97 (Transcript, 1445-46) (where a prosecutor with the NSD Counter Terrorism Section demonstrated on
the record in this case her awareness that third parties were able to control the live-feed to the courtroom,
unbeknownst to the judge himself); see also, Classified Addendum.

A25

 “seamlessly integrat[ing] himself as a full-fledged counterterrorism prosecutor”80 and working
specifically with the FBI and CIA.81 He had the requisite clearances to come and go from the
headquarters of that office.82 He worked “hand in hand” with prosecutors on the cases to which
he was assigned.83 During that same time period, the same office was supporting the capital
prosecution of Mr. al Hawsawi and the co-accused. Now, attorneys from that office, who worked
for that office when Colonel Parrella was there and were prosecuting this case at that same time,
are appearing before him as they continue to prosecute this case. The claim that there were in
essence two separate prosecutor’s offices is not in congruence with the facts as they appear to be.
That is, on information and belief, Mr. Groharing, Ms. Baltes and Ms. Korczynski have actively
prosecuted both NSD terrorism cases and the Military Commission prosecution on-going below;
the prosecution itself acknowledged the free flow of counsel between NSD and the Commission
prosecution team, during voir dire.84 Petitioner’s defense team is unaware of the prior or current
existence of any Memoranda of Agreement that would delineate the bright line demarcation that
Judge Parrella seeks to advance. Ultimately, these prosecutors are in the best position to affirm
or deny to this Court the breadth and extent of their involvement in NSD and Military
Commissions prosecutions.85
In a very recent state capital case, the Florida Supreme Court remanded for review of
claims challenging a judge’s failure to recuse herself.86 The judge was to review petitioner
Reed’s post-conviction claims, although she had been a capital prosecutor in the office that

80

App. 96-97 (AE 595B)
See Attachment C.
82
App. 153 (Transcript, 20557).
83
App. 153-154 (Transcript, 20557–58).
84
App. 88-89 (Transcript, 20566 -20567); App. 85 (AE 003D).
85
See App. 6 (AE 595O, at 3).
86
Reed v. Florida, Case No. SC17-896 (Fla. Sup. Ct., Nov. 15, 2018) (per curiam).
81

A26

 prosecuted Reed, at the same time his case was on post-conviction review.87 On that basis, Reed
moved to recuse the judge from considering his claims. Although the judge had not actually
prosecuted the case herself, the Florida Supreme Court found that Reed’s post-conviction
litigation had taken place during a time when the judge was a prosecutor in the same capital
prosecution office that was opposing him, and she was “working with the attorneys who
prosecuted petitioner and represented the State in collateral proceedings.”88 Even though the
judge herself was not assigned as a prosecutor on Reed’s case, the Florida Supreme Court
ordered her recused, finding that the judge “was actively prosecuting capital cases during the
period when Reed’s prosecution was ongoing.”89 The court took into account “the unique aspects
of death penalty cases,” in deciding that the case must be assigned to a new judge.90 The parallels
between this Florida case and Judge Parrella’s former role as a “seamlessly integrated”
prosecutor with the National Security Division – a division that focuses on the prosecution of
international terrorism cases – are unmistakable. Colonel Parrella was actively prosecuting
terrorism cases for the NSD, while NSD prosecutors were pursuing the present capital cases
against Mr. al Hawsawi. Given this relationship, and the well-recognized, unique demands of
death penalty prosecutions, Judge Parrella’s recusal is required.
There is even more, however, than Judge Parrella’s tenure at NSD to consider. Judge
Parrella also has a personal connection with a long-standing prosecutor on this case, Mr.
Groharing. That prosecutor has been associated with the prosecution, first as a Marine lawyer
like Colonel Parrella himself,91 and then (since at least 2012 when the present charges were

87

Id. at 2.
Id. at 3.
89
Id. at 6.
90
Id.
91
See Att. D, Memorandum dated 16 May 2008, Office of the Chief Prosecutor, detailing Maj. Jeffrey D. Groharing,
USMC (United States v. Mohammed, et al., AE 14).
88

A27

 referred), as a NSD Counter Terrorism Division prosecutor. The two have known each other as
Marine lawyers,92 in social settings,93 and participated together for two consecutive years on a
four-person Marine team racing a military endurance challenge.94 This competition was
specifically designed to engender a bond of camaraderie and teamwork, forged through the
crucible of shared experience in competition. A fact reflected in the event’s billing as presenting
“no better way to build camaraderie and teamwork than [enduring] a collective physical and
psychological beating.”95 Colonel Parrella acknowledged the teamwork and camaraderie these
events developed.96 On information and belief,97 Mr. Groharing is the prosecutor on this case
chiefly charged with interfacing with the various agencies (particularly the NSA and CIA) and
the military judge in ex parte proceedings under M.C.R.E. 505 process.98
Federal courts’ application of the ABA Canon of Judicial Conduct is instructive here.99
In Preston v. United States, the court reversed a verdict when a judge failed to recuse himself
under circumstances where the association with his prior law firm was less clear than Colonel
Parrella’s association here, with the NSD.100 There, the judge had been of counsel at a firm
representing a company that was not even a party to the wrongful death case before the judge.
The company was potentially responsible for indemnifying the government, which was a party to

92

App. 100-101; 103-111; 88-89 (Transcript, at 20455–57; 20502–10; 20566–67).
App. 107-111 (Transcript 20506 - 20509).
94
Id.
95
Watkins, J., “The Call of the Wild,” Military Times, Oct. 20, 2008.
96
See Facts Section, paragraph g., citing Transcript, at 20506.
97
The defense is aware, from observation in court, that Mr. Groharing handles the vast majority of open and closed
session arguments that address classified matters, including the CIA’s Rendition, Detention and Interrogation
program.
98
Cf. Williams, 136 S.Ct. at 1907 – 08 (Recognizing that inadvertent improper influence arises when a former
prosecutor moves to the bench. The Supreme Court ruled an appellate judge should have recused himself from
reviewing a trial court’s findings of Brady violations made against a former prosecutor he had supervised before
becoming an appellate judge; the Court found that “it would be difficult for a judge in [that] position not to view
[…] findings as a criticism of his former office.”)
99
See generally, 28 U.S.C. § 455(a), (b).
100
Preston v. United States, 923 F.2d 731 (9th Cir. 1991).
93

A28

 the case, if the government was found liable in the case before the judge.101 The court ruled that
the mere fact that the judge’s former firm represented the company while he was at the firm, and
that the company could be adversely affected by the verdict, created an appearance of bias which
warranted recusal.102 The appellate court, even though it recognized that the judge conducted the
trial professionally, ordered a new trial; it did so because it found that under the facts presented,
a reasonable person would question the impartiality of the judge.103
The facts are far stronger here. In the present instance, the judge’s association with one
party is not as removed as it was in the Preston case. Colonel Parrella is directly connected to the
NSD – and the NSD is a party in this case as the prosecuting entity whose specific mission
explicitly encompasses supporting the prosecution of this case.104 Colonel Parrella prosecuted for
the NSD while it was prosecuting Mr. al Hawsawi here; he was a “seamlessly integrated”105 as
prosecutor in that office, not merely ‘of counsel,’ as the judge was in Preston. The NSD is a
litigation engine just as a law firm is; Colonel Parrella worked for and supported that engine, as it
materially supported the prosecution of this case. Without question, Colonel Parrella “was
associated with a lawyer who participated substantially as a lawyer in the matter during such
association.”106 The assertion that, as a government prosecutor, this rule does not apply here,107 is
incorrect. The Department of the Navy’s Rules of Professional Responsibility incorporate the

101

Id. at 734.
Id. at 734–35.
103
Id. at 734, note 4.
104
See Dept. of Justice, National Security Division, “About the Office,” available at: https://www.justice.gov/legalcareers/job/law-student-volunteer-springsummerfall-counterterrorism-section (listing as the NSD’s first mission:
“The Section's responsibilities include: i. investigating and prosecuting domestic and international terrorism
cases…”)
105
App. 96-97 (AE 595B).
106
App. 148-151 (ABA Model Code of Judicial Conduct, Rule 2.11(A)(6)).
107
App. 12 (AE 595O, at 9).
102

A29

 ABA Code of Judicial Conduct;108 and the Code is clear that recusal is required under these
circumstances.109
The standard Judge Parrella advanced in his ruling below ignores the Rules of
Professional Responsibility and the ABA Code of Judicial Conduct; instead, he would require a
demonstrated “aversion, hostility or disposition of a kind that a fair-minded person could not set
aside when judging the dispute.”110 That language, however, comes from a concurring opinion,
in a non-capital case; and, the decision in that case was also modified. Over time, since the Court
used the language that Judge Parrella chose to rely on to deny Petitioner’s motion for recusal, the
Supreme Court has recognized that higher requirements, aimed at eliminating even the
appearance of judicial bias, are driven by state practices and professional standards developed.111
Judge Parrella did not heed the Court’s directive that “[o]ne must also take into account the
judicial reforms the States have implemented to eliminate even the appearance of partiality.”112
The Court specifically references the ABA Code of Judicial Conduct and its test for the
appearance of impartiality: “whether the conduct would create in reasonable minds a perception
that the judge's ability to carry out judicial responsibilities with integrity, impartiality and
competence is impaired.”113 Conspicuously, Judge Parrella’s ruling also ignores the most recent
Supreme Court decision in the line of cases addressing the appearance of judicial bias, Williams
v. Pennsylvania.114 In Williams – which is a capital case -- Justice Kennedy emphasized the

108

See Dept. of the Navy, Judge Advocate General Instruction 5803.1E (2015), Reference (k).
App. 148-151 (ABA Model Code of Judicial Conduct, Rule 2.11(A)(6)).
110
App. 12 (AE 595O, at 9) (the Ruling omits a citation. The quote is found in Liteky v. United States, 510 U.S. 540,
558 (1994), and comes from a concurring opinion (Kennedy, J.)).
111
Caperton v. AT Massey Coal Co Inc., 556 U.S. 868, 888 (2009).
112
Id.
113
Id., citing ABA Model Code of Judicial Conduct, Canon 2A, Commentary (“whether the conduct would create in
reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality
and competence is impaired.”)
114
Williams, 136 S.Ct. 1889.
109

A30

 necessity for the “appearance of neutrality,”115 and expounded on the value of the appearance of
neutrality as “not some artificial attempt to mask imperfection in the judicial process, but rather
an essential means of ensuring the reality of a fair adjudication.”116
What Judge Parrella’s ruling disregards ultimately, in addition to the capital context of
the case below, is “[t]he greater context of the Military Commission process.”117 The fact that the
legitimacy of the system is in serious doubt is central to the inquiry at hand.118 The facts here
conclusively establish the appearance of bias. Applying the test military and federal courts have
set for identifying a due process violation in the appearance of bias,119 here a reasonable person
looking at the circumstances would question the judge’s impartiality; the circumstances present
here, with Colonel Parrella sitting as judge, offer less than “full public confidence” in the
integrity of it process. 120 “Both the appearance and reality of impartial justice are necessary to
the public legitimacy of judicial pronouncements and thus to the rule of law itself.”121 Judge
Parrella’s continued presence on the bench will irreparably compromise the legitimacy of these
proceedings. Each ruling will be scrutinized, not only on the letter of the law, but on whether it
was the product of improper interests. Ultimately, the legitimacy of this trial will be
compromised.

115

Id. at 1909.
Id.
117
Bahlul, 807 F. Supp. 2d at 1123.
118
See Anderson, S.R., “Something Is Rotten with the State of Military Commissions,” Lawfare, Mar. 2, 2018,
available at https://www.lawfareblog.com/something-rotten-state-military-commissions Alliance for Justice, “Will
Military Commissions Act Gain Legitimacy?” July 7, 2009 (commenting on Senate hearing that led to the 2009
amendments to the Military Commissions Act), available at https://www.afj.org/blog/will-military-commissions-actgain-legitimacy
119
See Sullivan, 74 M.J. at 453; Philip Morris, 156 F. Supp. 3d 36.
120
See Williams, 136 S.Ct. at 1907.
121
Id.
116

A31

 C. The Extensive Ex Parte Communication Which this Case Engenders Between the
Judge and the Prosecution, Itself, Warrants Recusal Given Colonel Parrella’s
Associations with the Prosecution.
Under Military Commission Rule of Evidence 505, the judge is solely responsible for the
numerous ex parte reviews of classified information that prosecutors, including NSD
prosecutors, provide to him. These ex parte sessions offer the prosecution a unique opportunity
to engage with the judge and advocate for the Government’s position regarding discovery,
without the presence of any defense advocate. In these ex parte sessions, because of the absence
of the defense, it is the judge’s – here Colonel Parrella’s – singular and critical responsibility to
assess the legal sufficiency of the government’s classified discovery productions, and to
determine the adequacy of any summaries the government seeks to offer as substitutes for
classified information.122 In this role, the judge stands in the shoes of defense counsel, and must
advocate for the defense’s interests to engage the prosecution regarding the discovery in
question.
The volumes of information associated with this case which the government deems
classified means that the prosecution makes regular and extensive use of the ex parte process,
under Military Commission Rule of Evidence 505. The extent of ex parte hearings between the
judge and the prosecution in this case is of concern under any circumstance. It is exponentially so
here, because of Colonel Parrella’s associations with NSD, and with Prosecutor Groharing. As
noted in the facts of this Petition, the prosecution has filed 116 ex parte proceeding requests
under M.C.R.E. 505123 -- proceedings which under Rule 505 a judge must grant, and in which the
judge must serve as the guard of the constitutional rights of the defense. The Sixth Circuit has

123

App. 234-236 (also available at www.mc.mil).

A32

 emphasized the special nature of this role, in the context of reviewing a trial court’s ex parte
decisions under the Classified Information Procedures Act:
Rather than neutrally deciding disputes with an open record based
on the adversarial process, we must place ourselves in the shoes of
defense counsel, the very ones that cannot see the classified record,
and act with a view to their interests. Acting as if we were in
essence standby counsel for the defendants, we must determine
what may be ‘relevant and helpful’ to them.124
A judge at an ex parte hearing where the defense is excluded is therefore in the critical
position of having not only to weigh the information the prosecution presents, but of protecting
the defense’s interests, because of the defense’s absence. The judge must thus be more than
impartial: the judge must be an advocate who looks out for the defense’s interests in examining
prosecution redactions of information from discovery documents. The judge must challenge the
adequacy of prosecution proposed summaries for classified evidence. Due Process requires not
only that the judge be sufficiently detached from the prosecution, but that it appear to the
accused and the public that the judge can conduct such ex parte hearings in an appropriate
manner that protects the defense. Highlighting the peculiarity of these classified information ex
parte hearings between the court and the prosecution, the Sixth Circuit noted “[t]his is not a
position that we relish.”125
And now, Mr. al Hawsawi and his defense team, as well as the public, must accept that
Colonel Parrella, the former NSD prosecutor who worked “hand in hand” with the FBI and
CIA,126 who routinely ran, hiked, biked, paddled with one of the case prosecutors with the single
objective of building camaraderie and teamwork, will sit as a bulwark for the defense in the
countless ex parte proceedings to come. Whether one labels the facts here as presenting actual

124

United States v. Amawi, 695 F.3d at 471.
Id.
126
App. 153-154 (Transcript, 20557–58).
125

A33

 bias or apparent bias -- bias is present. The judge’s impartiality must be beyond reproach, and
that goal is simply unachievable here. Colonel Parrella must be ordered recused.
D. Colonel Parrella Has Conflicting Duties of Loyalty and Professional
Responsibility That Require His Recusal.
Colonel Parrella’s impartiality is compromised because he owes NSD, a former client, a
continuing duty of confidentiality.127 He himself acknowledged having a continuing duty of
loyalty to keep the FBI’s confidences, learned while he worked with NSD.128 The same FBI that
infiltrated 9/11 defense teams. And the same FBI whose agents conduct, in connection with
Petitioner’s interrogation, is now in question.129
Judge Parrella reiterates this duty in his ruling, although he seeks to minimize it by
confining it to an on-going duty to protection classified information.130 Not only does he fail to
address the professional responsibilities he retains because he served at NSD, but he entirely
disregards that the FBI had a role in the CIA-run black sites,131 that the FBI was present and was
involved in developing intelligence. These issues are and will be central to the prosecution of
Petitioner’s case. Indeed, these issues are integral to Judge Parrella’s predecessor’s Order
suppressing the statements the FBI obtained from Petitioner and his co-accused; this is the same
suppression order Judge Parrella has now acquiesced, at the prosecution’s request, to
reconsider.132
Because of his service at the NSD, Judge Parrella has knowledge of information and
processes about that client. Under the Rules of Professional Conduct, he has the obligation not to

127

See Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional
Conduct, Rule 1.9 (Duties to Former Clients) (7th ed. 2011).
128
App. 87 (Transcript, 20564).
129
See Classified Appendix; App. 163-198 (AE 524LL).
130
App. 7-8 (AE 595O, at 4-5).
131
SSCI Executive Summary, at 31 (reporting on the conduct of FBI interrogations at “Detention Site Green.”)
132
See AE 524NN, Government Motion to Reconsider AE 524LL (filed 22 Aug. 2018).

A34

 disclose, to the disadvantage of the NSD, any of the information and processes he learned while
working there.133 For example, if the prosecution asserts a position on behalf of NSD, and
Colonel Parrella knows differently based on other information he learned while working at NSD,
he cannot use that other information he knows to rule against the Prosecution. Colonel Parrella’s
professional ethical obligations to the NSD, his former client, inherently prevent him from acting
independently and impartially as a judge on this case because that former client, the NSD, is a
party now appearing before him. These duties of professional responsibility underscore the
concrete problems, as well as the appearance of bias, that now would infect this case and will
continue, if Colonel Parrella is not recused.
Aggravating the concern, and despite his after-the-fact attempt to change the record,134
Judge Parrella also acknowledged during voir dire that he has an on-going duty of loyalty to the
FBI to protect information he learned about, or from, that agency while working with NSD.135 As
detailed above moreover, the CIA is directly implicated in Mr. al Hawsawi’s imprisonment and
torture, and has a particular interest in discovery matters related to this case.136 The challenge
entailed in Colonel Parrella maintaining his continuing duty of loyalty, while attempting to sit as
an impartial judge who also appears impartial, was spotlighted during voir dire; Colonel Parrella
could not answer direct questions about a document examination he conducted at a CIA facility,
while he was with the NSD.137 He declined to answer questions about that document review,

133

See Dept. of the Navy, Judge Advocate General Instruction 5803.1E, ¶1.8(b):
No covered attorney shall: […] use information relating to representation of a
client to the disadvantage of the client unless the client consents after
consultation, except as permitted or required by these Rules.
134
App. 7-8 (AE 595O, at 4-5).
135
App. 87 (Transcript 20564)
136
See e.g., Mazzetti, M., Hulse, C.,“Inquiry by CIA Affirms It Spied on Senate Panel,” New York Times, July 31,
2014 (detailing how “the CIA penetrated a computer network used by the Senate Intelligence Committee in
preparing its damning report on the CIA’s detention and interrogation program.”), available at
https://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html.
137
See App. 13 (Transcript, at 20563 – 65).

A35

 even a question as simple as whether or not he had unescorted access to the CIA offices.138 With
a sitting judge having dual obligations of loyalty, the judge’s impartiality might reasonably be
questioned.139 Colonel Parrella’s on-going duty of loyalty to the CIA and the NSD is in conflict
with his duties as a judge to remain impartial and fair, and to avoid the appearance of bias. The
constitutionally necessary appearance of impartiality cannot exist under these circumstances.
E. Conclusion: Colonel Parrella’s Recusal is Required to Protect Due Process.
The legitimacy of the Military Commissions has been in question since their
incipience.140 The CIA’s control of the courtroom in Guantanamo,141 the FBI’s infiltration of the
defense,142 the monitoring of defense counsel meetings,143 have only fueled the controversy
surrounding commissions.144 In this environment, the analysis must consider what Judge
O’Toole highlighted in recusing himself from the CMCR, “the greater context of the Military
Commission process,” 145 and the loss of what public confidence there is in the integrity of the

138

Id.
Liljeberg, 486 U.S. at 858–62.
140
See, e.g., Corn, G.S., Hansen, V., “Military Commissions: War Crimes Courts or Tribunals of Convenience?”
Jurist, Feb. 21, 2007, available at https://www.jurist.org/commentary/2007/02/military-commissions-war-crimescourts/; Wittes, B., “Trial by Fire: How Military Commission Work, and Why They Fail,” Brookings Institution,
Feb. 14, 2008, available at https://www.brookings.edu/opinions/trial-by-fire-how-military-commissions-work-andwhy-they-fail/
141
See Sorkin, A.D., “A Red Light at Guantanamo,” The New Yorker, Jan. 29, 2013, available at
https://www.newyorker.com/news/daily-comment/a-red-light-at-guantnamo (commenting, “The military-tribunal
system has undergone a few revisions since the early Bush years, mostly thanks to the Supreme Court, but the
government is still pretty much making it up as it goes along, in a way that is painful to watch.”)
142
App. 91-93 (AE 292H, Order).
143
Finn, P., “At Guantanamo, microphones hidden in attorney-client meeting rooms,” Washington Post, Feb. 12,
2013, available at https://www.washingtonpost.com/world/national-security/2013/02/12/812c7662-7552-11e2-95e46148e45d7adb_story.html?noredirect=on
144
See Rosenberg, C., “Guantanamo Judge Furious After Surprise Censorship During ‘Black Sites” Testimony,”
Miami Herald, Jan. 29, 2013 (reporting judge’s, observers’ reaction to extra-judicial control of courtroom “live”
feed to the public), available at https://www.businessinsider.com/guantanamo-censorship-of-cia-black-sitetestimony-carol-rosenberg-miami-herald-2013-1; Rhode, D., “Special Report: How a 5-minute phone call put 9/11
trial on hold for more than a year,” Reuters, Oct. 2, 2015 (reporting on challenge of proceeding with this case due
to delays caused by FBI infiltration into defense team), available at https://www.reuters.com/article/us-usa-gitmotrials-specialreport/special-report-how-a-5-minute-phone-call-put-9-11-trial-on-hold-for-more-than-a-yearidUSKCN0RW1N120151002
145
Bahlul, 807 F. Supp. 2d at 1123.
139

A36

 system. “[T]he appearance of bias demeans the reputation and integrity not just of one jurist, but
of the larger institution of which he or she is a part.”146
The import and complexity of the present case cannot be blithely cast aside. . The impact
of decisions made now will reverberate later. The consequences of Colonel Parrella failing to
recuse himself are significant, since a new trial is the appropriate remedy for the failure to recuse
a judge where there is an appearance of bias.147 The Fifth Circuit’s admonition is appropriate to
highlight at this juncture:
the unfairness and expense which results from disqualification . . .
can be avoided in the future only if each judge fully accepts the
obligation to disqualify himself in any case in which his
impartiality might reasonably be questioned.148
Whether examined individually or in the aggregate, the facts here demand recusal.149 To ignore
the reasonable questions about his impartiality that Colonel Parrella’s association with NSD
raises is to invite the strong possibility that this highly complex and already lengthy case will
have to be retried in the future.150
“[M]ilitary judges serve as the independent check on the integrity of the court-martial
process. The validity of this system depends on the impartiality of military judges in fact and in
appearance.”151 Federal and military courts apply an objective standard for determining where
there is an appearance of bias, asking whether a reasonable person, knowing all the
circumstances, would conclude that the military judge's impartiality might reasonably be

146

Williams, 136 S.Ct. at 1909.
Id. (reviewing a state Supreme Court decision and holding that “an unconstitutional failure to recuse constitutes
structural error, even if the judge in question did not cast a deciding vote.”)
148
Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1115 (5th Cir. 1980).
149
See Laureano-Perez, 797 F.3d at 74; Bremers, 195 F.3d at 227, note 2; Furst, 886 F.2d at 583.
150
Williams, 136 S.Ct. at 1909 - 10 (“When the objective risk of actual bias on the part of a judge rises to an
unconstitutional level, the failure to recuse cannot be deemed harmless.”)
151
Hasan, 71 M.J. at 418–19.
147

A37

 questioned.152 The law also provides that the rules for recusal must be broadly construed as they
are intended to promote public confidence in the integrity of the military judicial process.153 A
reasonable person examining the circumstances described here would conclude that the judge’s
impartiality is reasonably in question. Given the mandate to construe the rules broadly, the
military judge should be recused.

//s//
WALTER B. RUIZ
Learned Defense Counsel for
Mr. al Hawsawi

//s//
SUZANNE M. LACHELIER
Detailed Defense Counsel for
Mr. al Hawsawi

//s//
SEAN M. GLEASON
Detailed Defense Counsel for
Mr. al Hawsawi

//s//
JENNIFER N. WILLIAMS
LTC, JA, USAR
Detailed Defense Counsel for
Mr. al Hawsawi

//s//
DAVID D. FURRY
LCDR, JAGC, USN
Detailed Defense Counsel for
Mr. al Hawsawi

//s//
JOSEPH D. WILKINSON
MAJ, JA, USAR
Detailed Defense Counsel for
Mr. al Hawsawi

152
153

Sullivan, 74 M.J. at 453; Philip Morris, 156 F. Supp. 3d 36.
See Sullivan, 74 M.J. at 453–454.

A38

 CERTIFICATE OF COMPLIANCE WITH RULE 15(g)
This brief complies with the type-volume limitations of Rule 15(g) because it does not
exceed 14,000 words. This brief contains 10,890 words.
//s//
WALTER B. RUIZ
Learned Defense Counsel for
Mr. al Hawsawi

A39

 CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was delivered via electronic mail to the prosecution
on the 27th day of November 2018. The Classified Addendum and Appendix were delivered by
hand on this same date.
//s//
WALTER B. RUIZ
Learned Defense Counsel for
Mr. al Hawsawi

A40

 -

DEPARTMENT OF DEFENSE
OFFICE OF MILITARY COMMISSIONS
1600 DEFENSE PENTAGON
WASHINGTON, DC 20301-1600

OMC-TJ

MEMORANDUM FOR: CONVENING AUTHORITY, OFFICE OF THE MILITARY
COMMISSIONS
'

SUBJECT: UNITED STATES OFAMERICA v. KHALID SHAIKH MOHAMMAD, WALID
MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZIBINALSHIBH, ALIABDUL AZIZ ALL
MUSTAFAAHMEDADAM ALHAWSAWI.
DATE: 8 April 2012
In accordance with Rule for Military Commissions 503(b)(1) of the Manual for Military
Commissions, I am hereby detailing myself, effective this date, to United States v. Khalid Shaikh
Mohammad, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi BinalShibh, Ali Abdul Aziz
Ali, Mustafa Ahmed Adam ai Hawsawi.

~~
JAMES L. POHL
COL,JA, USA

Chief Judge .
Military Commissions Trial Judiciary

A41

 OMC-TJ

27August 2018

MEMORANDUM FOR COLONEL KEITH A. PARRELLA, USMC
SUBJECT: UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD, WALID
MUHAMMAD SALIH MUBARAK BIN ‘ATTASH, RAMZI BINALSHIBH, ALI ABDUL AZIZ
ALI, MUSTAFA AHMED ADAM AL HAWSAWI

1. In accordance with Rule for Military Commissions (R.M.C.) 503(b)(1) of the Manual for
Military Commissions, you are hereby detailed as the military judge, effective this date to
UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD,
WALID MUHAMMAD SALIH MUBARAK BIN ‘ATTASH, RAMZI BINALSHIBH, ALI ABDUL
AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI.
2. On 30 September 2018, the term of my current voluntary retiree recall will expire. I have
made a personal decision not to request an additional voluntary retiree recall and thus I will
leave active duty after 38 years. To be clear, this was my decision and not impacted by any
outside influence from any source. Given my departure from active duty it is appropriate to
detail a new military judge to this case. The detailing decision memorialized herein was made
solely by me in my capacity as Chief Trial Judge of the Military Commissions.
3. A copy of this detailing memorandum will be marked as an appellate exhibit and placed in
the record of trial.

//s//
JAMES L. POHL
COL, JA, USA
Chief Judge
Military Commissions Trial Judiciary
cc:
Convening Authority, Military Commissions
Chief Defense Counsel, Military Commissions
Chief Prosecutor, Military Commissions

*Deleted additional language “you are hereby” from paragraph 1.

A42

 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

1

[R.M.C. 803 session was called to order at 0903, 10

2

September 2018.]

3

MJ [Col PARRELLA]:

Good morning.

This commission is

4

called to order.

5

Marine Corps, have replaced Colonel Pohl as the military

6

judge.

7

we identify who is here on behalf of the parties.

8
9
10

I, Colonel Keith Parrella, United States

I will announce my detailing and qualifications after

Trial Counsel, if you'd please identify who is here
on behalf of the United States.
CP [BG MARTINS]:

Good morning, Your Honor.

Representing

11

the United States:

12

Swann, Mr. Edward Ryan, Mr. Clayton Trivett, Mr. Jeffrey

13

Groharing, Ms. Nicole Tate, Major Christopher Dykstra, Major

14

Benjamin Mills, Captain Neville Dastoor.

15

Mr. Dale Cox, Mr. Pascual Tavarez, Staff Sergeant Jeffery

16

Furr, and present in the courtroom also for the Federal Bureau

17

of Investigation, Kimberly Waltz and Brianna Hearn.

Brigadier General Mark Martins, Mr. Robert

Also present,

18

Your Honor, these proceedings are being transmitted

19

by closed-circuit television to locations in the continental

20

United States pursuant to an order of the military commission.

21

Your Honor, I'd like to note that Major ----

22

LDC [MS. BORMANN]:

23

CP [BG MARTINS]:

Judge, I'm sorry, to interrupt.
---- Mills and Captain Dastoor ----

UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

20405
A43

 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

1

LDC [MS. BORMANN]:

Judge, I'm sorry to interrupt, but we

2

can't hear back here because one of the translated headphones

3

seems to be on maximum audio, and so we're unable to hear.

4
5

MJ [Col PARRELLA]:
hold on one moment.

Okay.

Trial Counsel, if you'd just

Is there an IT person in the courtroom?

6

LDC [MR. RUIZ]: [Microphone button not pushed; no audio.]

7

MJ [Col PARRELLA]:

8

LDC [MR. RUIZ]:

10

it.

11

the volume.

12

We need the translator to speak so that we can monitor

LDC [MR. RUIZ]:
Judge.

MJ [Col PARRELLA]:

Mr. Ruiz, does it seem to be working

now?
LDC [MR. RUIZ]:

19

MJ [Col PARRELLA]:

21

Translator, if you could translate my

I believe we've resolved the issue,

18

20

So they're working on

words.

16
17

I just got them.

MJ [Col PARRELLA]:

14
15

I can't hear

you.

9

13

I'm sorry, Mr. Ruiz.

Yes, I think it has been resolved.
Okay.

General Martins, if you could

please continue.
CP [BG MARTINS]:

Your Honor, I will go ahead and

22

re-announce that these proceedings are being transmitted by

23

closed-circuit television to locations in the continental
UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

20406
A44

 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

1

United States pursuant to the commission's order, and would

2

like to note that Major Mills and Captain Dastoor need to

3

place their qualifications on the record for the commission.

4

MJ [Col PARRELLA]:

Thank you, General Martins.

5

At this time, why don't we go ahead and have Major

6

Mills and Captain Dastoor place their qualifications on the

7

record.

8

ATC [Maj MILLS]:

9

MJ [Col PARRELLA]:

10

ATC [Maj MILLS]:

Good morning, Your Honor.
Good morning.
I'm Major Benjamin Mills, and I have

11

been detailed to this commission by the Chief Prosecutor,

12

Brigadier General Mark Martins.

13

Military Commission 502(d), and I have been previously sworn

14

in accordance with Rule for Military Commission 807.

15

not acted in any disqualifying manner.

I am qualified under Rule for

16

MJ [Col PARRELLA]:

17

ATC [Maj MILLS]:

18

ATC [CPT DASTOOR]:

Good morning, Your Honor.

19

MJ [Col PARRELLA]:

Good morning.

20

ATC [CPT DASTOOR]:

Captain Neville Dastoor.

I have

Thank you, Major Mills.
Thank you, sir.

I've been

21

detailed to this commission by the Chief Prosecutor, Brigadier

22

General Mark Martins.

23

Commission 502(d), and I've been previously sworn in under

I'm qualified under Rule for Military

UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

20407
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 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

1

Rule for Military Commissions 807.

2

that might disqualify me from these proceedings.

I've not acted in any way

3

MJ [Col PARRELLA]:

Thank you, Captain Fastoor [sic].

4

ATC [CPT DASTOOR]:

Thank you, Your Honor.

5

CP [BG MARTINS]:

Your Honor, if I may, I probably haven't

6

been saying it clearly enough.

7

a D, delta.

8
9

MJ [Col PARRELLA]:

I understand, and that's my mistake.

Thank you for correcting me.

10

So Major Mills and Captain Dastoor, I understand

11

you've been previously sworn.

12

you nevertheless.

13

hand.

14

[Counsel was sworn.]

15
16
17

The last name is Dastoor with

I'm going to go ahead and swear

If you'd please stand, raise your right

MJ [Col PARRELLA]:

Thank you.

Mr. Nevin, will you please

indicate for the record who is here on behalf of Mr. Mohammad?
LDC [MR. NEVIN]:

Your Honor, David Nevin for Mr. Khalid

18

Shaikh Mohammad; and Lieutenant Colonel Derek Poteet, U.S.

19

Marine Corps; Ms. Denny Leboeuf; Mr. Gary Sowards; Ms. Rita

20

Radostitz; and Your Honor, Mr. Mohammad is present.

21
22
23

MJ [Col PARRELLA]:

Thank you, Mr. Nevin.

Ms. Bormann?
LDC [MS. BORMANN]:

Judge, on behalf of Mr. Bin'Attash,

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20408
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 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

1

myself, Mr. Edwin Perry, Mr. William Montross, Captain Brian

2

Brady, Major Matthew Seeger.

3

Judge, we will be asking to excuse probably Major

4

Seeger, although it may be Captain Brady, later on during the

5

morning to attend to other matters.

6

court know.

7

MJ [Col PARRELLA]:

8

LDC [MR. HARRINGTON]:

9
10
11

Okay.

I just want to let the

Mr. Harrington?

Judge, for Mr. Binalshibh, James

Harrington, Navy Captain Mishael Danielson, and Alaina
Wichner.
MJ [Col PARRELLA]:

And, Mr. Harrington, it's my

12

understanding that this is Lieutenant Danielson's first

13

appearance?

14
15
16
17

LDC [MR. HARRINGTON]:

It is, Judge, and he needs to have

his credentials put on the record.
MJ [Col PARRELLA]:

Okay.

Lieutenant Danielson, if you'd

please state your qualifications for the record.

18

ADC [LT DANIELSON]:

19

MJ [Col PARRELLA]:

20

ADC [LT DANIELSON]:

Good morning, Your Honor.
Good morning.
Sir, I am Lieutenant Mishael

21

Danielson, Mishael is spelled M-i-s-h-a-e-l, JAG Corps, United

22

States Navy.

23

by Brigadier General John G. Baker, United States Marine

I've been detailed to this case now in hearing

UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

20409
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1

Corps, the Chief Defense Counsel.

2

certificated under Article 27(b) and sworn under Article 42(a)

3

of the Uniform Code of Military Justice.

4

and certified, sir, under Rules 502 and 503 of the Rules for

5

Military Commission.

6
7
8
9
10
11
12

I'm also qualified and

I'm also qualified

I have not acted in any way that might tend to
disqualify me in these proceedings, sir.
MJ [Col PARRELLA]:

Lieutenant Danielson, please raise

your right hand.
[Counsel was sworn.]
MJ [Col PARRELLA]:

Thank you, Lieutenant Danielson.

You

may have a seat.

13

ADC [LT DANIELSON]:

14

MJ [Col PARRELLA]:

Mr. Connell?

15

LDC [MR. CONNELL]:

Good morning, Your Honor.

16

MJ [Col PARRELLA]:

Good morning.

17

LDC [MR. CONNELL]:

On behalf of Mr. Al Baluchi is myself,

Thank you, sir.

18

James Connell, and Captain Mark Andreu of the United States

19

Air Force.

20

excused by previous order of the military commission.

All other attorneys for Mr. al Baluchi have been

21

MJ [Col PARRELLA]:

22

Mr. Ruiz.

23

LDC [MR. RUIZ]:

Thank you.

On behalf of Mr. al Hawsawi, Ms. Suzanne

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20410
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 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

1

Lachelier, Lieutenant Colonel Jennifer Williams, Major Joseph

2

Wilkinson, Lieutenant Commander Dave Furry, and myself.

3

MJ [Col PARRELLA]:

4
5
6
7
8

Thank you, Mr. Ruiz.

And for the record, is there anyone here from the
chief defense counsel's office?
DCDC [CDR WALL]:

Is it Commander Wall?

Yes, Your Honor, Commander Wall, Deputy

Chief Defense Counsel.
MJ [Col PARRELLA]:

9

Thank you.

I will now advise the accused of their right to be

10

present and their right to waive said appearance.

11

the right to be present during all sessions of the commission.

12

If you request to absent yourself from any session, such

13

absence must be voluntary and of your own free will.

14

voluntary absence from any session of the commission is an

15

unequivocal waiver of the right to be present during that

16

session.

17

You have

Your

Your absence from any session may negatively affect

18

the presentation of the defense in your case.

19

meet with and cooperate with your defense counsel may also

20

negatively affect the presentation of your case.

21

certain circumstances, your attendance at a session can be

22

compelled regardless of your personal desire not to be

23

present.

Your failure to

Under

UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

20411
A49

 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

1

Regardless of your voluntary waiver to attend a

2

particular session of the commission, you have the right at

3

any time to decide to attend any subsequent session.

4

decide not to attend the morning session but wish to attend

5

the afternoon session, you must notify the guard force of your

6

desires.

7

transportation, you will then be allowed to attend the

8

afternoon session.

9

of each commission session prior to the session to afford you

If you

Assuming there is enough time to arrange

You will be informed of the time and date

10

the opportunity to decide whether or not to attend that

11

session.

12
13

Mr. Mohammad, do you understand what I've just
explained to you?

14

ACC [MR. MOHAMMAD]:

15

MJ [Col PARRELLA]:

16
17
18
19

Yes.
Mr. Bin'Attash, do you understand what

I have just explained?
ACC [MR. BIN'ATTASH]:

Yes.

Yes, but I would like to put

on the record my objection to the attorneys.
MJ [Col PARRELLA]:

I understand that you've had

20

objections to your attorneys, and I will afford you an

21

opportunity to put that objection on the record.

22

understand also the court's -- the commission's position on

23

your attorneys as well; is that correct?

But you

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ACC [MR. BIN'ATTASH]:

2

MJ [Col PARRELLA]:

Yes.

So, Mr. Bin'Attash, is there anything

3

that you want to tell the commission that you haven't already

4

stated previously?

5
6

DC [MR. PERRY]:

Judge, I need to interject.

This is

Edwin Perry, defense counsel for Mr. Bin'Attash.

7

If we're going to go into a more detailed complaint,

8

there is an order by the commission, 380Z, that that needs to

9

be in an ex parte closed session.

10

MJ [Col PARRELLA]:

I understand.

Mr. Perry, what I'm

11

going to try to ascertain at this point in time, if this is

12

just the same standing objection that he's voiced in the past.

13

Is there any issue with me proceeding with that question?

14

DC [MR. PERRY]:

If you ask that question, that would be

15

fine.

16

then we need to go into a closed session because it involves

17

privileged material.

18
19

If it -- if he goes into a more detailed complaint,

MJ [Col PARRELLA]:

I understand.

So, Mr. Bin'Attash, what your counsel has just

20

indicated is that if you want the commission to be aware that

21

you have a standing objection to your counsel, I understand

22

that objection and we can proceed.

23

that you want to tell the commission that is new or different,

If there's something else

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then we need to do that in a separate hearing.

2

understand?

3

ACC [MR. BIN'ATTASH]:

Yes.

Do you

The attorneys would like to

4

have a closed session because they don't want the world to

5

hear their scandals.

6

record, only objection to my defense team that I have because

7

they are working for their own interests and not my interests.

8

This is all I have.

9

MJ [Col PARRELLA]:

10
11

But I don't have details to put on the

I understand.

Mr. Binalshibh, do you understand what I have
explained to you?

12

ACC [MR. BINALSHIBH]:

13

MJ [Col PARRELLA]:

14

ACC [MR. AZIZ ALI]:

16

MJ [Col PARRELLA]:

20
21

Yes.
Mr. al Hawsawi, do you understand what

I've explained to you?

18
19

Mr. Ali, do you understand what I've

explained for you?

15

17

Yes, I understood.

ACC [MR. AL HAWSAWI]:

Yes.

And I would like to leave

now.
MJ [Col PARRELLA]:

Okay.

Mr. al Hawsawi -- at this point

in time, Mr. al Hawsawi ----

22

LDC [MR. RUIZ]:

23

MJ [Col PARRELLA]:

Judge ------- I will require you to remain in

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the courtroom.

2

complete.

3
4
5

You can leave after this session of court is

Do you understand?

ACC [MR. AL HAWSAWI]:

Why is that?

I was able to move at

any time.
MJ [Col PARRELLA]:

Okay.

I'm going to go through some

6

additional information.

7

our first recess you would like to leave the courtroom, I will

8

allow you to do so.

9

court, you're going to remain here until we're done with that

10
11
12
13
14
15

If at that point in time when we take

But as this is our first session of

first session of court.
ACC [MR. AL HAWSAWI]:

I've heard my entire rights, and I

have the right to leave the court right now.
MJ [Col PARRELLA]:

I understand what you're saying.

not going to happen.
All right.

On 8 September 2018, I conducted an

16

R.M.C. 802 conference with both trial and defense counsel.

17

The accused were absent.

18

following:

19

It's

At this conference, we discussed the

First, we conducted introductions.

I informed

20

counsel that I'd been detailed to this case and indicated that

21

they would have the opportunity to conduct voir dire of me

22

during this session.

23

counsel per party to conduct this questioning.

I indicated that I would only allow one
I also

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indicated that I am granting AE 595 and provided all parties a

2

copy of my unobserved fitness report covering the portion of

3

time I conducted a Commandant of the Marine Corps Fellowship

4

at the Department of Justice.

5

marked as AE 595B and inserted into the record.

6

That fitness report has been

I would like to make it clear that I am granting the

7

motion and providing this information in order to expedite

8

these proceedings, but my ruling should in no way be

9

interpreted as the commission's position as to the

10

appropriateness of the parties seeking discovery related to

11

the military judge.

12

As to AE 595A, I am not going to order the discovery

13

requested, but invite counsel to ask questions related to the

14

matter during voir dire.

15

I also indicated that I intended to follow the

16

previous military judge's practice of requiring all accused to

17

be present for the first day of each session.

18

indicated that I intend to continue the practice of timing

19

breaks to coincide with prayer time to the extent practicable.

20

I also

Upon inquiry from Mr. Connell, I also indicated that

21

I would continue the practice of recording the 802 sessions

22

and that counsel may make particularized requests for

23

transcripts of those sessions.
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Upon inquiry from Mr. Nevin, I indicated I would also

2

continue the practice of allowing defense teams to meet with

3

their clients for a reasonable time after the conclusion of

4

the afternoon session.

5

Thereafter, we discussed the tentative order of march

6

for this week's sessions and generally adopted the order of

7

march proposed by Mr. Connell in AE 591L, with a few

8

exceptions.

9

challenges of the military judge, followed immediately by

I indicated we would start with voir dire and

10

AE 591F, Mr. Hawsawi's motion to abate the proceedings.

11

AE 591F, we will take up the discovery motions.

12

have time, we will take up the unclassified portions of the

13

UCI motions.

14

After

If we still

Tuesday's session will begin with an in camera

15

session pursuant to M.C.R.E. 505(h).

16

to begin an unclassified session on Tuesday at 1400 which will

17

extend through Wednesday, wherein we will take up any

18

remaining unclassified issues.

19

closed session pursuant to R.M.C. 806.

20

We will tentatively plan

On Thursday, we will conduct a

Do counsel for any of the accused have any additions

21

or corrections to the commission's summary of the R.M.C. 802

22

conference, or does the trial counsel have any corrections or

23

additions to the R.C.M. [sic] 802 conference?
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2
3

Start with the trial counsel.
CP [BG MARTINS]:
additions.

4

MJ [Col PARRELLA]:

5

LDC [MR. NEVIN]:

6

Mr. Nevin.
Just to clarify, when will we begin with

the closed session, the closed 505 session on Tuesday?

7

MJ [Col PARRELLA]:

8

LDC [MR. NEVIN]:

9

Your Honor, the government has no

That will be at 0900.
At 0900, all right.

Thank you, Your

Honor.

10

MJ [Col PARRELLA]:

Mr. Connell, you're standing.

11

LDC [MR. CONNELL]:

Yes, sir, I was taking up your

12

invitation to comment on the 802.

13

MJ [Col PARRELLA]:

Please.

14

LDC [MR. CONNELL]:

Yes.

The -- one other matter is that

15

I inquired of the military commission whether it would

16

continue the practice of not shackling the defendants without

17

some particularized cause, and the military commission

18

indicated that it would continue the prior practice on that

19

topic.

20

MJ [Col PARRELLA]:

That is ----

21

LDC [MR. CONNELL]:

The second is that I gave notice at

22

the 802 hearing that Lieutenant Doug Newman would be available

23

for interview on Sunday; the government took up that
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opportunity and some other counsel.

2

would be making advance 914 disclosures upon requests.

3

government made that request and I made the advanced 914

4

disclosures.

5

MJ [Col PARRELLA]:

6
7

I also indicated that I
The

Thank you, Mr. Connell.

Ms. Bormann?
LDC [MS. BORMANN]:

Thank you, Judge.

So my recollection

8

of the 802 conference with respect to AE 595A was that you

9

indicated that you were not going to be granting it prior to

10

voir dire, which will occur this morning; but I did not

11

understand that you were denying it in toto.

12

ruling?

13

were going to hold it in abeyance until after voir dire and

14

then rule on it based on what happened.

15

I don't have a written -- I understood it that you

MJ [Col PARRELLA]:

16

summation.

17

based on questions.

18

at that point in time.

Ms. Bormann, I think that's a correct

I think that the issue will largely become moot
If it's not, I will formally rule on it

19

LDC [MS. BORMANN]:

Thank you.

20

MJ [Col PARRELLA]:

You're welcome.

21

Is that your

I've been detailed to this commission by the Chief

22

Judge of the Military Commissions Trial Judiciary pursuant to

23

R.M.C. 503.

Appellate Exhibit 001A is my detailing
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2

memorandum.
I am certified and qualified in accordance with

3

Articles 26(b) and (c) of the Uniform Code of Military Justice

4

as well as R.M.C. 502 and 503.

5

under Article 42(a) of the UCMJ and Article 807.

6

aware of any grounds for challenge against me.

7

I've been previously sworn
I am not

I have previously provided counsel for both sides a

8

copy of my biography, which is marked as Appellate

9

Exhibit 001B, as well as my fitness report from my time as a

10

Marine Corps Fellow at the Department of Justice, which is

11

marked as AE 595B.

12
13
14

Do counsel desire to question or to challenge the
military judge?

Trial Counsel?

MTC [MR. TRIVETT]:

Not at this time, sir, but we would

15

like to reserve the opportunity to do so based on answers to

16

questions that the defense may ask.

17

MJ [Col PARRELLA]:

18

LDC [MR. HARRINGTON]:

Okay.

Mr. Nevin?

Excuse me.

Could I just -- with

19

respect to the voir dire, could I just put a procedural

20

question on the -- before you?

21

MJ [Col PARRELLA]:

22

LDC [MR. HARRINGTON]:

23

Yes.
Judge, as you're going to find out,

this case has many unexpected twists and turns, and your voir
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dire creates one that we didn't really fully identify until

2

yesterday.

3

and '15 and -- when a Special Review Team was appointed by --

4

to replace the trial counsel because of an issue with respect

5

to my team and to me individually.

6

But it deals with an issue that goes back to 2014

And I don't want to go into that in front of you

7

right now with trial counsel here.

8

on the record in front of you, and it's my position that

9

there's certain questioning that needs to be done of you for

I think I need to put it

10

which the Special Review Team really should be here because it

11

deals with information which directly relates to them, and

12

also much of the information is -- has been classified as a

13

result of the national security investigation that was

14

conducted with respect to me and several other members of our

15

team.

16

So at some point in time, I think we either have to

17

abate the proceedings here and get them there or figure out a

18

way to -- for how we're going to handle that particular issue,

19

so ----

20

MJ [Col PARRELLA]:

Okay.

Well, Mr. Harrington, I -- if I

21

understand what you're asking of the commission, it's that you

22

believe that based on information, that some of this

23

questioning needs to take place in the presence of the Special
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2

Review Team?
LDC [MR. HARRINGTON]:

If you don't want them here, Judge,

3

and want to do it without the trial counsel here, we're not

4

going to object to that.

5

they need to have a presence here for it, then that's

6

something that they need to address.

7

MJ [Col PARRELLA]:

But if the government thinks that

Okay.

What we're going to do,

8

Mr. Harrington, is we're going to go ahead and proceed with

9

the questions.

As you know, the rules allow counsel to

10

challenge the military judge based on subsequent evidence at

11

basically any point going forward.

12

But we'll go ahead and proceed with the questioning,

13

and if there's still an issue out there, then what I'd ask is

14

that you go ahead and put it in writing so that the commission

15

can consider it and take appropriate action.

16
17
18
19

Thank you.

Mr. Nevin?
LDC [MR. NEVIN]:

Thank you, Your Honor.

David Nevin on

behalf of Mr. Khalid Shaikh Mohammad.
Sir, the -- as you know, this is a case that arises

20

out of the events of September 11th, 2001, and as well I'll

21

represent to you that the defendants, all but -- in

22

particular, Mr. Mohammad, are devout Muslims, so I have a

23

couple of questions that arise out of those two facts.
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2
3

The first is to ask you what knowledge you have of
the religion of Islam.
MJ [Col PARRELLA]:

So, Mr. Nevin, I am not going to go

4

into a detailed explanation of my knowledge of Islam.

5

simply state that there is nothing about my personal beliefs

6

of Islam that will infect or affect my impartiality to sit

7

here as a military judge.

8

LDC [MR. NEVIN]:

9

Okay.

I will

And so just to make sure I

understand the scope of your ruling, would you tell us whether

10

you have made any particular study of the religion of Islam,

11

such as, you know, in schooling or some kind of -- something

12

other than just a passing awareness?

13

MJ [Col PARRELLA]:

I have not.

I have never taken a

14

religious course.

15

including Islam.

16

particularly about Islam.

17

explanation of it, but I couldn't tell you off the top of my

18

head what they were.

19

knowledge or background or expertise on Islam.

20

I have some general knowledge of religions,
I don't recall ever reading a book

LDC [MR. NEVIN]:

I've read books that include some

So I don't have any sort of special

Okay.

And I understood your remark --

21

or the remark you made previously about affecting your ability

22

to sit simply to mean that you don't have any particular

23

animus against the religion or any feeling about its
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legitimacy or anything that would directly affect how you look

2

at these proceedings.

3

MJ [Col PARRELLA]:

4

LDC [MR. NEVIN]:

5
6

Do I have that right?
That's correct.
All right.

Not at all.

So may I ask where you were

on September 11th of 2001?
MJ [Col PARRELLA]:

I was actually on my way to the

7

airport in San Diego for a temporary active duty sort of

8

assignment.

9
10
11

LDC [MR. NEVIN]:

And I am guessing you -- the plane that

you were planning to get onto never took off?
MJ [Col PARRELLA]:

Correct.

I never made it even to the

12

terminal.

13

still in the parking lot.

14

closed.

15

time I was stationed at the air station at Miramar.

16

As I recall, I ran into folks exiting the terminal
They said that the airport was

I turned around and drove back to the base.

LDC [MR. NEVIN]:

At the

And you were -- that's at a time when

17

you were serving as -- I believe you served as defense

18

counsel -- sorry, regional defense counsel and also trial

19

counsel for a while there at Miramar, correct?

20
21
22
23

MJ [Col PARRELLA]:

I was serving at the time as the

senior defense counsel.
LDC [MR. NEVIN]:

And that was -- the trip you had planned

at that time was for some kind of temporary duty; I know it
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was an official military trip that was going on, not a

2

personal ----

3

MJ [Col PARRELLA]:

4

LDC [MR. NEVIN]:

5

MJ [Col PARRELLA]:

6
7
8
9
10

Correct.
Okay.
My recollection is it was to see a

client who was incarcerated in a civilian penitentiary.
LDC [MR. NEVIN]:

I see.

And were you able to make that

trip at a later time?
MJ [Col PARRELLA]:
LDC [MR. NEVIN]:

I was not.
May I ask whether persons close to you

11

within the third degree of -- let's say within the third

12

degree of relationship were affected by the events -- directly

13

affected by the events of September 11th?

14

MJ [Col PARRELLA]:

15

LDC [MR. NEVIN]:

16

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

No.
Okay.

And what about friends?

No.
Were any such persons injured in the

18

events of September 11th, either in New York, in Northern

19

Virginia, or in Pennsylvania?

20

MJ [Col PARRELLA]:

No.

I don't have any friends who I

21

would say were any sort of victim to either of those

22

instances.

23

boss of mine who was counsel, or still is counsel, to the

The only one I know who was injured was a former

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Commandant of the Marine Corps, and he was injured in 9/11.

2

But I don't have any personal relationship with him.

3

essentially the boss of an organization I worked with for a

4

few years.

5

LDC [MR. NEVIN]:

6

MJ [Col PARRELLA]:

7

LDC [MR. NEVIN]:

8

MJ [Col PARRELLA]:

9

LDC [MR. NEVIN]:

10

He was

Could you say who that person was, sir?
.
Say it again?
.
All right.

Thank you.

What about property damage, loss of -- loss of

11

property or income, anything like that among your friends or

12

relations within the third degree?

13

MJ [Col PARRELLA]:

14

LDC [MR. NEVIN]:

15

No.
All right.

Are you familiar with the

Code of Conduct for United States Judges?

16

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

To some extent.
Is that something that you -- I take it

18

you are a United States judge.

19

have consulted at any time in the past?

Is that something that you

20

Here's my -- the reason for the question.

21

my intention was to ask you if there are any aspects of the

22

disqualifications within the Code of Conduct for United States

23

Judges that would require your disqualification.

I was --

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MJ [Col PARRELLA]:

I'm not familiar.

So to answer your

2

question, obviously a military judge.

3

reviewing that as part of the training I received as a

4

military judge, so I'm not probably prepared to tell you

5

whether I've looked at each factor that's in there.

6

LDC [MR. NEVIN]:

I don't recall

Do you hold membership in any

7

organization that practices invidious discrimination on the

8

basis of race, sex, religion, or national origin?

9
10
11

MJ [Col PARRELLA]:
LDC [MR. NEVIN]:

No.
I mean, for example, an exclusive

country club, a particular club, something like that.

12

MJ [Col PARRELLA]:

13

LDC [MR. NEVIN]:

No.
And, Your Honor, I will consult the Code

14

if we take a break and perhaps ask you some more specific

15

questions.

16

questions and I didn't anticipate that the military commission

17

wouldn't be familiar with that.

18

I meant to exclude with one question several

May I ask, you have -- I believe you said you were

19

sworn, and I think you're referring to the oath under

20

949g(a)(1).

You have taken that oath?

21

MJ [Col PARRELLA]:

22

LDC [MR. NEVIN]:

23

MJ [Col PARRELLA]:

I have.
And when did you take that oath?
I believe it was the same day that I

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was detailed, 27 August.

2

LDC [MR. NEVIN]:

3

MJ [Col PARRELLA]:

4

LDC [MR. NEVIN]:

5

MJ [Col PARRELLA]:

6

a written copy of the oath.

7

oath over the phone as I stood, and then I signed the oath and

8

sent it back to him.

9
10

LDC [MR. NEVIN]:

MJ [Col PARRELLA]:

12

LDC [MR. NEVIN]:

13

MJ [Col PARRELLA]:

14

LDC [MR. NEVIN]:

16

Colonel Pohl.
And where was that done?
It was not done in person.

He sent me

He then called me, he read the

Was anyone present in the room with you

when you took the oath?

11

15

May I ask who administered it?

No.
And do you hold a TS//SCI clearance?
To the best of my knowledge, I do.
And when would that clearance have

become effective, sir?
MJ [Col PARRELLA]:

I don't know.

I will tell you I

17

recently went through a reinvestigation.

18

TS//SCI, but as you know, it expires periodically.

19

LDC [MR. NEVIN]:

20

MJ [Col PARRELLA]:

I'd previously held

Yes, I know.
So I just went through -- when I say

21

just, I reinitiated the investigation in approximately June of

22

2017, so I don't know when it was finished.

23

LDC [MR. NEVIN]:

Could I ask when you first learned that

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2

you would be detailed to this present case?
MJ [Col PARRELLA]:

Officially, 27 August.

I did have a

3

couple telephone communications with Judge Pohl where he

4

indicated that he was considering detailing me.

5

earliest of those was probably sometime in middle or late

6

July.

7

LDC [MR. NEVIN]:

I think the

Sir, it's been reported to me, or to us,

8

that you made a remark on the record in another case in early

9

August that you were being detailed to this case, and I

10

believe that was August the 3rd.

11

recall what I'm referring to?

12

MJ [Col PARRELLA]:

Is that your -- do you

I recall.

I've heard the same.

I did

13

not make any remark on the record about anything related to

14

the commissions.

15

LDC [MR. NEVIN]:

16

MJ [Col PARRELLA]:

17

Right.
I think what -- or the genesis for

that was during an 802 conference I had with counsel ----

18

LDC [MR. NEVIN]:

19

MJ [Col PARRELLA]:

Yeah.
---- related to a murder case at

20

Camp Lejeune, I informed the counsel that it was possible I

21

might get detailed -- and my recollection was that I said to

22

an OMC case, not a specific case -- and that that might

23

jeopardize my ability to detail myself to the murder case.
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LDC [MR. NEVIN]:

And I'll just represent that the parties

2

recall that you made reference to KSM, the KSM case, which is

3

a common abbreviation for my client's name.

4

making that remark?

5

MJ [Col PARRELLA]:

Do you recall

I don't recall making that comment.

6

can't, obviously -- it was not a recorded session, like our

7

802s here, but I don't recall it and I don't think I would

8

have used those initials.

9

said, just to give context, but I don't recall ever saying

10

I

I think OMC I probably would have

KSM.

11

LDC [MR. NEVIN]:

Okay.

Are you familiar with those

12

initials or that -- I guess that's not an acronym, but you are

13

familiar with that terminology?

14

MJ [Col PARRELLA]:

15

LDC [MR. NEVIN]:

I am now, certainly.
Okay.

And may I ask, was that a murder

16

case to which you were contemplating detailing yourself, was

17

that a capital case?

18

MJ [Col PARRELLA]:

19

LDC [MR. NEVIN]:

It was not.
Okay.

So if I understand correctly,

20

because your periodic reinvestigation was begun in June of

21

2017, that would be on the order of a year before you -- a

22

question of your being detailed to this case would have come

23

up.

So that reinvestigation would have been separate from
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this case, am I right?

2

MJ [Col PARRELLA]:

3

LDC [MR. NEVIN]:

Completely separate.
Yeah.

Okay.

And are you saying that

4

the reinvestigation was completed in June of 2017 or that it

5

was begun then?

6

MJ [Col PARRELLA]:

7

LDC [MR. NEVIN]:

8

MJ [Col PARRELLA]:

9

LDC [MR. NEVIN]:

10

MJ [Col PARRELLA]:

11

LDC [MR. NEVIN]:

Begun.
And do you know when it was completed?
I do not.
Has it been completed?
The best of my knowledge.
Okay.

So have you been read into the

12

specific programs that relate to this case?

13

those, but there are ----

14

MJ [Col PARRELLA]:

15

LDC [MR. NEVIN]:

16

MJ [Col PARRELLA]:

18

LDC [MR. NEVIN]:

19

MJ [Col PARRELLA]:

20

LDC [MR. NEVIN]:

21

MJ [Col PARRELLA]:

22

LDC [MR. NEVIN]:

23

I have.
---- there are ACCMs and there are

special access programs.

17

And I won't say

So you have been read into those?
Yes.

And when did that occur, sir?
Middle of August.
And where did that occur?
In Washington, D.C.
So if I understand correctly, you would

not have been able to begin reviewing certain materials
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related to this case, at the TS level anyway, and certainly

2

with respect to the SAP and the ACCM, you wouldn't have been

3

able to begin reviewing those until mid-August of 2018.

4

MJ [Col PARRELLA]:

Correct.

And I'll just go ahead and,

5

I think, jump ahead, Mr. Nevin, and tell you that I didn't

6

review any materials related to this case prior to being

7

detailed, which was on the 27th of August.

8
9

LDC [MR. NEVIN]:

And have you been reviewing materials

since that time?

10

MJ [Col PARRELLA]:

11

LDC [MR. NEVIN]:

I have.
I may have asked you when you were

12

formally notified that you were being -- that you were, in

13

fact, being detailed, but you mentioned as well that you had

14

conversations with Judge Pohl.

15

referring to Judge James Pohl, the Chief Judge of the Military

16

Commissions.

17

said, in late July?

18
19
20

And by Judge Pohl, I'm

You had conversations with him, I believe you

MJ [Col PARRELLA]:

That's my best estimate of when the

conversation took place, correct.
LDC [MR. NEVIN]:

And did -- and he advised you that he

21

was considering detailing you to this case, I take it, is

22

what ----

23

MJ [Col PARRELLA]:

Correct.

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LDC [MR. NEVIN]:

2

---- happened?

And did he gave you the option to say, don't detail

3

me?

4

detailing you, period, end of story, or was it, what do you

5

think or something like that?

6

I mean, in other words, my question is, was it, I'm

MJ [Col PARRELLA]:

I don't specifically recall.

But my

7

understanding of the process is I'm one of a pool of nominees

8

that are nominated by the service judge advocates to

9

potentially be detailed to the Office of Commissions and that

10

the chief judge retains the ability to detail who they deem

11

fit.

12

So with that, when he indicated his potential

13

decision to detail me, we may have discussed some of the

14

potential issues that I have in terms of future orders and

15

things of that nature ----

16

LDC [MR. NEVIN]:

17

MJ [Col PARRELLA]:

18
19

Yes, sir.
---- but ultimately, I didn't push

back, if you will.
LDC [MR. NEVIN]:

Yeah.

Really -- and I want to ask you

20

about those orders, but that was really my question.

21

open or willing to be appointed or were you appointed against

22

your -- over -- against your will, so to speak?

23

MJ [Col PARRELLA]:

Were you

I guess, as a Marine, we do -- we

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follow orders.

2

time constraints with future orders, but ultimately, I didn't

3

push back, I guess, if that answers your question.

4

I expressed reservations about some of the

LDC [MR. NEVIN]:

5

Yes, sir, it does.

Thank you.

And just to then return to the question of how you

6

got into the pool in the first place, I take it you were

7

nominated by the TJAG, if that's the right term, for the

8

Marine Corps; is that correct?

9

MJ [Col PARRELLA]:

I believe my nominee -- or I was

10

nominated by the TJAG upon the recommendation of the Chief

11

Trial Judge of the Navy.

12

LDC [MR. NEVIN]:

I see.

So that would be the TJAG for

13

the -- and the military judge will perhaps understand that I'm

14

a civilian, and so I find my way as best I can in some of

15

these areas.

16

or the -- or is there a TJAG in the Marine Corps as well?

But would that have been the TJAG of the Navy,

17

MJ [Col PARRELLA]:

18

LDC [MR. NEVIN]:

19
20

Of the Navy.
Of the Navy.

Okay.

And do you know when that occurred, sir?
MJ [Col PARRELLA]:

I don't know when the nomination was

21

made.

22

when I was still in my former billet and indicated they

23

intended to nominate me.

All I know is that the chief trial judge contacted me

I would estimate that was probably

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2
3

around May of 2018.
LDC [MR. NEVIN]:

MJ [Col PARRELLA]:

5

LDC [MR. NEVIN]:

6

MJ [Col PARRELLA]:

7

LDC [MR. NEVIN]:

9

Okay.

And at that time, you were

SJA of the 2nd Marine Division, correct?

4

8

Ah.

That is correct.
At Camp Lejeune.
Correct.
Right.

Okay.

Thank you, sir.

So I wanted to just ask you a question or two, and
you answered some of this at the 802.

And I'm referring

10

specifically to your stating that until things change, you

11

would maintain the status quo that Judge Pohl had maintained,

12

and I appreciate that.

13

I wanted to ask whether you had any particular -- and

14

this is an extraordinary case, sir, and there's a lot of

15

discovery material in it, and there are many, many complex

16

issues, and you're, of course, coming into it, let's say, in

17

the middle.

18

with that, with that problem?

Do you have a particular plan for how to deal

19

MJ [Col PARRELLA]:

20

LDC [MR. NEVIN]:

21

MJ [Col PARRELLA]:

Not yet.
Okay.
I mean, I will just tell you simply, I

22

obviously am aware of the complexity of this litigation, the

23

fact that this case has been going on for a long period of
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time.

2

apply the law every day that I'm sitting up here as the

3

military judge.

4

However, I have been detailed, and I will do my best to

LDC [MR. NEVIN]:

Yes, sir.

And I think there are

5

several -- there are several areas of the law that will be

6

applicable to this case that require a comprehensive knowledge

7

of everything that's happened in the case.

8

most obvious example is the substitution process for

9

classified information, when the government comes to you and

For example, the

10

says, here's the original.

11

plan to give to the defense.

12

defense in the same position that they would have been to make

13

a defense as access to the original would have.

14

determination that will require you to know everything that's

15

come before us, since all of that will inform the defense's

16

ability to make a defense.

17

Here's the substitution that we
And in our view, this puts the

So -- and there are other examples.

That's a

The Brady

18

analysis is cumulative, for example, in determining whether

19

information under Brady has to be produced, so it requires you

20

to know what else has been produced and so on.

21

Is -- do you have a plan for how -- or I think it

22

will take a long time for anyone to get all the material under

23

control.
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MJ [Col PARRELLA]:

I understand, Mr. Nevin, and -- so

2

this sort of goes to, I think, qualifications.

3

certainly going to be -- whenever somebody like the military

4

judge or perhaps some other party is introduced to a case

5

that's been ongoing, there's going to potentially be some

6

delay as that individual gets up to speed.

7

the fact that I'm just coming into this case -- or at least I

8

will do my best to mitigate against any disruption.

9

to slow the pace of litigation down so that I can get up to

There is

I will not allow

If I need

10

speed to feel comfortable that I'm making the right decision,

11

I will do so.

12

But to the extent that we're starting to get down the

13

road of qualifications, I'll simply say, I'm qualified

14

pursuant to R.M.C. 502 and 503, I've been detailed by a

15

competent authority, and we're moving out.

16

LDC [MR. NEVIN]:

But the military judge doesn't fail to

17

recognize that there are unique complexities in this case

18

that -- at least on behalf of Mr. Mohammad, I do respectfully

19

ask that -- that you become aware of everything that's

20

pertinent and relevant in the case before you -- and,

21

honestly, I considered asking you to not hold this voir dire

22

until that had been accomplished, until you had absorbed

23

everything.

And I do ask on behalf of him that you absorb
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everything before you begin making substantive rulings.

2

think it's critically important, it's a capital case and so

3

on.

4

MJ [Col PARRELLA]:

I

I understand, and as I just

5

articulated, I will not rush.

6

rush.

7

every decision that I make that I understand the issues, the

8

background, understanding that might be a quite intensive

9

process of review, before I make any substantive decisions.

10
11

I do not feel pressured to

I will set the pace such that I feel comfortable in

LDC [MR. NEVIN]:

Yes, sir.

Thank you.

I appreciate

that.

12

I will say that in civilian courts where I have

13

practiced, when a judge replaces another, it is typical for

14

the parties to ask, as they wish, for the new judge to review

15

decisions that the prior judge made.

16

would be:

17

particular practice that you follow in that respect?

18

And I guess my question

Have you replaced judges before?

MJ [Col PARRELLA]:

Do you have a

I have replaced judges before, and

19

typically, I do review all of the materials, past rulings,

20

that are still applicable or may impact the trial.

21
22
23

LDC [MR. NEVIN]:

All right.

Thank you, sir.

I wanted just to take a minute to make sure I
understood your background, and I'll do this -- I'll do this
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quickly, but I want to make sure that I'm not making any

2

errors.

3

so that we had that information.

4

it that I didn't completely understand.

5

I appreciate your -- or whoever filed 001B filing it
But there were some parts of

I take it you have -- you graduated from law school

6

in '98, and that's 20 years ago and a few months.

7

that 20 years, you have -- and I couldn't tell whether it was

8

three or four years of law school.

9

that it might have been '94 to '98 that you were in law

10
11

There was some indication

school.
MJ [Col PARRELLA]:

12

going to ask you:

13

impartiality or bias?

14

And that of

It was three years, but again, I'm

What's the relevance of this to

LDC [MR. NEVIN]:

I want to ask you -- I want to be clear

15

what time you have spent as a military judge and what time you

16

have spent as a trial lawyer, and -- because it is -- because

17

of the complexity and size of this case, I'm interested in

18

knowing exactly what your experience has been as a trial

19

lawyer and as a military judge.

20

MJ [Col PARRELLA]:

I understand the concern that you have

21

and maybe the curiosity, but what I don't see is the relevance

22

towards my impartiality or bias.

23

understand from where you're seated, just the reservations

And I can certainly

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about what -- you know, qualifications, time, experience,

2

those things.

3

But like I said, the rules are clear about what the

4

qualifications are for a commissions judge, so unless the

5

question is about my qualifications as a commissions judge or

6

about my impartiality or bias, I'd ask that you please move

7

on.

8
9

LDC [MR. NEVIN]:

Yes, sir.

And let me just say -- and

I'm -- I will move on, of course.

But it's not just

10

qualifications.

11

disqualification under the rules that apply to judges and ----

12

It's also whether there is any ground for

MJ [Col PARRELLA]:

And sorry to cut you off, Mr. Nevin,

13

but then I'd welcome a particular question if there's

14

something in my biography; that was the purpose of me

15

providing it.

16

to be concerned about an area of disqualification, I certainly

17

welcome those questions.

18

If there's something in there that causes you

LDC [MR. NEVIN]:

Yes, and the question would be whether

19

the -- whether you have sufficient experience to discharge the

20

duties of a military judge effectively and fairly and

21

efficiently.

22

assess that -- and frankly, sir, you have been a judge for a

23

relatively short period of time, and everybody tells me that

And I don't see how I can ask you that -- I can

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you're very -- that you come up to speed very quickly, which I

2

appreciate.

3

But it's an extraordinary case.

The judge who is

4

leaving had some decades of experience as a judge.

5

I mean no disrespect to you.

6

inquiry to say how much time have you spent in the courtroom?

7

Have you ever handled a capital case?

8

judge in a murder case and questions of that sort.

9

don't intend to ----

10

MJ [Col PARRELLA]:

And it --

I just think it's a fair line of

Have you ever been a
And I

So, Mr. Nevin, I take no disrespect

11

from the questioning.

12

understand why you would ask those questions from your

13

position.

14

judge who had been a trial judge substantially longer and had

15

a lot more experience than I.

16
17

I certainly -- like I said, I

I certainly understand also that I'm replacing a

However, the detailing authority, who happens to be
that same judge, selected me to be assigned to this case.

18

LDC [MR. NEVIN]:

19

MJ [Col PARRELLA]:

Yes, sir.
The qualifications, as I read them,

20

are that you're a trial judge for at least two years.

21

provided my bio so that you would see that I've met those

22

qualifications.

23

just from the short time I've been a part of this case and

I

I mean, I certainly understand the complexity

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2

will do my very best.
But I don't see the relevance of continuing to go on

3

and ask questions that simply highlight this is a complex case

4

that requires, you know, experience.

5

So I'd ask again, unless it goes to impartiality or bias or if

6

you have a question that you think disqualifies me or pertains

7

to those qualifications set forth in the rules, let's move on.

8
9

LDC [MR. NEVIN]:

Okay.

I've met the experience.

And again, my specific question

would be the military judge's capability to handle this case

10

as a military judge.

11

if, for whatever reason, you were incapable of doing that.

12

And I believe that would disqualify you

MJ [Col PARRELLA]:

I would agree.

If I felt I did not

13

have the requisite qualifications, then I would be required to

14

disqualify myself.

15

LDC [MR. NEVIN]:

All right.

And, sir, just to make my

16

record, let me ask you specifically:

17

cases you have tried to verdict as a lawyer or as a judge?

18

And I recognize that might be a ballpark answer.

19

MJ [Col PARRELLA]:

Right.

Will you say how many

So the best I can do for you,

20

Mr. Nevin, is in terms of trying cases -- and I think this is

21

just a summary of what's in the biography -- I spent

22

collectively about six years on active duty as a litigator and

23

probably took well over 100 trials to verdict.

Two years as a

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military judge, maybe 20, 30, 40, I honestly don't know.

2

in there, as you can see, there is also several years where I

3

spent supervising counsel as they performed those functions.

4
5
6
7

LDC [MR. NEVIN]:

Right.

Okay.

And

Thank you.

So more than 100 trials in which you were the lawyer
taken to verdict and ---MJ [Col PARRELLA]:

Correct.

And I can't -- I mean, I

8

don't know if you're asking me to distinguish between what we

9

would consider members trials or jury trials vice a verdict,

10
11
12
13

you know, through a guilty plea or some other avenue.
LDC [MR. NEVIN]:

I'm sorry.

focus on trial to members, a jury trial in my parlance.
MJ [Col PARRELLA]:

I have no idea, Mr. Nevin.

14

something I kept track of.

15

that up ----

16

LDC [MR. NEVIN]:

17

MJ [Col PARRELLA]:

18
19
20
21

I meant to specifically

It's not

I probably could go back and add

Yeah.
---- but I'm not going to because,

again, I don't think it's relevant.
LDC [MR. NEVIN]:

Yes, sir, I understand.

And that more than 100 number was not isolated to
members, that was ----

22

MJ [Col PARRELLA]:

23

LDC [MR. NEVIN]:

Probably not.
Okay.

And did you, as a trial lawyer,

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2

as a judge, handle murder cases?
MJ [Col PARRELLA]:

As a prosecutor, yes.

I should say

3

that I briefly practiced civilian -- in civilian jurisdiction

4

before coming into the Marine Corps.

5

was essentially assisting through law school, so I would call

6

it an internship ----

7

LDC [MR. NEVIN]:

8

MJ [Col PARRELLA]:

9

For a period of time, I

Yeah.
---- or however you want to call it, a

job ----

10

LDC [MR. NEVIN]:

11

MJ [Col PARRELLA]:

Yeah.
---- where I worked with a civilian

12

state practitioner doing criminal defense.

13

work on a couple capital cases while working with his office.

14

Again, I did some as a prosecutor in the military, and I can't

15

recall if I ever did one as a defense counsel.

16

one as a military judge.

17

LDC [MR. NEVIN]:

18

MJ [Col PARRELLA]:

19

LDC [MR. NEVIN]:

I did actually

I did not do

Referring to murder cases?
Correct.
Okay.

And if I could just ask you

20

briefly, was the case when you were acting -- you would have

21

been acting as an intern when you were in law school with

22

the -- with the private firm?

23

MJ [Col PARRELLA]:

Correct.

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LDC [MR. NEVIN]:

2

MJ [Col PARRELLA]:

3

LDC [MR. NEVIN]:

5

MJ [Col PARRELLA]:

6

LDC [MR. NEVIN]:

One of them

While you were interning?
Yes.
Okay.

And did I understand you

correctly that those were both capital cases?

8

MJ [Col PARRELLA]:

9

LDC [MR. NEVIN]:

10

There were two of them.

did go to trial.

4

7

Was that case tried?

cases?

They were.
Okay.

And what about multidefendant

Have you been involved in multidefendant cases?

11

MJ [Col PARRELLA]:

12

LDC [MR. NEVIN]:

13

MJ [Col PARRELLA]:

Yes.
And roughly how many?
Again, we're getting into

14

qualifications, Mr. Nevin.

15

I'm not going to repeat the same thing over.

16

on past qualifications.

17

that you think pertains to qualifications, please ask it.

18

LDC [MR. NEVIN]:

I'm trying to be patient here, but
We need to move

So if there's a particular question

Yes, sir.

And I can really only say

19

what I said before, which is, that if for whatever reason a

20

military judge is -- it's not within the scope of that

21

person's experience to actually handle the case effectively or

22

competently, that's a fair area of questioning.

23

the code of judicial conduct for U.S. judges and ----

It -- under

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MJ [Col PARRELLA]:

I just don't see how you'd ask that

2

question at this stage in the proceedings.

3

retain the ability to challenge the military judge.

4

ability you retain even after we finish this voir dire here

5

today.

6

pertains to that issue, then I'm happy to entertain it.

7

So again, you
It's an

So if you have a question right now that you think

LDC [MR. NEVIN]:

Do you -- does your experience in

8

capital cases extend beyond those two when you were a law

9

student?

10

MJ [Col PARRELLA]:

The case I prosecuted in the military

11

began as a capital case.

12

through a plea agreement where the accused pled noncapital,

13

obviously.

14
15

LDC [MR. NEVIN]:

It was ultimately later handled

So have you studied the law of capital

punishment?

16

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

Not extensively.
And you, I'm sure, would recognize that

18

there is a separate body of jurisprudence that comes out of

19

the U.S. Supreme Court and -- as well as in the state courts,

20

but important for us, the Supreme Court, that deals

21

specifically with capital cases?

22

MJ [Col PARRELLA]:

23

LDC [MR. NEVIN]:

I'm aware.
Yeah.

And is that -- has that been a

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part of the work that you have done coming up to speed on this

2

case since you were detailed?

3

acquainted with that area of the law?

In other words, becoming

4

MTC [MR. TRIVETT]:

Objection, relevance.

5

MJ [Col PARRELLA]:

I'll answer the question, Mr. Nevin,

6

simply to say that I have not attended any specific training

7

to capital litigation at this point in time.

8

aware that this is a capital case, and that factors into my

9

decision that you ultimately addressed as to whether I believe

I am, of course,

10

personally that I'm qualified and whether I should recuse

11

myself for that purpose.

12

LDC [MR. NEVIN]:

13

MJ [Col PARRELLA]:

14

LDC [MR. NEVIN]:

15

MJ [Col PARRELLA]:

16

LDC [MR. NEVIN]:

Okay.

And you do not.

I do not believe that ---Right.
---- I'm unqualified.
Yes, sir.

One of the questions that I

17

asked Judge Pohl during the voir dire process was about his

18

understanding of the concept of mitigation, and I wanted to

19

ask you the same question.

20

It's important to us in this case.

I'll represent to you that Mr. Mohammad spent three

21

and a half years in the CIA's RDI program, which is -- during

22

which he was tortured, and so the question of mitigation is

23

important to us.

Is that an aspect of capital jurisprudence

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2

that the military judge has studied?
MJ [Col PARRELLA]:

I certainly have studied that in the

3

past with respect to capital litigation and when I worked as a

4

defense counsel or assisting defense counsel on capital

5

litigation, but I understand, obviously, the concept of what

6

mitigation is and believe it is obviously important.

7

LDC [MR. NEVIN]:

As Judge Pohl phrased it, he said

8

basically whatever you think is mitigating, what the defense

9

thinks is mitigating is and that he would treat it that way.

10

Would you -- does that ----

11

MJ [Col PARRELLA]:

12

LDC [MR. NEVIN]:

13

I agree with that statement.
All right.

Thank you.

Do you -- have you handled cases that are comparable

14

to this case in terms of the amount of discovery that's at

15

issue in previous cases?

16
17
18

MJ [Col PARRELLA]:

I don't believe that question is

relevant, Mr. Nevin, for the reasons I've already stated.
LDC [MR. NEVIN]:

And so may I ask if you are familiar

19

with the American Bar Association Guidelines for the

20

appointment and performance of defense counsel in death

21

penalty cases?

22

MJ [Col PARRELLA]:

23

LDC [MR. NEVIN]:

Not intimately.
And did you consider that those were

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applicable when you were acting as a defender in the capital

2

cases you referred to?

3
4
5

MJ [Col PARRELLA]:

I don't see the relevance of this

question.
LDC [MR. NEVIN]:

The -- Your Honor, the -- in this

6

particular case, Congress has mandated the consideration of

7

the ABA Guidelines by the conferee's mandated consideration of

8

that in the formation of the Regulation for Trial by Military

9

Commission, and I simply wonder if that is part of what the

10
11

military commission has considered.
MJ [Col PARRELLA]:

So, Mr. Nevin, I will follow every

12

law, rule, and regulation that's applicable to this military

13

commission.

14

then I will follow it to the best of my ability.

15

If that's applicable to this military commission,

LDC [MR. NEVIN]:

Sir, I will represent to you that the

16

American Bar Association offered to train members of the trial

17

judiciary in the military commissions in 2011 on the

18

Guidelines, and this would be a neutral organization, the

19

American Bar Association.

20

judge would be willing to entertain?

Is that something that the military

21

MJ [Col PARRELLA]:

I'm not ----

22

MTC [MR. TRIVETT]:

Objection, relevance.

23

MJ [Col PARRELLA]:

Sustained.

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2

LDC [MR. NEVIN]:

Is this your first trip to

Guantanamo Bay?

3

MJ [Col PARRELLA]:

4

LDC [MR. NEVIN]:

Yes, it is.
Could you say to us what you know about

5

the rules?

6

example, the Manual for Military Commissions?

7

familiar with these areas of the law?

Have you read the Military Commissions Act, for

8

MJ [Col PARRELLA]:

9

LDC [MR. NEVIN]:

I am.
And you mentioned that you had spoken to

10

Judge Pohl about the -- about being detailed.

11

describe that conversation, please?

12

MJ [Col PARRELLA]:

Are you

Could you

I will simply say that we did not

13

discuss any substance of the case.

14

discussion was brief, and it was related to the fact of him

15

providing notice that he was considering detailing me to this

16

case.

17
18
19
20

LDC [MR. NEVIN]:

Have you spoken to other persons about

this case?
MJ [Col PARRELLA]:

I don't know who you're referring to,

Mr. Nevin.

21

LDC [MR. NEVIN]:

22

MJ [Col PARRELLA]:

23

The decision -- or the

I'm referring to anyone, Your Honor.
As you're aware, Mr. Nevin, there's

a -- the trial judiciary has legal advisors.

Of course, I've

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spoken to other folks about this case.

2

LDC [MR. NEVIN]:

3

MJ [Col PARRELLA]:

4
5
6

Yes.

that question.
LDC [MR. NEVIN]:

Okay.

MJ [Col PARRELLA]:

8

LDC [MR. NEVIN]:
counsel?
MJ [Col PARRELLA]:

11

LDC [MR. NEVIN]:

13

No.
Secretary of Defense or acting general

10

12

Have you spoken to, let's say,

anyone at the Pentagon about this case?

7

9

So you're going to have to narrow down

No one.
No one.

And apart from your legal advisor and staff, of
course, has anyone else spoken to you about this case?

14

MJ [Col PARRELLA]:

15

LDC [MR. NEVIN]:

No.
Do you have any -- do you come here with

16

any kind of expectation about what you should or ought to be

17

accomplishing here?

18

MJ [Col PARRELLA]:

19

LDC [MR. NEVIN]:

Not at all.
Do you -- one of the things we hear

20

frequently is that there is -- that there has been a lot of

21

delay in this case.

22
23

Do you -- are you aware of that?

MJ [Col PARRELLA]:

Other than simply the fact that this

case has been going on as long as it has, not specifically,
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2
3

no.
LDC [MR. NEVIN]:

your job here is to make the case move more quickly?

4

MJ [Col PARRELLA]:

5

LDC [MR. NEVIN]:

6

MJ [Col PARRELLA]:

8

LDC [MR. NEVIN]:

10
11
12

No.
Okay.

So no one has suggested to you

that that would be something you should do?

7

9

Do you see that -- do you take it that

Not at all.
All right.

Do you have particular

experience with the law of armed conflict, sir?
MJ [Col PARRELLA]:

I have served in operational billets

that have entailed the knowledge of the law of armed conflict.
LDC [MR. NEVIN]:

Have you thought about or formed or

13

expressed an opinion about whether the United States was

14

involved in an armed conflict subject to the laws of war on

15

September 11th, 2001?

16

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

18
19

I ask:

Not specifically that I can recall.
Okay.

Well, sometimes you say "no," so

Is there -- is there an occasion where ----

MJ [Col PARRELLA]:

20

happened.

21

for a year.

Well, I'm hesitant to say it's never

I was a student at the Army's Judge Advocate School

22

LDC [MR. NEVIN]:

23

MJ [Col PARRELLA]:

Right.
Is it possible that there was a

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discussion about that during an operational international law

2

class?

3

recollection of it.

4
5

It is possible.

LDC [MR. NEVIN]:

I just don't simply have a

Okay.

And is that -- but that's -- is

that something you formed an opinion on?

6

MJ [Col PARRELLA]:

7

LDC [MR. NEVIN]:

No.
I wanted to ask you some questions about

8

595B.

9

Marine Corps Fellowship Program.

10
11

That's your fitness report out of the Commandant of the
Could you say what you did

on that, during that time?
MJ [Col PARRELLA]:

Yes.

So the Fellowship Program is

12

part of Marine Corps University.

13

handful of officers to serve as Fellows at different agencies

14

and corporations and think tanks.

15

Fellow for the Department of Justice.

16

assigned to the National Security Division, and within that,

17

the Counterterrorism Section.

Every year they select a

I was selected to be the
With that, I was

18

So I think in the exhibit itself, you probably have

19

an explanation of what the -- that -- those duties entailed.

20

I will say that it was distinct from being a hired Department

21

of Justice employee in the sense that the Marine Corps mandate

22

was that I essentially bring something back to the

23

organization, so I observe, attempt to attend meetings as
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frequently as possible, maybe provide some information to the

2

Department of Justice about what DoD's mission is and answer

3

any questions that they may have as well.

4
5
6
7

LDC [MR. NEVIN]:

Did you participate in the litigation of

a specific case?
MJ [Col PARRELLA]:

I did.

I can't tell you what those --

I just don't recall what those cases were.

8

LDC [MR. NEVIN]:

9

MJ [Col PARRELLA]:

So it was more than one case?
It was more than one case.

I was

10

always co-detailed, so I was never assigned a case to myself.

11

I was always co-detailed with an existing or a permanent

12

employee of CTS so that I could essentially assist and

13

observe.

14
15

LDC [MR. NEVIN]:

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

18

MJ [Col PARRELLA]:

20
21
22
23

And you appeared on the record, I

believe?

16

19

Yeah.

I never ---I'm sorry.

When you say detailed ----

Yeah, I never made an appearance in a

courtroom while I was at the Department of Justice.
LDC [MR. NEVIN]:

I see.

Could you say who you worked

with there?
MJ [Col PARRELLA]:
attorneys.

I was assigned cases with a handful of

The only -- I would say, most frequently would be
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2

, who I think his name appears on the report, and a
gentleman by the name of

3

LDC [MR. NEVIN]:

4

MJ [Col PARRELLA]:

5

LDC [MR. NEVIN]:

.

I'm sorry, would you say that again?
.
Okay.

Did you become acquainted with

6

any of the persons who are appearing here as trial counsel

7

today?

8
9

MJ [Col PARRELLA]:

I know Mr. Groharing from his time

going back to when he served on active duty in the Marine

10

Corps, and I did have occasion to see him at social functions,

11

going-away, Christmas party.

12

throughout that year I saw him in a going-away or social

13

situation while there.

14
15
16

LDC [MR. NEVIN]:

So maybe two or three times

Was he associated with the National

Security Division and the Counterterrorism Section?
MJ [Col PARRELLA]:

I believe he was and that he was on

17

detail to here, but I don't -- I don't know.

18

maintain a presence at the Department of Justice while I was

19

there ----

20

LDC [MR. NEVIN]:

21

MJ [Col PARRELLA]:

22
23

And he didn't

Okay.
---- other than those sort of

appearances for social situations.
LDC [MR. NEVIN]:

I wanted to make sure I understand what

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you just said.

2

the military commission?

You said he was detailed "here," meaning to

3

MJ [Col PARRELLA]:

4

LDC [MR. NEVIN]:

5

MJ [Col PARRELLA]:

6

LDC [MR. NEVIN]:

It's my understanding.
From DoJ?
Correct.
Okay.

But he was in that section.

It's

7

just -- if I understand you, what you're saying correctly, he

8

was in that section.

9

You just don't work with him directly?

MJ [Col PARRELLA]:

I don't know that I can answer that

10

question because I don't know for sure.

11

is yes.

12

LDC [MR. NEVIN]:

Okay.

I believe the answer

What about other persons

13

associated with the military commission -- with military

14

commissions at NSD Counterterrorism?

15
16

MJ [Col PARRELLA]:

I was at DoJ who was working on the commissions.

17

LDC [MR. NEVIN]:

18

MJ [Col PARRELLA]:

19

LDC [MR. NEVIN]:

20

MJ [Col PARRELLA]:

21

LDC [MR. NEVIN]:

22

MJ [Col PARRELLA]:

23

I don't believe I've met anybody when

Michael Lebowitz?
Doesn't ring a bell.
Okay.

Joanna Baltes?

Doesn't ring a bell either.
Okay.

Mr. Trivett?

I don't think so.

It's possible he

may -- I may have met him at -- again, at a social function,
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but I never worked with him.

2

LDC [MR. NEVIN]:

3

MJ [Col PARRELLA]:

4

LDC [MR. NEVIN]:

Okay.

Mr. Ryan?

I don't believe so.
Okay.

Could you -- did you receive

5

particular training to do the work that you did there at the

6

National Security Division?

7

MJ [Col PARRELLA]:

8

LDC [MR. NEVIN]:

9
10

up to speed?

No.
Did you read materials to get yourself

For example, did you read the 9/11 Report?

MJ [Col PARRELLA]:

I did not read the 9/11 Report.

The

11

only thing I remember reading to sort of get up to speed was

12

the statutes related to CIPA.

13

LDC [MR. NEVIN]:

Did anybody offer you training about --

14

about international terrorism, let's say, for want of a better

15

way of phrasing it?

16

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

18

No.
And did you read materials that were

related to that?

19

MJ [Col PARRELLA]:

20

LDC [MR. NEVIN]:

No.
I know that in the process of working on

21

cases like that, that it becomes important to know the kind of

22

general milieu of international terrorism.

23

for you and did you make -- did you make any effort to educate

Was that the case

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2

yourself in that area?
MJ [Col PARRELLA]:

Not independent effort.

I mean, other

3

than my just base knowledge of the subject matter from my

4

times in DoD, I don't recall any specific trying to get up to

5

speed on the topic.

6
7

LDC [MR. NEVIN]:

Have you reviewed or discussed the

statements that the men in this case made at any time?

8

MJ [Col PARRELLA]:

9

LDC [MR. NEVIN]:

No.
You spent time as a commander of a

10

regional group, I believe, Western -- it's Region 8, if I'm

11

remembering correctly.

12

MJ [Col PARRELLA]:

13

LDC [MR. NEVIN]:

14

MJ [Col PARRELLA]:

15

LDC [MR. NEVIN]:

That's correct.
And that's Central Europe, is it not?
Yes, it is.
And that was the -- because the Marine

16

Corps has as one of its responsibilities protection of

17

United States embassies, correct?

18

MJ [Col PARRELLA]:

19

LDC [MR. NEVIN]:

20

All right.

So you had then command of

the Marines who were protecting the embassies in Region 8?

21

MJ [Col PARRELLA]:

22

LDC [MR. NEVIN]:

23

That is correct.

Yes.
Right.

And my understanding was that

you lived in Germany during that period.
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MJ [Col PARRELLA]:

2

LDC [MR. NEVIN]:

Yes.
Okay.

And, of course, one of the -- one

3

of the issues for protection of United States embassies would

4

be threat from terrorism.

5

that threat and would have educated yourself about the extent

6

of it.

7

And I take it you were aware of

Would that be correct?

MJ [Col PARRELLA]:

To a limited extent.

The way that the

8

program is designed is the Marines, when they're at embassies

9

and consulates, are actually under the operational control of

10

the regional security officer within the Department of State.

11

Our job is to ensure that the Marines are adequately trained,

12

that they're doing okay, that the State Department is abiding

13

by the MoU that we have for the Marine security program.

14
15

LDC [MR. NEVIN]:

Are you aware of what's been referred to

as the East Africa Embassy Bombings that occurred in 1998?

16

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

Other than just media accounts, no.
Okay.

And you didn't receive any

18

information during your time as a commander regarding those

19

events?

20

MJ [Col PARRELLA]:

21

LDC [MR. NEVIN]:

No.
And did you -- when you say media

22

accounts, can you be more specific what you're referring to

23

there?
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MJ [Col PARRELLA]:

Just general media accounts, probably

2

back when the incident occurred.

3

knowledge, any classified material while in command at

4

Region 8.

5

LDC [MR. NEVIN]:

I never reviewed, to my

I will tell you that the government

6

relies in large part or in -- to a certain degree on the --

7

those attacks as part of its argument that there were, indeed,

8

hostilities subject to the law of war on September 11th.

9

asked the question whether there's anything in your background

So I

10

that would -- any information that you would have had on that

11

subject as you come here to the bench today.

12

MJ [Col PARRELLA]:

13

LDC [MR. NEVIN]:

No.
I take it we're going to be having

14

argument on motions later today.

15

motion to abate until you have come up to speed, so -- so

16

maybe we won't.

17

I believe maybe there's a

But I'm interested to know what you've read about the

18

case at this point.

19

Have you read -- have you read those or any portion of them?

We have some 20,000 pages of transcripts.

20

MJ [Col PARRELLA]:

21

LDC [MR. NEVIN]:

22
23

I have read portions.

Yes, I have.

Have you read -- did you read the prior

voir dire?
MJ [Col PARRELLA]:

Some of them.

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LDC [MR. NEVIN]:

2

MJ [Col PARRELLA]:

Okay.

What about motions arguments?

I've read portions of the transcript

3

that included motions arguments.

4

the voir dire.

5

going to do in this session of court or this docket order.

I've read pleadings applicable to what we're

6

LDC [MR. NEVIN]:

7

MJ [Col PARRELLA]:

8

LDC [MR. NEVIN]:

9

MJ [Col PARRELLA]:

11

LDC [MR. NEVIN]:
the case?

MJ [Col PARRELLA]:

14

LDC [MR. NEVIN]:

16

But not the whole ----

No.
And could you say how much of the whole

I can't.
Okay.

And what about the pleadings in

Have you read the pleadings in the case?

13

15

Okay.

you've read at this point?

10

12

Again, I've read portions of

Not all of them.
Could you give us an idea of

what percentage?
MJ [Col PARRELLA]:

Mr. Nevin, I'm not going to.

I mean,

17

obviously, there is a voluminous amount of material.

18

read as much as I can, given the time constraints that I've

19

had; and again, done everything I could to ensure that I'm at

20

least able to preside and understand the issues and rule on

21

the law to the best of my ability.

22

of which I'm going to answer that question.

23

LDC [MR. NEVIN]:

I've

And so that's the extent

Well, okay, Your Honor.

Did I

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understand you to say that you did not begin reading materials

2

until the 27th, until you were detailed on the 27th?

3

MJ [Col PARRELLA]:

4

LDC [MR. NEVIN]:

5
6

That's correct.
So something on the order of ten days

ago?
MJ [Col PARRELLA]:

Yeah.

It's possible when I went up

7

for the read-in that I might have reviewed a few matters, but

8

I don't recall doing much.

9

protective order when I was up there in the middle of August.

I think maybe I reviewed the

10

But that would have been the earliest I would have reviewed

11

anything related to the case.

12
13
14
15

LDC [MR. NEVIN]:

what are you referring to?
MJ [Col PARRELLA]:

Protective order, I believe it's

Appellate Exhibit 013BBBB.

16

LDC [MR. NEVIN]:

17

MJ [Col PARRELLA]:

18

LDC [MR. NEVIN]:

19

And when you say the protective order,

Protective Order #1.
Correct.
And have you read protective orders --

have you read other protective orders?

20

MJ [Col PARRELLA]:

21

LDC [MR. NEVIN]:

I have since then.
Okay.

And could I ask, have you read

22

the 505 materials, meaning the government's submissions and

23

proposed substitutions and the military judge's rulings?
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MJ [Col PARRELLA]:

I'm going to ask you to move on,

2

Mr. Nevin.

3

concerned that I might have formed an opinion, you can ask

4

that question.

5

opinions, I haven't reviewed or pre-reviewed any materials

6

that have caused me to form an opinion about how any

7

particular issue should be resolved at this point.

8
9

I mean, if there's a particular thing that you're

But I will tell you that I have not formed any

LDC [MR. NEVIN]:

No, but -- and again, Your Honor, I'm

just -- the reason for the inquiry is just to know what your

10

state of knowledge is because that shapes the way we argue the

11

case, the way all the parties would argue the case.

12

obviously, so that's the reason for the question.

13

MJ [Col PARRELLA]:

And --

Again, I can understand your -- why

14

you'd want to know that.

15

impartiality or bias, I'm going to ask you to move on.

16

LDC [MR. NEVIN]:

But since it's not relevant to my

Okay.

So let me just run down this list

17

quickly and ask you, have you read any of the cases of the

18

United States Supreme Court or of the courts of appeals that

19

directly relate to military commissions cases?

20

MTC [MR. TRIVETT]:

Objection, relevance.

21

MJ [Col PARRELLA]:

Yeah, I will briefly state that I have

22

not -- not that I can recall.

23

going to move on.

It's possible, but again, we're

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LDC [MR. NEVIN]:
Honor.

And I understand, Your

I just -- I have to ask.

3
4

All right.

Have you read any of the journalism related to this
case?

5

MTC [MR. TRIVETT]:

Same objection.

6

MJ [Col PARRELLA]:

I'll answer that briefly just because

7

it's potentially related to why we're going through this

8

question.

9

attorney advisors provided me an article that was probably

I generally have not.

I think that one of the

10

authored in 2012 or '13 that just had pictures of the trial

11

participants, and I think that's why it was provided, is to

12

put a face and a name together.

13

media I reviewed.

14

LDC [MR. NEVIN]:

15

MJ [Col PARRELLA]:

16

LDC [MR. NEVIN]:

17
18

Okay.

That's the extent of the

What about books?

No.
And there have been many books, of

course, but you're saying you have read none of them?
MJ [Col PARRELLA]:

I've never read a book particularly

19

about this case or that I can recall specifically about 9/11.

20

There may have been books that tangentially mentioned 9/11,

21

but not specifically anything about this case.

22
23

LDC [MR. NEVIN]:

All right.

What about movies or

documentaries?
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MJ [Col PARRELLA]:

2

LDC [MR. NEVIN]:

3

MJ [Col PARRELLA]:

5

LDC [MR. NEVIN]:

6

MJ [Col PARRELLA]:

7

LDC [MR. NEVIN]:

9
10

And in particular, you've not seen Zero

Dark Thirty?

4

8

No.

I have seen Zero Dark Thirty.
Doctors of the Dark Side?
No.
Could you say what impact Zero Dark

Thirty had on you?
MJ [Col PARRELLA]:
LDC [MR. NEVIN]:

Not a significant impact.
Sir, do you have information about the

11

CIA torture program at all?

12

that this -- for example, there has been a book entitled

13

Enhanced Interrogation written by one of the people who

14

designed the program.

15

MJ [Col PARRELLA]:

16

LDC [MR. NEVIN]:

17

And I'll just represent to you

Have you read that book?
I have not.
Okay.

And do you have any other

knowledge or information about the torture program?

18

MJ [Col PARRELLA]:

No.

19

MTC [MR. TRIVETT]:

Objection as to form.

20

LDC [MR. NEVIN]:

21
22
23

And in particular, have you read the

executive summary of the SSCI report on the torture program?
MJ [Col PARRELLA]:

Hang on one second, Mr. Nevin.

Trial Counsel?
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2
3
4
5

MTC [MR. TRIVETT]:
based on form.

We object to this line of questioning

Calls for a legal conclusion.

MJ [Col PARRELLA]:

Okay.

I'll allow the question.

Mr. Nevin, just repeat that last question.
LDC [MR. NEVIN]:

The question was whether you had read

6

the -- or all or any part of the executive summary of the

7

Senate Select Committee on Intelligence's report released

8

December 9 of 2014 regarding the torture program.

9
10
11

MJ [Col PARRELLA]:
LDC [MR. NEVIN]:

I have not.
And have you read any of the Office of

Legal Counsel memoranda that relate to the torture program?

12

MJ [Col PARRELLA]:

13

LDC [MR. NEVIN]:

I have not.
Okay.

Have you formed or expressed an

14

opinion about whether the torture was justified under the

15

circumstances?

16

MJ [Col PARRELLA]:

17

LDC [MR. NEVIN]:

18

MJ [Col PARRELLA]:

19
20

No.
That's all I have.

Thank you, sir.

You're welcome.

Ms. Bormann?
LDC [MS. BORMANN]:

Judge, if you will bear with us and we

21

can go a little out of order, we just received -- given the

22

line of questioning that Mr. Nevin just gave, we sent

23

Captain Brady to retrieve a copy of the JAG rule that applies
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to you, so if you can give us a moment just to look at that

2

and maybe Mr. Harrington could go first, that would be great.

3

It literally was just delivered.

4
5
6
7
8
9
10
11

MJ [Col PARRELLA]:

Okay.

In the meantime,

Mr. Harrington, would you like to proceed?
LDC [MR. HARRINGTON]:

Judge, do you know what implicit

bias is?
MJ [Col PARRELLA]:

Mr. Harrington, I want to know where

we're going with this, so why don't we just get to where we're
going.

I'm not going to answer that question.

LDC [MR. HARRINGTON]:

All right.

Well, Judge, you

12

recognize that sometimes we don't necessarily understand our

13

own biases?

14

MJ [Col PARRELLA]:

15

LDC [MR. HARRINGTON]:

I understand.
Okay.

And that so you understand

16

that some of these questions that we might ask you is really

17

going to that and to understand not just what you might say to

18

us, "I don't have any bias against somebody," that there may

19

be some things that you're not even aware of that you have

20

bias.

21

That's really what we're trying to get at.

MJ [Col PARRELLA]:

And I understand that, Mr. Harrington.

22

So again, I understand the purpose of this portion, I believe

23

in it, and I want to be as transparent as possible.

But I'm

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going to try to keep us limited to areas that are pertinent

2

per the rules.

3

So things like qualifications, unless it's calling

4

into question my qualifications per the rules, we're simply

5

just not going to go down that.

6

impartiality or bias I certainly will entertain.

7

entertain questions that perhaps reveal an implicit bias.

8
9
10

LDC [MR. HARRINGTON]:

Matters that pertain to my

But the rule -- the qualifications

in the rules also take into account the perception that the
public and everybody else has about the court.

11

MJ [Col PARRELLA]:

12

LDC [MR. HARRINGTON]:

I understand.
Okay.

Judge, after -- you

13

testified about where you were when 9/11 happened.

14

your reaction after 9/11 happened?

15

I'll

MJ [Col PARRELLA]:

What was

That's difficult for me to remember

16

the exact emotions, so I will say that I probably felt similar

17

to what everybody else felt in the country.

18

any feelings here today as I sit here, which I think is what's

19

pertinent, that came about as a result of that experience that

20

caused me to feel that I cannot be impartial or unbiased.

21
22
23

LDC [MR. HARRINGTON]:

But I don't have

Do you have different feelings

about it today than you did back at 9/11?
MJ [Col PARRELLA]:

I don't know.

It's possible.

I mean,

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I imagine that time has an impact on the way people feel about

2

certain events.

3

LDC [MR. HARRINGTON]:

Well, you just mentioned that you

4

had the feelings that everybody else has.

5

that means.

6

feel?

7

What does that mean?

I don't know what

What did everybody else

We're trying to find out what you felt about it.

MJ [Col PARRELLA]:

Okay.

I'll briefly answer this,

8

Mr. Harrington, and then we're going to move on, because I

9

don't think that my feelings back, you know, in 2000 -- I

10

think what is pertinent is what my feelings are here today as

11

I sit as the military judge.

12

I think the feeling is -- of the country, if you want

13

me to try to ascribe, you know, what that was, I think it was

14

probably anger and just shock.

15

LDC [MR. HARRINGTON]:

16

MJ [Col PARRELLA]:

Thank you.

So I think my feelings were probably

17

similar, but again, I'm somewhat speculating because it's been

18

a long time.

19

impartial and unbiased.

20

As I sit here today, I feel that I can be

LDC [MR. HARRINGTON]:

All right.

Did you ever express to

21

anybody what you thought should happen to the people who were

22

responsible for what happened on 9/11?

23

MJ [Col PARRELLA]:

Not that I recall.

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LDC [MR. HARRINGTON]:

Has anybody ever told you that

2

you've heard say that these people should be killed, they

3

should be tortured, they should be -- anything?

4

MJ [Col PARRELLA]:

5

LDC [MR. HARRINGTON]:

6

Not that I recall, no.

with anybody like that?

7

MJ [Col PARRELLA]:

8

LDC [MR. HARRINGTON]:

9

Not that I can recall, no.

MJ [Col PARRELLA]:

11

LDC [MR. HARRINGTON]:

12

MJ [Col PARRELLA]:

13

LDC [MR. HARRINGTON]:

15
16

And you were in the Marines then;

is that right?

10

14

You've never had a conversation

I was.
And have been since?

I have.
Did you ever hear anybody say that

these men deserve the death penalty?
MJ [Col PARRELLA]:

When you say "these men," I assume

you're referring to the accused?

17

LDC [MR. HARRINGTON]:

18

MJ [Col PARRELLA]:

19

LDC [MR. HARRINGTON]:

Yes.

No.
Have you ever expressed an opinion

20

about whether they deserve the death penalty or any other

21

punishment assuming they're convicted?

22

MJ [Col PARRELLA]:

23

LDC [MR. HARRINGTON]:

No.
After you were detailed to this

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position by Judge Pohl, did you tell others that you were

2

detailed to this position?

3

MTC [MR. TRIVETT]:

Objection, asked and answered.

4

MJ [Col PARRELLA]:

I'm going to sustain the objection.

5
6
7

don't see the relevance of this.
LDC [MR. HARRINGTON]:

Did you ever express any opinion

about this job and what it would entail to anybody else?

8

MJ [Col PARRELLA]:

9

LDC [MR. HARRINGTON]:

Pertinent to this?

To Judge Pohl.

Now, you said that you haven't

10

really discussed, let's say, the nuts and bolts of this case

11

with Judge Pohl; is that correct?

12

MJ [Col PARRELLA]:

13

LDC [MR. HARRINGTON]:

14
15

That's correct.
Is there some rule that prohibits

you from doing that?
MJ [Col PARRELLA]:

I think that Judge Pohl's concern was

16

essentially ensuring that I remained impartial as I went

17

through the voir dire process.

18

LDC [MR. HARRINGTON]:

19

Do you intend to talk to him after

the voir dire process?

20

MJ [Col PARRELLA]:

21

may talk to him, certainly.

22

or prearranged for that conversation to take place.

23

I

If he -- if he avails himself, then I

LDC [MR. HARRINGTON]:

But I haven't arranged for that

Have you given that any thought?

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2

MJ [Col PARRELLA]:

We're not going to go there.

I don't

see the relevance of it.

3

LDC [MR. HARRINGTON]:

When you said that you, as a law

4

school intern, participated in two capital cases, what did you

5

do?

6

MTC [MR. TRIVETT]:

Objection, relevance.

7

MJ [Col PARRELLA]:

Overruled.

8
9

So primarily, I assisted in preparation of pleadings.
LDC [MR. HARRINGTON]:

10

MJ [Col PARRELLA]:

11

LDC [MR. HARRINGTON]:

12

I'll answer the question.

For pretrial motions I take it?

Yes.
Did any of those deal with the

sentencing phase of the case?

13

MJ [Col PARRELLA]:

14

LDC [MR. HARRINGTON]:

It's likely.

I don't recall.

Judge, I take it that in your

15

experience as both a trial lawyer and as a judge that you've

16

participated in jury selection, is that right, or member

17

selection?

18

MJ [Col PARRELLA]:

19

LDC [MR. HARRINGTON]:

20

capital jury selection at all?

Yes.

21

MJ [Col PARRELLA]:

22

LDC [MR. HARRINGTON]:

23

MJ [Col PARRELLA]:

Okay.

And have you studied about

Have I studied about it?
Yes.

I think I've made -- answered

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Mr. Nevin's questions regarding -- I haven't attended any

2

capital litigation courses, so I don't know what is meant by

3

"studies," so the answer is likely no, if -- to your question.

4

I mean, it's possible I've studied it at some point in time,

5

but not that I can recall.

6

LDC [MR. HARRINGTON]:

Have you made any decisions about

7

what the procedures or forms are going to be for the jury

8

selection in this case?

9

MJ [Col PARRELLA]:

No.

10

LDC [MR. HARRINGTON]:

11

MJ [Col PARRELLA]:

12

LDC [MR. HARRINGTON]:

Have you thought about it?

No.
Have you made any decisions or

13

thought about the amount of time it would take to pick a jury

14

in a capital case?

15

MJ [Col PARRELLA]:

16

LDC [MR. HARRINGTON]:

17

Not specific to this case.
And are you familiar with the

concept of a death-penalty-qualified jury?

18

MJ [Col PARRELLA]:

19

LDC [MR. HARRINGTON]:

20

MTC [MR. TRIVETT]:

Objection.

21

MJ [Col PARRELLA]:

Yeah, sustained.

22

LDC [MR. HARRINGTON]:

23

MJ [Col PARRELLA]:

Yes.
Okay.

What does that mean to you?

And how did you learn about that?

I don't recall where I -- where I

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learned about it.

2

experience.

3

I mean, at some point in my training or my

LDC [MR. HARRINGTON]:

And can you tell me:

Do you know

4

as you enter this case whether the United States Constitution

5

applies to these proceedings?

6

MTC [MR. TRIVETT]:

Objection.

7

MJ [Col PARRELLA]:

Mr. Harrington, what this feels like

8

is a quiz of the military judge.

9

I've expressed my qualifications on the record.

I'm not going to do it.

10

indicated what those qualifications are.

11

copy of the rules.

12

I've

You all have the

So again, if the question pertains to what those

13

qualifications are, if you have a reason to believe that I am

14

not qualified, or again, if it goes to my impartiality or

15

bias, I will answer the question.

16

up here and be quizzed.

17

But I'm not going to stand

So please ask your next question.

LDC [MR. HARRINGTON]:

Okay.

Judge, if I could just

18

state, we are given a very brief notice that you are assigned

19

to this case, and the standard apparently that is being

20

imposed on us is that it's just this very narrow thing.

21

meet this tiny little few sentences of what it is to be

22

qualified and, therefore, you can do the case.

23

This is not a normal case.

You

This is a death penalty

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case.

2

MJ [Col PARRELLA]:

3

LDC [MR. HARRINGTON]:

4
5

I understand, Mr. Harrington, but ---It's a heightened standard of due

process.
MJ [Col PARRELLA]:

I understand.

However, I didn't make

6

those rules.

7

that are in the statute and in the regulations.

8

the qualifications that they deemed appropriate for a military

9

judge, and that's why I'm adhering to those standards.

10

I'm just simply applying the rules that were -So those are

I can only assume if Congress wanted to make a

11

detailed analysis of qualifications part of the process, then

12

they would have inserted that into the statute.

13
14

LDC [MR. HARRINGTON]:

you've been detailed to this case?

15

MJ [Col PARRELLA]:

16

LDC [MR. HARRINGTON]:

17

Can you tell us, Judge, how long

long?

Yes, since August 27th.
And for what period of time?

How

Indefinitely or a specific period of time?

18

MJ [Col PARRELLA]:

19

LDC [MR. HARRINGTON]:

Until I'm replaced, so indefinitely.
All right.

Because we were told

20

that you were only here for a year or ten months or something

21

like that.

22
23

Is that the case or not?

MJ [Col PARRELLA]:

So I think what you're referring to is

that just prior to my detailing to this case, I was selected
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through the Marine Corps process for a command which is slated

2

to begin in the summer of 2019.

3

I plan on receiving orders to report to that command.

4

that were to transpire, then obviously whoever is detailed as

5

the next chief trial judge will have to replace me.

6

LDC [MR. HARRINGTON]:

7

you don't have control of?

8

right?

9

To the best of my knowledge,

Okay.

So if

I take it that's something

The Marines decide that; is that

You go where you're told; is that basically it?

MJ [Col PARRELLA]:

Well, I don't know that that's the

10

Marines.

11

replace me or the decision to replace me would be by the chief

12

trial judge, and I don't know that there's been one that's

13

been appointed to replace Judge Pohl.

14

have to issue me orders, yes, from my current duty assignment.

15

In terms of detailing me here, that would -- or to

LDC [MR. HARRINGTON]:

The Marine Corps would

Judge, in terms of the panel that

16

might be selected for this case, has anyone discussed with you

17

about the cost and time and expense and inconvenience to panel

18

members?

19

MJ [Col PARRELLA]:

20

LDC [MR. HARRINGTON]:

21

MJ [Col PARRELLA]:

22

LDC [MR. HARRINGTON]:

23

No.
Okay.

Is that a concern of yours?

Not at this juncture.
Would you have any concern about

the fact that we might not be able to impanel a jury from the
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2
3
4
5
6

first panel that's sent here?
MJ [Col PARRELLA]:

I don't have a concern about that at

this juncture.
LDC [MR. HARRINGTON]:

Does that mean that you haven't

really given it any thought or ---MJ [Col PARRELLA]:

I haven't given it a tremendous amount

7

of thought, Mr. Harrington, at this point.

8

concern for me right now.

9

LDC [MR. HARRINGTON]:

But it's not a

Have you given any thought, Judge,

10

to the -- I take it from your previous answer that the answer

11

would be no -- is that -- the amount of time that would be

12

allowed for the questioning of panel members?

13

MJ [Col PARRELLA]:

14

LDC [MR. HARRINGTON]:

15
16
17
18

No.
Or the form, whether defense

counsel will be allowed to do that?
MJ [Col PARRELLA]:
Mr. Harrington.

I think the answer will remain no,

So let's just move on, if we could.

Mr. Harrington, if I may ask how many more questions

19

you anticipate.

20

probably appropriate we take a recess.

21
22
23

I think we're at the point where it's

LDC [MR. HARRINGTON]:

Why don't we do that, Judge.

I

have a few more.
MJ [Col PARRELLA]:

The commission ----

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LDC [MR. RUIZ]:

Judge, if I may.

Back here, Judge.

2

Judge, I just want to make sure that -- normally, the guard

3

force needs you to affirm that Mr. Hawsawi can go back to the

4

camp, so I'm asking that you please do that.

5
6

MJ [Col PARRELLA]:

So at this recess, Mr. Hawsawi

can return to the camp.

7

LDC [MR. RUIZ]:

8

MJ [Col PARRELLA]:

9

Yes.

Thank you.
All right.

Commission is in recess.

[The R.M.C. 803 session recessed at 1038, 10 September 2018.]

10

[The R.M.C. 803 session was called to order at 1056, 10

11

September 2018.]

12

MJ [Col PARRELLA]:

This commission is called back to

13

order.

14

again present, with the exception of Mr. Hawsawi, who has

15

voluntarily absented himself from the commission.

16
17
18
19
20
21

All parties present when the commission recessed are

Mr. Harrington, you may proceed.
LDC [MR. HARRINGTON]:

Yes, Judge.

Just a few more

questions, Judge.
Judge, were you an attorney on a prosecution of a
material support of terrorism case?
MJ [Col PARRELLA]:

I did work on some cases while I was

22

at the Department of Justice that would have involved those

23

charges, correct.
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LDC [MR. HARRINGTON]:

Okay.

And was the person who was

2

the subject of that charge, was there a particular

3

organization that they were alleged to have been a member of,

4

if you recall?

5

MJ [Col PARRELLA]:

6

LDC [MR. HARRINGTON]:

7

MJ [Col PARRELLA]:

Yes.
What was that?

So I worked on several cases while I

8

was at the Department of Justice.

9

was co-detailed.

Again, like I indicated, I

Some of those cases had been around for a

10

long time when I was co-detailed, and probably most of them

11

were still around when I left at the end of the ten-month

12

duration of my Fellowship.

13

Generically, organizations to which those individuals

14

belonged included primarily, I would say, ISIS, or ISIL, as

15

well as organizations like al-Shabaab.

16

a little bit on a case involving the FARC at that time.

17

LDC [MR. HARRINGTON]:

I think I even worked

I take it those cases were

18

relatively recent, though, right, since they were still active

19

cases?

20

Is that right?

MJ [Col PARRELLA]:

Yes?

No?

I don't know that I can answer that

21

other than to say that I was there, as you know, from 2014 to

22

2015.

23

LDC [MR. HARRINGTON]:

Judge, are you a member of any

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organizations, either military or nonmilitary, where you feel

2

that you would have any obligation whatsoever to explain any

3

actions that you take in this case?

4

MJ [Col PARRELLA]:

5

LDC [MR. HARRINGTON]:

No.
Judge, this morning when I got up

6

earlier, I said that we have this bit of a complicated

7

procedure, and I'm not sure what the extent of your knowledge

8

of this issue is because you're so new to the case and that,

9

but in -- AE 292 is the motion series where the Special Review

10

Team was appointed, and we are preparing something in writing

11

to give you some background and try and identify the issue for

12

you.

13

But the initial procedural question is, whom should

14

we serve with this?

15

from it, so they normally don't get any of the pleadings.

16

I didn't explain it to you in detail this morning because

17

they -- because they are here.

18

this just an ex parte filing with you?

19

The trial counsel has been walled off

MJ [Col PARRELLA]:

And

So the question becomes, is
Do we serve the ----

I think -- so as I understand the

20

nature of this, it would be questions you want to pose to the

21

military judge as part of voir dire that you need to -- or

22

feel you need to file ex parte.

23

Mr. Harrington?

Is that a correct summary,

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LDC [MR. HARRINGTON]:

They don't have to be ex parte,

2

they just need to be ex parte from the trial counsel.

3

have walled themselves off and have not participated in any of

4

the proceedings we had with the Special Review Team.

5

Special Review Team does obviously have an interest in it, I

6

assume, because we're going to be asking questions about them

7

and some of the people that they work with.

8
9

MJ [Col PARRELLA]:

They

But the

So what I would advise you to do is

please file it in writing.

If you feel that you need to

10

request it to be ex parte, then please do so, just like you

11

would any other ex parte matter, and I will take it under

12

consideration.

13
14
15
16

LDC [MR. HARRINGTON]:

Do you want to decide that with our ex parte pleading?
MJ [Col PARRELLA]:

Yeah, I'll decide that when you file

the pleading.

17

LDC [MR. HARRINGTON]:

18

MJ [Col PARRELLA]:

19
20
21

And service on the SRT, yes or no?

Okay.

Thank you.

Thank you, Mr. Harrington.

Ms. Bormann, are you prepared to proceed?
LDC [MS. BORMANN]:

We are, Judge.

It will be

Mr. Montross.

22

MJ [Col PARRELLA]:

Thank you.

23

DC [MR. MONTROSS]:

Good morning.

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MJ [Col PARRELLA]:

Good morning.

2

DC [MR. MONTROSS]:

In order to be detailed to serve as

3

the judge on the 9/11 trials, you had to be a military judge;

4

is that correct?

5

MJ [Col PARRELLA]:

Yes.

6

DC [MR. MONTROSS]:

Okay.

I would like to approach and

7

have something marked for identification.

8

you some questions about a JAG instruction and also the -- and

9

also the judicial canons.

I'm going to ask

May I approach?

10

MJ [Col PARRELLA]:

You may.

11

MTC [MR. TRIVETT]:

Sir, we have not received a copy of

12
13

this.
DC [MR. MONTROSS]:

I understand that.

As I was about to

14

say, Ms. Bormann is giving copies to trial counsel as well as

15

giving copies to the other defendants and their counsel.

16

MJ [Col PARRELLA]:

Okay.

17

DC [MR. MONTROSS]:

May I approach?

18

MJ [Col PARRELLA]:

You may.

19

[The military judge conferred with courtroom personnel.]

20

[Pause.]

21

DC [MR. MONTROSS]:

Your Honor, if I may ask, and I'll

22

certainly give you an opportunity to look at them, how

23

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2
3

LDC [MR. RUIZ]:
received a copy.

I'm sorry, Judge.

We still have not

We would like a copy.

LDC [MS. BORMANN]:

That's correct, Judge.

4

having difficulties, so we're a copy short.

5

provide Mr. Ruiz my copy, if he needs it.

6

that apply to him too.

7

MJ [Col PARRELLA]:

8

he has a copy.

9

a copy.

10
11

All right.

Our copier was

I'm happy to
It's the JAG rules

Let's please ensure that

It looks like Mr. Connell just handed Mr. Ruiz

Is that correct, Mr. Ruiz?

LDC [MR. RUIZ]:

Yes, sir.

I'm reviewing them now.

[Pause.]

12

MJ [Col PARRELLA]:

Okay, Mr. Montross, you may proceed.

13

DC [MR. MONTROSS]:

Your Honor, first as a procedural

14

question, I handed up two documents to you.

15

document is entitled JAG Instruction 5803.1E.

16
17
18
19
20
21

The first

Just for the record, could you tell me what
designation that has received?
MJ [Col PARRELLA]:

I'm sorry.

I don't understand your

question.
DC [MR. MONTROSS]:

As an exhibit number.

I'm sorry, Your

Honor.

22

MJ [Col PARRELLA]:

595C.

23

DC [MR. MONTROSS]:

595C.

And, Your Honor, I also handed

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up from the code of judicial -- from the Canon of Judicial

2

Conduct a number of rules.

3

as in delta?

Is it safe to say that is AE 595D,

4

MJ [Col PARRELLA]:

That's correct.

5

DC [MR. MONTROSS]:

Okay.

6

Thank you.

Sir, I'm asking if you would agree with me -- or in

7

your previous work as a military judge, are you familiar with

8

JAG Instruction 5803.1E, as in Edward?

9

MJ [Col PARRELLA]:

Yes.

10

DC [MR. MONTROSS]:

And you agree that that instruction

11

covers you; is that fair to say?

12

MJ [Col PARRELLA]:

That is fair to say.

13

DC [MR. MONTROSS]:

Okay.

Sir, I was wondering -- I'm

14

going to ask you if you can please turn to page 6.

15

middle of the page, Roman numeral -- I mean, Arabic numeral 7,

16

"Judicial Conduct."

17
18

21

If I may just briefly read that.

"To the extent that it does not conflict with
statutes" ----

19
20

There's a

MJ [Col PARRELLA]:
off.

I can read that.
DC [MR. MONTROSS]:

Mr. Montross, I'm sorry to cut you
Let's proceed.
Do you agree that the American Bar

22

Association Model Code of Judicial Conduct applies to your

23

role here at the 9/11 military commission?
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MJ [Col PARRELLA]:

Well, it appears from the reading of

2

this to the extent it doesn't conflict with the other

3

statutes, regulations, or rules.

4
5

DC [MR. MONTROSS]:

Okay.

Do you believe it conflicts

with any other statute, regulation, or rule?

6

MJ [Col PARRELLA]:

I'd -- not to my knowledge.

7

DC [MR. MONTROSS]:

Sir, I'm going to ask you then to look

8

at AE 595D, as in delta, Rule 2.5:

9

Cooperation.

10

MJ [Col PARRELLA]:

Okay.

11

DC [MR. MONTROSS]:

Okay.

Competence, Diligence, and

Do you agree that a judge

12

should perform judicial and administrative duties competently

13

and diligently?

14

MJ [Col PARRELLA]:

What's the relevance of this?

15

DC [MR. MONTROSS]:

Your Honor, if you look at the comment

16

to Rule 2.5, it says, "Competence in the performance of

17

judicial duties requires the legal knowledge, skill,

18

thoroughness, and preparation reasonably necessary to perform

19

a judge's responsibility of judicial office."

20

I would like to ask you questions about your capital

21

legal knowledge, your skill, your thoroughness, and the

22

preparation that you've done not only in general, but specific

23

to the motions that are in front of you during this week of
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hearings.

2

documents you reviewed, what pleadings, what attachments.

3

I would suggest that the comment of Rule 2.5 specifically

4

grants me the authority to ask you those questions.

5

What pages of the transcript you read, what

MJ [Col PARRELLA]:

Okay.

And

I disagree, Mr. Montross, and I

6

understand that's your position and perhaps the position of

7

other counsel.

8

qualifications are stated, and I believe it's the discussion

9

to Rule 902 that indicates that the military judge can place

The commission's position is that the

10

limits on the presentation of evidence, scope of the

11

questioning, and argument.

12

And I'm simply just not going to go down the rabbit

13

hole of the questions and answers about my qualifications.

14

think I've been pretty up front about the fact that I

15

recognize that I don't have the experience of my predecessor;

16

nevertheless, my predecessor is the one who selected me from a

17

pool of nominees.

18

judge advocate.

19

best of my knowledge, that are set forth in R.M.C. 502 and

20

503.

21

I

Those nominees were screened by the service
I've met all of the qualifications, to the

I have considered sort of the breadth of the task

22

that faces me, and I think I've made it clear that I will not

23

be rushed, I will not feel any pressure to rush, and I will
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take whatever time is necessary to ensure that I fully

2

understand the issues before the commission before I make any

3

ruling on the subject matter.

4

What I will not do is I will not go through in detail

5

to specify what I did or did not do to prepare for today's

6

hearing.

7

throughout the week, if I have questions, I will ask them.

8

I need to take things under advisement, I shall do so.

9
10
11

As we address each appellate exhibit, hopefully
If

So with that in mind, I'd ask you to please continue
with your next question.
DC [MR. MONTROSS]:

My next question would be:

Is it your

12

position, therefore, Your Honor, that outside of Rule 502 and

13

Rule 503 of the military commission that there is no place

14

during voir dire to ask you questions regarding your

15

obligations under the Model Code of Judicial Conduct?

16

MJ [Col PARRELLA]:

My position is with respect to

17

qualifications, you can ask me questions regarding my

18

qualifications that are set forth in the rules.

19

The rule -- or comment to Rule 2.5 reading this, to

20

me, does not go beyond what's in 502 and 503.

21

a tenet that's applicable to whatever case I'm assigned, and I

22

understand the complexity and the -- sort of the history of

23

this case enough to know the task at hand.

It's basically

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DC [MR. MONTROSS]:

I understand you understand.

The

2

point of voir dire, though, is for us to understand.

3

asking specifically then:

4

2.5.

5

your capital legal knowledge other than what has been asked by

6

Mr. Nevin?

7

So I'm

You referenced the comment to Rule

Am I not permitted to ask, then, any questions about

MJ [Col PARRELLA]:

8

as much as I can answer.

9

good in asking me.

I believe that I've already answered
So I don't know that there's any

You're welcome to ask me questions if it's

10

relevant to my impartiality or bias or, you know, maybe a

11

strong feeling I may have on capital punishment.

12

qualifications to sit on a capital case, the answer is no.

13

I think we've addressed that topic.

But as to my

And again,

14

you're welcome to challenge the military judge in that

15

respect, but I don't see the productivity in asking further

16

questions on that.

17

DC [MR. MONTROSS]:

One other question.

Does the Code of

18

Judicial Conduct provide supplemental or additional

19

obligations in your view beyond what is required by Rule 502

20

and Rule 503?

21

MJ [Col PARRELLA]:

22

question.

23

your next question.

I think that's sort of an advisory

I'm not going to answer the question.

Let's ask

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DC [MR. MONTROSS]:

Okay.

I'd like to ask you some

2

questions about your time at the Department of Justice

3

beginning in 2014.

4

Just to be clear, your biography indicates you

5

started in July of 2014, though your fitness report seems to

6

indicate the end of June 2014.

7

certainly not versed in military fitness reports.

8

you start at the Department of Justice?

9

MJ [Col PARRELLA]:

I am a civilian, and I'm
When did

So it would have been in July.

The

10

reason for the reference to June on the fitness report is

11

because in the military, you don't want gaps in your fitness

12

reports.

13

fitness report had ended.

14

period, there was probably annual leave or some other event.

15
16
17

So the date of June would reflect when my previous

DC [MR. MONTROSS]:

In all likelihood, in the interim

Okay.

Were you familiar with the

Fellowship position before you actually were assigned it?
MJ [Col PARRELLA]:

I was selected for the Fellowship

18

in -- sometime around December or January of the year

19

preceding.

20

who is selected for what Fellows.

21

That's when the message comes out that indicates

Now, I believe I was the third person.

It was a

22

relatively new Fellowship, so I think I was the third person

23

to hold that position from the Marine Corps.

And I believe

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sometime in the late spring, I probably did speak with my

2

predecessor just to get an idea of what the Fellowship

3

entailed.

4
5
6
7
8
9
10

DC [MR. MONTROSS]:

Okay.

Did you actively seek out that

assignment to work with DOJ?
MJ [Col PARRELLA]:

No.

It was -- it's assigned as part

of a board selection process.
DC [MR. MONTROSS]:

Okay.

Did you indicate it as a

preference?
MJ [Col PARRELLA]:

My recollection -- so we do submit a

11

questionnaire prior to that board.

12

preference was to attend top-level schools, so there's sort of

13

the dichotomy of you can either be selected to attend a war

14

college or a similar type school or a Fellowship.

15

the War College was my first preference.

16

put specifically Department of Justice as a preference.

17

DC [MR. MONTROSS]:

I believe my top

I believe

I don't know if I

Now, the Fellowship, when you obtained

18

it and you started in July of 2014, was your working office in

19

Washington, D.C.?

20
21
22
23

MJ [Col PARRELLA]:

It was.

It was in the Department of

Justice main building.
DC [MR. MONTROSS]:

Okay.

And in the Department of

Justice main building, was -- not the -- a little bit broader
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than Counterterrorism Section, but the National Security

2

Division, was that housed in its entirety at main Justice?

3

MJ [Col PARRELLA]:

I don't know.

4

DC [MR. MONTROSS]:

Okay.

5

Was the Counterterrorism

Section housed in its entirety at main Justice?

6

MJ [Col PARRELLA]:

Honestly, I don't know.

7

DC [MR. MONTROSS]:

Okay.

How many attorneys were in the

8

Counterterrorism Section of the National Security Division of

9

the Department of Justice when you started there in July of

10

2014?

11

MJ [Col PARRELLA]:

I don't know.

12

DC [MR. MONTROSS]:

Do you have an estimate?

13

MJ [Col PARRELLA]:

My best estimate would be maybe 60 or

14

70, but I never had occasion to be at a meeting or some sort

15

of gathering with all the other attorneys.

16

DC [MR. MONTROSS]:

Okay.

The -- you provided to us on

17

Saturday a fitness report which you have also placed into the

18

record.

Is that correct, Your Honor?

19

MJ [Col PARRELLA]:

Correct.

20

DC [MR. MONTROSS]:

Okay.

21

also a letter that's from

22

correct?

23

MJ [Col PARRELLA]:

Now, in the report, there's
.

Is that

Yes.

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DC [MR. MONTROSS]:

indicates that

Okay.

2

upon your arrival, you "straightaway assumed all the duties

3

and responsibilities of a DOJ counterterrorism prosecutor and

4

immediately became an integral part of the DOJ's

5

counterterrorism mission."

6

I understand that you said before that the duties and

7

responsibilities of a DOJ counterterrorism prosecutor are

8

self-evident in the letter.

9

seeing it.

10

But frankly, Your Honor, I'm not

So can you explain to me what your duties and

responsibilities were?

11

MJ [Col PARRELLA]:

So I think if you look at page 1 of

12

AE 595B, and specifically under Block B where it indicates the

13

billet description, I will tell you that that's probably my --

14

the best description that I can offer of what my role was as a

15

CMC fellow to the Department of Justice.

16

DC [MR. MONTROSS]:

Can you explain to me how so quickly

17

you were seamlessly integrated as a full-fledged

18

counterterrorism prosecutor?

19
20
21

MJ [Col PARRELLA]:
for

What does that mean?

Well, that would be a great question

.
DC [MR. MONTROSS]:

Okay.

Well, it's also -- you just

22

read to me part of the billet description, and that's actually

23

on your fitness rep report.

It's not the letter from

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2
3

, it's on the fit rep.
AND ADDITIONAL COMMENTS."
MJ [Col PARRELLA]:

So that's where I'm asking it from.

Well, those directed comments are also

4

not prepared by me.

5

signs in Block J, which is

6

So it's under "DIRECTED

Those are prepared by the gentleman who

DC [MR. MONTROSS]:

.

Do you believe that you seamlessly

7

integrated yourself as a full-fledged counterterrorism

8

prosecutor upon your arrival?

9

MJ [Col PARRELLA]:

I would have to say it was probably a

10

little less than seamless and that I was not quite ready or at

11

the capability or competency of those who are permanent

12

employees of the Department of Justice.

13

DC [MR. MONTROSS]:

Well, I'm brand new to this case, too,

14

so I feel the same way actually right now.

15

though, you said in terms -- you described your billeting as

16

Part B.

17

same information as all the other counterterrorism prosecutors

18

in that section?

19
20
21
22
23

So let me ask you,

When you're integrated, do you have access to the

MJ [Col PARRELLA]:

I had a security clearance that

allowed me access to the material that I needed to know.
DC [MR. MONTROSS]:

What was your security clearance at

that time?
MJ [Col PARRELLA]:

TS//SCI.

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DC [MR. MONTROSS]:

Okay.

So you would have access to the

2

same information and databases as anyone else who had TS//SCI

3

clearance in the Department of Justice at that time; is that

4

fair to say?

5

MJ [Col PARRELLA]:

I don't know.

6

DC [MR. MONTROSS]:

Okay.

Now, you said before that, when

7

you first got there, that one of the things you did was you

8

observed and attended meetings as often as possible.

9

right?

10

MJ [Col PARRELLA]:

That's a fair statement, yes.

11

DC [MR. MONTROSS]:

All right.

Is that

There would be staff

12

meetings from -- for all the attorneys in the Counterterrorism

13

Section that you would attend?

14

MJ [Col PARRELLA]:

No.

15

DC [MR. MONTROSS]:

Okay.

16

MJ [Col PARRELLA]:

So within the Counterterrorism

17

What meetings would you attend?

Section, there were sections within the section.

18

DC [MR. MONTROSS]:

Okay.

19

MJ [Col PARRELLA]:

I don't remember the billet, I think

20

it's maybe deputy chief.

21

weekly meetings; I attended a few of those.

So that individual would hold maybe

22

DC [MR. MONTROSS]:

I'm sorry.

23

MJ [Col PARRELLA]:

I think they were weekly.

You said weekly, sir?

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I attended meetings related to cases that I was

2

working on at various times and places.

3

that I recall, a regularly occurring meeting within the

4

organization that was hosted by anybody.

5

on a meeting once, somebody within the National Security

6

Division's, you know, front office, but not that I can -- I

7

certainly didn't do it on a recurring instance, and I can't

8

even recall a specific instance.

9

DC [MR. MONTROSS]:

Okay.

I never attended,

I might have sat in

Would there be documentation at

10

the Counterterrorism Section about the meetings that you

11

attended and who was present at these meetings?

12
13
14

MJ [Col PARRELLA]:

I highly doubt it.

I don't recall

ever signing anything.
DC [MR. MONTROSS]:

Okay.

Would there have been e-mail

15

notifications or counter notifications inviting you to staff

16

meetings or team meetings?

17

MJ [Col PARRELLA]:

No.

18

DC [MR. MONTROSS]:

You indicated that there were sections

19

within the Counterterrorism Section of the National Security

20

Division.

21

What sections did you work in?

MJ [Col PARRELLA]:

I don't recall the designation.

So

22

all I can say is that I recall the initial team lead, for lack

23

of a better word, was

.

And then he departed at

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2

some point in time, and I believe his replacement was
.

3

DC [MR. MONTROSS]:

4

MJ [Col PARRELLA]:

5

DC [MR. MONTROSS]:

Could you estimate a spelling for me?

6

MJ [Col PARRELLA]:

I really can't.

7

mean, it may be

8

guessing as well.

9

DC [MR. MONTROSS]:

who?

I'm sorry, Your Honor.
.

-- I don't know.

I don't recall.

I

I would just be

You also, though, indicated that you

10

were co-detailed, I believe, to a number of cases while you

11

were at the National Security Division; is that right?

12

MJ [Col PARRELLA]:

Yes.

13

DC [MR. MONTROSS]:

Would you have been detailed to cases

14

that were potentially in different units or subsections of the

15

Counterterrorism Section itself?

16

because if not, I can try and rephrase.

17

MJ [Col PARRELLA]:

Is that question clear

Yeah, it is clear.

I think for the

18

most part, most of my -- I can only recall being detailed to

19

cases within my section.

20

DC [MR. MONTROSS]:

Would there be memorialization or

21

records of what cases specifically you worked on or touched

22

during your time at the Counterterrorism Section?

23

MJ [Col PARRELLA]:

I don't think it was ever

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memorialized.

2

was a very sort of informal process because, again, they sort

3

of knew I was there for a very limited amount of time and that

4

I was there for a different purpose than the other attorneys

5

who were permanently assigned to the unit.

6

It was certainly not a written detailing.

It

also, though, indicated

DC [MR. MONTROSS]:

7

in his letter that "Furthermore, Lieutenant Colonel Parrella

8

prepared memoranda on topics of current relevance to

9

counterterrorism prosecutors, which were widely distributed

10
11
12
13

and read within CTS."
So first, I'm going to ask you:

What was the topics

that you prepared memorandum on?
MJ [Col PARRELLA]:

I can't remember what their reference

14

was to that in terms of me preparing a particular memorandum

15

related to maybe a topic that the -- that I had submit --

16

background from the Marine Corps.

17

prepared something that was related to a topic that -- to give

18

the Department of Justice attorneys maybe some better context

19

or understanding of how DOD, or specifically the Marine Corps,

20

did something, but I can't recall those memorandum.

It's possible that I

21

I think perhaps what he's primarily related to is

22

there's memorandum that are prepared within in the regular

23

course of business within CTS, and I assisted in the
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2

preparation of those memoranda.
DC [MR. MONTROSS]:

But you have no independent

3

recollection of what the topics of current relevance to

4

counterterrorism prosecutors were that you prepared the

5

memorandum on?

6

MJ [Col PARRELLA]:

I don't, but I do know that they

7

weren't related to anything involving the Office of

8

Commissions or this case.

9

DC [MR. MONTROSS]:

Okay.

Was there anything related to

10

al Qaeda or any organization that was potentially associated

11

with al Qaeda?

12

MJ [Col PARRELLA]:

No.

I have no special background or

13

information or knowledge about al Qaeda or any of the other

14

terrorist organizations.

15

DC [MR. MONTROSS]:

Or just not even relying on your

16

special background, but just as a young, talented attorney who

17

is in this Fellowship who would have access to databases and

18

information, were you asked to prepare any memorandum that

19

dealt with al Qaeda at all?

20

MJ [Col PARRELLA]:

No.

21

DC [MR. MONTROSS]:

Were you asked to prepare -- did you

22

write any memorandum that dealt with the intersection of

23

classification issues and the ability to present evidence in
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2
3
4

an open courtroom?
MJ [Col PARRELLA]:

No.

And I feel confident in saying

that because I was learning the process myself.
also --

DC [MR. MONTROSS]:

, I'm

5

sorry, also indicated that you "drafted legal memoranda and

6

recommendations for the Assistant Attorney General that

7

assessed the prosecutorial merit of terrorism cases."

8

referring to John Carlin as the Assistant Attorney General?

9
10
11
12
13

MJ [Col PARRELLA]:

I don't know.

The best I can recall,

I only met Mr. Carlin once, perhaps twice in the entire year.
DC [MR. MONTROSS]:

Okay.

Do you know if he was the

Assistant Attorney General at the time?
MJ [Col PARRELLA]:

14

Attorney General.

15

Division ----

I believe he was the Assistant

He was in charge of the National Security

16

DC [MR. MONTROSS]:

Correct.

17

MJ [Col PARRELLA]:

---- I do know that.

18

DC [MR. MONTROSS]:

Yes.

19
20

Is that

So you were preparing memorandum

for the individual who was in charge of NSD?
MJ [Col PARRELLA]:

I was preparing memorandum that I

21

understood was going to be approved by somebody in his office.

22

I can't tell you whether it was specifically approved by him

23

or one of his deputies.
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DC [MR. MONTROSS]:

indicates that you

When

2

prepared memorandum and recommendations for the Assistant

3

Attorney General, you have no reason to believe that he's

4

making an inaccurate statement ----

5

MJ [Col PARRELLA]:

Not at all.

6

DC [MR. MONTROSS]:

---- that is actually going to the

7
8
9

Assistant Attorney General or perhaps to Mr. Carlin?
MJ [Col PARRELLA]:
reason to doubt it.

It could have very well.

I have no

I just don't know whether it went to him

10

or -- my understanding is his deputies or assistants signed

11

off on a lot of that material.

12

DC [MR. MONTROSS]:

Okay.

And what was the subject matter

13

of the legal memorandum that you submitted to the Assistant

14

Attorney General for the National Security Division?

15

MJ [Col PARRELLA]:

So there was probably more than one.

16

I'm assuming what he's referring to is, again, in the regular

17

course of business, I assisted in reviewing memoranda.

18

recollection, it primarily involved things such as search

19

warrant authorizations for cases that were being investigated

20

by assistant U.S. Attorneys in the various districts.

21

had a certain triggering event, nexus to terrorism, or some

22

other reason, then they would come through CTS.

23

reviewed, memoranda was then prepared which would then be

To my

If they

They would be

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2

forwarded up to the chain of command.
DC [MR. MONTROSS]:

As part of authorizing the search

3

warrants, were you making determinations or recommendations or

4

assessments about whether or not a person was or was not a

5

member of a terrorist organization?

6

MJ [Col PARRELLA]:

No, I don't recall doing that.

7

primarily just a recommendation as to whether there was

8

probable cause.

9

DC [MR. MONTROSS]:

It was

also indicates

Okay.

10

that you wrote other court documents involving the prosecution

11

of high-level international and domestic counterterrorism

12

targets.

13

Who were the high-level international

14

counterterrorism targets that you prepared court documents

15

involving?

16

MJ [Col PARRELLA]:

I honestly don't remember any

17

particular name.

18

were domestic -- living domestically and being investigated by

19

domestic law enforcement agencies.

20

with the intelligence community, but they were primarily --

21

this was in preparation for prosecution in the Article III

22

courts.

23

They were individuals, to my knowledge, that

DC [MR. MONTROSS]:

Okay.

They may have had a nexus

Any understanding then why

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would write that you prepared court documents

2

involved in the prosecution of high-level international

3

targets?

4
5

He does mention domestic, and I hear Your Honor.
But do you have any indication or understanding why
would also write in this letter that becomes part

6

of your fit rep, apparently, that you were involved in the

7

prosecution of high-level international targets?

8
9

MJ [Col PARRELLA]:

I mean, it's certainly possible that

one of the individuals that I was assisting on may have been

10

located OCONUS, overseas.

11

recollection of it.

12

I just don't have a specific

I do recall, though, that none of the cases that I

13

was working on involved anything other than Article III courts

14

that had no workings with the OMC or the 9/11 case.

15

DC [MR. MONTROSS]:

Okay.

When you were present at the

16

Counterterrorism Section, did you attend any trainings or

17

speeches by individuals who were involved in the military

18

commission cases?

19

MJ [Col PARRELLA]:

No, not that I recall.

20

DC [MR. MONTROSS]:

Okay.

Present at the same time, at

21

DOJ in the Counterterrorism Section when you were there, was

22

Mr. Trivett; is that right?

23

MJ [Col PARRELLA]:

It's possible.

Again, I don't recall

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if I've met him.

2

Mr. Groharing.

3
4

The only one I specifically know I know is

DC [MR. MONTROSS]:

Okay.

Do you have any recollection of

meeting or speaking to Mr. Edward Ryan while you were at DOJ?

5

MJ [Col PARRELLA]:

I don't.

6

DC [MR. MONTROSS]:

Did you ever see General Mark Martins

7

while you were there?

8

MJ [Col PARRELLA]:

I did not.

9

DC [MR. MONTROSS]:

Okay.

So Mr. Groharing -- Air Station

10

Miramar, you were a defense attorney at Air Station Miramar;

11

is that correct, sir?

12

MJ [Col PARRELLA]:

I was a defense attorney and a

13

prosecutor at Miramar.

14

time he was at the recruit depot.

15

met him through a mutual friend.

16

interaction with him while we were both in the San Diego area,

17

however.

18
19
20
21
22
23

DC [MR. MONTROSS]:

I know Mr. Groharing, I believe at the
My recollection is I first
I didn't have very much

When were you together in the

San Diego area?
MJ [Col PARRELLA]:

It would have been roughly late '90s,

early 2000 time frame.
DC [MR. MONTROSS]:

Okay.

Was Mr. Groharing -- were you

at Air Station Miramar when 9/11 happened, sir?
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MJ [Col PARRELLA]:

I was stationed ----

2

DC [MR. MONTROSS]:

You were at the airport, but you were

3

stationed there is my understanding; is that fair?

4

MJ [Col PARRELLA]:

Yes, that's correct.

5

DC [MR. MONTROSS]:

Was Mr. Groharing also at Air Station

6
7
8
9
10
11

Miramar at that time?
MJ [Col PARRELLA]:

No.

He was stationed at the recruit

depot, which is in downtown San Diego.
DC [MR. MONTROSS]:

Okay.

When he was at the

recruitment -- was he ever at Air Station Miramar with you?
MJ [Col PARRELLA]:

Not as assigned personnel.

So it's

12

possible if he were in a defense counsel billet and we had a

13

conflict case, he may have come up to Miramar to participate

14

in a trial, but he was never assigned there, to my knowledge.

15

DC [MR. MONTROSS]:

Okay.

So the place that you worked at

16

Air Station Miramar, was that called the law center or was it

17

called LSSS?

18

MJ [Col PARRELLA]:

I think at the time -- and this --

19

there's been a reorganization.

20

to as a Joint Law Center.

21

DC [MR. MONTROSS]:

Okay.

At the time, it was referred

Did there -- during that time

22

that you were at the Joint Law Center, did Mr. Groharing ever

23

have an office there or was he a presence in the law center?
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MJ [Col PARRELLA]:

No.

2

DC [MR. MONTROSS]:

Okay.

Did you have any social

3

interaction with Mr. Groharing when you were at Air Station

4

Miramar?

5

MJ [Col PARRELLA]:

In that time frame, not that I

6

specifically recall.

7

as you may know, the Marine Corps is a relatively small force,

8

so the number of judge advocates is somewhat limited.

9

have an annual Marine Corps Ball celebration.

It is likely that it did occur because,

So we

It is possible,

10

and maybe probable, that at some point in the time that we

11

were both in San Diego, we attended the same ball.

12

As I said, my recollection is that I was introduced

13

to him through a mutual friend, but I don't have any specific

14

recollection of any social events back in that time frame

15

where we hung out together.

16

describe it as just an acquaintance.

17
18
19

DC [MR. MONTROSS]:

I think it was mostly -- I would

So would you be willing to share with

me who was the mutual friend that you two had?
MJ [Col PARRELLA]:

So an active-duty Marine judge

20

advocate who was stationed where he was in San Diego at the

21

time, who I believe I met because he was also in a defense

22

billet.

23

West Coast.

So we probably met at some defense training on the

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DC [MR. MONTROSS]:

2

MJ [Col PARRELLA]:

3

DC [MR. MONTROSS]:

Is that

4

MJ [Col PARRELLA]:

Yes.

5

DC [MR. MONTROSS]:

And in terms of -- besides sporadic or

And who was that?

I'm sorry.

.
, sir?

6

rare social events, did you have any other interaction with

7

Mr. Groharing?

8

MJ [Col PARRELLA]:

Not in that time period.

9

DC [MR. MONTROSS]:

Okay.

10
11

When was the next time period

that you had interaction with Mr. Groharing?
MJ [Col PARRELLA]:

I do recall in 2007 and '8, I believe,

12

Mr. Groharing and I participated in an Armed Forces athletic

13

event.

14

hosted by the MWR in Norfolk, Virginia.

15

in West Virginia.

16

It was an active-duty services competition, I believe

And for those two years, the -- each service would

17

put forward teams.

18

we participated on the same team.

19

a two-day event.

20
21

The event took place

There were two years in 2007, 2008 where

DC [MR. MONTROSS]:

And my recollection, it was

That was the team that was named the

Dale Milton Racing Team; is that correct, sir?

22

MJ [Col PARRELLA]:

That is correct.

23

DC [MR. MONTROSS]:

Okay.

Also on that team was

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; is that right?

Captain

2

MJ [Col PARRELLA]:

That's correct.

3

DC [MR. MONTROSS]:

Who is Captain

4

to you?

Is he a friend?

5

MJ [Col PARRELLA]:

He was a neighbor.

6

DC [MR. MONTROSS]:

Okay.

7

MJ [Col PARRELLA]:

He's also a friend.

8

DC [MR. MONTROSS]:

Who lived next door to you?

9

MJ [Col PARRELLA]:

Yes.

10

DC [MR. MONTROSS]:

Okay.

11

Major

Also on the team was a

.

12

MJ [Col PARRELLA]:

13

DC [MR. MONTROSS]:

, correct.
Okay.

And that wasn't correct, but

14

thank you for saying it was correct.

15

yours as well?

16

MJ [Col PARRELLA]:

Was she a friend of

She was a -- I think you could call

17

her that, it was fair to say.

18

school, the Army JAG School together.

We simply went to the JAG

19

DC [MR. MONTROSS]:

Okay.

20

MJ [Col PARRELLA]:

It wasn't somebody who I regularly

21
22
23

spoke to other than just a casual acquaintance.
DC [MR. MONTROSS]:

Okay.

At that point in time,

Major Groharing was a member of your team as well, of that
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team?

2

MJ [Col PARRELLA]:

He was.

3

DC [MR. MONTROSS]:

Four people, including yourself, on

4

that team in total.

5

MJ [Col PARRELLA]:

Correct.

6

DC [MR. MONTROSS]:

Okay.

7

MJ [Col PARRELLA]:

I believe I was the one who organized

Did you pick the team members?

8

it or signed us up, but I don't recall if I selected them or

9

how I came to -- to ----

10

DC [MR. MONTROSS]:

Well, one of ----

11

MJ [Col PARRELLA]:

---- how it came to be that

12
13

Mr. Groharing ended up on the team, so ---DC [MR. MONTROSS]:

Well, two of them are friends of

14

yours, one of them was a neighbor.

15

end up on this team for two years?

16
17

MJ [Col PARRELLA]:

How does Major Groharing

A good question.

So -- so we

obviously were in it to win, so the selection ----

18

DC [MR. MONTROSS]:

I'm sorry?

19

MJ [Col PARRELLA]:

In it to win.

20

DC [MR. MONTROSS]:

Okay.

21

MJ [Col PARRELLA]:

So the selections were based upon just

22
23

reputation of ability.
DC [MR. MONTROSS]:

Okay.

And for two years, this team

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was joined together ----

2

MJ [Col PARRELLA]:

Yes.

3

DC [MR. MONTROSS]:

---- for training and racing purposes?

4

MJ [Col PARRELLA]:

Not training, just the race.

5

DC [MR. MONTROSS]:

Okay.

7

MJ [Col PARRELLA]:

Just the one.

8

DC [MR. MONTROSS]:

There is an article in the Army Times

6

9

How many races did you engage

in?

dated October 20th, 2008, called "The Call of the Wild" that

10

says there's perhaps no better way to build camaraderie and

11

teamwork than to receive a collective physical beating,

12

referring to that race in Fayetteville, West Virginia.

13

you feel that your team had camaraderie and teamwork?

Did

14

MJ [Col PARRELLA]:

Yes.

15

DC [MR. MONTROSS]:

You finished second, right?

16

MJ [Col PARRELLA]:

So I'm going to try to speed things

17

along here, Mr. Montross.

18

interested in is my relationship with Mr. Groharing.

19

would describe it as friendly, I would describe that we got

20

along well during those times, we competed together.

21

that was the extent of the relationship.

22

that point in time, I've seen him a couple times, both at my

23

time at Department of Justice.

I think obviously what you're
So I

However,

And honestly, since

I also do believe we attended

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another Marine Corps Ball ceremony together at some time when

2

I was at the Department of Justice, so that would have been

3

about 2014.

4

communication.

5

But since then, I don't have any sort of regular

I have no recollection of ever discussing this case,

6

the details or substance of this case with Mr. Groharing.

7

was aware that he was working or assigned to this case, but we

8

never discussed the nuances or issues or substance of it; nor

9

do I feel that his assignment as a trial counsel will in any

I

10

way affect my impartiality or bias.

11

disagreeing with anything that he says, and I will not give

12

his arguments any additional weight over anyone else in this

13

courtroom.

14

DC [MR. MONTROSS]:

I am quite capable of

Before today, before we started

15

talking about Mr. Groharing, it was the questioning that first

16

elicited that there was any relationship with Mr. Groharing

17

today in this courtroom.

18

Judicial Canon [sic] any obligation to disclose that you knew

19

Mr. Groharing prior to today ----

Did you feel under the Code of

20

MJ [Col PARRELLA]:

No, for the very reason ----

21

DC [MR. MONTROSS]:

---- and that you had spent two years

22

on a team with him where you were racing together and that you

23

had served together -- or you had been together both at Air
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2

Station Miramar back in the late 1990s, early 2000s?
MJ [Col PARRELLA]:

The reasons I just stated, I don't

3

feel it has any impact on my impartiality or bias or causes me

4

any cause for disqualification, which is what I would have

5

certainly disclosed had I felt that.

6

that it would come up during the question and answer portion;

7

and had it not, I would have brought it up myself.

8
9

DC [MR. MONTROSS]:

Okay.

I was quite confident

Do you accept that, regardless

of whether you feel that it was even relevant to a possible

10

motion for disqualification or if there's no basis for

11

disqualification, that the Code of Judicial Conduct still

12

requires that you should disclose on the record information

13

that the judge believes the parties or their lawyers might

14

reasonably consider relevant to a possible motion for

15

disqualification even if the judge believes there is no basis

16

for disqualification?

17
18
19
20
21
22
23

MJ [Col PARRELLA]:

Let's go with your next question,

Mr. Montross.
DC [MR. MONTROSS]:

Okay.

May I have one moment, Your

Honor?
MJ [Col PARRELLA]:

You may.

[Pause.]
DC [MR. MONTROSS]:

I appreciate your indulgence.

Two

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further questions.

2

Your Honor, I know this is not on the docket, so

3

perhaps the answer may be self-evident, but are you -- or have

4

you read specifically the pleadings in AE 425?

5

MJ [Col PARRELLA]:

I don't know that I -- it's possible,

6

but since it's not on the docket order, I also don't see the

7

relevance.

8
9
10

DC [MR. MONTROSS]:

Okay.

Are you aware, okay, in that

series, that Mr. Groharing's credibility is placed at issue in
AE 425?

11

MJ [Col PARRELLA]:

I was not aware of that.

12

DC [MR. MONTROSS]:

Okay.

13

MJ [Col PARRELLA]:

You're welcome.

Thank you.
Mr. Connell, but

14

before you go, since it was raised by Mr. Montross, I'll also

15

just indicate that I do know General Baker, so if anybody

16

wants to question in that respect, I'll be happy to inform you

17

how I know General Baker.

18

Mr. Connell.

19

LDC [MR. CONNELL]:

Do you like him, sir?

20

MJ [Col PARRELLA]:

He seems like a good guy.

21

LDC [MR. CONNELL]:

Good morning, Your Honor.

22

MJ [Col PARRELLA]:

Good morning.

23

LDC [MR. CONNELL]:

And I want to thank you for your

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commitment to candor during this process which cannot be

2

pleasant, and certainly unique.

3

it outside of this case, though I understand it's a routine

4

part of military practice.

5

I've never seen anything like

I'd like to begin -- my questions will fall into two

6

main categories.

7

of the answers you've given this morning, and then, second,

8

I'd like to ask some questions related to the appearance of

9

bias under 902(b)(1).

10

The first is I'd like to follow up on some

Sir, you told Mr. Harrington that you had been

11

selected through a Marine Corps process for a billet beginning

12

in the summer of 2019.

13

more detail for the record?

14

MJ [Col PARRELLA]:

Could you explain that in a little

Yes.

So command selection is also a

15

board-driven process.

16

sometime in July, and the results come out usually shortly

17

thereafter.

18

came out this year.

19

always select command a year out, so presumably the change of

20

command will be sometime during the summer of 2019.

21

The board convened, I want to say,

I want to say it was early August the results
I was selected for a command that -- they

I've indicated my intent to accept the command.

22

That's a requirement under the applicable MARADMIN or message,

23

and from here on out, then I wait for orders to be produced.
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LDC [MR. CONNELL]:

And I just want to make sure I

2

understood.

3

intent to accept that command?

That was past tense; you have indicated your

4

MJ [Col PARRELLA]:

Yes.

5

LDC [MR. CONNELL]:

Okay.

6

And am I correct that that

command involves embassy security in some way?

7

MJ [Col PARRELLA]:

Yes.

8

LDC [MR. CONNELL]:

And what is the command which you have

9
10

indicated your intent to accept?
MJ [Col PARRELLA]:

Marine Corps Embassy Security Group.

11

So it's the same, in essence, command I held as a lieutenant

12

colonel.

13

region, it's the group.

14

command all of the regions.

15

LDC [MR. CONNELL]:

16

The difference being now instead of being one
So it's the individual who will

All Marines responsible for embassy

security throughout the world?

17

MJ [Col PARRELLA]:

Yes.

18

LDC [MR. CONNELL]:

Okay.

19

of that unit; is that correct?

20

MJ [Col PARRELLA]:

Yes.

21

LDC [MR. CONNELL]:

Okay.

So you would be the commander
Is that fair to say?

And what I understood you to

22

say was that you have done everything that you can or that

23

you -- all of your responsibilities to accept that command
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have been fulfilled.

2

decide who they're going to place in the billet?

3

to say?

4

You now wait, and the Marine Corps will

MJ [Col PARRELLA]:

5

the board process.

6

So ----

The decision's been made.

Is that fair

That was

So I have been selected for that position.

7

LDC [MR. CONNELL]:

You're just waiting for orders?

8

MJ [Col PARRELLA]:

Yes.

9

LDC [MR. CONNELL]:

Okay.

So it's your personal

10

expectation as you sit here today that in the summer of 2019,

11

you will be placed in a new billet responsible for worldwide

12

embassy security?

13

MJ [Col PARRELLA]:

Yes.

14

LDC [MR. CONNELL]:

Okay.

15
16

And who makes that decision?

Who is responsible for issuing those orders?
MJ [Col PARRELLA]:

In terms of issuing the orders, the

17

orders come from an entity called Manpower.

18

within the Marine Corps will be responsible for actually

19

issuing those orders.

20

LDC [MR. CONNELL]:

So Manpower

And as far as Manpower goes, that's

21

nondiscretionary to them, correct?

22

decision as to Colonel Parrella and whether he's a good

23

person.

They're not making a

That decision has already been made?
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MJ [Col PARRELLA]:

Yes.

2

LDC [MR. CONNELL]:

So as far as Manpower goes, that is a

3

nondiscretionary decision?

4

MJ [Col PARRELLA]:

Yes.

5

LDC [MR. CONNELL]:

So unless something highly unusual

6

happens, you will be issued orders for that new assignment

7

effective January -- summer of 2019?

8

MJ [Col PARRELLA]:

That's my belief.

9

LDC [MR. CONNELL]:

Okay.

Sir, I heard you mention to

10

Judge Harrington [sic] that there was no chief judge at

11

present.

Did I understand that correctly?

12

MJ [Col PARRELLA]:

That's my understanding.

13

LDC [MR. CONNELL]:

And so I take it to be that you did

14

not assume Military Judge Pohl's chief judge duties as well as

15

his responsibilities in this courtroom?

16

MJ [Col PARRELLA]:

I hope not.

17

LDC [MR. CONNELL]:

Okay.

18

Very good.

The -- moving on to another section, you told

19

Mr. Nevin that -- and you just explained to me that you had

20

been responsible for a region of embassy security; and for

21

purposes of the record, Marines provide security to embassies

22

throughout the -- U.S. embassies throughout the world under

23

the supervision of the regional security officer of the
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Department of State under a memorandum of understanding with

2

the Marine Corps; is that a fair summary?

3

MJ [Col PARRELLA]:

That's a fair summary.

4

LDC [MR. CONNELL]:

Okay.

And in that -- what was your --

5

as the commander of that region, what was your actual

6

responsibility?

7
8

What were your day-to-day duties like?

MJ [Col PARRELLA]:

So there's terminology in the Marine

Corps we use for OPCON, meaning operational control ----

9

LDC [MR. CONNELL]:

Yes, sir.

10

MJ [Col PARRELLA]:

---- and ADCON, administrative

11

control.

12

LDC [MR. CONNELL]:

Yes.

13

MJ [Col PARRELLA]:

I retained ADCON, so I had

14

administrative control over the Marines, meaning I was

15

responsible for ensuring that they were qualified, trained,

16

properly supervised in the sense that they were within the

17

detachment.

18

were executing an inspection program.

19

The primary, I think, role was to ensure that we

So to ensure that we're giving the service we've

20

promised to the Department of State, we have officers who go

21

out to those detachments routinely, they conduct inspections

22

of those detachments and ensure that they're providing the

23

service we've advertised to the Department of State.
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2
3
4
5

But in terms of OPCON, operational control, that all
is retained by the regional security officer.
LDC [MR. CONNELL]:

In that position, did you deal

directly with embassy staff?
MJ [Col PARRELLA]:

I did.

So primarily, I would do that

6

in the sense of I would also do visits of the detachments

7

during those visits.

8

have a meeting with the regional security officer as well as

9

the embassy staff just to ensure that, again, as the customer,

10
11

I would usually as part of that visit

they were satisfied with the service we were providing.
LDC [MR. CONNELL]:

In your role, did you either deal

12

directly with the embassy staff or have site visits in

13

Afghanistan?

14

MJ [Col PARRELLA]:

No.

15

LDC [MR. CONNELL]:

In that role, did you deal directly

16

with embassy staff or have site visits in Morocco?

17

MJ [Col PARRELLA]:

No.

18

LDC [MR. CONNELL]:

Poland?

19

MJ [Col PARRELLA]:

Yes.

20

MTC [MR. TRIVETT]:

Objection.

21

MJ [Col PARRELLA]:

Basis?

22

MTC [MR. TRIVETT]:

Relevance to the qualification.

23

LDC [MR. CONNELL]:

Your Honor, in an unclassified way, I

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can state that I am exploring whether there is a basis for a

2

challenge under 902(b)(1), personal knowledge.

3

intend to inquire further in this setting.

4

MJ [Col PARRELLA]:

Okay.

I do not

And I will just state again

5

that at no time during my tenure as the commanding officer at

6

Region 8 did I ever have any opportunity to -- I don't even

7

recall reading anything classified.

8

discussions with regional security officers about a threat

9

emanating from any organization related to this case.

I never had any

10

LDC [MR. CONNELL]:

I understand that, sir.

11

MJ [Col PARRELLA]:

My focus was in Central Europe and

12
13

Central Europe alone.
LDC [MR. CONNELL]:

14

In Central Europe?

All right.

And so -- so the answer to Poland was yes?

15

MJ [Col PARRELLA]:

That was part of my region.

16

LDC [MR. CONNELL]:

All right.

17

And was Romania part of

your region?

18

MJ [Col PARRELLA]:

Yes.

19

LDC [MR. CONNELL]:

Was Lithuania part of your region?

20

MJ [Col PARRELLA]:

No.

21

LDC [MR. CONNELL]:

Thank you.

Sir, I heard you tell

22

Mr. Nevin that, in your role as regional -- what was the

23

title?

I'm sorry.

I apologize for the ignorance.

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MJ [Col PARRELLA]:

Region 8 ----

2

LDC [MR. CONNELL]:

Region 8 command ----

3

MJ [Col PARRELLA]:

---- commanding officer.

4

LDC [MR. CONNELL]:

Region 8 commanding officer.

5

In your role as Region 8 commanding officer, you did

6

not -- I understood you to tell Mr. Nevin that you did not

7

receive any information specific to the East Africa Embassy

8

Bombings, the most serious breach of embassy security ever in

9

United States history.

Was that accurate?

10

MJ [Col PARRELLA]:

Yes.

11

LDC [MR. CONNELL]:

You didn't train on it?

12

MJ [Col PARRELLA]:

So the Marines may have trained on it.

13

The Marines go through a schoolhouse that's designed to

14

prepare them for their duty as a Marine security guard.

15

commanding officer does not receive any said training.

16

don't receive any training specific to the embassy security

17

program before assuming command.

18
19

LDC [MR. CONNELL]:

The
So we

Thank you, sir.

And I heard you mention to Mr. Montross that it would

20

be appropriate to ask questions about strong feelings about

21

capital punishment, so I'll ask:

22

feelings on capital punishment?

23

MJ [Col PARRELLA]:

Do you have any strong

No, I -- what's pertinent is,

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regardless of what my personal opinions may or may not be, I

2

will apply the law as it is, not as to what I think it should

3

be.

4

doing just that.

5
6
7

But I have no strong feeling that would prevent me from

LDC [MR. CONNELL]:

Thank you.

All right.

Sir, the second part of my questioning relates to
AE 595B, the fit rep.

Do you have that in front of you, sir?

8

MJ [Col PARRELLA]:

I do.

9

LDC [MR. CONNELL]:

And, sir, for the record, a

10

United States Marine Corps fitness report is essentially a

11

statement of what your duties are and how well you fulfilled

12

those duties, especially in relationship to other Marines, for

13

purposes of eventual consideration for promotion and other --

14

or commendation, correct?

15
16

MJ [Col PARRELLA]:

That is correct.

I will just note,

though, that if you look at Block 5 ----

17

LDC [MR. CONNELL]:

Yes, 5b.

18

MJ [Col PARRELLA]:

---- on the first page that this is a

19

nonobserved fitness report.

20

setting, or the Fellowship program is considered an academic

21

setting, we do not rate markings, the normal markings that you

22

would receive.

23

normal, I believe, seven pages.

So because it was an academic

That's why it's two pages as opposed to the

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LDC [MR. CONNELL]:

I understand, sir.

And that -- in

2

block I, there is a reference to the unique circumstances of

3

this CMC fellow TLS assignment, and that's -- those are the

4

unique circumstances that you describe; is that correct, sir?

5

MJ [Col PARRELLA]:

Yes.

6

LDC [MR. CONNELL]:

The -- there is a concern in fitness

7

reports articulated in the Commandant's guidance about

8

inflationary markings.

9

to be the top Marine that anybody has ever rated.

10

They don't want, you know, everybody
Is that

fair to say?

11

MJ [Col PARRELLA]:

That's fair.

12

LDC [MR. CONNELL]:

So there's a commitment on the part of

13

the raters to accurately reflect the -- both the

14

responsibilities and the performance of those responsibilities

15

by the Marine at issue.

Is that fair to say?

16

MJ [Col PARRELLA]:

Yes.

17

LDC [MR. CONNELL]:

And the reason for that is

18

institution-wide because the Marine Corps as an institution

19

needs to know who its best are so that it can promote them?

20

MJ [Col PARRELLA]:

Yes.

21

LDC [MR. CONNELL]:

So with that in mind, does Section B

22

accurately describe the billet and the duties that you

23

performed?
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MJ [Col PARRELLA]:

It does to a point.

I -- billet

2

descriptions are typically generic, meaning that this may be a

3

very similar template that's used for all Fellows.

4

it's tailored to the specific Department of Justice Fellowship

5

at issue.

6

these duties; it's just an indication of what the billet

7

description broadly stated is.

Obviously,

It's not an indication that I performed all of

8

LDC [MR. CONNELL]:

I see.

9

MJ [Col PARRELLA]:

So normally ----

10

LDC [MR. CONNELL]:

It's the type of duties which would be

11
12

performed by this Fellowship.
MJ [Col PARRELLA]:

So normally, if it were an observed

13

fitness report, Block C would be filled out, which would

14

include the more detailed, specific accomplishments, basically

15

what you did during the time period set forth.

16
17

LDC [MR. CONNELL]:

Thank you, sir.

So let me ask you with respect -- and I'm going to

18

refer to subsection B, and it has a number of individual

19

bullets, nine individual bullets.

20

those and tell you where I am as best as possible.

21
22
23

I'll try to walk through

What is the TLS part of CMC?
Commandant of the Marine Corps.
MJ [Col PARRELLA]:

I take it CMC is

What does TLS stand for?

Top-level school.

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2
3

LDC [MR. CONNELL]:

Top-level school.

And what does that

mean, top-level school?
MJ [Col PARRELLA]:

It's just a generic term that's used

4

to describe school opportunities that are slated for typically

5

lieutenant colonels.

6
7

LDC [MR. CONNELL]:

Which was your rank at the time of

this Fellowship?

8

MJ [Col PARRELLA]:

Yes.

9

LDC [MR. CONNELL]:

All right.

In the second bullet, the

10

billet description states that the Fellow will "serve as a

11

counterterrorism prosecutor within CTS/NSD."

12

Counterterrorism Section, right?

CTS stands for

13

MJ [Col PARRELLA]:

Yes.

14

LDC [MR. CONNELL]:

And NSD stands for National Security

15

Division?

16

MJ [Col PARRELLA]:

Yes.

17

LDC [MR. CONNELL]:

And it says -- and so I'm going to

18

stop there and just do the org chart for a second.

19

Department of Justice are a number of divisions, correct?

Within the

20

MJ [Col PARRELLA]:

Yes.

21

LDC [MR. CONNELL]:

National security being one of those?

22

MJ [Col PARRELLA]:

Yes.

23

LDC [MR. CONNELL]:

Others might be tax or civil or

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2

criminal, et cetera.
And under the National Security Division, there are a

3

variety of sections, and one of those is the Counterterrorism

4

Section; is that fair to say?

5

MJ [Col PARRELLA]:

That's my understanding, yes.

6

LDC [MR. CONNELL]:

And did I correctly understand you to

7

tell Mr. Montross that the -- there were further subsections

8

within the Counterterrorism Section?

9

MJ [Col PARRELLA]:

I don't know if there are formal sort

10

of subsections.

11

divided into sort of teams.

12

LDC [MR. CONNELL]:

Sure.

13

MJ [Col PARRELLA]:

So that there was a deputy chief, if

I just know that while I was there, they

14

you will, somebody below

15

of supervision to the CTS attorneys that were working on that

16

particular team.

17
18
19

LDC [MR. CONNELL]:

who provided some aspect

Sure.

That makes sense.

The -- did your team have a name?
MJ [Col PARRELLA]:

No.

I don't believe they had names.

20

They might have been numerically designated was my

21

recollection, and I don't know what number it was.

22
23

LDC [MR. CONNELL]:

Were you on a single team or were you

a floater among teams?
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MJ [Col PARRELLA]:

Same team generally throughout the

2

time.

3

think my recollection was is I was always on the same team.

4

Like I said, the section chief changed, but I was -- I

LDC [MR. CONNELL]:

All right.

And you gave us a ballpark

5

estimate earlier that there were somewhere between 60 and 70

6

attorneys in the Counterterrorism Section as a whole.

7

for reference, how many attorneys were on your team?

8

MJ [Col PARRELLA]:

Maybe a dozen.

9

LDC [MR. CONNELL]:

Okay.

Just

The second sentence in bullet 2

10

of Section B states that you work with partners -- or that the

11

fellow will work with partners in the intelligence community,

12

including FBI, CIA, NSA, and DOD.

13

As fellow, did you work with partners in the FBI?

14

MJ [Col PARRELLA]:

I did work with partners in the FBI.

15

I don't recall working with anyone -- any person within the

16

CIA.

17

facilities.

18

the NSA.

19
20

I do recall doing some document review at one of their
I don't recall anybody or any interaction with

LDC [MR. CONNELL]:

And DOD, of course, were your

colleagues on the ----

21

MJ [Col PARRELLA]:

Yes.

22

LDC [MR. CONNELL]:

---- from the Marine Corps?

23

All right.

The eighth bullet -- no, excuse me, the

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ninth bullet states that you will inform -- or the fellow will

2

inform DOJ and interagency partners on the MAGTF, M-A-G-T-F,

3

concept.

What is that?

4

MJ [Col PARRELLA]:

Marine Air-Ground Task Force.

5

LDC [MR. CONNELL]:

And what is its relevance?

MJ [Col PARRELLA]:

What it is is it's the way the Marine

6
7

it?

8

Corps fights.

9

one subset of skills.

It just simply means that we don't have just
We bring a ground element, an air

10

element, and a logistics element together.

11

means.

12

What is

LDC [MR. CONNELL]:

Okay.

That's all that

The remainder of bullet nine

13

states that you will build relation -- that the Fellow will

14

"build relationships at DOJ."

15

Do you feel that you accomplished that task?

16

MJ [Col PARRELLA]:

I hope so.

17

LDC [MR. CONNELL]:

Okay.

18

and the interagency."

19

a noun?

"And build relationships at DOJ

Do you see that, "interagency" used as

20

MJ [Col PARRELLA]:

I see that.

21

LDC [MR. CONNELL]:

All right.

And in the United States

22

Government, "the interagency" is generally referred to -- it

23

could have a lot of meanings, but in this context, it means in
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the intelligence community, correct?

2

MJ [Col PARRELLA]:

I don't know that that was what that

3

was meant.

4

Corps Fellows to a wide variety of organizations.

5

consider that interagency, so anything from Department of

6

Homeland Security to State Department, and I think even the

7

Department -- the Department of Commerce we sent a fellow to

8

as well as a variety of think tanks.

9

that's what that refers to, not specifically the intelligence

10

Like I said, the Fellowship program sends Marine
We would

So in our parlance,

community.

11

LDC [MR. CONNELL]:

Okay.

So I'd like to turn your

12

attention to Block I on the second page.

13

earlier about the integrating yourself, seamlessly or

14

otherwise, as a full-fledged counterterrorism prosecutor.

15

understood that to mean that you had the responsibilities that

16

other line prosecutors within the National Security Division

17

had.

18

You were asked

You

Would that be fair to say?
MJ [Col PARRELLA]:

No, I don't think it is.

I think

19

it's -- it would be -- it wasn't my understanding of my role

20

being there.

21

an extra asset for CTS, NSD, DOJ.

22

representative of the Marine Corps, to glean some knowledge

23

that I could potentially bring back to the Marine Corps, share

My understanding was I was not there to just be
My role was to be a

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some knowledge that might benefit the Department of Justice,

2

and help communication between the two agencies.

3
4

LDC [MR. CONNELL]:

You were functioning as an attorney,

fair to say?

5

MJ [Col PARRELLA]:

I was, yes.

6

LDC [MR. CONNELL]:

Right.

7

And you had a duty of loyalty

to your client, at this point the United States ----

8

MJ [Col PARRELLA]:

Yes.

9

LDC [MR. CONNELL]:

---- correct?

10

And in Block I, although not usual -- you know, not

11

as in depth as it would normally be in the Marine Corps, is a

12

description not of the fellow generally but of your specific

13

performance; would you agree with that?

14

MJ [Col PARRELLA]:

Oh, yes.

This is -- this was

15

designed, and it's -- again, I think I mentioned earlier,

16

authored by the gentleman who signs the certification on

17

Block J, but it's designed to be a comment of what I did.

18

Now, I will say it's out of the ordinary for there to

19

be direct and additional comments on an unobserved fitness

20

report.

21

Justice, knowing that this was going to be part of my

22

permanent military record, to say some things that showed

23

gratitude for the time I spent there.

I think this was just an attempt by Department of

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2
3

LDC [MR. CONNELL]:

No doubt.

You don't want a blank

fitness report even if it -- you know, in your record.
And so the rater states, "Of note, he," meaning you,

4

"worked directly with DOJ prosecutors and interagency partners

5

in building solid cases against high-level international and

6

domestic terrorism targets."

7
8

My question for you is:

What interagency partners

did you work with?

9

MJ [Col PARRELLA]:

Just the ones we just referred to.

10

LDC [MR. CONNELL]:

Which is?

11

MJ [Col PARRELLA]:

FBI.

12

LDC [MR. CONNELL]:

FBI, CIA, at least at document level,

13
14

and Homeland Security?
MJ [Col PARRELLA]:

I don't recall specifically working

15

with Homeland Security.

16

recall working with anybody at NSA.

17

somebody might have been in the room or there might have been

18

a document that emanated from them.

19
20
21
22
23

LDC [MR. CONNELL]:

It is possible.

Okay.

Again, I don't

It is possible that

When did you leave the

Department of Justice?
MJ [Col PARRELLA]:
to this, June 30th.

Sometime in June of 2015.

According

So that's ----

LDC [MR. CONNELL]:

Fair enough.

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MJ [Col PARRELLA]:

---- my best guess.

2

LDC [MR. CONNELL]:

So between summer 2014 and summer

3

2015, you mentioned to Mr. Nevin attending some social

4

events -- "social functions," excuse me, was your phrase.

5

you recall that?

6
7
8
9
10

MJ [Col PARRELLA]:
of 2015?

Do

Between the summer of 2014 and summer

I don't recall that.

LDC [MR. CONNELL]:

While you were at Department of

Justice?
MJ [Col PARRELLA]:

Yes.

During the -- in that year, I do

11

recall there were -- well, for one, there's a traditional

12

annual Marine Corps Ball celebration.

13

within CTS while I was there, there was -- every time somebody

14

would leave or come, there would be some sort of informal

15

social gathering.

16
17

LDC [MR. CONNELL]:
get-together.

Sure.

There is also, I think

Kind of standard government

There might be a cake?

18

MJ [Col PARRELLA]:

Yes.

19

LDC [MR. CONNELL]:

You know, there might be a happy hour,

20

something like that?

21

MJ [Col PARRELLA]:

Yes.

22

LDC [MR. CONNELL]:

Okay.

23

So when you told Mr. Nevin that

you had seen Mr. Groharing at social functions two to three
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times over the course of your Fellowship, were those sort of

2

social functions -- I got the Marine Ball, but the other one

3

or two ----

4

MJ [Col PARRELLA]:

Yes.

5

LDC [MR. CONNELL]:

---- those were CTS social functions,

6

correct?

7

MJ [Col PARRELLA]:

Yes.

8

LDC [MR. CONNELL]:

And if I understand what you're

9

saying, they're not necessarily formal like they rented a

10

conference room for them, but there was some kind of

11

get-together within the CTS office.

12

MJ [Col PARRELLA]:

Is that fair to say?

Usually it was a gathering that would

13

take place after the close of the regular business day.

14

might last an hour, hour and a half.

15

instances applicable to Mr. Groharing was that my interaction

16

with him would have been no more than 10, 15 minutes.

17

My recollection of the

I was, at the time, living at a location where I had

18

to commute, so I was usually anxious to get on the train

19

before it got too late.

20
21

It

LDC [MR. CONNELL]:

Sure.

They were Counterterrorism

Section social functions, however, though?

22

MJ [Col PARRELLA]:

Yes.

23

LDC [MR. CONNELL]:

Okay.

And you told Mr. Nevin that you

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may have met Mr. Trivett at a social function.

2

also be one of these Counterterrorism Section get-togethers?

3

MJ [Col PARRELLA]:

Yes.

That would

And that's complete speculation.

4

I don't recall meeting anyone else, but I don't want to say

5

definitively that I didn't because it's possible that

6

Mr. Trivett or Mr. Ryan or someone else might have come to one

7

of those.

8

on the team.

9

I just have no recollection of meeting anyone else

LDC [MR. CONNELL]:

And just so she doesn't feel left out,

10

did you ever meet Ms. Tate?

11

MJ [Col PARRELLA]:

Not to my knowledge.

12

LDC [MR. CONNELL]:

Okay.

The -- sir, I -- well, I have

13

two other questions.

14

you also know General Baker.

15

that we should know about your relationship with General

16

Baker?

The first is, you began by saying that
Is there anything that you think

17

MJ [Col PARRELLA]:

18

we're a small organization.

19

2002 to 2005.

20

time period, General Baker was a military judge, so I did have

21

occasion to practice in front of General Baker.

22

a defense counsel.

23

counsel during the duration of that time.

So as I think I indicated earlier,
I served in Okinawa, Japan from

During that time period or a portion of that

I think I was

I'm almost positive I was a defense

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Other than that, yeah, I would -- I would, of course,

2

see him at various trainings or social functions, say hello.

3

But I have no special friendship or regular communication with

4

him on any level.

5

I will say the last time I recall actually seeing him

6

was he came to Camp Lejeune shortly after being promoted and

7

hosted a social function.

8

attended.

9
10
11

I was one of maybe 30 people who

It lasted no more than two hours.

LDC [MR. CONNELL]:

All right.

Are you aware, sir, that

the Office of the Chief Prosecutor -- excuse me.
You've used the phrase -- and I know that I said I

12

was almost done, which I am, but I do have a couple of

13

questions.

14

you understand to be the scope of OMC?

15

You've used the initials OMC a few times.

MJ [Col PARRELLA]:

What do

When I say -- in the context I've used

16

"OMC" or "Office of Military Commissions," what I'm saying is

17

I haven't -- when I've used that terminology -- been involved

18

in any of the cases that are currently or have been in the

19

past before a commissions.

20

LDC [MR. CONNELL]:

Are you aware that the Office of the

21

Chief Prosecutor, which is a subset of the Office of Military

22

Commissions, and elements of the FBI, including the FBI agents

23

who are here today, elements of the CIA, and a number of other
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interagency partners together form a thing called the

2

High-Value Detainee Prosecution Task Force?

3

MJ [Col PARRELLA]:

I'm not aware of that.

4

LDC [MR. CONNELL]:

Have you ever sent an e-mail or have

5

anyone send on your behalf an e-mail to any of the ptf.org

6

e-mail addresses of the prosecution?

7

MJ [Col PARRELLA]:

Not that I can recall, no.

8

LDC [MR. CONNELL]:

So what I hear you saying, sir, is

9

that you were not aware that the -- and are you aware that

10

that High-Value Detainee Prosecution Task Force includes

11

elements of the Counterterrorism Section?

12

MJ [Col PARRELLA]:

I was not aware of how it was

13

organized or structured.

14

Mr. Groharing was on detail and working with cases related to

15

the commissions, but I -- as to how it is structured or how

16

the -- how prosecutors and civilian prosecutors are selected,

17

I don't know and did not know.

18

LDC [MR. CONNELL]:

Like I said, I was aware that

Okay.

And I want to ask this final

19

question, sir, in fairness and in respect for your candor

20

during this process.

21

If you were a reasonable person out in the public

22

with knowledge of all the facts and you knew that the new

23

judge in a case within the past few years had worked for the
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exact office which is involved in the prosecution of the case,

2

would you consider that to be the appearance of impartiality?

3

MJ [Col PARRELLA]:

Well, I think the obvious answer here,

4

Mr. Connell, is in this particular situation with me, if I

5

did, then I would be having to consider whether I should

6

recuse myself, and perhaps recuse myself.

7

I have considered the appearance aspect of my

8

detailing to this case, but in light of the open opportunity

9

I've given everybody in this courtroom to question me about my

10

time there, and hopefully candid answers, I think that it

11

overcomes any possible appearance issue about my brief time at

12

the Department of Justice.

13

distinctions between what a Marine Corps fellow did or does

14

and a -- perhaps a member of the Department of Justice who's

15

hired to work and prosecute in that agency.

16

I think there's some key

So the answer to your question is no, I don't think

17

there's an appearance issue at this point in time.

18

perhaps you or one of your associates, fellow counsel, will,

19

of course, have an opportunity to continue to present evidence

20

that may change my mind.

21

consideration.

But

In other words, I'm open to

22

LDC [MR. CONNELL]:

Thank you, sir.

23

MJ [Col PARRELLA]:

You're welcome.

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All right.

Counsel, I think in light of the time,

2

what we'll go ahead and do is we'll go ahead and take a recess

3

for lunch.

4

you are the last counsel left to conduct voir dire, unless the

5

government chooses to ask any follow-on questions.

6

Unless I've miscalculated, I believe, Mr. Ruiz,

So we will go ahead and recess until 1330.

This

7

commission is in recess.

8

[The R.M.C. 803 session recessed at 1214, 10 September 2018.]

9

[The R.M.C. 803 session was called to order at 1332,

10
11

10 September 2018.]
MJ [Col PARRELLA]:

Good afternoon.

12

called back to order.

13

recessed are again present.

14
15
16

This commission is

All parties present when the commission

Mr. Ruiz, I believe we are to you for your
opportunity to question the military judge.
LDC [MR. RUIZ]:

Judge, I want to go back to the subject

17

of your selection for assignment to this military commission.

18

As I understand it, at the time you were working as a staff

19

judge advocate, correct?

20

MJ [Col PARRELLA]:

Not at the time of my detailing.

I

21

think that the nomination process probably began while I was

22

still working as a staff judge advocate.

23

LDC [MR. RUIZ]:

And can you just elaborate briefly on

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what your duties and responsibilities were as the staff judge

2

advocate at the time?

3

MJ [Col PARRELLA]:

Primarily to provide legal advice in a

4

number of areas to the Commanding General, 2nd Marine

5

Division, as well as his commanders and staff.

6

LDC [MR. RUIZ]:

Okay.

And can you remind me of how it

7

was that your name came up?

8

understand how you're working as a staff judge advocate.

9

know that our services have active judiciaries with Navy,

It seems to be -- I'm trying to
We

10

Marine Corps, Air Force, Army, who are active judges, military

11

judges, both active and reserve.

12

unusual that, rather than picking from a pool of those

13

candidates, they would reach out to somebody who is working in

14

a different capacity as a staff judge advocate.

15

So it seems a little bit

So my question to you, what I'm trying to really kind

16

of understand is:

17

your name came up out of that pool or that landscape of other

18

military judges who presumably could have been named?

19

How did that come about?

MJ [Col PARRELLA]:

How was it that

So in order to -- I would assume, and

20

I'm making some assumptions here, that in order to have been

21

considered as a nominee, it was because by May time frame, May

22

of 2018, I had orders to go back to the trial judiciary.

23

would presume that the decision or my selection as a nominee

So I

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was made after and with the knowledge that I was heading back

2

to the trial judiciary.

3
4

LDC [MR. RUIZ]:

And by that, you mean the Navy-Marine

Corps Trial Judiciary?

5

MJ [Col PARRELLA]:

6

LDC [MR. RUIZ]:

7

I do.

I understand.

And did anybody have a conversation with you at that

8

point about the possibility of coming to the military

9

commissions?

10
11

I'm trying to pinpoint the earliest date that

you remember that possibility coming about.
MJ [Col PARRELLA]:

So the decision for me to return to

12

the Navy-Marine Corps Trial Judiciary was made before and, I

13

believe, independently of any thought of nominating me to be a

14

member of the commissions.

15

LDC [MR. RUIZ]:

So your end of tour would have been 2016

16

as a staff judge advocate or 2017?

17

when your end of tour would have been.

18

MJ [Col PARRELLA]:

I'm trying to figure out

My end of tour would have been just

19

this last summer when I did, in fact, change jobs, which was

20

the summer of 2018.

21

LDC [MR. RUIZ]:

Summer 2018.

And then you were slated to

22

come to the Navy-Marine Corps Judiciary?

23

to place that into context that you also talked about

I guess I'm trying

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follow-on orders in 2019 in the summer.

2

short amount of time.

3

assigned to the Navy-Marine Corps Trial Judiciary, it seems

4

that that was going to be a compressed time period.

5

out of the ordinary itself.

6

MJ [Col PARRELLA]:

7

So it seems like a

If you were going to, in fact, be

I understand.

It seems

I'll try to explain it

to you in sort of chronological order ----

8

LDC [MR. RUIZ]:

9

MJ [Col PARRELLA]:

Sure.
---- so you -- to elaborate.

So

10

sometime, I think, in the winter of 2017 to '18, I was

11

informed that I would be moving from the Marine Corps Division

12

Staff Judge Advocate job to resume duties as a military judge

13

within the Navy-Marine Corps Trial Judiciary.

14

Sometime in the late spring -- I think around May --

15

there was discussions -- they informed me that they were

16

considering or were nominating me to be a part of the pool.

17

The command selection board didn't even convene until July of

18

2018, so after I had already essentially checked in and

19

started my duties or resumed duties as a military judge.

20
21
22
23

LDC [MR. RUIZ]:
helps.

Understood.

Understood.

I got it.

That

Thank you very much.
I think you've clearly indicated that it is your

understanding that those orders will be forthcoming in 2019,
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summer time frame?

2

MJ [Col PARRELLA]:

3

LDC [MR. RUIZ]:

4
5

Yes.

Do you have any guarantee that that's, in

fact, the case?
MJ [Col PARRELLA]:

I don't have any guarantees, it is the

6

military, but I have nothing to suggest that anything to the

7

contrary will occur.

8
9

LDC [MR. RUIZ]:

So I know you did indicate that you had a

conversation with Judge Pohl.

Part of that conversation

10

included you expressed some reservations about follow-on

11

orders.

12

of was there any -- not guarantee, but was there any

13

assurances that you would be able to follow on and a

14

replacement would be found?

15

MJ [Col PARRELLA]:

Was that topic discussed further than that, in terms

Not to that discussion, no, because

16

obviously he's -- he is completely separate from any

17

decision-making within the Marine Corps.

18

conversation was just me simply letting him know that I was

19

being considered for command and then a subsequent

20

conversation where I informed him that I had, in fact, been

21

selected for command.

22

decision to detail me to this case.

23

LDC [MR. RUIZ]:

The extent of the

All of that transpired prior to his

Okay.

Have you received any assurances

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2

from anyone at all, Marine Corps ---MJ [Col PARRELLA]:

I have received no communication,

3

either favorable or negative, with respect to the upcoming

4

summer.

5

LDC [MR. RUIZ]:

Understood.

With respect to the

6

fellowship program that you have discussed, you've talked

7

about the selection.

8

little bit about the selection process.

9

concept of the selection board.

10
11

You've talked about the assignment and a
I get -- I get the

We have those in the Navy as

well.
But it is correct that you have to, to some degree,

12

make an affirmative action to be considered for particular --

13

particular fellowships, right?

14

was different ----

15

MJ [Col PARRELLA]:

I think you indicated there

It's more of the opposite.

You have

16

to affirmatively decline to be considered.

17

lieutenant colonel in the Marine Corps and not otherwise

18

disqualified for some other reason, you will be considered for

19

top-level school unless you affirmatively withdraw your name

20

from consideration.

21

LDC [MR. RUIZ]:

Understood.

So if you're a

And when -- that part of

22

that consideration, do you get to submit -- I think you may

23

have talked about this.

You get to submit preferences within

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2

the different organizations that are part of the program?
MJ [Col PARRELLA]:

Yes.

And my recollection is that it's

3

broken down into -- because the same board selects folks for

4

top-level schools, war colleges and things of that nature, as

5

well as fellowships.

6

So my recollection was the questionnaire gave you the

7

option to state your preference for both.

8

preferences for certain war colleges.

9

don't recall.

I remember stating

The fellowships, I

I would assume that I put down the Department

10

of Justice just because the logical link between attorneys and

11

the Department of Justice, but I couldn't tell you how I

12

ultimately stated my preferences on that questionnaire.

13

LDC [MR. RUIZ]:

So to your knowledge, does the selection

14

process -- let's say, for instance, that there are a number of

15

preferences you can -- one, two, three.

16

process in the Navy in terms of billets and assignments.

17

called Apply.

18

preferences.

19

that are not -- have not been submitted by us, preferences,

20

may also be considered if we've elected for that option.

21

We have a similar
It's

We submit a number of billets that we -- our
However, if those are taken up, then billets

So is there a -- is there such a procedure in the

22

fellowship program, to your knowledge, where you would have

23

been considered for an organization that you would not have
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2

submitted to, or submitted a preference for?
MJ [Col PARRELLA]:

So my understanding in the Marine

3

Corps is that the board who does the selections is

4

predominantly focused on who is going to have an opportunity

5

for top-level school, period.

6

say, the year I was selected was somewhere around 17 percent

7

of eligible lieutenant colonels, and only after they've

8

selected those individuals did they even consider where to

9

actually send them.

10

The selection rate, I want to

So during the sort of indoc for fellowships, what

11

they told us, that those that had been selected, is that the

12

vast majority of the effort goes into selecting who gets

13

top-level school, only a minute level of effort goes into

14

actually placing who goes to what agency, because from the

15

Marine Corps's perspective, I think that's a secondary issue.

16

LDC [MR. RUIZ]:

So to the best of your recollection, did

17

you express a preference in any way, shape, or form for -- or

18

an interest in going to the Department of Justice?

19

MJ [Col PARRELLA]:

I think it's probably a fair

20

assumption that I did put Department of Justice somewhere on

21

my one through five or one through three or whatever it may

22

have been.

23

LDC [MR. RUIZ]:

And what is it about the Department of

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Justice that would have interested you and led you to express

2

an interest in that as an option, were you to be selected?

3

MJ [Col PARRELLA]:

So all of the other fellowships are

4

open to Marines who hold any MOS; that's our Marine

5

Occupational Specialty or Military Occupational Specialty.

6

The Department of Justice, because of the nature of

7

the mission, has basically -- and again, this was at least

8

when I was there, this may have changed -- expressed a

9

preference to the Marine Corps that they only send attorneys.

10

So at the time the board was doing the selection process, the

11

Department of Justice fellowship was earmarked just for judge

12

advocates.

13

down as a preference because, as a judge advocate, it fit.

14
15
16

So that's why I think I probably would have put it

LDC [MR. RUIZ]:

I understand.

And just from looking at the timeline, is it a fair
assumption to say that you're retirement eligible?

17

MJ [Col PARRELLA]:

18

LDC [MR. RUIZ]:

I am.

Okay.

And in thinking about the -- once

19

you hit retirement eligibility, from time to time you start

20

thinking about the future, down the road.

21

today, can you tell us if you would exclude the Department of

22

Justice as a potential employer in your future endeavors?

23

MJ [Col PARRELLA]:

As you sit here

I have no current desire or preference

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to seek employment at the Department of Justice.

2

so far because I think it would be speculative on my part to

3

say that that would never change.

4

LDC [MR. RUIZ]:

5

I can't go

I understand.

And the same question with respect to the Federal

6

Bureau of Investigation, for instance, as an in-house legal

7

counsel, but it could also apply to any other appropriate

8

positions.

9

MJ [Col PARRELLA]:

10

LDC [MR. RUIZ]:

11

MJ [Col PARRELLA]:

12

LDC [MR. RUIZ]:

Same answer.

Okay.

The National Security Agency?

I mean, same answer.

I understand.

Now, you've indicated that

13

you did not feel pressured to rush, and there's also been

14

significant questioning about the level of material, the time

15

of litigation, and the efforts and preparations that you've

16

made in trying to undertake this mission.

17

You did, however, indicate that you're qualified and

18

we're moving out.

19

What are you trying to say when you made that comment earlier

20

on today?

21

What do you mean by "We're moving out"?

MJ [Col PARRELLA]:

What I'm trying to say is that I've

22

looked at the rules; my interpretation is that I meet the

23

qualifications.

I was detailed to the case by an individual

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who was aware of my qualifications, as well as sort of the

2

issues that we've discussed with my career and the timelines

3

associated with that.

4

I'm not going to answer a litany of questions about how much

5

more qualified Judge Pohl was or any other judge in the

6

military because I was the one that was detailed to this case.

What I mean is that, aside from that,

7

LDC [MR. RUIZ]:

8

MJ [Col PARRELLA]:

9
10
11

Sure.
So as such, I intend to do the best of

my ability for the time that I remain detailed to this case.
LDC [MR. RUIZ]:

I understand.

So the "moving out" answer caught my attention

12

because it seemed to be a judgment or a decision that you seem

13

to have made that we are moving forth, predetermined, based on

14

your exposure to the case and what you know of the case.

15

That, in my mind, raises a concern and the question which is,

16

the artificial -- or the expediting of a case for the sake of

17

expediting of a case.

18

And that's where the question goes to.

And I think you've answered that a number of times,

19

but I just want to make sure that it's clear that you have no

20

influence whatsoever on you that delaying this case, if that's

21

what's necessary, would somehow detrimentally affect you or

22

your career progression.

23

MJ [Col PARRELLA]:

Not at all.

And I have had no

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conversations with anybody, Judge Pohl included, about a need

2

to move at a certain speed, to getting a certain amount done.

3

And certainly if anything changes about my answers, if I feel

4

any outside pressure or influence, I will certainly let

5

everybody in this commission know that so that you have an

6

opportunity to again ask questions.

7

LDC [MR. RUIZ]:

Have you -- I understand feeling not

8

pressured or that any influence impacts you.

9

bit different from talking about being exposed to such

10

influence.

11

It's a little

My next question goes to that specific point.

Have you had the opportunity to be exposed to any

12

comments, conversations, articles, any -- anything that talks

13

about the pace of this case, whether it's too fast, whether

14

it's too slow; commentary, whether by colleagues, family,

15

friends?

16

exposed to ----

17

It's a rather broad question here.

MJ [Col PARRELLA]:

Have you been

I think I understand the question.

In

18

terms of exposure, I'm aware -- and I don't remember which AE

19

I was reading, but I came across previous litigation in this

20

commission about pressure that may have been applied upon the

21

judiciary with respect to moving locations down here.

22

terms of exposure, I'm aware that there has been litigation in

23

the past, and my reading of it is it didn't go well for the

So in

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2

government in attempting to apply that pressure.
LDC [MR. RUIZ]:

In your time in the Department of

3

Justice, did you ever overhear any conversations or were part

4

of conversations where there were comments about the pace of

5

the litigation in this case?

6

MJ [Col PARRELLA]:

7

LDC [MR. RUIZ]:

8
9
10

No.

Anywhere else, have you ever been a part

or privy of such conversations?
MJ [Col PARRELLA]:
LDC [MR. RUIZ]:

No.

Upon learning that you would be detailed

11

to this case, has anybody inquired about your work on this

12

case or expressed an opinion regarding the state of this case

13

in terms of the pace of the current litigation?

14

MJ [Col PARRELLA]:

No.

I mean, I'm -- obviously when I'm

15

answering these, I'm excluding just internal conversations

16

I've had with members of the trial judiciary; but I'll say

17

quite clearly nobody has attempted to influence or pressure or

18

suggest that I should speed up in any fashion.

19

LDC [MR. RUIZ]:

Sure.

And the question was also intended

20

to include, as I said, particularly during your time in the

21

Department of Justice, any conversations that may have been

22

had regarding the 9/11 case, the conduct of this prosecution,

23

the pace of the case, any critical comments about the case
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2

itself.
MJ [Col PARRELLA]:

I don't recall, Mr. Ruiz, any

3

discussions while I was at the Department of Justice about the

4

progress of this case, the speed of the case.

5

just referred to, I probably -- just because the convening

6

authority at the time, as you know, was a former Marine, I

7

think I might have read an article in the newspaper about it.

8

But I don't recall specific discussions or remember having an

9

opinion one way or the other as to it because I just simply

10
11

The issue I

didn't know enough about it.
LDC [MR. RUIZ]:

And just since you mentioned the prior

12

convening authority, did you have any conversations with the

13

prior convening authority ----

14

MJ [Col PARRELLA]:

15

LDC [MR. RUIZ]:

16

MJ [Col PARRELLA]:

17

LDC [MR. RUIZ]:

18

No.

---- that you know of?
Not since he left active duty.

I understand.

Okay.

Your fitness report in Block 4 references how your

19

time at the Department of Justice would also increase your

20

professional portfolio.

21
22
23

MJ [Col PARRELLA]:

I'm sorry.

Could you say which

Block 4 you're referring to?
LDC [MR. RUIZ]:

Sure.

Yes.

It's page 5 of -- page 5 of

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5 at the bottom, and it says -- it's Block 4, REVIEWING

2

OFFICER COMMENTS.

3
4
5

MJ [Col PARRELLA]:

Are you looking at 595B, Mr. Ruiz?

Because I see that as a four-page document.
LDC [MR. RUIZ]:

It is a four-page document, yes.

I'm

6

sorry.

7

says page 5 of 5 in terms of the actual fitness report at the

8

bottom.

9
10
11

And it's page 2 of that four-page document, but it

MJ [Col PARRELLA]:
LDC [MR. RUIZ]:

Okay.

I see where you are.

All right.

So the REVIEWING OFFICER

COMMENTS in Block 4.

12

MJ [Col PARRELLA]:

13

LDC [MR. RUIZ]:

And what was your question again?

It makes a statement about how your time

14

at the Department of Justice also increased your professional

15

portfolio.

16

Judge, that your assignment to this military commission will

17

likely similarly increase your professional portfolio?

18
19
20

And my question is:

MJ [Col PARRELLA]:

No.

Do you feel, as you sit here,

I haven't really honestly given

it consideration, nor do I really ---LDC [MR. RUIZ]:

Before you took this position, you did

21

not -- and having been in the military, where we think about

22

our future assignments quite a bit, so prior to taking on this

23

monumental case, you did not give any consideration how it may
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2

impact your career positively or negatively?
MJ [Col PARRELLA]:

No, not really.

Honestly, Mr. Ruiz,

3

I've come to the realization I'm probably about as far as in

4

this organization promotion-wise as I'm ever going to be and

5

don't really care how this is viewed by entities within the

6

Marine Corps one way or the other.

7

earlier I certainly didn't volunteer for this, but I will do

8

the job to the best of my ability.

9

I think I've indicated

As to Block 4, I see the comments and, you know, this

10

is, as I said, an unobserved fitness report.

11

think I met the individual who authored that.

12

that's comments that are provided by Marine Corps University.

13

LDC [MR. RUIZ]:

I don't even
It's something

So let me ask you that question, because

14

I think this is perhaps a -- I was going to say

15

service-specific, but unlike Mr. Nevin, I understand that the

16

Marine Corps is a part of the Navy.

17

things a little bit differently, we do have some experience

18

with fitness reports.

19

And so while you guys do

At least in the Navy, we tend to have a pretty

20

interactive process when we write our fitness reports.

21

tends to be pushed down to the level of the person actually

22

being reviewed.

23

draft.

It

Many times we're asked to provide a working

And certainly the reviewer and the -- finally the
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signing official ultimately determines what stays and what

2

goes.

3

So am I to understand that in this particular fitness

4

report, you did not have any input into the information or you

5

had some input or what exactly did -- what process -- what

6

part did you take in this process?

7

MJ [Col PARRELLA]:

Yeah, so my recollection was that my

8

input was very minimal.

9

had this actually written as an observed fitness report, and I

My -- I believe my predecessors had

10

elected to go unobserved to put it more in line with all of

11

the other fellowships and all of the other top-level school

12

situations, but I don't recall.

13

I'm relatively certain, looking at this, that

14

probably authored what he has signed as authoring

15

and probably provided input as well, or maybe not, for the

16

colonel,

17

but there was a civilian who is assigned to Marine Corps

18

University who probably -- who is our direct liaison who

19

probably prepared the comments for the colonel to sign as

20

well.

21

, because again, I never met this individual,

LDC [MR. RUIZ]:

You did, however, have an opportunity to

22

review this document and to review the information.

23

in fact, provides an opportunity to indicate if you disagree

Block 6,

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with the information provided within the fitness report, you

2

could, in fact, make a comment or a statement relating to the

3

substance contained in the fitness report, correct?

4

MJ [Col PARRELLA]:

5

LDC [MR. RUIZ]:

Only if it's adverse.

Sure.

But I'm inferring in that

6

possibility the opportunity to review the report and determine

7

if you want to make a statement concerning the report.

8
9

MJ [Col PARRELLA]:

Correct.

But in Block 6, and I

think -- when you read that in conjunction with the applicable

10

order, Block 6 only applies in the case that the fitness

11

report is marked as an adverse report, which then affords

12

the ----

13

LDC [MR. RUIZ]:

14

MJ [Col PARRELLA]:

15
16
17
18
19
20
21

I see.
---- Marine report an opportunity to

respond.
LDC [MR. RUIZ]:

So did you not see this fitness report

before it made its way into your record?
MJ [Col PARRELLA]:

It's possible I did.

I honestly don't

recall.
LDC [MR. RUIZ]:

Okay.

At the time you were rated in this

report, you were a lieutenant colonel, correct?

22

MJ [Col PARRELLA]:

23

LDC [MR. RUIZ]:

That's correct.

And you are now a colonel?

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MJ [Col PARRELLA]:

2

LDC [MR. RUIZ]:

3

this report was written?

When did you promote in relation to when

4

MJ [Col PARRELLA]:

5

LDC [MR. RUIZ]:

6

So subsequent to this fitness

report?
MJ [Col PARRELLA]:

8

LDC [MR. RUIZ]:

10

My date of rank is 1 September 2017.

Okay.

7

9

Correct.

Correct.

Prior to your consideration for

promotion, did you scrub your military record, including your
fitness reports?

11

MJ [Col PARRELLA]:

Where are we ----

12

MTC [MR. TRIVETT]:

Objection, relevance.

13

MJ [Col PARRELLA]:

---- going with this, Mr. Ruiz?

14

LDC [MR. RUIZ]:

So what I'm trying to understand here is

15

you've indicated to some extent that you really didn't have an

16

interactive process in working -- or any information that's

17

contained in this report.

18

question about the fully integrated language as a prosecutor.

19

And so it makes a difference for me whether somebody just

20

wrote this report, inserted it into your service record, and

21

you never saw it and it went up for promotion and then you

22

were promoted, or you actually took an interactive part in

23

this process, looked at the fitness report, noted any

I want to ask you a follow-up

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discrepancies and your understanding of what that language

2

meant.

3

with the question or don't go with the question.

4
5
6

It makes a difference in my question and where I go

So if you tell me I never saw this, I have no idea
who wrote it ---MJ [Col PARRELLA]:

It's possible I saw it, Mr. Ruiz, but

7

keep in mind, that I don't think anybody who wrote it,

8

including myself as the recipient, anticipated back in 2015

9

that I would find myself sitting here having folks scrutinize

10

the adjectives that were used in this report.

11

LDC [MR. RUIZ]:

12

MJ [Col PARRELLA]:

Sure.
You know, at the end of the day it was

13

an unobserved report, which I'm not sure how it is in the

14

Navy, but in the Marine Corps it means that the report doesn't

15

carry any weight with the board or doesn't carry significant

16

weight with the board because it's unobserved.

17

have rating marks.

18

It doesn't

So the bottom line is -- and I think I've articulated

19

this before:

20

ability to influence my career in a professional standpoint

21

other than perhaps calling up and saying I wasn't showing up

22

to work.

23

Nobody in the Department of Justice had the

There was no rating, per se, that they were doing.

LDC [MR. RUIZ]:

But certainly if it had been an adverse

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report or even nonobserved and they included negative language

2

in this fitness report, you would agree that that would have

3

been a cause for concern for you as you were being considered

4

for promotion, right?

5

MJ [Col PARRELLA]:

That is -- that is true.

It could be

6

a cause for concern.

7

I've described it ad nauseam, sort of my role at the

8

Department of Justice.

9

want to ask more questions or something has triggered a

10
11

But as I've stated, I think -- I think

So let's get to a question that if you

question for you, let's get there, please.
LDC [MR. RUIZ]:

Sure.

So the fully integrated piece, you

12

were -- you had the requisite security clearance to access

13

privileged documents with the Department of Justice?

14

MJ [Col PARRELLA]:

15

LDC [MR. RUIZ]:

Yes.

If I -- on a need-to-know basis.

Did you have your personal swipe card

16

that could have ingress and egress from the facilities without

17

being escorted?

18

MJ [Col PARRELLA]:

19

LDC [MR. RUIZ]:

20

Okay.

So at least you had that level of

trust and you were integrated to that extent?

21

MJ [Col PARRELLA]:

22

LDC [MR. RUIZ]:

23

Yes.

Yes.

And you worked hand in hand with the

Department of Justice prosecutors to carry out the mission of
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the office?

2

MJ [Col PARRELLA]:

3

LDC [MR. RUIZ]:

4

Yes.

In doing that, you prepared or reviewed

search warrants, correct?

5

MJ [Col PARRELLA]:

6

LDC [MR. RUIZ]:

Yes.

As well as a number of other legal issues

7

as they related to the work of the Department of Justice and

8

further its counterterrorism mission?

9
10

MJ [Col PARRELLA]:
LDC [MR. RUIZ]:

Yes.

Okay.

I think what you have indicated is

11

that you were not -- you were never given a case, a standalone

12

case, by yourself.

13

standard operating procedure, correct?

You were co-detail, which seems the

14

MJ [Col PARRELLA]:

15

LDC [MR. RUIZ]:

Yes.

But you did have some discretion in terms

16

of your ability to provide input on the case.

17

discretion in terms of providing recommendations for

18

disposition of cases or how legal issues ought to be handled?

19

MJ [Col PARRELLA]:

20

LDC [MR. RUIZ]:

21

Did you have

I had input, yes.

All right.

Okay.

Mr. Harrington asked you a question, Judge, about how

22

you felt when 9/11 happened, and your response was that

23

similar to what everybody else felt in the country.

I feel it

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is fair to say that many people in this country felt that

2

whoever committed the 9/11 acts should die and pay for those

3

acts with their lives?

4
5

MJ [Col PARRELLA]:

Let's ask the next question, please.

6
7

I'm not going to speculate on that.

LDC [MR. RUIZ]:

Well, I'm not asking you to speculate.

You did indicate that you felt how the country felt ----

8

MJ [Col PARRELLA]:

9

LDC [MR. RUIZ]:

10

I think I ----

---- so you did speculate.

MJ [Col PARRELLA]:

---- prefaced that by saying that's my

11

assumption.

12

the country felt other than from general media reports and

13

things and my take from those reports were that the two

14

predominant emotions were anger and shock.

15

I don't know -- obviously know how the rest of

LDC [MR. RUIZ]:

Sure.

So you're a citizen; you're a

16

member of our military, our fighting force.

17

happened, did you feel they needed payback and they should

18

die?

19
20

MJ [Col PARRELLA]:

I'm not going to answer the question.

We're just rehashing what I've already stated.

21

LDC [MR. RUIZ]:

22

MJ [Col PARRELLA]:

23

When that

Why not, Judge?
The answer is no.

As I've said before

and I'm going to say one last time, there's nothing about my
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experiences either on 9/11 or since that causes me to believe

2

that I cannot be impartial and unbiased with respect to this

3

commission.

4

LDC [MR. RUIZ]:

Yes, sir.

I believe the quote was "It's

5

possible that my feelings have changed," was your response to

6

the line of questioning from Mr. Harrington.

7

bit different and that's the answer I want to explore.

8
9

That's a little

When you say it's possible my feelings have changed,
it's difficult to assess that answer without truly

10

understanding what your feelings were, which is what I was

11

trying to gather.

12

MJ [Col PARRELLA]:

And to the best of my recollection,

13

what I said was is probably anger and shock.

14

specific recollection of it.

15

think over due course of time, those emotions may have, you

16

know, waned just with the passage of time.

I don't have a

And, you know, what I said is I

17

But as I sit here today, which is what I think is

18

relevant, there's nothing about my past experiences that I

19

feel will affect those two important factors.

20

LDC [MR. RUIZ]:

So if a jury were being selected to sit

21

as an impartial and fair juror and they indicated that they

22

felt anger or shock, they wanted these men dead or whoever

23

committed these acts to die, but they said that now everything
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2

was fine, they feel ---MJ [Col PARRELLA]:

I'm going to stop you there because

3

I've never said that I ever expressed any desire for these men

4

to die.

5

never said that.

6

words or feeling that way because, frankly, this case -- at

7

the time of 9/11, I don't think those facts -- a lot of those

8

facts were known, essentially.

9
10
11
12

In fact, I think I said the opposite, that I have
I don't recall ever -- ever uttering those

LDC [MR. RUIZ]:

I understand that.

MJ [Col PARRELLA]:
the record.

So ----

---- I just want to make it clear for

So what's your next question?

LDC [MR. RUIZ]:

What I'm trying to get you to answer,

13

Judge, directly and honestly, quite frankly, is:

14

that whoever committed these acts on 9/11 should pay a price

15

and should be either eradicated, should be brought to justice?

16

This is a reasonable question to ask in this case.

17

just kind of pulling it out of nowhere, certainly since you're

18

going to sit and you're going to be calling the balls and

19

strikes.

20

Did you feel

I'm not

If, in fact, you did espouse such an opinion, it may

21

very well have waned over time, but then it goes to the

22

weight, right, not necessarily the relevancy.

23

fact, you or if a prospective juror felt that way, it's

But if, in

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something that we need to be able to assess.

2

able to think through and then determine if we want to make a

3

challenge based on that.

4

like if you asked me how I felt, I would say yes.

5

MJ [Col PARRELLA]:

6

LDC [MR. RUIZ]:

We need to be

And, quite frankly, it just seems

So, Mr. Ruiz, what's your question?

My question is, Judge:

Did you feel that

7

whoever committed these acts on 9/11 or shortly thereafter

8

should pay a price; that there should be some retribution;

9

that maybe they should die; that we should bomb them, whoever

10

they were, after we found out who they were?

11

those kinds of feelings?

12

citizen, an American.

13

MJ [Col PARRELLA]:

You're a member of our military, a

I have no specific recollection of

14

having those feelings.

15

just speculating, Mr. Ruiz.

16
17
18

LDC [MR. RUIZ]:

Did you have

Is it possible?

It's possible.

I'm

It was a long time ago.

A pretty significant act.

Pretty

significant ---MJ [Col PARRELLA]:

I understand, but I'm, as a judge,

19

very confident I can leave my personal feelings, whatever they

20

might be on any particular topic, whether it be capital

21

punishment or any other topic, outside and apply the law as I

22

believe it to be inside this connection.

23

LDC [MR. RUIZ]:

I understand that.

But I still don't

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know what your personal feelings are.

2

saying you can put them aside.

3

MJ [Col PARRELLA]:

I mean, I know you're

And I don't think it's relevant the

4

way you're -- your line of questioning, so I'm not going to

5

answer.

6

Let's move on.

LDC [MR. RUIZ]:

So your personal feelings on how you felt

7

about 9/11 case are not relevant because you can put them

8

aside?

9

MJ [Col PARRELLA]:

Okay.

So you're not correctly

10

summarizing.

11

reasons, I'm not going to answer it again.

12

I've answered that question; and for those

LDC [MR. RUIZ]:

Okay.

The -- a little bit more about

13

your document review.

14

document review at a CIA facility or a warehouse?

I think you indicated you conducted a

15

MJ [Col PARRELLA]:

16

LDC [MR. RUIZ]:

17

Correct.

Can you tell us a little bit more about

that?

18

MJ [Col PARRELLA]:

19

LDC [MR. RUIZ]:

No.

Is that because you don't want to or you

20

just don't remember or you've got a duty to protect that

21

information?

22
23

MJ [Col PARRELLA]:
which case it was.

I don't remember.

I don't remember

And yeah, I honestly don't know that I

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could give you much details, and to the extent I might be able

2

to, they are probably classified.

3
4

LDC [MR. RUIZ]:

I understand.

So as you sit here as a member -- as a judge on this

5

case, you do still have an obligation to protect classified

6

information that may have come from the CIA?

7

MJ [Col PARRELLA]:

8

obligation hasn't ended.

9

LDC [MR. RUIZ]:

Yes.

I mean, as far as I know, that

And the obligation would also extend to

10

any privileged communications, work product that you worked on

11

during your time with the Federal Bureau of Investigation?

12

You still have a duty of loyalty and confidentiality to that

13

organization, correct?

14

MJ [Col PARRELLA]:

15

LDC [MR. RUIZ]:

Yes.

In terms of the -- I understand you don't

16

remember much about the CIA facility.

17

had to be escorted or if you had the opportunity to enter that

18

facility say, for instance, with your own swipe card or if

19

there were particular procedures ----

Do you remember if you

20

MTC [MR. TRIVETT]:

Objection, relevance.

21

MJ [Col PARRELLA]:

Sustained.

22

LDC [MR. RUIZ]:

23

Let's move on, Mr. Ruiz.

Judge, this goes to a challenge based on

your alignment with a party to this litigation.

The CIA's

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involvement in this case is extensive and well documented.

2

the extent that you were embedded with the Department of

3

Justice and had ease of access to CIA facilities, it's

4

directly relevant to the questions that I'm asking.

5

see how that couldn't be more relevant.

6

MJ [Col PARRELLA]:

To

I don't

Because I've answered the question

7

several times now about my relationship with any of those

8

agencies, the extent that I had any involvement with those

9

agencies, what that involvement was, and all of what I did or

10
11

didn't do while I was at the Department of Justice.
LDC [MR. RUIZ]:

Well, the question was:

12

access to their facility without an escort?

13

and go as you pleased?

14

MJ [Col PARRELLA]:

Did you have
Could you come

But that's -- I don't see that as

15

relevant, so we're going to move on.

16

relationship with that agency, what it was and what it wasn't.

17

So whether I had access to the facility unescorted or escorted

18

I don't see as relevant.

19

LDC [MR. RUIZ]:

20

Okay.

Judge, at one time you were

deployed in support of Operation Iraqi Freedom II, correct?

21

MJ [Col PARRELLA]:

22

LDC [MR. RUIZ]:

23

I've described my

That's correct.

During that deployment, did you have an

opportunity to work with detainee populations?
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MJ [Col PARRELLA]:

2

LDC [MR. RUIZ]:

3

All right.

MJ [Col PARRELLA]:

5

LDC [MR. RUIZ]:

detainees that were taken in by U.S. forces?
MJ [Col PARRELLA]:

8

LDC [MR. RUIZ]:

9

MJ [Col PARRELLA]:

May I have a moment?

You may.

[Pause.]
LDC [MR. RUIZ]:

12

MJ [Col PARRELLA]:

14

No.

Okay.

11

13

I did not.

Did you form any opinions regarding any

7

10

Did you have any advisory

role or any role in regards to detention operations?

4

6

I did not.

That's all I have, Judge.

Thank you.

Thank you, Mr. Ruiz.

Trial Counsel, any questions for the military judge
in light of counsel's questions?

15

MTC [MR. TRIVETT]:

Good afternoon, Your Honor.

16

MJ [Col PARRELLA]:

Good afternoon.

17

MTC [MR. TRIVETT]:

I just have one question and one

18

clarification for one of your answers earlier.

19

asked you about DoJ personnel you had contact with.

20

to add one name to that list to see if you had any contact

21

with a Ms. Kiersten Korczynski while you worked at the

22

Department of Justice Counterterrorism Section.

23

MJ [Col PARRELLA]:

Mr. Nevin
I'd like

Is she a former Navy judge advocate?

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MTC [MR. TRIVETT]:

Yes, sir.

2

MJ [Col PARRELLA]:

My recollection was that she joined

3

CTS while I was there, I want to say in the latter half of the

4

year while I was there.

5

a case with her.

6

MTC [MR. TRIVETT]:

So I did meet her.

I never worked on

Anything about your relationship with

7

her that would affect your ability to sit impartially on this

8

case if she were to be detailed to this case by the chief

9

prosecutor?

10

MJ [Col PARRELLA]:

Absolutely not.

11

MTC [MR. TRIVETT]:

And one clarification.

Mr. Nevin

12

asked questions about the law of capital punishment earlier,

13

and you started a response by saying "I don't believe," and

14

then you paused and then you said "I'm qualified."

15

Now, I heard it and understood to mean that you

16

believed you were qualified to sit on this case.

17

heard it correctly, the record might indicate that you said "I

18

don't believe I'm qualified."

19

you believe that you're qualified to sit on this case,

20

including with the answer to that question.

21

MJ [Col PARRELLA]:

Yes.

But if I

I just wanted to clarify that

And if I started a half of a

22

sentence and didn't finish it, then I can see how that would

23

happen, so that was certainly not my intent.

I do believe I

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am qualified to sit on this case with the full understanding

2

that this is a capital case.

3

MTC [MR. TRIVETT]:

Thank you, sir.

4

MJ [Col PARRELLA]:

Do any counsel desire to challenge the

5

military judge?

Trial Counsel?

6

MTC [MR. TRIVETT]:

No, sir.

7

MJ [Col PARRELLA]:

Mr. Nevin?

8

LDC [MR. NEVIN]:

9

No further questions.

Your Honor, I make the motion today that

the military judge recuse yourself from the case.

I think

10

it's probably a motion that should be briefed and presented to

11

you more thoroughly, but I want to articulate it today because

12

I know the military judge intends to continue and -- if you

13

deny this motion, to hear additional arguments on other

14

motions, and I want to present this motion prior to your doing

15

that, so it will be perhaps somewhat incomplete.

16

basically on four grounds.

17

But it's

The first is that the ABA -- the ABA Code of Judicial

18

Conduct -- and I cited the rules of the code of conduct for

19

United States judges, but they essentially provide the same

20

thing.

21

JAG Instruction makes the ABA Model Code of Judicial Conduct

22

applicable to you.

23

And counsel previously pointed out to you that the

And the matter that I -- the matters that I sought to
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question you about regarding the number of trials you had been

2

involved in, your experience with capital cases, and the rest,

3

all of those, as I articulated to you previously, would have

4

gone to your competence to serve as a judge in this case.

5

Rule 2.5 of the ABA code says that "A judge shall perform

6

judicial and administrative duties competently and also

7

diligently."

8

"competence in the performance of judicial duties requires the

9

legal knowledge, skill, thoroughness, and preparation

And the comment to the rule says that

10

reasonably necessary to perform a judge's responsibilities of

11

judicial office."

12

And meaning no disrespect previously and none now, as

13

someone who's been struggling with this case for something

14

like ten years and is aware of the complexity of it, I think

15

it was reasonable for us to -- and it falls under the -- the

16

rubric of competence.

17

would say in a general sense that you're not a competent

18

person.

19

And I know based on your record, no one

Clearly, you are.
But these were the kinds of questions that were

20

necessary for us to get at the question of whether you are

21

competent in this specific case, and your refusal to fully

22

answer those questions leaves me in the position of just

23

pointing out that you have a relatively short period of time
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of experience as a judge.

2

under the statute, I acknowledge; but this is not a

3

minimum-type case, if you understand my point.

4

And I believe it is the minimum

And I wanted to pursue that, and my inability to

5

pursue that leaves me in the position of feeling that to

6

protect Mr. Mohammad's interests, I need to articulate that

7

motion to disqualify you or recuse you on those grounds.

8
9

The second ground is -- comes also from the Code of
Conduct for U.S. Judges, and I will just say that -- point you

10

to Canon 3 of the Canons of Conduct, 3 -- Canon 3(c)(1) and

11

subsection (b) states that "The judge shall disqualify himself

12

or herself if the judge served as a lawyer in the matter in

13

controversy" -- and I recognize you don't -- you have not done

14

that, but it says, "or a lawyer with whom the judge previously

15

practiced law served during such association as a lawyer

16

concerning the matter."

17

And I call your attention, and I -- to your remarks

18

previously that you practiced law for a year at the -- at DoJ

19

in the fellowship program and that persons you practiced law

20

with there were lawyers in the present case.

21

thought of Ms. -- of Ms. Korczynski, but I do believe that

22

Mr. Groharing was part of that organization, as were very

23

possibly Mr. Trivett, Mr. Ryan, and Ms. Tate.

And I hadn't

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And I will confess to not knowing the precision of

2

their assignments and who their employer is and what their

3

associations are, but I believe -- and I will say on

4

information and belief I believe that they are a part of that

5

organization.

6

previously practiced law with those persons and that, while

7

you were practicing law with them, they served as lawyers in

8

this case.

9

disqualification.

10
11

And so I think it is correct to say that you

And that would -- that is a mandatory
A judge shall disqualify himself or

herself.
I was struck by Mr. Connell's question of you that --

12

and I will submit to you the idea of an appearance -- the

13

appearances to the average person that you come out of an

14

organization which is dedicated in the way that organization

15

is dedicated, having worked with some of these people --

16

although I recognize you didn't work on an actual case with

17

them, if I -- at least that's how I understand your remarks --

18

but now you're on the bench going to decide this case.

19

for -- that's the -- all of that amounts to the second ground

20

for disqualification.

21

And so

The third is what appears to be the high likelihood

22

that you'll be leaving within a year, and I think you've

23

stopped short of saying that that is a certainty, but it
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sounds like it's something awfully close to a certainty, and I

2

ask that you -- my last ground has to do with the amount of

3

work that has to be done in order for you to be in a position

4

to competently decide questions in this case.

5

know how much work that is, but I know it is a monumental

6

amount of work.

7

But I don't

And the idea that you're going to do it now for

8

however long it takes to do that and then leave and someone

9

else is going to come in and do it all over again strikes me

10

as a diseconomy of the first water, and so I don't -- I don't

11

know exactly what rule that would come under, but I submit to

12

you that you should recuse yourself from handling this case

13

unless and until it is clear that your next assignment, the

14

assignment that's been described as not going to arise or that

15

you formally state in some way that you will decline it if it

16

does arise.

17

And then finally, and the reason that I'm

18

articulating the motion now -- or these motions now is that I

19

ask that you take no action on this case beyond ruling on this

20

motion for disqualification and conducting this voir dire

21

until every substantive element of this case has been read and

22

reviewed and understood by you.

23

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these things do not exist in isolation, and it is not

2

appropriate in a capital case, and particularly a capital case

3

of this magnitude that the whole world is watching, to simply

4

come up to speed over time while simultaneously ruling on

5

motions as they come up based on, you know, your good-faith

6

understanding of their scope.

7

I think it requires more than that, and I ask that

8

you -- it wouldn't be a recusal, obviously, it would be

9

something on the order of an abatement, that you not take

10

further action in the case until you can tell us that you have

11

read everything that's necessary to understand the full scope

12

of this case.

13

MJ [Col PARRELLA]:

Mr. Nevin, on that note, can you cite

14

for the commission any authority for the proposition that a

15

judge who is inheriting a case must conduct a review of every

16

page, every pleading that's transpired so far?

17

LDC [MR. NEVIN]:

Give me a second.

And I -- Your Honor,

18

I'll say I do request the opportunity -- unless you are going

19

to grant the motion from the bench, I do request the

20

opportunity to brief this to you.

21

But I did take a look just over the last couple of

22

days at a series of cases that hold that in civilian courts,

23

at least, when one judge replaces another, there -- it is open
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for the judge to reconsider all of the materials -- all of the

2

decisions, I'm sorry, that the prior judge made.

3

implicit in that that until the judge is in a position to

4

understand all of those motions, that's a duty that can't be

5

carried out.

6

And it's

I think the cases that are in front of me -- at this

7

point I can't cite cases to you that stand for that

8

proposition, but I'll make every effort to do so if you'll

9

give me time to brief this.

10

But let me say also that I believe that that would

11

come within the requirement of the rule that I just read you

12

about competency, that that would include -- and I'm reading

13

from the comment of Rule 2.5 of the ABA Model Code of Judicial

14

Conduct.

15

legal knowledge, skill, thoroughness, and preparation

16

necessary to perform a judge's responsibilities of judicial

17

office."

18

of the water that's gone under the bridge, particularly in

19

this case, would be a requirement for preparation.

20
21

It would include -- "competence would include the

And I am submitting to you that that kind of review

That's all I have.

Do you have questions for me,

sir?

22

MJ [Col PARRELLA]:

23

LDC [MR. NEVIN]:

I do not.
Okay.

Thank you, Mr. Nevin.

And, Your Honor, I don't move to

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disqualify you lightly.

2

your hearing me out.

3

MJ [Col PARRELLA]:

I mean no disrespect.

I appreciate

Mr. Nevin, I assure you none taken.

4

As I indicated when you were asking your questions, I

5

understand your interests in asking those questions.

6

again, it's my ultimate goal to be as open and transparent as

7

possible, but no disrespect or any sort of thing taken by

8

either your questions or your challenge.

9

And

Ms. Bormann?

10

LDC [MS. BORMANN]:

Good afternoon, Judge.

11

MJ [Col PARRELLA]:

Good afternoon.

12

LDC [MS. BORMANN]:

We adopt what Mr. Nevin has so ably

13

argued.

14

it.

15

developing a factual record and evidence outside of the

16

record, and so we'll be filing a brief forthwith and

17

supplementing the record.

18

However, we are asking for an opportunity to brief

We're in a unique position where we are currently

Unless you have any questions?

19

MJ [Col PARRELLA]:

No questions.

20

LDC [MS. BORMANN]:

Thank you.

21

MJ [Col PARRELLA]:

Mr. Harrington?

22

LDC [MR. HARRINGTON]:

23

Thank you, Ms. Bormann.

Judge, I adopt the arguments of

Mr. Nevin and Ms. Bormann.
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And, Judge, I would make a request of the court.

The

2

first thing I asked the court was a question about implicit

3

bias.

4

proceedings and read your answers.

5

like the court to read the answers which you gave about your

6

recollection of yourself right after 9/11.

7

I would ask the court to get a transcript of today's
And in particular, I'd

And I think we talked about the appearance to the

8

public of the perception of bias in this particular case.

9

I think I speak for myself, but almost everyone that I know

10

could tell you exactly where they were and exactly how they

11

felt after 9/11, and that everybody talked to other people and

12

that everyone heard people's opinions about retribution,

13

punishment, revenge, and all sorts of things.

14

just -- it's hard to believe that anybody who is serving in

15

the United States Marine Corps, which is at the forefront of

16

our military force, would not have encountered that.

17

seems to me to be incredulous.

18

And

And it's

It just

And with respect to one of the arguments that

19

Mr. Nevin made, I would ask the court to reserve decision on

20

the one about practicing law with somebody who is involved in

21

the prosecution of this case.

22

further in the motion that we file with the court and in the

23

issues related to AE 292.

And that will be developed

And the department that you were in

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for the -- when you were at the Department of Justice, a

2

number of people who were involved in the investigation in 292

3

and involved in the -- not only investigation by the FBI, but

4

also an investigation for prosecution that was carried out by

5

the Department of Justice and by one of the United States

6

Attorneys assigned to it.

7

your judgment until you see that and we develop that record

8

further.

9

11

Thank you.

MJ [Col PARRELLA]:

10

So I would ask the court to hold

Thank you, Mr. Harrington.

Mr. Connell?
LDC [MR. CONNELL]:

Sir, Rule for Military Commission

12

902(d)(2) gives the right to present evidence in support of a

13

challenge to qualification or bias before the military judge

14

rules.

15

that.

16

answers today and we will act with dispatch in doing so.

17

We'd request the opportunity to take advantage of
We have some investigation to conduct based on your

MJ [Col PARRELLA]:

I understand.

And I think the

18

discussion section right above that indicates that this issue

19

can be raised at any time, and an adverse ruling initially --

20

not indicating that's where I'm going, but if I were to rule

21

adversely, that that doesn't preclude you from doing

22

subsequent investigation, finding evidence, presenting the

23

evidence, and bringing the issue up again.
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LDC [MR. CONNELL]:

Sir, I take your point.

But I will

2

make the additional observation that (d)(2) has an ordering

3

aspect to it, which is that there -- there shall -- "each

4

party shall be permitted to question the military judge and to

5

present evidence regarding a possible ground for

6

disqualification before the military judge decides the

7

matter."

8

reasonable opportunity to develop the factual basis.

9

So it seems to me that contemplates at least a

MJ [Col PARRELLA]:

And what do you opine, Mr. Connell, is

10

a reasonable opportunity?

11

whichever your preference is.

12
13

LDC [MR. CONNELL]:

16

Yes, sir.

I didn't want you to take

any disrespect from me being at the table.

14
15

You're welcome to stand there,

What -- I think what you're asking me is how long do
I feel that that investigation would require?
MJ [Col PARRELLA]:

Not specifically yours, but I'm asking

17

you what do you opine is a reasonable opportunity to present

18

evidence?

19

case has been known now since August 27th.

20

believe, was provided shortly thereafter.

21

disingenuous to say there hasn't been an opportunity to do

22

some investigation.

23

Obviously, the fact that I've been detailed to this
The bio, I
So it's, I think,

Clearly some counsel have done so.

LDC [MR. CONNELL]:

Absolutely, sir.

And the, you know,

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Google-level investigation is something that we were able to

2

do while preparing for this hearing.

3

connection to the Department of Justice National Security

4

Division Counterterrorism Section, of course, were not

5

forthcoming until Sunday when you very -- in a spirit of

6

candor, which I appreciate, provided us your fit rep.

7

have already begun making some phone calls based on your

8

answers this morning.

9

And the details of your

And we

I would say that four weeks would be a reasonable

10

time.

11

that the issue can be argued and finally dealt with at the

12

next hearing.

And then if you set a briefing schedule, that means

13

MJ [Col PARRELLA]:

14

Mr. Ruiz.

15

LDC [MR. RUIZ]:

Okay.

I understand.

Thank you.

Judge, on behalf of Mr. al Hawsawi, I'm

16

going to ask to reserve our right to challenge the military

17

judge at a latter time.

18

joining Mr. Nevin's argument, although I'm not unjoining it

19

either.

20

arguments, the answers by the commission, and do some research

21

on our own, put together this in a pleading, and submit it to

22

the military commission.

23

I'm also not explicitly at this time

I simply want to have an opportunity to digest the

I do, however, want to specifically join the portion
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of Mr. Nevin's argument where he requested no additional

2

business be conducted until this issue has been resolved, and

3

Mr. Connell's request for a reasonable opportunity to conduct

4

follow-up investigation based on today's questions and

5

answers.

6

My suggestion to the court would be that you set a

7

briefing schedule for these challenges.

8

candor, to submit this to you.

9

through hearings this week, our timeline would be sometime

We intend, in quite

If we were required to go

10

next week, depending on how quickly we can move on our

11

research and integrate questions and answers; but also

12

independent judgment.

13

later, but we do want to do it in an orderly fashion that we

14

can put together our best argument for why we do or do not

15

have a concern at this point.

16

We want to do this sooner rather than

But for now, we'd like to reserve with an explicit

17

joinder to the request to delay the proceedings until the

18

issue is fully briefed and resolved and we've had just an

19

additional amount of time to conduct follow-up investigation

20

based on some of the questions and answers today.

21
22
23

MJ [Col PARRELLA]:

Thank you.

Thank you, Mr. Ruiz.

Trial Counsel, would you like to be heard on this?
MTC [MR. TRIVETT]:

Sir, R.M.C. 902(b) sections (1)

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through (3) list the grounds for disqualification of a

2

military judge.

3

prejudice, personal knowledge of disputed evidentiary facts;

4

whether the military judge act as a counsel, SJA, or convening

5

authority to any of the offenses charged or the case in

6

general; whether or not the judge was a witness in the case;

7

whether he forwarded charges; or whether he's expressed an

8

opinion on guilt or innocence of the accused.

9

Whether or not there's personal bias or

For the many hours that you were questioned by

10

defense counsel this morning, the prosecution sees no grounds

11

under which you are required to recuse yourself.

12

I wanted to address some specifics that Mr. Nevin

13

indicated in his motion.

14

Judicial Conduct, if you look at R.M.C. 902, if you look at

15

28 U.S.C. 455, which is the federal standard, the ABA Code of

16

Judicial Conduct, and the Model Code Conducts and the Canons

17

of Judicial Ethics, they're all based on the same principles,

18

but they're certainly not and don't use verbatim language.

19

would ask that any analysis that you do, whether it be here

20

today or later in writing, that you consider all of those

21

standards.

22

standards, if analyzed, still serve as no grounds for you to

23

recuse yourself as the military judge.

In regard to the ABA Code of

We

And the prosecution believes that all of those

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We're going to have to have an opportunity, clearly,

2

if the defense counsel are going to file motions on this, to

3

respond in writing.

4

want to concede up front, and we want to make sure that the

5

record is clear on that.

6

But there's some things that we don't

The code of conduct that Mr. Nevin spoke about

7

regarding working in the same practice of law with another

8

lawyer we're not certain applies to government lawyers.

9

Obviously, there's always going to be exceptions to certain

10

government employment.

11

the largest law firms in the world.

12

whether that would be at the National Security Division level,

13

at the Counterterrorism Section level, or would it include all

14

of the U.S. Attorneys' offices in the 93 various offices

15

around the states?

16

The Department of Justice is one of
Where that would stop,

So we certainly don't concede that that canon applies

17

to federal government employment.

18

opportunity to brief that, but we certainly didn't want the

19

military judge to consider his work at CTS under that canon

20

without having the opportunity to brief that piece of it.

We would like the

21

What we can say as officers of the court and having

22

worked at the Department of Justice Counterterrorism Section

23

since 2009 is that all of the attorneys that are detailed to
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the case currently are assigned from Counterterrorism Section

2

to the Department of Defense and work in the Office of the

3

Chief Prosecutor.

4

Department of Justice.

5

Department of Defense out of the Office of the Chief

6

Prosecutor.

7

certainly none of the detailed attorneys at this time, over on

8

government servers at the Department of Justice where you may

9

have had access to them.

10

The case is not being prosecuted out of the
It is being prosecuted by the

We do not have information regarding this case,

LDC [MR. RUIZ]:

Judge, I object to that representation

11

without -- that's testifying.

12

testify, I would like to cross-examine him.

13
14
15
16

MJ [Col PARRELLA]:

If Mr. Trivett wants to

Mr. Ruiz, the objection is overruled.

I understand that it's argument.
MTC [MR. TRIVETT]:

Please continue.

Thank you, sir.

Mr. Nevin seemed to indicate that you were leaving

17

within a year was a legitimate ground to recuse yourself.

18

do not believe that that is the state of the law.

19

as an officer in the military, the needs of the service will

20

dictate whether or not you get those orders.

21

I

Obviously,

And ultimately whether you do or whether you don't,

22

you're assigned here for the purposes of being the military

23

judge as long as those orders shall run, and that would not be
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a ground to disqualify any military judge.

2

government works.

3

works.

4

recusal.

5

It's not how the

That's certainly not how the military

And whether it's economical or not isn't a grounds for

Mr. Nevin seemed to indicate that abatement was a, I

6

guess, alternate relief that he asked for in his oral motion

7

to recuse.

8

military judge rightly pointed out whether or not there was

9

any authority that an abatement must occur until you've read

We would oppose abatement as well.

I think the

10

every last jot and tittle of a record that is almost

11

20,000 pages long and filings to date over the last six years

12

that number well into the thousands.

13

abatement.

14

That's not a grounds for

The competency issue is not set forth in the ABA Code

15

of Judicial Conduct.

16

Navy-Marine Corps Trial Judiciary has found you competent to

17

serve as a judge.

18

of the Military Commission Act in regard to your experience,

19

and, therefore, your leaving, or this request that you have to

20

read everything beforehand is simply not a grounds for

21

recusal, and that we should continue to move on with the

22

remainder of the docket.

23

Also would not require that.

The

You have satisfied all of the requirements

Mr. Connell has had a reasonable opportunity to
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investigate.

2

most of the record and most of the documents is that the

3

defense is never going to be satisfied with their level of

4

investigation.

5

jurisprudence for defense counsel to seek delay at every

6

opportunity for it's in their clients' best interest.

7

disparaging anyone, but it is a strategy that we've seen for

8

the last six years.

9

I think what you will see when you do review

It's not uncommon in death penalty

I'm not

And we believe that there is no need for a further

10

defense investigation.

11

answers.

12

reasonable discovery, and you have answered all of the

13

defense's questions that were relevant, sometimes several

14

different times, although they were the same question.

You have been forthright in your

You have been accommodating in requests for

15

So we believe at this point in time there's no

16

grounds for recusal and that we should move on with the

17

remainder of the docket for the rest of the week.

18

Subject to your questions, sir.

19
20
21

MJ [Col PARRELLA]:

I have none.

Thank you.

Mr. Nevin?
LDC [MR. NEVIN]:

Thanks, Your Honor.

And perhaps this

22

will be self-evident, but Rule 902 clearly sets out some

23

grounds for disqualification, but it doesn't say these are the
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only grounds that you possibly can consider, no other grounds

2

shall be considered.

3

That's why the ABA Code of -- that's why the

4

JAG Instruction says that the ABA Code of Conduct applies

5

unless it's directly inconsistent with something else.

6

the rule -- if Rule 902 said, "You shall not consider anything

7

except the grounds in this rule," then I think counsel would

8

have a point.

And if

But that's not what it says.

9

There's certainly not an exception for government

10

service on the face of the rule that I quoted to you about

11

practicing law with someone who is a member of the -- who's

12

litigating in the case.

13

It doesn't contain that.

14

It could be either side, obviously.

And I understand that if you had a friend who was in

15

the United States Attorney's -- who was a line attorney in the

16

U.S. Attorney's Office in Idaho, let's say, which is where I'm

17

from, and if someone were saying disqualify because of that, I

18

understand that it might look a little different.

19

But here you're working -- you were working as a

20

prosecutor in the same division and in the same section.

21

I recognize there may be subsections, but now we have narrowed

22

the obviously vast Department of Justice down to a pretty

23

narrow subset.

And

And I certainly think that would be an
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appropriate thing to address in briefing.

2

in the rule -- I'll represent to you that there is nothing in

3

the rule that makes an exception for the situation that is

4

presented by these facts.

5

But I see nothing

I thought -- I hear counsel saying whether it's

6

economical or not is not a ground for relief, and I believe I

7

said that recusal -- that I had some hesitation about the

8

concept of recusal as such.

9

question of your leaving in a year or having to choose within

10

a year between staying here to complete this situation on the

11

one hand or on the other take -- and in the process, really,

12

is what I mean, forgoing a really important opportunity seems

13

to me to put you in something in the nature of a conflict kind

14

of situation, that that would be a difficult decision to make.

15

And I have heard counsel again and again speak to the

But I think it does go -- the

16

economy, to the need for judicial economy, the need to -- and

17

really in the same breath, counsel is telling you that we seek

18

delay at every opportunity.

19

I will say again what's maybe obvious on the record,

20

is that we understand that this is -- you've been detailed to

21

this case and you are a person who -- if I understand

22

correctly, it's not a year; it's 11 months -- who may well

23

leave within 11 months.

And I would think maybe if I -- what

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I wanted was delay, I would be better off saying, "Yeah, sure,

2

stay around, and we'll jump through all these hoops again 11

3

months from now."

4

delay.

5

standpoint.

6

And because that will provide a lot of

But I'm really coming at this from the opposite

And, finally, I'm not asking for abatement until

7

every last jot and tittle is brought under control by you.

8

What I said was -- or what I intended to say was that until

9

you have everything that's important substantively under

10

control, I respectfully suggest you shouldn't be entering

11

rulings or hearing argument or evidence on the case.

12

It is a cumulative whole, this case, in many ways,

13

and sure, there's a motion here or a small matter there that

14

you don't have to spend hours reading about.

15

that there probably are such things.

16

things that, I think, for you to understand the flow and the

17

thrust of the case and what's fair to both sides, that you

18

have to have brought it all under control.

19

I would concede

But there are many, many

And I don't mean -- I was going to say I'm sorry that

20

you're in this position.

21

recognize it's a huge task, and so it's not that.

22

think how can it be otherwise?

23

to know everything important substantively about this case,

I don't mean that.

I just -- I
But I just

How can you not be responsible

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this capital case, largest in the history of our country,

2

before you enter rulings?

3

I think it's a motion to abate, actually.

4

you, Your Honor.

5

MJ [Col PARRELLA]:

6

And that's the basis for the -- and
But anyway, thank

Thank you, Mr. Nevin.

Okay.

I think we're at a logical place here to take a brief

7

recess.

8

[The R.M.C. 803 session recessed at 1444, 10 September 2018.]

9

[The R.M.C. 803 session was called to order at 1503,

10
11

Court is in recess until 1500.

10 September 2018.]
MJ [Col PARRELLA]:

12

order.

13

again present.

14

This commission is called back to

All parties present when the commission recessed are

All right, Counsel.

So here's what I'm going to do.

15

I'm going to take the arguments of counsel, give it careful

16

consideration this evening, take the matters under advisement.

17

As a result, what I am going to do to our order of

18

march is I'm going to flip tomorrow's sessions.

19

start tomorrow at 0900 with an unclassified session.

20

that I deny defense's motions, we will then proceed at 1400 --

21

or, excuse me, 1330, which is what I approximate to be when we

22

will resume the afternoon session, that will then be the

23

closed session to take up the 505(g) notices.

So we will
Assuming

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2

Any questions from counsel?
LDC [MR. CONNELL]:

3
4
5

Sir, my only question is procedural.

The closed session is tomorrow afternoon at 1330, not
at 1400?
MJ [Col PARRELLA]:

Correct.

I anticipate, and of course

6

this is subject to change, but to maintain a sort of

7

consistent afternoon or lunch recess for lunch to accommodate

8

the prayer schedule, so normally we'll try to get to 1200 to

9

1330.

10

be 1330 or 1400, it will be a closed session.

11
12

So whenever we start that afternoon session, whether it

Mr. Harrington?
LDC [MR. HARRINGTON]:

Judge, just to update you on the

13

filing that we talked about this morning, we're just getting

14

an AE number now.

15

so ----

We hope to get it filed this afternoon,

16

MJ [Col PARRELLA]:

17

LDC [MR. HARRINGTON]:

18

MJ [Col PARRELLA]:

Thank you.
Okay.

Okay.

There being no other questions,

19

this commission is in recess until 0900 tomorrow morning.

20

[The R.M.C. 803 session recessed at 1505, 10 September 2018.]

21
22
23
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[The R.M.C. 803 session was called to order at 0903,

2

11 September 2018.]

3

MJ [Col PARRELLA]:

4

The commission is called to order.

Trial Counsel, are all the government counsel who

5

were present at the close of the previous session again

6

present?

7
8
9
10

CP [BG MARTINS]:

Good morning, Your Honor.

They are.

I have one other item relating to attendance, Your
Honor, before we finish accounting for the parties.
Your Honor, this morning is September 11th.

I wanted

11

to advise the commission that family members of the 9/11

12

fallen, as well as one survivor of the attacks, will be moving

13

quietly from a point just outside the courtroom to their seats

14

in the gallery behind the glass and back between now and 10:28

15

this morning.

16

justice proceedings, they understandably wish to observe in

17

relative quiet and privacy the different events of the

18

sequence of the morning of September 11th 17 years ago as

19

those impacts and moments of death occurred.

20

Without in any way interrupting these military

No disrespect is intended to the commission.

We

21

don't request nor do they any pause in the proceedings, and

22

the security personnel have been informed.

23

MJ [Col PARRELLA]:

Thank you, General Martins.

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2
3

Defense, are all the defense counsel who were present
at the close of the previous session present today?
Mr. Nevin?

4

LDC [MR. NEVIN]:

5

MJ [Col PARRELLA]:

Ms. Bormann?

6

LDC [MS. BORMANN]:

No, Judge.

7

Yes, Your Honor.

Major Seeger is attending

to other duties.

8

MJ [Col PARRELLA]:

9

LDC [MR. HARRINGTON]:

Mr. Harrington?
Same, Judge.

We're all here.

10

MJ [Col PARRELLA]:

Mr. Connell?

11

LDC [MR. CONNELL]:

Good morning, Your Honor.

12

MJ [Col PARRELLA]:

Good morning.

13

LDC [MR. CONNELL]:

All same counsel are present.

14

MJ [Col PARRELLA]:

Mr. Ruiz?

15

LDC [MR. RUIZ]:

Judge, Lieutenant Colonel Williams is

16

attending to other duties this morning; otherwise, everyone

17

else is here.

18

MJ [Col PARRELLA]:

Thank you.

19

I note that all five accused are absent this morning.

20

Trial Counsel, do you have a witness to testify as to

21
22
23

the absences of the accused?
CP [BG MARTINS]:

We do, Your Honor.

Major, would you please proceed to the witness stand,
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raise your right hand for the oath.

2

MAJOR, U.S. ARMY, was called as a witness for the prosecution,

3

was sworn, and testified as follows:

4
5

DIRECT EXAMINATION
Questions by the Chief Prosecutor [BG MARTINS]:

6

Q.

Are you the assistant SJA, Major?

7

A.

Yes, sir.

8
9

Questions by the Trial Counsel [MR. SWANN]:
Q.

Major, I have in front of me what has been marked as

10

Appellate Exhibit 597.

11

Khalid Shaikh Mohammad.

12

of his right to attend today's proceedings?

Let's start with 597, the waiver by
Did you have occasion to advise him

13

A.

I did.

14

Q.

What time did you do that?

15

A.

At 0637.

16

Q.

Did you use a form in advising him of his right?

17

A.

I did.

18

Q.

And that form is in front of you?

19

A.

Yes, sir.

20

Q.

And did you read the form in English or in Arabic?

21

A.

I read the form in English, and there was no Arabic

22
23

The form ----

interpretation because he did not want one.
Q.

All right.

I have that form in front of me.

Did he

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indicate whether he wanted to attend this morning's

2

proceedings?

3
4
5

A.

He indicated he did not want to attend the

proceedings this morning.
Q.

All right.

I also have a notation there that

6

apparently he will be attending his legal meetings at another

7

location this morning?

8

A.

That's right.

9

Q.

All right.

10

Yes, sir.

Do you believe that his waiver was

voluntary?

11

A.

I do.

12

Q.

Appellate Exhibit 597A, consisting of three pages,

13

the waiver for Walid Mohammad Salih Mubarak Bin'Attash.

14

you have occasion to advise him of his right?

Did

15

A.

I did.

16

Q.

Did you use the English or the Arabic form?

17

A.

I read it in English, and then he had an interpreter

18

read it in Arabic.

19

Q.

Did he indicate that he understood his rights?

20

A.

He did.

21

Q.

And do you believe -- first of all, is his signature

22
23

on Appellate Exhibit 597A?
A.

It is.

It is contained on the Arabic version only

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because he did not want to sign the English version.

2

Q.

Do you believe he understood his rights?

3

A.

I do.

4

Q.

And did he waive those rights?

5

A.

He did.

6

Q.

597B, consisting of three pages, the waiver for Ramzi

7

Binalshibh.

8

A.

I read it in English only.

9

Q.

Did he indicate that he did not need the form read in

10
11
12

Did you read the form in English or in Arabic?

Arabic?
A.

He did.

He indicated he did not need an Arabic

interpretation.

13

Q.

Is his signature on Appellate Exhibit 597B?

14

A.

It is.

15

Q.

And do you believe he understood his right to attend

16

this morning's proceedings?

17

A.

I do.

18

Q.

With respect to 597C, consisting of three pages, the

19

waiver for Ali Abdul Aziz Ali.

20

English or in Arabic?

Did you read this form in

21

A.

This form was read in English only.

22

Q.

Did he indicate whether he understood his right to

23

attend?
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A.

He did.

2

Q.

Is his signature on page 2 of this document?

3

A.

It is.

4

Q.

And do you believe that he waived his right to attend

5

this morning?

6

A.

He did.

7

Q.

And, finally, Mustafa al Hawsawi, three-page

8

document, 597D.

9

English?

10
11
12
13

A.

Did you read the form in Arabic or in

I read the form in English and he had an Arabic

interpretation.
Q.

Did you read the form exactly as it appears in front

of you and me?

14

A.

Yes, sir, verbatim.

15

Q.

Did he have any questions?

16

A.

He did not have any questions.

17

Q.

Do you believe he understood his right to attend this

18

morning's proceedings and voluntarily waived his right?

19

A.

I do, and I think he voluntarily waived his right.

20

Q.

Okay.

21

I understand he will be attending other legal

meetings this morning?

22

A.

He will be.

23

Q.

Thank you.
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A.

2

TC [MR. SWANN]:

3
4

7

I have no further questions.

Thank you,

Your Honor.
MJ [Col PARRELLA]:

5
6

No problem.

Thank you, Trial Counsel.

Do any defense counsel have any questions of this
witness?
LDC [MR. NEVIN]:

Your Honor, David Nevin on behalf of

8

Mr. Mohammad.

9

I would like to ask this witness to state her name because I

10
11

object to the anonymous testimony.
MJ [Col PARRELLA]:

12
13
14
15
16

19

Your objection is overruled.

Do you have any -- counsel have any questions for
this witness?
LDC [MS. BORMANN]:

Judge, I have no questions, but I join

Mr. Nevin's objection.
MJ [Col PARRELLA]:

17
18

And I just will advise the military commission

Understood.

Mr. Harrington?
LDC [MR. HARRINGTON]:

No objections, Judge.

Join in the

request.

20

MJ [Col PARRELLA]:

Mr. Connell?

21

LDC [MR. CONNELL]:

Your Honor, I would further ask the

22

witness her unit under R.T.M.C. 20-7, and I'd like to be heard

23

on the anonymous testimony objection.

I do that because this

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is the first time that you've heard it from us, Your Honor.

2

Normally it's a much more abbreviated process.

3
4

MJ [Col PARRELLA]:

Mr. Connell, what was the citation

again, please?

5

LDC [MR. CONNELL]:

R.T.M.C. 20-7.

6

MJ [Col PARRELLA]:

Okay.

What I'm going to ask you to do

7

is go ahead and, if you have an objection to -- I understand

8

this has been routine practice.

9

brief the issue.

I'd ask you to go ahead and

10

LDC [MR. CONNELL]:

I'm happy to do so, sir.

11

MJ [Col PARRELLA]:

Mr. Ruiz?

12

LDC [MR. RUIZ]:

13

MJ [Col PARRELLA]:

14
15
16
17

No questions.
Okay.

We also join.

Thank you.

You may step down,

Major.
WIT:

Thank you.

[The witness was excused.]
MJ [Col PARRELLA]:

The commission finds that

18

Mr. Mohammad, Mr. Bin'Attash, Mr. Binalshibh, Mr. Ali, and

19

Mr. Hawsawi have knowingly and voluntarily waived their right

20

to be present at today's session.

21

The first item we're going to take up is the court's

22

ruling as to the defense motion for the judge to disqualify or

23

to recuse himself from this commission.
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The defense moves this commission to disqualify or

2

recuse myself as the military judge based upon four primary

3

claims:

4

One, my qualifications, which they argue are

5

insufficient in light of ABA Code of Judicial Conduct 2.5,

6

made applicable based upon JAG Instruction 5803.1E.

7

Two, that Canon 3 of the Code of Conduct for

8

United States Judges requires me to disqualify myself due to

9

my tenure as a Marine Corps Fellow at the Department of

10
11

Justice.
Three, the fact that my time at the Department of

12

Justice creates a situation wherein the military judge's

13

impartiality might reasonably be questioned.

14

And, four, the fact that I am slated to assume

15

command in the summer of 2019, and as a result it would be

16

inefficient for me to remain on the case.

17

Based upon the evidence before the commission,

18

including the lengthy voir dire of the military judge, I make

19

the following findings:

20

As to my qualifications, Congress and the Executive

21

Branch have expressly enumerated the requisite qualifications

22

for a military judge to preside over a military commission.

23

Those qualifications are set forth at 10 U.S.C.
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Section 948j(b), R.M.C. 502(c) and Section 6-3 of the

2

Regulation for Trial by Military Commission.

3

the record, I possess the requisite qualifications as set

4

forth within the law and regulations applicable to this

5

commission.

6

As indicated on

Specifically, despite ample opportunity to question

7

the military judge, no evidence was presented to suggest that

8

I wasn't a commissioned officer of the Armed Forces serving on

9

active duty, a member of the bar of a federal court, or a

10

member of the highest court of a state or the District of

11

Columbia, certified to be qualified for duty under

12

10 U.S.C. 826, otherwise known as Article 26 of the Code, by

13

the Judge Advocate General of the Armed Forces of which I am a

14

member; in possession of a Top secret security clearance; and

15

with at least two years of experience as a military judge

16

while certified and qualified for duty as a military judge in

17

general courts-martial.

18

As Congress established the Military Commissions Act

19

in part for the express purpose of trying this case and these

20

accused, this commission can reasonably infer that Congress,

21

and subsequently the Executive Branch agencies charged with

22

implementing the Military Commissions Act, specifically

23

considered the requisite qualifications for a military judge
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knowing the possible complexity associated with trying a

2

high-profile capital case involving international law and the

3

handling of classified evidence.

4

issues in mind, Congress and the Executive Branch established

5

the qualifications that we have before us without exception

6

for the particular nuances of this case.

7

Even with all of these

While I am aware of the challenges of assuming the

8

role of military judge at this stage in the proceedings,

9

having considered my obligations under ABA Model Code for

10

Judicial Conduct, I do believe I possess the requisite skill

11

and competence to diligently perform the duties of military

12

judge in this commission.

13

As also indicated to counsel, the commission will

14

ensure it moves at an appropriate pace to allow the military

15

judge to become fully apprised of the history and background

16

related to any issue before it before making a substantive

17

ruling.

18

commission into abiding by any particular timeline.

No outside entity has attempted to influence this

19

I decline, however, to take the defense's suggestion

20

that I abate the proceedings until such time as I've reviewed

21

the transcript and pleadings related to this commission.

22

aware of no such requirement for a military judge to perform

23

this task and am confident in my ability to be prepared to

I am

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address the issues before me as those issues arise.

2

I do not find that my prior tour as a Commandant of

3

the Marine Corps Fellow at the Department of Justice results

4

in a situation wherein my impartiality as a military judge

5

might reasonably be questioned pursuant to R.M.C. 902(a).

6

To mitigate any appearance issue, I provided the

7

parties my fitness report associated with the Department of

8

Justice tenure and attempted to candidly answer the defense's

9

questions for several hours in open court.

Nevertheless, I do

10

not think that any of the answers to those questions might

11

result in a situation wherein my impartiality might be

12

questioned nor do I find that my tenure at the Department of

13

Justice meets any of the specific grounds for disqualification

14

set forth at R.M.C. 902(b).

15
16

In reaching this conclusion, I make the following
findings:

17

One, I do not have a personal bias or prejudice

18

toward any party, nor do I possess personal knowledge of

19

disputed evidentiary facts concerning this proceeding as a

20

result of my time at the Department of Justice.

21

Two, I did not act as counsel on this matter or any

22

other commissions case in any capacity while at the Department

23

of Justice.

Additionally, I did not have professional
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interaction with any of the Department of Justice attorneys

2

assigned to this commission while serving as a Fellow at the

3

Department of Justice.

4
5

Three, I have not expressed an opinion concerning the
guilt or innocence of the accused.

6

Four, as already noted, I am qualified under

7

R.M.C. 502(c) and detailed to this commission pursuant to

8

503(b).

9

And, five, neither I nor any relation to me is a

10

party, a witness, or otherwise has an interest that could be

11

substantially affected by the outcome of the proceeding.

12
13

Further, I note the following additional facts
specific to my tenure at the Department of Justice:

14

First, I was never employed by the Department of

15

Justice, but rather worked there pursuant to a memorandum of

16

understanding between the Marine Corps and the Department of

17

Justice.

18

part of the Marine Corps' established Fellowship program which

19

involved sending senior officers to government agencies,

20

private corporations, and various think tanks in order to

21

observe, inform, and exchange ideas.

22
23

My tenure was limited to an academic year and was

Second, I did not undergo any type of hiring process
or training within the Department of Justice.
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Third, I was not evaluated by any Department of

2

Justice employee, nor did I -- any Department of Justice

3

employee have the ability to influence my evaluation or career

4

in a negative way.

5

marked as Appellate Exhibit 595B, is what we term an

6

unobserved fitness report, meaning that although the DoJ

7

employee's name appears on the report, there are no markings

8

associated with the report.

9

The Fellowship fit rep, which has been

Now, as is evident from Appellate Exhibit 595B, the

10

writer can still provide comments that become part of my

11

official personnel file, but those comments could not have

12

been made negative without a specific enumerated reason as set

13

forth in the applicable Marine Corps order.

14

Fourth, I was always co-detailed to Department of

15

Justice cases, meaning I always worked alongside another

16

Counterterrorism Section attorney.

17

And, fifth, to the best of my knowledge, I never

18

worked on any matter involving 9/11 or any other commissions

19

case.

20

Although not a specific ground for disqualification,

21

the defense has asked that I disqualify myself or, in the

22

alternative, abate the proceedings because I am currently

23

slated to assume command in the summer of 2019.

As I

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indicated in my answers during voir dire, the Chief Judge's

2

decision to detail me to this commission was made after the

3

public announcement of my selection for command.

4

assume, therefore, that Judge Pohl took this fact into

5

consideration when making his detailing decision.

6

see no valid reason why I should not proceed to the best of my

7

abilities until such time that this case is concluded or I am

8

properly relieved.

9

I can

As such, I

As such, the defense motion for the military judge to

10

disqualify or recuse himself is denied.

11

motion to abate the proceedings while counsel submit written

12

pleadings in furtherance of their motion to recuse the

13

military judge is denied.

14

Likewise, the defense

The commission will, however, pursuant to

15

R.M.C. 902(d) allow counsel to move the commission for

16

reconsideration based upon the discovery of additional

17

evidence.

18

postpone this proceeding while the parties seek to gather

19

additional evidence.

20

The commission is not, however, going to abate or

Additionally, the counsel -- the commission will

21

allow Mr. Harrington, pursuant to his request, to submit

22

written matters ex parte related to his concerns in the AE 292

23

series as they relate to voir dire.

It's my understanding

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that Mr. Harrington has done so; however, the commission has

2

been unable to, so far, review those documents.

3

LDC [MR. HARRINGTON]:

4

MJ [Col PARRELLA]:

5

LDC [MR. HARRINGTON]:

Excuse me, Judge.

Mr. Harrington.
We were advised that apparently we

6

didn't get the AE number on time yesterday, so -- but the

7

supplement that we filed has been filed, has been accepted for

8

filing this morning, so ----

9

MJ [Col PARRELLA]:

Thank you, Mr. Harrington.

That's my

10

understanding as well.

11

the record, and it's my understanding they've been received.

12

So at the first opportunity, I will review those pleadings

13

that you've submitted.

14
15
16
17
18

Mr. Ruiz?
LDC [MR. RUIZ]:

Judge, if you're finished, may I be

heard?
MJ [Col PARRELLA]:

LDC [MR. RUIZ]:

20

MJ [Col PARRELLA]:

22
23

You may.

Mr. Ruiz, before you begin,

is your desire to be heard on the court's ruling?

19

21

I did inquire just before coming on

Yes.
Do you have a question about the

court's ruling?
LDC [MR. RUIZ]:

I do not.

I want make sure the record

correctly points out Mr. al Hawsawi's position, not in terms
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of relitigating it.

2

of the defense motion, and I understand why you framed it as

3

such; however, because this is a co-accused case and there are

4

nuances in the positions that the parties take, I want to take

5

this opportunity to make sure that, following your recitation,

6

it is crystal clear what Mr. al Hawsawi's position is on

7

the -- on the issue.

8
9

But your recitation was framed in terms

As I indicated yesterday, we were not moving at the
time to recuse and have not actually moved on behalf of

10

Mr. al Hawsawi for your recusal.

11

join Mr. Nevin's or other counsel's motion to recuse you.

12

to the extent the record may reflect to an observer in the

13

future or somebody reviewing this record that we did, in fact,

14

make such a motion, we have not.

15

We did not also explicitly
So

That is not to say, as I indicated yesterday, that we

16

unjoined, simply that we were reserving our opportunity to

17

actually move to recuse you at a later time.

18

is also contemplated by the rules.

19

Mr. al Hawsawi chooses to move to recuse you at a later time,

20

it would not be a motion for reconsideration in our view, as

21

we have not yet moved, and that's a -- that's a nuance that I

22

want to make sure is clear with the court.

23

Of course, that

However, to the extent

While we all may sit on this side of the aisle, we
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all do have independent positions and procedural postures that

2

illustrates just such an event.

3

was clear on the record, and that that remains our position.

4

MJ [Col PARRELLA]:

So I wanted to make sure that

I understand, Mr. Ruiz.

And I did

5

record that yesterday, that you reserved your right to

6

challenge the military judge.

7

specifically join that we take up no additional matters until

8

taking this issue up.

9

LDC [MR. RUIZ]:

10
11

I do recall that you did

That's right.

MJ [Col PARRELLA]:

It is noted for the record.

Thank

you.

12

LDC [MR. RUIZ]:

13

MJ [Col PARRELLA]:

Thank you.
All right.

So before we proceed, my

14

intention to is take up first AE 591F; but before we do, there

15

is one administrative matter the commission needs to take up.

16

The commission was informed last night that, due to

17

current -- the current projected storm track of Hurricane

18

Florence, that the chartered aircraft that was originally

19

scheduled to take us back to Virginia on Saturday will likely

20

be unable to fly between Thursday and Sunday.

21

options would be to depart tomorrow, that being Wednesday, or

22

depart sometime next week after Monday.

23

week, I'm told, is contingent upon aircraft availability.

As such, the

And departing next

UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT

20608
A246

 UNITED STATES
COURT OF MILITARY COMMISSION REVIEW

United States,
Appellant
v.
Khalid Shaikh Mohammad
Walid Muhammad Salih
Mubarek Bin ‘Attash
Ramzi Bin al Shibh
Ali Abdul-Aziz Ali AKA
Ammar al Baluchi, and
Mustafa Ahmed Adam al
Hawsawi,
Appellee

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SCHEDULING
ORDER

USCMCR Case No. 17-003
November 17, 2017

On November 14, 2017, Appellee Al Baluchi requested “an additional
thirty days to respond to the appellant’s brief.” Al Baluchi Motion at 1. On
November 15, 2017, Appellant opposed the request for an extension.
On November 17, 2017, on behalf of the U.S. Court of Military
Commission Review, I requested that the Secretary of Defense designate an
Acting Chief Judge to appoint judges to the panel for this case. App. A. The
briefing schedule is suspended until further notice. Once a panel is appointed, a
new scheduling order will be issued.
FOR THE COURT:

A247

 United States Court of Military Commission Review
One Liberty Center
875 N. Randolph Street, Suite 8000
Arlington, VA 22203-1995
November 17, 2017
MEMORANDUM THRU DEPARTMENT OF DEFENSE GENERAL COUNSEL
FOR SECRETARY OF DEFENSE
Request appointment of an Acting Chief Judge for the U.S. Court of
Military Commission Review (CMCR) for the case of United States v. Khalid
Shaikh Mohammad, et. al., CMCR 17-003 for the Government’s pending appeal
and any ensuing period during which the Chief Judge and the Deputy Chief
Judge are unable to act with respect to this case. See Regulation for Trial by
Military Commission, para. 25-2d.
On August 9, 2017, the Court of Appeals for the District of Columbia
Circuit disqualified Deputy Chief Judge Scott Silliman from participation in
any appeal involving Khalid Shaikh Mohammad and vacated a previous
decision of the CMCR in an appeal brought by the Government. In re
Mohammad, 866 F.3d 473 (D.C. Cir. 2017). The Government’s appeal must be
heard by the CMCR de novo. The other two CMCR Judges on the panel who
heard and decided this appeal were Chief Judge Paulette V. Burton and Judge
James Wilson Herring, Jr. Chief Judge Burton and Judge Herring subsequently
recused themselves from further participation in United States v. Khalid Shaikh
Mohammad, et. al. Because of Chief Judge Burton’s recusal and Deputy Chief
Judge Silliman’s disqualification, a panel to hear the pending appeal cannot be
appointed unless you appoint an Acting Chief Judge for United States v. Khalid
Shaikh Mohammad, et. al. See United States v. Roach, 69 M.J. 17 (CAAF
2010). This request also asks that any appointment of an Acting Chief Judge
extend for the period in which the Chief Judge and Deputy Chief Judge cannot
act on behalf of the Court with respect to case of Khalid Shaikh Mohammad.
There are two CMCR Judges available for this assignment: Judge William
B. Pollard, III (Sworn as USCMCR Judge: September 14, 2012) and Judge
Larss G. Celtnieks (Sworn as USCMCR Judge: September 23, 2015).
FOR THE COURT:

A248

 UNITED STATES
COURT OF MILITARY COMMISSION REVIEW

Ammar Al Baluchi,
Petitioner
v.
United States,
Respondent

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MEMORANDUM TO
THE PARTIES

May 23, 2018
CMCR Case No. 18-003

On May 17, 2018, Petitioner Al Baluchi sought a writ of mandamus
requesting that the Court “prevent the further destruction of material evidence
crucial to the guilt-innocence and sentencing phases of the pending military
commission trial of Mr. al Baluchi” by staying the Government’s further
destruction of a “black site” that he asserts is evidence material to his defense.
Pet. for Extraordinary Relief 1, 5-6 (May 17, 2018). This motion was followed
the next day by motions for (1) a 90-day extension of the Military Judge’s April
20, 2018 stay pending this Court addressing the mandamus petition, and (2) an
order addressed to the Military Judge directing him to release relevant classified
documents to our Court. Pet. Mot. for Stay 2 (May 18, 2018); Pet. Mot. for
Release of Classified Records 1-2 (May 18, 2018).
From the papers submitted to us, the “black site” at issue is a CIA
detention facility where, it appears, the Government held Al-Baluchi. Pet. for
Extraordinary Relief 9. “Between June 2014 and February 2016, the
Government ‘decommissioned’ the black site to some extent” and the facility
was partially destroyed. Pet. for Extraordinary Relief 7, 18. The Military Judge
had stayed the further destruction of this site until April 20, 2018, when he
vacated the stay effective May 20, 2018, thereby allowing the Government to
resume the destruction of the decommissioned “black site” facility. Appellate
Exhibit 052SS (Sup) 1. On May 18, 2018, the Military Judge extended the stay
until June 19, 2018, “to allow completion of the briefing cycle” for a motion for
a further stay pending before the Commission. Id.
At this time, our Court can resolve uncontested motions. However, it
cannot address the merits of the issues raised by Petitioner. Deputy Chief
Judge Scott Silliman is disqualified from hearing matters related to Khalid
Shaikh Mohammad. See In re Khalid Shaikh Mohammad, 866 F.3d 473 (D.C.
Cir. 2017). Subsequently, he recused himself from all matters related to United
States v. Khalid Shaikh Mohammad, et al. Chief Judge Paulette V. Burton and

A249

 Judge James W. Herring, Jr. were on the panel with Deputy Chief Judge
Silliman that heard the appeal in Khalid Shaikh Mohammad that lead to Deputy
Chief Judge Silliman’s disqualification. Both have recused themselves from all
matters involving that case. Petitioner is a co-defendant in Khalid Shaikh
Mohammad. This leaves only Judge William B. Pollard, III and Judge Larss G.
Celtnieks available to consider the present petition and contested motions. By
statute, our panels must be “composed of not less than three judges on the
Court.” 10 U.S.C. § 950f(a). Thus, the Court lacks a quorum.
Moreover, only the Chief Judge and the Deputy Chief Judge have the
authority to appoint panels even if three judges were available. See Manual for
Military Commissions (2016 rev. ed.), Rule for Military Commission 1201(b)(5);
Regulation for Trial by Military Commission (2011 ed.), ¶¶ 25-2d, 25-2e; Rules
of Practice for the U.S. Court of Military Commission Review (Feb. 3, 2016),
Rule 4. Accordingly, without a panel appointment, no single judge can act on
the motions before the Court. See Rules of Practice for the U. S. Court of
Military Commission Review, Rules 4(b), 21(f).
Our Court has notified the Department of Defense that additional
appellate judges are needed, and an Acting Chief Judge must be designated to
appoint the panel(s) for appeals related to Khalid Shaikh Mohammad. The
Department of Defense has informed the Court that several military and civilian
nominees are currently under consideration.
Petitioner is entitled to have our Court hear and decide the matters that he
has put before it. As it stands, however, our Court cannot act in contested
matters related to Khalid Shaikh Mohammad, which includes the present appeal,
until more judges are added to this Court and an Acting Chief Judge is
appointed who can designate a panel.
FOR THE COURT:

A250

 Colonel Keith Parrella
Colonel Keith A. Parrella entered the Marine Corps through the Platoon Leaders Class
accession program. In December 1994, he graduated from Arizona State University with a
bachelor of science in Justice Studies and was commissioned a second lieutenant in the U.S.
Marine Corps Reserve. Second Lieutenant Parrella attended law school at Arizona State
University College of Law where he was a member of the Law Review and the Order of the
Barristers. He graduated law school cum laude in May 1998, and was admitted as a member of
the Arizona Bar in October 1998.
After completing training at the Basic School in Quantico, Virginia and the Naval Justice
School in Newport, Rhode Island, Captain Parrella reported for duty with 3rd Marine Aircraft
Wing, MCAS Miramar, San Diego, California. While at MCAS Miramar, Captain Parrella
served as defense counsel, senior defense counsel, and senior trial counsel. In May 2002,
Captain Parrella received orders to 3rd Force Service Support Group (FSSG), Okinawa, Japan.
During his three years in Okinawa, Captain Parrella served as senior defense counsel and military
justice officer. While in Okinawa, Captain Parrella deployed as an individual augment to 1st
FSSG (Fwd) in support of Operation Iraqi Freedom II.2. In Iraq, Captain Parrella served as the
military justice officer overseeing the prosecution of all Marine cases in Iraq from September
2004 to February 2005. He was promoted to the rank of major in January 2005.
In July 2005, Major Parrella reported to the U.S. Army Judge Advocate General’s Legal
Center and School in Charlottesville, Virginia, as a member of the 54th Graduate Course. He
graduated in May 2006 with an LL.M. in Military Law specializing in contract and fiscal law.
Major Parrella then reported to the Eastern Area Counsel Office, Camp Lejeune, North Carolina
as a contingency contract and fiscal attorney. Between 2007 and 2008, Major Parrella deployed
to the Regional Contracting Center, Camp Fallujah, Iraq where he provided contract and fiscal
law support to II MEF (Fwd).
In July 2009, Major Parrella transferred to Marine Corps Installations East as the Deputy Staff
Judge Advocate. After just 75 days, he volunteered to serve as the Judge Advocate for the 24th
Marine Expeditionary Unit (MEU) to fill an unanticipated vacancy. In January 2010, Major
Parrella deployed with the 24th MEU on board USS NASSAU in support of Operation Unified
Response in Haiti and Operation Enduring Freedom in the Gulf of Aden. While deployed, Major
Parrella also served as the MEU Executive Officer.
In August 2010, Major Parrella undertook the duties as Officer-in-Charge, Legal Services
Support Section, 2nd Marine Logistics Group, Camp Lejeune, North Carolina. In this capacity
he supervised approximately 35 judge advocates and 40 support staff charged with providing
military justice support to over 30,000 Marines and Sailors. In January 2011, he was promoted
to the rank of lieutenant colonel.
In July 2012, Lieutenant Colonel Parrella assumed command of Region 8 (Central Europe),
Marine Corps Embassy Security Group, Frankfurt, Germany. As Region 8’s Commanding
Officer, he led approximately 160 Marine Security Guards posted at 19 U.S. Embassies and

A251

 Consulates throughout central Europe and the Balkans. In July 2014, Lieutenant Colonel Parrella
was selected for the Commandant of the Marine Corps’ (CMC) Fellowship program in
fulfillment of his top-level school requirement. As a CMC Fellow, Lieutenant Colonel Parrella
worked in the Department of Justice’s (DOJ) National Security Division as a Counterterrorism
Prosecutor and with the Office for Overseas Prosecutorial Development Assistance and Training
(OPDAT) within DOJ’s Criminal Division.
In July 2015, Lieutenant Colonel Parrella assumed duties as Deputy Circuit Military Judge,
Eastern Judicial Circuit, Navy/Marine Corps Trial Judiciary, located on board Camp Lejeune,
North Carolina. After serving two years as a military judge, in July 2017, Lieutenant Colonel
Parrella was assigned as the Staff Judge Advocate, 2nd Marine Division on board Camp Lejeune,
North Carolina. He was promoted to the rank of colonel in September 2017. In July 2018,
Colonel Parrella commenced his current duties as the Circuit Military Judge of the Eastern
Judicial Circuit, Navy/Marine Corps Trial Judiciary.
His personal decorations include the Meritorious Service Medal x 5, Navy & Marine Corps
Commendation Medal x 2, Navy & Marine Corps Achievement Medal, and Humanitarian
Service Medal.

A252

 USMC FmlESS REPORT (1610)
HAVMC 1083' (Rev. 7-11) {EF)
DO NOT STAPLE
PREVIOUS EDnlOKS WILL NOT OE USED
THIS FORM
FOUO - Prtvacy s.tntlttw
riled in.
Tho complewd ncr... roport Is the most Important Information CDmPoMnt In manpower monagl!fTlenl It is the primrt means of cv.oluetlng a
Marine'$ porfonnanc• and la the Commandlln1's primary lool 10< tile MIK11on or porsonnol lor pn:,motlon, augmM1tltion, Jffl<lfflt schoollng,
command, and duty aulgnments.
the completion of lhls 19P()r1 Is ono of an office('• moat critic.al rcl$l)Onslbilllln. Inherent In this
duty la tile conwnllrnent of o;och
ng Sonlor - Rrtlewfng Officer to ensur• lh• Integrity of the sy11om by giving close attention to
. Ev..y olllcer servos a role in the scrupulous maintenance of tt,ls evalua1fon systMn, ultJmately
accurate mar1d Ind time ly ��
lmpo,1.ant lo b� !hi Individual and
Marine C0<ps. Inflationary maridngs only sent• to dllutA tho actual val,. of eoch r.port. �lowing
Offic1tr1 ..itl not concur with inflated ,.ports .

*".,,

COMMANDANT'S GUIDANCE

n...rore.

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1. Marin• R1por18d On:

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PARRELLA

KBITH

d. SSH

•· Grade

LTCOL

OrganluUon:
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c. Un It Ooscrlptlon

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CMC P'BLLOW-MARINB CORPS UNIVERSITY, USDOJ NATIONAL SECURITY DIVISION

2.

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3. Occnlon and P•riod Covornd:
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Extend-.!

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4. Duty Asslgnmont ( doscrlptive title):

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7. Rccomm•nded For Promotion:
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b. Ho
c. NIA

6. Marin• Subject Of:

"· Grade

GS15
d. SSN

USMC

a. Grado

COL

D

I. Duty Asslgnmont

COUNTSRTERRORISM PROSECUTOR
I. Duty Assignment

CHIBF OP STAFF, MCU

-Represent the Marine Corpe an a O!C-TLS F�llow to the U.S. Department of Justice (DOJ),
National Security Diviaion (NSO), Counterterroriem Section (CTS).
-serv• aa a counterterroriam prosecutor within CTS/NSD. Work with partn•re in the
intelligenc• community including FBI, CIA, NSA, and DOD.
-Participate in project• of special interest to DOJ, DOD, and the Marine Corps.
-Broaden 1:111tual eng•g-ent opportunities, understanding and knowledge between DOJ and USMC.
-Pursue ongoing research and analytical atudiea.
-Learn about OOJ and the int•ragency process, particularly in Waahington o.c.
-Share developmental experienceu with appropriate Karine Corps detaclunents and c0111111anda.
-serve as a liaison between USMC, particularly Judge Advocate Division, and OOJ/NSO.
-Inform DOJ and interagency partners on the MAGTF concept a.nd build relationships at DOJ
and the interagency in accordance with USMC Campaign Plan Ann•x V: Interagency Integration
Strategy.
C.

L

ACCOMPL S

FOR OFACIAl. USE OHLY

39

A253

 1. Marine Reported On:
a. l.AstNa,nq

b. First Namo

PARRELLA

C. Ml

XBITH

2.

Oc:cnion and Period Covered:
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b. From
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d. SSN

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20150630

Thio io a aon-ol:>carved report due to the unique circu..t.ancea of thi• CXC l'ollow/TLS anignaent.
Ao detailed io the attached letter, LtCol Parrella aeamlenoly inte<;irated hiDself o• a full­
fledged countcrterroria• prooccutor within tho O.S. Department of Juatic•'• Nationol Security
Diviaioo. Of ootc. he vorkod di�ectly with OOJ proaecutors, and interageocy partoors, in
building •olid c�oca against high level interoationa..1 and dOAe&tic tcrrori•� target.a. The

i.mmodi4te acope a.nd ocale of his imllonue coatrihution to the National Security Divieion's llia•ion
diroctly reflect• upon hia akJ.11 aa a lawyer # •• -•11 40 hie judgment. wi�dom, and e.x.ceptiocal
ability to strive in the ioteragcmcy eoviroruaeot. He ia a natural 1ead•r in or out of the
Wliform.

J. CERTIFICATION
1. I CERTIFY that to tho boot of my knowledge and
belklf all entrios 11\,lde ho.won are truo artd without
prejuda or pertlallty •nd that I have pro•lded a slgnod
copy of this report to tho lhrine Reported on.

/)JJ1��
(Slgnaturo of Ropo<ting Senior)

2. I ACKNOWLEDGE the adverso nature ot this report and

0 I ha.., no statement to make
0 I havo attached a stat.emont
- .,.,_._,, ...,
,.�.. ,,.,.

,-.

1. OBSERVATION:

(Signatura of ,..,rlno Reported On)

12. EVALUATION:

O Sutfociont Qi:l lnsultkiMt

3. COMPARAl"IVE ASSESSMENT:
Provide a comparativo assossmcm of
potential by placing an "X" In tho
appropriate bOx. In marl<lng tho
comparison, consider all Marinn of
this !!radc WhOli<> profesalonal
abUit,os are known to you pcrsonaMy.

OESCRIPTION
THE EMINENTLY QUALIFIED MARJIE
ONE OF THE FEW
EXCEPTIONALLY QUALFIED MARINES
ONE OF THE MANY HIGHLY QUALIFIED
PROFESSIONALS WHO FORM TtiE
MAJORITY OF THIS GRADE
A QUAUFlEO MARINE
UNSATISFACTORY

0�00 GG 0B
(Date In YYYYMNDD fonnatJ

OOLJO OD DO
(Dato In 'YYY"-DD fonn:atj

D Do Not Concur

O Concur

0

o
D

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D
D

COMPARATIVE ASSESSMENT

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As noted by the RS and aaplifiod in t.he attached lotter, LtCol Parrella was a totally
profassioaal representative o! our Judge Advocate Corps, apoci!ically, and our Ma.=L'"le Corp• , in

qaneral. Ho oxc;elled across the boa.rd in th.1� demand.l.ng aasiqnment and contr1buted directly to

t.be c;oa.ln of the COCl.l:landant to increase USMC contact and integrat1.on with the Intaragency.
Accordingly, he provid0Ci ccnnQCt:l.vi t.y bcltwoon key IQ!!: depart..ents and t:he Department of Justico
while incraasinq tus profe9sional port.folio. 'Nhile labolod a fallow5hip, as a C-C Fell<>", ho
contri..buted as a truo ambascador for the Marina Corps, influencing sen�or leadership within tho
USMC and OoO on a wide variety of strategic, national. and int..arnational legal couotertarroriam
issues.

5. I CERTIFY that to th• bat of my knowle<lge and
t>eliof •• Rfllrie-s made hereon arc true and without
ptejudlca 0< p.,rtial�y.

�
�

�nawre�R
6. I ACKNOWLEDGE the adve<M natuto ol this rwport and

D I haveno statement to maka
0

I ha•o ilt13chad a statement
rllS,1ilo1et'.'IToll

..

(Slgnatuni of Marin<, Reported On)

ADDEN DUii PAGE ATIACHED:
NAVMC 101135 (Rav. 7-11) (EF)

��[J� Q@ GJ[J
(Date In YYVY'MMDO format)

[J[J[JO DD DU
(D•tc In YVYYIIMDD format)

(BYES

FOR OfACIAL USE ONLY· Privacy sensitive when filled In.

\

PAGE50F&

40

A254

 U.S. Department of .Justice
National Security Division

Wa,hington. D.C 10JJII

Brigadier General Helen G. Pratt
Commanding General, Education Command
President, Marine Corps University
2076 South Street
Quantico, VA 22134
05 June 2015
Dear Brigadier General Pratt:
It is my distinct pleasure to highlight some of the many contributions that Lieutenant
Colonel Keith Parrella made to the Department of Justice (DOJ) during his tenure this past year
as a Commandant of the Marine Corps (CMC) fellow in DOJ's National Security Division
(1',SO). Lieutenant Colonel Parrella was assigned to work in the Countenerrorism Section (CTS)
of NSD, which is the headquarters component of DOJ that is responsible for the investigation
and prosecution of international terrorism matters.
Immediately upon his arrival, Lieutenant Colonel Parrella straightaway assumed all the
duties and responsibilities of a DOJ counterterrorism prosecutor and immediately became an
integral part of the DOJ's countertcrrorism mission. He demonstrated a keen aptitude for DOJ's
national security mission and the interagcncy process, provided guidance in highly sensitive FBI
operations, and drafted legal memoranda and recommendations for the Assistant Attorney
General that assessed the prosecutorial merit of terrorism cases. f.urthermore. Lieutenant
Colonel Parrella prepared memoranda on topics of current relevance to counterterrorism
prosecutors, v.tiich were widely distributed and read within CTS. Additionally, he participated
in various facets oflitigation. Among other things, he drafted and reviewed motions filed before
United States District Courts under the Classified Information Procedures Act, criminal
complaints, indictments, search warrants, and other court documents involving the prosecution of
high level international and domestic counlerterrorism targets. Given the sensitive nature.: of
terrorism cases, much of the material is classified. which adds a substantial le\'el of complexity
to the process.
Lieutenant Colonel Parrella performed his duties with the consummate skill of a seasoned
prosecutor. His analysis of legal issues v,as insightful and unfailingly sound. He exhibited
excellent judgment. His wrillcn work product was always thoroughly researched and
exceedingly well written, and his outstancting \'oTilten skills were matched by his oral
communication skills. Moreover, he showed great initiative and devised creative solutions to

41

A255

 complex issues. He: continually looked for opportunities to further contribute. and whc:n an
oppommity presented itself, he: immediately engaged.
At a personal level, Lieutenant Colonel Parrella always demonstrated a collegial,
profc:ssionnl, and mature attitude. His outgoing personality and "can do" attitude: impressed the
prosecutors with whom he worked. He garnered the absolute trust and confidence of his fellow
counterterrorism prosecutors and DOJ leadership.
It is worth noting that Lieutenant Colonel 'Parrella continuously strove to refine the
fellowship program to better meet the goals and objectives of both DOJ and the Marine Corps.
Building upon the recommendations of his predecessor, he successfully broadened the: scope of
the: Fellowship by spending his last few wc:c:ks working at the Office of Overseas Prosecutorial
Assistance and Training within the Criminal Division of DOJ. As a result, he: set the stage for
future Fellows to gain additional insight from another division within DOJ. Although Lieutenant
Colonel Parrella is only the third Marine Corps Fellow to work at NSD, I am aware of the
intense screening and selection process for this Fellowship and can confidently say that
Lieutenant Colonel Parrella lefl those within DOJ impressed with the consistent excellence
demonstrated by Marine judge advocates.
In sum, DOJ benefited greatly from the outstanding service of this remarkably skilled
Marine officer and lawyer. His immediate, positive, and consistent contributions to the
accomplishment ofCTS' missions are a direct reflection of his talents as a lawyer, his leadership
ability, his judgment, and his extraordinary ability to cohesively work as part of an ioteragency
team. I would highly recommend him for any organization - either within the Marine Corps or
outside of il. His presence here at NSD v.ill be sorely missed by all.

l

Sincerely.

ey
Chief, Counterterrorism Section
National Security Division
United States Department of Justice

42

A256

 UNITED STATES OF AMERICA

AE 595G

v.

RULING

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

Defense Motion to Compel
Material and Information Related to the
Qualifications of Judge Keith Parrella
and
Defense Request for Voir Dire
of Military Judge in a Closed Ex Parte
Hearing
10 October 2018

1. Procedural Background.
a. On 27 August 2018, the undersigned was detailed as the Military Judge to preside over
this Commission.1 On the same day, the Trial Judiciary provided the parties with a summarized
biography of the newly-detailed Military Judge. 2
b. On 7 September 2018, Counsel for Messrs. Hawsawi and bin ‘Attash filed motions
seeking to compel the production of various documents for potential use in conducting voir dire
of the Military Judge. 3 Mr. Hawsawi appeared to seek this information directly from the Military
Judge, while Mr. bin ‘Attash sought it from the Government. 4 In conference with the Defense,

1

AE 001A, Memorandum for Colonel Keith A. Parrella, USMC, dated 27 August 2018.
AE 001B, Summarized Biography of Colonel Keith Parrella, dated 27 August 2018.
3
AE 595 (MAH), Defense Motion to Compel Discovery for Voir Dire of Colonel Parrella, filed 7 September 2018;
AE 595A (WBA), Defense Motion to Compel Material and Information Related to the Qualifications of Judge Keith
Parrella, filed 7 September 2018.
4
See AE 595 (MAH), para. 2 (stating that Mr. Hawsawi “seeks the production” of certain information regarding the
Military Judge, without reference to any prior discovery requests upon the Government or desire to compel
compliance with such requests); AE 595A (WBA), para. 2 (stating that Mr. bin ‘Attash “moves [the] Commission to
compel the Government to provide discovery related to the qualifications of [the Military Judge].”)
2

A257

 the Government deferred to the Military Judge on both motions 5 and filed no responsive
pleadings.
c. On 8 September 2018, this Commission provided the parties with copies of the United
States Marine Corps Fitness Report and Memorandum pertaining to the Military Judge’s 201415 Fellowship with the National Security Division of the United States Department of Justice
(DOJ). 6 During hearings on 10 September 2018, the Commission noted on the record that this
partial grant of the Defense request was given, not because the Defense was entitled to discovery
from the Military Judge, but in an effort to promote expeditious resolution of any concerns of the
parties. 7
d. The parties then conducted a lengthy voir dire, in which they questioned the Military
Judge about his DOJ fellowship and other subjects. 8 Upon conclusion of voir dire the Military
Judge was challenged by all Accused except for Mr. Hawsawi (who, having declined to join the
challenge, reserved the ability to challenge independently following further investigation). 9
e. On 11 September 2018, Counsel for Mr. bin al Shibh filed AE 595E (RBS) and
AE 595F (RBS), ex parte under seal pleadings requesting separate closed, ex parte voir dire of
the Military Judge regarding certain classified matters pertaining to the AE 292 series (which
involved appointment of a Special Review Team and activities of the Federal Bureau of
Investigation). 10
5

AE 595 (MAH), para. 7; AE 595A (WBA), para. 9.
AE 595B.
7
Unofficial/Unauthenticated Transcript of the US v. Khalid Shaikh Mohammad, et al., Motions Hearing Dated 10
September 2018 from 9:03 A.M. to 10:38 A.M. at p. 20416.
8
Unofficial/Unauthenticated Transcript of the US v. Khalid Shaikh Mohammad, et al., Motions Hearing Dated 10
September 2018 from 9:03 A.M. to 10:38 A.M. at p. 20420 (start of voir dire); Unofficial/Unauthenticated
Transcript of the US v. Khalid Shaikh Mohammad, et al., Motions Hearing Dated 10 September 2018 from 1:32
P.M. to 2:34 P.M. at p. 20568 (end of voir dire).
9
Transcript at pp. 20579-20580.
10
AE 595E (RBS), Defense Request for Voir Dire of Military Judge in a Closed, Ex Parte Hearing, filed
11 September 2018; AE 595F (RBS), Notice of Ex Parte, Under Seal Filing, filed 11 September 2018. The latter
filing is a notice pursuant to Military Commission Rule of Evidence 505(g)(1).
6

A258

 f. On 11 September 2018, the Commission, from the bench, denied both the Defense
challenge and a Defense request to abate until the Military Judge had more fully reviewed prior
pleadings and transcripts in the case. 11 The Commission, however, noted it would permit
motions to reconsider denial of the Defense challenge, if warranted by new information. 12 The
Commission also recognized any future challenge brought by Mr. Hawsawi would not be
considered a request for reconsideration, and acknowledged receipt of AE 595E and F. 13
g. The Commission subsequently reviewed AE 595E, AE 595F, the AE 292 series, and
several related Special Trial Counsel detailing memoranda. 14
2. Findings of Fact. Having thoroughly examined AE 595E, AE 595F, and the related pleadings
referenced above, I find that at no time before, during, or after my 2014-2015 DOJ fellowship,
did I have (1) any involvement with or knowledge of the incidents and/or inquiries referenced in
those pleadings; and/or (2) any personal and/or professional relationship with any person
referenced in those pleadings.

11

Unofficial/Unauthenticated Transcript of the US v. Khalid Shaikh Mohammad, et al., Motions Hearing Dated 11
September 2018 from 9:03 A.M. to 10:22 A.M. at pp. 20599-20605. As an aside with regard to the challenge, the
Commission notes that, while the parties cited to 28 U.S.C. § 455, that statute does not apply to a military
commission judge. See Khadr v. U.S., 62 F.Supp.3d 1314, 1318-1320 (C.M.C.R. 2014) and U.S. v Rachels, 6 M.J.
232, 234 (C.M.A. 1979) (determining, based on analysis equally applicable here, that C.M.C.R. and court-martial
judges, respectively, are not “judge[s] of the United States” to whom 28 U.S.C. § 455 would apply). For military
commission judges, the relevant standard is established by Rule for Military Commission (R.M.C.) 902, which is
essentially the same as its court-martial counterpart, Rule for Courts-Martial (R.C.M.) 902. The highest military
appellate court has held the general recusal standard of R.C.M. 902 to be largely the same as that of 28 U.S.C. § 455,
however, which presumably would apply to the R.M.C. as well. See U.S. v. Mitchell, 39 M.J. 131, 143 (C.M.A.
1994) (noting the general judicial disqualification standard under R.C.M. 902 “is the same” as 28 U.S.C. § 455,
“upon which [R.C.M. 902] is based”—though the unique purposes and context of courts-martial must be
appropriately considered. Id.)
12
Transcript at p. 20605.
13
Transcript at pp. 20606-20608.
14
Specifically: AE 003C, Special Trial Counsel Detailing Memorandum for Litigation of AE 292, filed 16
Apri12014; AE 003F (GOV), Special Trial Counsel Detailing Memorandum for Litigation of AE 292 and All
Defense Motions and Requests That Have the FBI Investigation as Their Factual Predicate, filed 24 July 2014; AE
003K (GOV), Special Trial Counsel Detailing Memorandum, filed 17 October 2016; and AE 003L (GOV), Special
Trial Counsel Detailing Memorandum, dated 28 October 2016.

A259

 3. Law.
a. Burden of Proof. As proponents of the various motions at issue here, the relevant
Accused bear the burden of proving by a preponderance of the evidence any facts prerequisite to
the relief sought. Rules for Military Commissions (R.M.C.) 905(c)(1)-(2).
b. Discovery and Witness/Evidence Production in Military Commissions Generally.
The Military Commissions Act 2009 provides the accused a reasonable opportunity to obtain
witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense. 15
The R.M.C. require the Prosecution to produce evidence that is “material to the preparation of
the defense.” 16 Furthermore, “[e]ach party is entitled to the production of evidence which is
relevant, necessary and noncumulative.” 17 Evidence is relevant when it “contribute[s] to a
party’s presentation of the case in some positive way on a matter in issue.” 18 These authorities do
not grant the Defense an unqualified right to discovery merely because the Defense has requested
it. 19 Without a justiciable theory of relevance to justify compelling production, the defense is not
entitled to the production. 20
c. Discovery from the Military Judge. The parties have presented no applicable
authority establishing that the parties have a right to compel discovery from the Military Judge in
this context. To the extent it exists, relevant precedent indicates the opposite is generally true. 21

15

See 10 U.S.C. § 949j.
R.M.C. 701(c)(1).
17
R.M.C. 703(f)(1).
18
R.M.C. 703(f)(1) Discussion.
19
See United States v. Agurs, 427 U.S. 97, 106 (1976) (“[T]here is, of course, no duty to provide defense counsel
with unlimited discovery of everything known by the prosecutor.”)
20
United States v. Graner, 69 M.J. 104, 108 (C.A.A.F. 2010).
21
“No reported case could be found where a judge was required to submit to discovery in connection with a motion
for his or her disqualification.” Disqualification of Trial Judge for Cause, 50 Am. Jur. Proof of Facts 3d 449 § 41
(Sep 2018). There is, on the other hand, persuasive authority indicating the parties have no right to such discovery.
See, e.g., Cobell v. Norton, 237 F.Supp.2d 71 (D.D.C. 2003) (in denying motion to depose Special Masters, noting
“this Court knows of no case in which a court has authorized discovery to be taken upon judicial officers.” Id. at
102); Cheeves v. Southern Clays, Inc., 797 F.Supp. 1570 (M.D. Ga. 1992) (finding, in the context of a motion to
disqualify a judge pursuant to 28 U.S.C. §§ 144 and 455(a), that “compulsory discovery process addressed to the
16

A260

 d. Ethical Disclosure Requirements. Applicable ethical standards state that the
undersigned judge “should disclose on the record information that the judge believes the parties
or their lawyers might reasonably consider relevant to a possible motion for disqualification,
even if the judge believes there is no basis for disqualification.” 22
4. Analysis.
a. Further Discovery.
(i) The undersigned Military Judge is fully aware of his ethical obligation to make
appropriate disclosures to the parties regarding potential bases for disqualification. All such
information has been disclosed. Should the undersigned become aware of any additional such
information in the future, it will be made fully available to the parties as soon as practicable.
(ii) The parties may certainly draw the Commission’s attention to specific
categories of information they believe the Commission should consider in making these
evaluations. The Commission may voluntarily provide to the parties background information
thus requested, in order to expeditiously identify and resolve any potential areas of concern.
However, motions to compel discovery from the Military Judge in relation to disqualification
matters assert no enforceable right of the parties; accordingly, subject to any voluntary
disclosures by the Military Judge, any such motions will be denied.

presiding judge in aid of a motion to disqualify that judge . . . is not available to a litigant.” Id. at 1583); Terrazas v.
Slagle, 142 F.R.D. 136 (W.D. Texas 1992) (subpoenas of sitting judges’ law clerks quashed, as permitting their
testimony regarding alleged undisclosed improper third-party communications would “usurp[ the] . . . authorities
and responsibilities” by which those judges “ha[d] already determined there [was] no basis to require their recusal.”
Id. at 140); Brown v. American Bicycle Group, L.L.C., 224 Cal.App.4th 665 (2014) (“[W]e are aware of no authority
[supporting] the proposition that a trial judge is required to make disclosures . . . in order to enable a party to file a
. . . challenge.” Id. at 672 (internal quotes and cites omitted)).
22
American Bar Association, Model Code of Judicial Conduct Rule 2.11, Comment 5 (Feb 2007) (made applicable
by R.M.C. 109 and U.S. Dep’t of Navy, JAG Instruction 5803.1E, Subj: Professional Conduct of Attorneys
Practicing Under the Cognizance and Supervision of the Judge Advocate General ¶ 7 (20 Jan 2015)).

A261

 (iii) To the extent the motions are construed as Defense motions to compel
discovery from the Government regarding the Military Judge, in light of the voir dire conducted
by the parties and materials already voluntarily disclosed, the Commission finds no sufficient
showing that any of the materials thus sought would be reasonably likely to contain relevant,
necessary, noncumulative information.
b. Mr. bin al Shibh’s Request for Additional Voir Dire in a Closed, Ex Parte
Hearing. Based on the findings of fact in paragraph 2, I conclude there is at present no need to
conduct additional voir dire on any matter relating to AE 292, in either open or closed session.
Mr. bin al Shibh will be provided the opportunity to submit additional potentially-relevant
information for consideration, however, as directed below.
5. Ruling.
a. To the extent the Defense at present moves the Commission to provide and/or compel
any discovery regarding the Military Judge beyond that already voluntarily disclosed, that
motion is DENIED.
b. Mr. bin al Shibh’s motion for additional voir dire in a closed, ex parte hearing is
DENIED. However, if Mr. bin al Shibh is aware of any person(s) relevant to the events
described in the AE 292 series not named in the pleadings described in paragraph 1.g, above, he
may submit the names of any such person(s) ex parte and under seal for appropriate
consideration by the Commission not later than 17 October 2018.

So ORDERED this 10th day of October, 2018.

//s//
K. A. PARRELLA
Colonel, U. S. Marine Corps
Military Judge

A262

 b. Insufficient justification for seizure, search and/or confiscation of computer.
There is no good reason to support the seizure, search and confiscation of extremely
sensitive attorney-client privileged material, or to suspect that Mr. Mohammad has acted
improperly in any way with respect to his laptop computer. The government’s claim, read for all
it is worth, is that a writing by a co-defendant was found in Mr. Mohammad’s legal bin. The
writing is apparently thought to describe a method for altering the function of a laptop. There is
no evidence that these materials were intentionally provided to Mr. Mohammad; that if they
were, Mr. Mohammad requested them (indeed, the sequence of events suggests that he was not
even aware that the letter had been placed in his legal bin); or that Mr. Mohammad intended to
alter the functioning of his own computer. None of these facts justify the seizure, search or
confiscation of Mr. Mohammad’s virtual law office.
Indeed, the only purportedly concrete evidence proffered by the government to suggest
that the defendants have succeeded in reconfiguring their laptops to enable them to communicate
with the outside world is the publication of “the actual letter” from Mr. Mohammad to President
Obama on an al Qaeda website in September 2017. AE 350F (GOV) at 13. As evidenced by
Attachment D to the government’s pleading, however, the contents of the “actual letter” was
readily available to any jihadist bloggers who might also be readers of the Miami Herald, as of
February 2017. Moreover, by appending Attachment D, which includes a link to the full 18page letter, the prosecution has ensured that the “actual letter” will have an even wider potential
readership than that commanded by as-Sahab.
c. The government cannot be trusted to conduct a restricted search of sensitive attorneyclient privileged materials.

14

A263

 Even if a forensic review of Mr. Mohammad’s laptop were justified (which it is not), the
government has long since forfeited any claim that it may be relied upon to do so and also
protect Mr. Mohammad’s attorney-client communications. On the contrary, throughout this case
the government has taken at best a cavalier attitude toward the defense function, ignoring the
military commission’s orders in the process, generally without any serious resulting sanction.
There is little reason to suppose that it could be trusted to conduct a limited search in such a
sensitive environment.
At the outset of this case, in October of 2011 JTF-GTMO seized and read all of Mr.
Mohammad’s legal materials, without a warrant or a court order, without notifying or consulting
counsel, and without participation even by the guard force’s own SJA. The seizure and review
was conducted upon no particular probable cause or other suspicion, but rather to establish a
“baseline.”12 See also AE 03213; AE 16814; AE 401.15 Improper intrusion into detainees’ legal
materials has continued throughout the course of this case. In March of 2013 the Military
Commission ruled, “[w]ithout finding there was any specific breach of attorney-client privilege
in regard to the inspection of the legal bins in February 2013, there is an obvious need to institute
procedures that obviates that risk.” AE 144D16 at 2 (emphasis added). The Military
Commission then specifically ordered that “[e]xamination of the legal bins by the guard force
will be limited to review for appropriate markings, scanning for classification marking of written
12

Testimony of CPT Thomas Welsh, JTF-GTMO SJA, 12 February 2013, Unofficial/Unauthenticated Tr., pp.
1955-65.
13
AE 032, Joint Defense Motion for Appropriate Relief to Protect Right to Counsel by Barring Invasion of
Privileged Attorney-Client Communications, 11 May 2012.
14
AE 168(AAA), Defense Motion to Compel Discovery Related to Convening Authority “Baseline Review” and
Legal Mail Policy Communications, 4 June 2013.
15
AE 401(WBA), Motion to Dismiss Because the United States Conduct of Continuous Abrogation of the
Attorney-Client Relationship Has Irretrievably Damaged Mr. bin ‘Atash’s Ability to Work with Counsel, 15 January
2016.
16
AEl44D, RULING, Joint Defense Supplemental Memorandum in Support of Proposed Interim Order Regarding
Seizure and Inspection of Accused's Legal Materials, 25 March 2013.

15

A264

 materials, and inspection for contraband.” AE 144D at 2. This led to the issuance of AE 144E, 17
Interim Order, which in turn became incorporated into AE 018U. Similar intrusions into
attorney-client privileged materials nonetheless occurred in 2014 and 2015, and continue. See,
e.g., AE373(AAA)18; AE 018PP19; AE18QQ20; AE008(WBA) at 11-19; AE133(WBA Sup) 21;
AE155A22; AE 401(WBA).
In early 2013 it developed that the government had intruded upon defense IT systems,
resulting in the loss of electronic files, real-time monitoring of defense internet searches, and
intrusion and seizure of some 540,000 defense emails, see generally, AE 154;23 AE 155A at 316; AE 177,24 AE 173.25
As described in the AE 133-series pleadings JTF-GTMO placed listening devices
disguised as smoke detectors in the meeting room in which Mr. Mohammad and his coDefendants meet with their defense teams. If the listening devices indeed had a benign purpose
counsel would have been provided advance notice of their presence, but as the Commission held,

17

AE 144E, INTERIM ORDER Regarding Seizure and Inspection of Accused's Legal Materials, 25 March 2013.
AE 373 (AAA), Defense Motion to Dismiss For Government Intrusion Into Attorney-Client Relationship, 21
September 2015.
19
AE18PP(MAH), Defense Motion for Government to Show Cause For Its Violation of AE 018U, 12 February
2015.
20
AE 018QQ, Mr. Mohammad’s Supplement to AE 018PP(MAH), Defense Motion for Government to Show
Cause For Its Violation of AE 018U, 29 April 2015.
21
AE 133 (WBA Sup), Walid bin 'Attash's Supplement to Emergency Defense Motion to Remove Sustained Barrier
to Attorney-Client Communication and Prohibit Any Electronic Monitoring and Recording of Attorney-Client
Communication in Any Location, Including Commission Proceedings, Holding Cells, and Meeting Facilities and to
Abate Proceedings, 6 February 2013.
22
AE I55A (WBA,KSM,RBS,MAH), Defense Motion to Abate Proceedings due to the Government's Violation of
Privilege as it Pertains to Electronic Files, Communications, and Investigation, 12 April 2013.
23
AE 154, Government Notice Of Events Related to Protection of Privileged Materials, 8 April 2013.
24
AE177 (WBA), Defense Motion to Compel Production of Discovery of Information Related to Government
Intrusion Into Electronic or Physical Spaces Containing Defense-Related and/or Defense-Produced Materials , 19
June 2013.
25
AE 173(WBA), DEFENSE MOTION TO COMPEL THE PRODUCTION OF WITNESSES LISTED IN
DEFENSE REQUEST FOR PRODUCTION OF WITNESSES, DATED 31 MAY 2013, TO TESTIFY AT
MOTION HEARING 17-21 JUNE 2013 AND IN SUBSEQUENT HEARINGS, 12 June 2013.
18

16

A265

 “CAPT Welsh [the JTF-GTMO SJA] concurred with the Defense proposition that the
microphones in the ECHO II rooms were not apparent as such and could have been mistaken for
smoke alarms.” AE 133QQ at 9-10. The Military Commission also conceded that CAPT Welsh
was “unable to offer an explanation” for the requirement in meeting protocols that counsel give
advance notice of “the language to be used during attorney-client meetings,” 133QQ at 10 –
other than that doing so would prepare the guard force to monitor the meetings in real time.
Indeed, despite repeated assurances that attorney-client meeting rooms managed by JTF-GTMO
provide a genuinely confidential environment within which Commission defendants may meet
with their defense teams, 26 recent developments in United States v. al Nashiri reveal that these
assurances were false. See also AE 530D27 at pp. 4-5.
Testimony in the AE 133 series also revealed that the entire courtroom was essentially a
“sound field,” with “23 microphones located throughout the ELC Courtroom and the audio from
these microphones feeds into one of eight (8) channels which are recorded by the court reporting
software system.” AE 133QQ at 7. The “‘pre-gated’ feed, going to the court reporters,
translators, and the OCA, may transmit background voices and discussions, depending on the
volume of any particular voice and the number of people being picked up by different unmuted
microphones.” 133QQ at 8 (emphasis added). In other words, the OCA had engineered the
ability to listen in on the confidential communications among defense teams and clients.

26

E.g., “[n]o entity of the United States Government is listening, monitoring or recording communications between
the five Accused and their counsel at any location.” AE 133A, Government’s Response To Emergency Defense
Motion to Remove Sustained Barrier to Attorney-Client Communication and Prohibit Any Electronic Monitoring
and Recording of Attorney-Client Communication in any Location, including Commission Proceedings, Holding
Cells, and Meeting Facilities and to Abate Proceedings, 7 February 2013, at 2.
27
AE530D(AAA), Motion for Amended Order, 25 October 2017.

17

A266

 The government’s efforts to exploit attorney-client communication and to chill the
defense function have not been limited to a refusal to respect the privacy of Mr. Mohammad’s
legal materials and consultations with counsel. As described in the AE 292 28 series pleadings,
the United States obtained confidential defense materials by secretly interviewing Mr.
Mohammad’s assigned translator under cover of a ruse that the interview was part of the process
of reauthorization of the translator’s security clearance. This was unmistakably a first step in an
effort to infiltrate Mr. Mohammad’s defense team to obtain protected information, an infiltration
what was actually accomplished with respect to the team of a co-defendant.
A similar effort was revealed when, as described in the AE 350 29 series pleadings, on 9
February 2015, Mr. bin al Shibh rose in open Commission proceedings to object to the presence
on his team of his government-provided interpreter explaining “the problem is I cannot trust him
because he was working at the black site with the CIA and we knew him from there.” 30 Other
accused also recognized the interpreter, Tr. 8248-50, whose presence the government has since
acknowledged, See AE 350N,31 p. 2.
As described in the AE 46032-series pleadings, the government accepted Mr.
Mohammad’s former DISO as a confidential informant, took statements from him regarding
confidential attorney-client privileged information, and thereafter proposed that he be returned to
the defense team to serve as a DISO on a temporary basis.

28

AE292, Emergency Joint Defense Motion to Abate Proceedings and Inquire into Existence of Conflict of Interest
Burdening Counsel’s Representation of Accused, 13 April 2014.
29
AE350(GOV), Government Unclassified Notice Of Classified Filing, 10 February 2015.
30
Unofficial/Unauthenticated Transcript, 9 February 2015, at 8248-50 (last accessed 2 November 2017).
31
AE 350N (GOV), Government Response To Defense Motion to Compel Access to Information Necessary to File
Supplement to AE 350C (AAA), 26 May 2015.
32
AE 460 (GOV STC), Government Notice by Special Trial Counsel of Letter to Defense Requesting Defense
Remediation of Material Obtained Outside of the Discovery Process, 19 October 2016.

18

A267

 As set out in the AE 28333 series pleadings, the government also effectively severed Mr.
Mohammad’s relationship with his co-lead military defense counsel, by unilaterally reassigning
counsel to a separate billet; and, as alleged in the AE 406 34 series pleadings, effectively denied
him the assistance of his assigned translator for an extended period, by suspending his security
clearance without explanation.
The government has also repeatedly initiated investigations into and leveled baseless
allegations of serious criminal and administrative wrongdoing against defense counsel in an
obvious effort to chill the defense function. See, e.g., AE 018Y35 series (false allegations of
violating communication rules); AE 292 series (infiltration and investigation of defense teams
by Federal Bureau of Investigation); AE 350 series (alleging violation of ethical duty to properly
vet defense personnel); AE 53236 series (false allegations of willful disclosure of classified
information); 46037 series (false allegations of improper intrusion into protected computer
systems); United States v. Kiriakou, Case No. 1:12MJ33 (United States District Court for the
Eastern District of Virginia), Affidavit in Support of Criminal Complaint and Arrest Warrant, 23
January 2012, pp. 3-5 (detailing three-year FBI investigation focusing on counsel, but
concluding that “no laws were broken by the defense team.”).

33

AE283 (Mohammad), Notice of Governmental Directed Severance of the Attorney-Client Relationship, 13
March 2014.
34
AE 406 (Mohammad), Defense Motion to Abate Proceedings Immediately until the Government Restores to the
Assigned Defense Team Interpreter the Security Clearance Required to Serve as an Interpreter, 5 February 2016.
35
AE 018Y, Government Emergency Motion for Interim Order and Clarification that the Commission’s Order in
AE018U Does Not Create a Means for Non-Privileged Communications to Circumvent the Joint Task Force Mail
System, 28 February 2014.
36
AE 532 (GOV STC), NOTICE OF UNDER SEAL EX PARTE FILING BY SPECIAL TRIAL COUNSEL,
27 October 2017.
37
AE 460 (GOV STC), Government Notice by Special Trial Counsel of Letter to Defense Requesting Defense
Remediation of Material Obtained Outside of the Discovery Process, 19 October 2016.

19

A268

 In myriad other ways the government has consistently refused to honor the letter or the
spirit of the mandate of the Sixth Amendment that Mr. Mohammad receive constitutionally
effective assistance of counsel. See, e.g., AE 16038 (Prosecution inappropriate access to Learned
Counsel billing statements, leading to the issuance of Protective Order #3 39 directing that “the
Convening Authority shall not disclose to the Prosecution or to the public any information”
relating to compensation or activities of defense counsel or defense experts); AE 207 40
(describing Prosecution effort to intimidate Mitigation Specialist testimony in collateral
proceeding); AE 254QQQ,41 pp. 7-10 (implementation of a policy to prevent witnesses assigned
to JTF-GTMO from sharing information with the Defense in order “to protect national security
… .”; AE 356(AAA)42, att. B (blocking access of cleared military defense counsel to SIPR and
JWICS networks).
It is hard not to see the heavy hand of the CIA behind many of these incidents and their
chilling effects. As the Military Commission put it, “[a]s to the role of the CIA, their interest in
this case is well known … .” AE 133PP 43 at 6. In the infamous “red light” incident, the CIA
unilaterally closed the courtroom by stopping the external feed during the remarks of defense
counsel.44 “This closure of the proceeding was not ordered or approved by the Military Judge or
the Court Information Security Officer (CISO),” AE 133QQ at 1, and was in any event

38

AE160(AAA), Defense Motion To Compel Convening Authority to Prevent Prosecution Access to Defense
Team Claims for Compensation, 10 May 2013.
39
AE 160C, PROTECTIVE ORDER #3 to Protect Defense Teams Claims for Compensation, 23 August 2013.
40
AE 207 (WBA), Mr. bin ‘Attash’s Emergency Motion to Delay due to Learned Counsel’s Duty to Protect
Learned Counsel’s Duty to Protect Privileged Information, 16 August 2013.
41
AE 254QQQ (GOV), Government Response To Defense Motion to Compel the Production of Information
Requested in its Discovery Request of 4 December 2014 (DR-031-MAH), 8 April 2015.
42
AE356(AAA), Mr. al Baluchi’s Motion to Compel Production of Discovery Regarding Revocation of Access to
Classified Networks, 6 April 2015.
43
AE 133PP, RULING, Mr. Mohammad’s Motion for Reconsideration of AE 133II Order Denying Defense
Motion to Compel Discovery Related to Courtroom #2 Audio System, 29 September 2016.
44
Unofficial/Unauthenticated Transcript, p. 1445, 28 January 2013.

20

A269

 unjustified by the remarks of counsel. Id. This not only “established that an OCA monitors the
proceedings in real-time …” AE 133QQ, 45 at 7, but also required the Military Commission to
order that the CIA’s ability to close the proceedings unilaterally be terminated. 46
Also presumably at the direction of the CIA, the Government has consistently utilized
byzantine and ever shifting positions regarding classification to impede defense efforts. See,
e.g., AE 00947 (government reliance on “presumptive classification,” a non-existent classification
category); AE 274B48 (documenting shifting scope of classification); AE 118 49 (Defense not
provided with resources to comply with classification requirements of Protective Order No. 1).
Not content with simply chilling defense efforts, and as described in the AE 425 series,
the CIA simply resorted to destroying important exculpatory evidence under cover of a public
order guaranteeing that the evidence would be preserved absent further notice to the parties (AE
080G50), and in blatant disregard of a secret classified Order that prior notice of the destruction
be given (AE 052EE51).
Finally, the government’s disregard of Mr. Mohammad’s rights includes the political
branches, as illustrated by the Unlawful Command Influence which pervades the case. In late

45

AE 133QQ, RULING, Emergency Defense Motion to Remove Sustained Barrier to Attorney-Client
Communication and Prohibit Any Electronic Monitoring and Recording of Attorney-Client Communication in any
Location, including Commission Proceedings, Holding Cells, and Meeting Facilities and to Abate Proceedings, 30
November 2016.
46
The clear directive was issued on 31 January 2013; see Unofficial/Unauthenticated Transcript of the Khalid
Shaikh Mohammed et al. (2) Hearing Dated 1/31/2013 from 9:01 AM to 9:22 AM at pp. 1720-1721.
47
AE 009, Mr. al Baluchi’s Motion to End Presumptive Classification, 17 April 2012.
48
AE 274B, RULING, DEFENSE MOTION TO CHALLENGE “CLASSIFICATION GUIDANCE FOR
CENTRAL INTELLIGENCE AGENCY (CIA) RENDITION, DETENTION, AND INTERROGATION (RDI)
PROGRAM INFORMATION,” 9 April 2015.
49
AE118 (WBA, AAA), Motion to Abate Proceedings Pending Compliance with Protective Order #1, 9 January
2013.
50
AE080G, ORDER, Joint Defense Motion To Preserve Evidence of Any Existing Detention Facility, 19 December
2013.
51
AE 051B/052EE, Ex Parte/ Under Seal CLASSIFIED ORDER, 4 June 2014.

21

A270

 2014 the then Convening Authority, unsatisfied with the pace of litigation, reassigned the
military judges involved in the case to Naval Station Guantanamo Bay, Cuba until the trial was
complete. AE 343.52 The Military Commission rightly saw that the CA’s order “goes to the
very heart of the trial process,” and responded by abating the proceedings until the order was
withdrawn. AE 343C.53 See also AE 34454 (analyzing Change 1 under 10 U.S.C. § 948j(f)).
UCI nonetheless has pervaded and continues to pervade the case. No less a figure than the
President of the United States recently referred to the present proceedings as “a joke and a
laughingstock.”55 In the United States v. al Nashiri case the Military Judge recently found the
Chief Defense Counsel guilty of contempt and sentenced him to confinement and a fine for
doing his duty – before, in the words of the Hon. Royce Lamberth, United States District Judge,
the Department of Defense managed to “clean up its own act” and suspend imposition of Gen.
Baker’s sentence pending review.56 See also United States v. al Nashiri, AE33957 and AE 38958

52

AE 343(Mohammad, bin ‘Atash, bin al Shaibh, al Baluchi), Defense Motion to Dismiss For Unlawful Influence
on Trial Judiciary, 30 January 2015.
53
AE 343C, RULING, Defense Motion to Dismiss For Unlawful Influence on Trial Judiciary, 25 February 2015.
54
AE 344(Mohammad, bin ‘Atash, bin al Shibh, al Baluchi), Defense Motion to Dismiss For Convening Authority
Review of Trial Judiciary Effectiveness and Efficiency in Violation of 10 U.S.C. § 948j(f), 30 January 2015.
55
Following the attack in New York City, on 1 November 2017, President Trump held a press conference:
That was a horrible event, and we have to stop it and we have to stop it all. We also have to come
up with punishment that’s far quicker and far greater than the punishment these animals are
getting right now. They’ll go through court for years. At the end they’ll be, who knows what
happens? We need quick justice and we need strong justice…much quicker and much stronger
than we have right now. Because what we have right now is a joke and it’s a laughingstock and
no wonder so much of this stuff takes place.
(Emphasis added). Although it was unclear from these press conference comments whether or not the President was
referring to the need for “quicker and stronger” justice in Federal court or military commissions, he expanded on the
meaning of his comments the next day using Twitter: “Would love to send the NYC terrorist to Guantanamo but
statistically that process takes much longer than going through the Federal system… .”
56
See http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article182644776.html ,last
accessed 06 November 2017.
57
AE 339L, Defense Notice of Excusal of Learned Counsel, Richard Kammen, 13 October 2017; AE 339K,
Defense Notice of Excusal of Assistant Defense Counsel, Rosa Eliades, 13 October 2017; and AE 339J,
Defense Notice of Excusal of Assistant Defense Counsel, Mary Spears, 13 October 2017.
58
AE 389, Defense Motion to Abate Proceedings Pending the Detailing of Learned Counsel, 16 October 2017.

22

A271

 series litigation. See also, e.g., AE 36359 (Unlawful influence of defense counsel by Joint Chiefs
of Staff).
For all these reasons, the time has long since passed when the Military Commission can
trust the government to respect the privacy of Mr. Mohammad’s legal materials. Moreover, it
was no doubt the prosecution’s implicit acknowledgment of the defense’s justified concerns in
this regard that led it to agree that possible deviations from the computer protocols would be
remedied in a manner that did not rely on the government’s good faith or ability to resist once
again intruding into protected defense communications. The prosecution should not be allowed
to employ a “bait and switch” approach that enables it to obtain access to sensitive
communications that the defense never would have stored on the defendants’ laptops had it been
evident it was vulnerable to such intrusion.
d. Previously agreed procedures for review of Defendant laptops.
More to the point, the government recently proposed a procedure to be followed in the
event that a Defendant’s laptop is found to be in non-compliance with the Military Commission’s
directives, which decidedly does not entail seizure, search, or confiscation by the government.
The proposed agreement for the delivery of the new computers to the Defendants in 2016
contained the following provision relating to wireless and Bluetooth capability:

59

AE363 (Mohammad et al.), Joint Defense Motion to Compel Discovery Regarding Unlawful Influence of the
Office of the Chairman of the Joint Chiefs of Staff Over the Office of the Chief Defense Counsel, 30 June 2015.

23

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 MILITARY COMMISSIONS TRIAL JUDICIARY
GUANTANAMO BAY, CUBA
UNITED STATES OF AMERICA

AE 555EEE

v.

RULING

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

Mr. al Baluchi's Motion to Dismiss
For Unlawful Influence over Convening
Authority and Legal Advisor

10 January 2019

1. Procedural History.
a. On 9 February 2018, Mr. Ali (a.k.a. al Baluchi) moved to dismiss all charges,1
claiming (1) the terminations of Mr. Harvey Rishikof and Mr. Gary D. Brown from their
positions as Convening Authority (CA) and CA’s Legal Advisor, respectively, had been in
retaliation for certain decisions in those capacities; and (2) the terminations, therefore,
constituted unlawful influence (UI) over Messrs. Rishikof and Brown by then-Secretary of
Defense (SecDef) James N. Mattis2 and then-Department of Defense Acting General Counsel
(DoD AGC) William S. Castle.3 The Government responded on 26 February 2018, arguing the
Defense had not met its initial burden and, in any event, had not alleged acts constituting UI.4

1

AE 555 (AAA), Mr. al Baluchi's Motion to Dismiss for Unlawful Influence over Convening Authority and Legal
Advisor, filed 9 February 2018, p. 1.
2
The Commission takes judicial notice that SecDef Mattis submitted a letter of resignation on 20 December 2018,
and no longer served as SecDef as of 1 January 2019. See Jeremy Diamond, et al., Mattis quits, says his views aren't
'aligned' with Trump's, https://www.cnn.com/2018/12/20/politics/donald-trump-james-mattis-out/index.html (last
updated 21 December 2018, 4:46 PM); Holly Rosenkrantz, Trump ousts Mattis 2 months early, taps Shanahan as
acting defense secretary, CBS News Online, https://www.cbsnews.com/news/trump-expected-to-order-mattis-toleave-job-immediately-appoint-patrick-shanahan-defense-secretary/ (last updated 23 December 2018, 4:02 PM). As
Mr. Mattis was SecDef throughout the events relevant to this motion series, for simplicity he will be referred to by
that title herein.
3
The Commission notes Mr. Castle relinquished the AGC role in August 2018. See fn 26, infra, and accompanying
text. However, as he was AGC throughout the events relevant to this motion series, for simplicity he will be referred
to by that title herein.
4
AE 555A (GOV) (Corrected Copy), Government Response To Mr. Ali’s Motion to Dismiss for Unlawful
Influence over Convening Authority and Legal Advisor, filed 26 February 2018 (original filed 23 Feb 2018), para. 3.

1

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 b. Since the initial motion and response, filings in this series have been many and
voluminous.5 The parties have presented witness testimony and engaged in substantial argument
regarding many of the procedural and substantive issues identified. The Commission has
considered all of the filings,6 argument, and evidence in the AE 555 series. This ruling will
address the following:
(i) AE 555P (GOV),7 a motion by the Government for the Commission to
reconsider a prior order (AE 555O).8 The only remaining question in that motion is whether the
Commission should fully grant reconsideration by permanently rescinding its directive in
AE 555O for the Government to (1) disclose the CA’s monthly status reports, and (2) produce
Mr. Rishikof to testify.9

5

The filings include declarations submitted by Secretary Mattis, AGC Castle, and Messrs. Rishikof and Brown,
filed at the Commission’s request. AE 555B, Trial Conduct Order: Mr. al Baluchi’s Motion to Dismiss For Unlawful
Influence Over Convening Authority and Legal Advisor, dated 27 February 2018; AE 555E (GOV), Government
Notice Of Declarations Requested By The Military Commission, filed 19 March 2018, Attach.’s B (hereinafter,
“Mattis Declaration”), C (hereinafter, “Castle Declaration”); AE 555G, Notice of Receipt: Declaration of Harvey
Rishikof and Gary D. Brown, filed 20 March 2018, Attach. A (hereinafter, “Rishikof & Brown Declaration 1”); AE
555L, Notice of Receipt: Second Declaration of Harvey Rishikof and Gary D. Brown, filed 30 April 2018, Attach. A
(hereinafter, “Rishikof & Brown Declaration 2”).
6
This includes Mr. Mohammad’s recent supplement, and the Government’s response. AE 555CC (KSM Sup), Mr.
Mohammad’s Supplement to AE 555CC, filed 2 January 2019; and AE 555DDD (GOV), Government Response To
AE 555CC (KSM Sup), Mr. Mohammad’s Supplement to AE 555CC (KSM), filed 4 January 2019. The
Commission’s analysis herein is unaltered even when assuming the facts proffered in Mr. Mohammad’s latest
supplement are accurate. See fn 25, 33, infra. Accordingly, the Commission finds no Defense reply to the
Government’s response to be necessary.
7
AE 555P (GOV), (U) Government Combined Motion To Reconsider AE 555O, Order, Defense Motion to Compel
Discovery Regarding the Firing of the Convening Authority and Legal Advisor, and (U) Response To AE 555
(AAA 2nd Sup), AE 555 (KSM 2nd Sup) Defense Supplemental Motions to Dismiss for Unlawful Influence Over
the Convening Authority and Legal Advisor, filed 6 June 2018.
8
AE 555O, Order: Defense Motion to Compel Discovery Regarding the Firing of the Convening Authority and
Legal Advisor, dated 23 May 2018.
9
In AE 555O, the Commission granted Defense motions (a) to compel production of certain materials, and (b) to
compel production of Messrs. Rishikof and Castle as witnesses, while (c) denying a request to compel production of
Mr. Brown. AE 555O, para. 4. The Government in AE 555P (GOV) moved the Commission to reconsider that
ruling regarding (a) certain specified documents (the CA’s monthly status reports and Tabs 4-7 of the December
2017 Management Memorandum) and (b) both witnesses. AE 555P (GOV), para. 2. On 21 June 2018, following in
camera review of the documents, the Commission issued an interim ruling in which it (a) directed production of the
memo tabs, but (b) granted reconsideration regarding the CA’s monthly status reports and the witnesses, while (c)
deferring final ruling regarding those reports and witnesses. AE 555S, Interim Ruling: Government Motion To
Reconsider AE 555O, Order, Defense Motion to Compel Discovery Regarding the Firing of the Convening
Authority and Legal Advisor, dated 21 June 2018, para. 5. On 1 November 2018, the Commission issued a further
ruling in which it directed the production of Mr. Castle, but continued to defer with regard to the status reports and

2

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 (ii) AE 555 (AAA 2nd Sup),10 AE 555R (AAA),11 and AE 555CC (AAA),12 in
which Mr. Ali moved to compel certain witnesses;
(iii) AE 555GG (KSM),13 Mr. Mohammad’s motion for a conclusion of law
regarding whether the Defense has met its initial burden of production regarding UI; and
(iv) AE 555 (AAA), the base motion seeking dismissal based on alleged UI.
c. Further oral argument is unnecessary for the Commission to resolve these matters.14
2. Findings of Fact. The Commission makes the following findings of relevant fact based on the
evidence presented; the undisputed assertions of the parties; and/or, where appropriate, the
assumption that certain Defense allegations are true.
a. On 3 April 2017, Mr. Harvey Rishikof was designated as CA and Director, Office of
the CA (OCA).15 On 28 April 2017, Mr. Gary Brown was appointed as CA’s Legal Advisor.16
b. On 5 May 2017, Mr. Rishikof met with then-Deputy Secretary of Defense
(DepSecDef) Robert O. Work and informed him of a perceived need for realignment of

Mr. Rishikof. AE 555AAA, Ruling: Government Motion To Reconsider AE 555O, Order, Defense Motion to
Compel Discovery Regarding the Firing of the Convening Authority and Legal Advisor, dated 1 November 2018,
paras. 5-6. Mr. Castle testified on 13 November 2018 by video teleconference (VTC). Unofficial/Unauthenticated
Transcript of the US v. Khalid Shaikh Mohammad, et al., Motions Hearing Dated 13 November 2018 from 9:03
A.M. to 9:36 A.M. at p. 21128 (start of AGC Castle’s testimony). (Note that, for brevity’s sake, subsequent cites to
the unofficial transcript in this ruling will simply be by page number, e.g., “Transcript 21128.”)
10
AE 555 (AAA 2nd Sup), Mr. al Baluchi’s Second Supplement to Mr. al Baluchi’s Motion to Dismiss for
Unlawful Influence over Convening Authority and Legal Advisor, filed 21 May 2018, para. 4, Attach. B. This
supplement had been filed prior to the Commission’s initial ruling regarding certain discovery requested by the
Defense (AE 555O); however, as the briefing cycle for the supplement was not complete, the Order did not address
it. AE 555O, fn 8.
11
AE 555R (AAA), Mr. al Baluchi’s Motion to Compel Production of Witnesses Whose Testimony is Relevant and
Necessary to Address the Pending Interlocutory Question in AE 555 (AAA), filed 18 June 2018.
12
AE 555CC (AAA), Mr. al Baluchi’s Second Motion to Compel Production of Witnesses Whose Testimony is
Relevant and Necessary to Address the Pending Interlocutory Question in AE 555 (AAA), filed 26 July 2018.
13
AE 555GG (KSM), Motion for a Conclusion of Law that the Defense Has Provided ‘Some Evidence’ Of
Unlawful Influence in the Firing of the Convening Authority, filed 29 August 2018.
14
The opportunity to present oral argument regarding pretrial motions is afforded at the sole discretion of the
Military Judge. R.M.C. 905(h); R.C. 3.5.m.
15
The SecDef memorandum designating Mr. Rishikof as CA was signed 4 April 2017, but by its terms was effective
as of 3 April 2017. AE 555P (GOV), Attach. K, Tab B, Tab 1; Mattis Declaration para. 3.
16
AE 555A (GOV), p. 3; AE 555P (GOV), Attach. I.

3

A275

 authorities and additional spending associated with military commissions.17 DepSecDef Work
subsequently “requested [Mr. Rishikof] provide his views on paths forward in a written
document,” and the two “had a mutual understanding that [as] Mr. Work was Mr. Rishikof’s
direct supervisor . . . no formal coordination was expected.”18
c. Sometime in May 2017, Mr. Rishikof informed the Chief Defense Counsel (CDC),
Military Commissions Defense Organization, that he wished to meet with Learned Counsel to
discuss, inter alia, potential for pretrial agreements (PTAs).19 On 30 May 2017, Messrs. Rishikof
and Brown met with the CDC and six learned counsel, and Mr. Rishikof “invited interested
defense counsel to contact him regarding plea negotiations.”20 On 27 June 2017, Messrs.
Rishikof and Brown discussed potential for a PTA with Counsel for Mr. Mohammad.21
d. On 6 July 2017, Messrs. Rishikof and Brown met with then-DepSecDef Work and his
incoming replacement, Mr. Patrick Shanahan,22 and briefed them on the possibility of resolving
the cases by PTA23 and the perceived need for realignment of military commissions authorities.24

AE 555BB (KSM AAA), Mr. al Baluchi’s and Mr. Mohammad’s Combined Position Regarding Motion to
Dismiss for Unlawful Influence over Convening Authority and Legal Advisor and Related Pleadings, filed 25 July
2018, pp. 18, 32; AE 555CC (AAA), Attach. B, pp. 3, 12.
18
AE 555CC (AAA), Attach. B, pp. 3, 13; see also Transcript 20801-03 (Defense investigator describing interview
in which former DepSecDef Work said “he gave direct instructions to . . . Mr. Rishikof[] to report only to him on
paths forward [regarding] the suggested reorganization . . . of OMC,” and email in which former DepSecDef Work
said that because he “did not want a lot of chatter” in DoD, “I would not have expected [Mr. Rishikof] to discuss
this across the department, given the political ramifications[, a]nd if he had not discussed things with the GC, I
would have . . . called a meeting to discuss.”)
19
AE 555BB (KSM AAA), pp. 18, 28.
20
AE 555BB (KSM AAA), p. 28; AE 555CC (AAA), Attach. B, p. 3; AE 555UU (AAA), p. 4.
21
AE 555BB (KSM AAA), pp. 9, 28.
22
DepSecDef Work relinquished the office to Mr. Shanahan on 19 July 2017. AE 555T (GOV), Government
Response To Mr. Ali’s Motion to Compel Production of Witnesses Whose Testimony is Relevant and Necessary to
Address the Pending Interlocutory Question in AE 555 (AAA), filed 2 July 2018, p. 6; AE 555EE (GOV),
Government Response To Mr. Ali’s Second Motion to Compel Production of Witnesses Whose Testimony is
Relevant and Necessary to Address the Pending Interlocutory Question in AE 555 (AAA), filed 9 August 2018, p. 4.
23
AE 555BB (KSM AAA), p. 28; AE 555UU (AAA), Mr. al Baluchi’s Closing Argument Memorialized for AE
555P (GOV), AE 555R (AAA), and AE 555CC (AAA), filed 27 September 2018, p. 4.
24
AE 555BB (KSM AAA), p. 32.
17

4

A276

 e. On 15 August 2017, counsel for Mr. Mohammad forwarded a proposed PTA to the
OCA.25
f. On 27 August 2017, Mr. Castle was appointed as Principal Deputy General Counsel
(PDGC) for the DoD, and assumed the role of DoD AGC the same day.26
g. In early September 2017, during a routine meeting, Mr. Castle’s staff advised him that
Messrs. Rishikof and Brown had requested to meet with him.27 Mr. Castle asked OGC attorneys
for background information, and was told about some issues with the CA.
At that time, I had little specific knowledge about the ongoing Military Commissions. Prior
to holding that meeting, I spoke to attorneys within [OGC about] 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 . . . OMC.28
The specific performance issues cited by the OGC attorneys included an attempt to use
unauthorized air transportation to U.S. Naval Station, Guantanamo Bay (NSGB) and a change to
boat transportation at NSGB that had resulted in cancellation of a commissions hearing session.29
Mr. Castle’s staff also advised him that (1) the CA was exploring potential non-capital PTAs
with the Defense,30 a process that was “well under way;”31 (2) it was imperative he not

AE 555VV (KSM), Mr. Mohammad’s Closing Argument Memorialized for AE 555P (GOV), AE 555R (AAA),
and AE 555CC (AAA), filed 27 September 2018, p. 15. In his recent supplement, Mr. Mohammad cites to a prior
proffer of this fact made on the record and, in light of the Government’s contesting of that proffer, argues that the
testimony of Mr. Rishikof is necessary to establish it. AE 555CC (KSM Sup), pp. 1-2. Accepting that proffered fact
as true, however, will not change the decision the Commission renders here. Accordingly, the Commission has
entered a finding of fact consistent with the Defense proffer, and finds Mr. Rishikof’s testimony in that regard
unnecessary.
26
Castle Declaration para. 3; Transcript 20902, 21131, 21137. He remained AGC until August 2018, after which he
continued to serve as DoD PDGC. Transcript 21131.
27
Transcript 21170-74.
28
Castle Declaration, para. 10.
29
Transcript 21175-76.
30
That is, “agreements to take the death penalty off the table in exchange for a guilty plea and life in prison.”
Transcript 21335.
31
Transcript 21174, 21360.
25

5

A277

 substantively discuss or attempt to influence those negotiations in any way;32 and (3) the Defense
had indicated they would not agree to any PTA unless the CA first obtained concurrence from
the Department of Justice (DOJ).33
h. The requested meeting with Mr. Rishikof was held sometime in late September or
early October 2017.34 During that meeting, AGC Castle shut down any substantive discussion of
PTAs in order to avoid UI issues: “[A]nytime [Mr. Rishikof] would try and bring up anything . . .
to do with plea agreements, I . . . literally would physically wave him off. I mean, I was literally
moving my arms back and forth saying, ‘That is not my business. That is . . . what you do. I don't
have any role in that.’”35
i. On 29 September 2017, Messrs. Rishikof and Brown met with counsel for Mr. Ali to
discuss “possible disposition” of the case, to include potential for a PTA.36

Transcript 21174 (“[My staff] explained to me what the [CA] was, and they explained . . . Mr. Rishikof was
actively exploring the possibility of [PTAs] . . . and they also explained to me the concept of [UI] and how it was
absolutely essential that I not discuss . . . plea agreements with him at all.” Id.); Transcript 21301 (AG Castle
testifying that “my staff was very . . . concerned about me saying anything or doing anything that would have to do
with a UI,” and that “I was not supposed to say anything that could be construed one way or the other as supporting
or not supporting” PTA negotiations. Id.)
33
Transcript 21302, 21306, 21345, 21360-61, 21368. The Commission notes that, in his supplement to AE 555CC,
Mr. Mohammad proffered (and cited to prior proffers made by him on the record) that (1) he “caused a confidential
. . . proposed PTA . . . to be served on Mr. Rishikof on August 15, 2017, and (2) that, while that document “did not
require that the Attorney General sign the document,” it did “require that the [CA] agree that Mr. Mohammad would
not be prosecuted elsewhere.” AE 555CC (KSM Sup), pp. 1, 5-6 (emphasis added). Even assuming those proffers to
be true, they do not materially contradict AGC Castle’s testimony that he and other OGC attorneys were advised
(and in fact believed) that Defense Counsel in this case would not accept a PTA absent some formal affirmation that
DOJ would not prosecute. Accordingly, the Commission is not persuaded that Mr. Rishikof’s testimony is needed to
resolve any perceived inconsistency between these proffers and AGC Castle’s testimony.
34
Transcript 21170, 21179-80. Sometime in the fall of 2017, AGC Castle’s staff also arranged a brief introductory
meeting between him and the Chief Prosecutor. Transcript 21325-26. AGC Castle ultimately met with the Chief
Prosecutor “a couple of times,” and could not recall details of what was discussed, though the focus was apparently
on a military commissions case other than this one. Transcript 21356-60. AGC Castle did not meet with the Chief
Defense Counsel. Transcript 21360.
35
Transcript 21301.
36
AE 555BB (KSM AAA), pp. 29-30; AE 555CC (AAA), Attach. B, pp. 5, 10.
32

6

A278

 j. In early- to mid-October 2017, Attorney General (AG) Jeff Sessions called SecDef
Mattis’s office to express his position regarding the conclusion of PTAs in this case.37 Secretary
Mattis was called out of a meeting with high-level DoD officials (including AGC Castle) to take
AG Sessions’s call.38 Shortly after, AGC Castle was called out to join Secretary Mattis.39 AGC
Castle did not know why Secretary Mattis had been called out.40 After AGC Castle arrived in
Secretary Mattis’s office, the AG was connected via speakerphone.41 The SecDef had difficulty
determining the nature of the AG’s concerns.42 AG Sessions stated he wanted “no deal.”43
Secretary Mattis asked AGC Castle, “What is [AG Sessions] talking about?”44 AGC Castle
replied that he “didn't entirely understand what was going on.”45 However, certain at least that
DoD had concluded no recent agreements that would substantially involve the AG, AGC Castle
confirmed to Secretary Mattis that there was “no deal.”46 The call was very brief—about 3 or 4
minutes47—after which the SecDef and AGC Castle returned to the original meeting.48 They did
not substantively discuss the AG’s call again.49 Though AGC Castle gleaned the AG’s call was
in some way related to terrorism,50 the specific source of his consternation was sufficiently
unclear that AGC Castle did not immediately understand the “deal” referred to was potential

37

AE 555BB (KSM AAA), pp. 7, 31; AE 555EE (GOV), p. 7; AE 555UU (AAA), pp. 4-5, 12; AE 555WW (GOV),
Government Written Memorialization of Its Intended Oral Argument, filed 27 September 2018, p. 19; AE 555ZZ
(KSM), Mr. Mohammad’s Response to AE 555WW (GOV) Government Written Memorialization of Its Intended
Oral Argument, filed 11 October 2018, p. 3; Transcript 20803-20806, 21186-88. Secretary Mattis was SecDef
throughout the course of events at issue here. Mattis Declaration para. 3; fn 2, supra.
38
Transcript 21186-87.
39
Transcript 21186-88.
40
Transcript 21187.
41
Transcript 21315-17, 21362.
42
Transcript 21190.
43
Transcript 21188, 21317, 21331-32, 21363.
44
Transcript 21190, 21331.
45
Transcript 21190.
46
Transcript 21191-93, 21318-20, 21331-32, 21364.
47
Transcript 21192, 21318, 21364.
48
Transcript 21332.
49
Transcript 21333. Secretary Mattis never communicated with Mr. Rishikof or Mr. Brown directly regarding this,
or any other, matter. Rishikof & Brown Declaration 1, para. 4.
50
Transcript 21317-18.

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 PTAs in this case.51 AGC Castle did not suspect this until after he returned to his office and
discussed the matter with other OGC attorneys.52 He subsequently directed his staff to arrange a
meeting with Mr. Rishikof (described in more detail below), at which he would discuss the
importance of coordination within the department, but not the substance of any PTAs.53
k. On or about 16 October 2017, AGC Castle and Deputy General Counsel-Legal
Counsel (DGC (LC)) Robert Easton met with Messrs. Rishikof and Brown.54 They informed
Messrs. Rishikof and Brown of the call by AG Sessions to SecDef Mattis55 and expressed
concern56 that OGC had not been informed of the CA’s contacting DOJ to discuss pleas.57
Messrs. Rishikof and Brown advised AGC Castle that they had attempted to brief him on prior
occasions regarding their activities, but had been ignored.58 AGC Castle repeatedly asked
Mr. Rishikof, “Who authorized you to go over and speak to [DOJ]?”59 Mr. Rishikof responded
that DepSecDef Shanahan had authorized the contact.60 AGC Castle stressed that “all of our
ships have to be heading in [sic] the same place at the same time,” by which he meant “we need
to be properly coordinating what’s going on.”61 When Mr. Rishikof attempted to substantively
discuss potential PTAs at the 16 October meeting, however, AGC Castle changed the subject to

51

Transcript 21191-92, 21319-20, 21364. During his testimony, AGC Castle stressed that, given the breadth of his
portfolio, a “deal” between the DoD and DOJ could mean any number of things. Transcript 21191, 21320.
52
Transcript 21193-97, 21334-35, 21365.
53
Transcript 21199-21200.
54
AE 555BB (KSM AAA), pp. 7, 31; AE 555CC (AAA), Attach. B, pp. 5, 10, 15; AE 555UU (AAA), p. 5.
55
AE 555BB (KSM AAA), pp. 7, 31; AE 555CC (AAA), Attach. B, p. 5, 10, 15; Transcript 20804, 21198.
56
Apparently this concern was of a sufficient degree that Messrs. Rishikof and Brown perceived AGC Castle as
being “clearly agitated” or “angry” about the incident. AE 555CC (AAA), Attach. B, pp. 5, 15; Transcript 20804.
57
Transcript 20805-06, 20897-98, 20903; AE 555CC (AAA), Attach. B, pp. 1, 5, 11, 15 (anticipating testimony that
AGC Castle “said . . . the DOD all needs to move together and the OGC needs to be informed.” Id.) AGC Castle and
Mr. Easton also expressed concern about Mr. Rishikof engaging in uncoordinated direct contact with members of
Congress. AE 555CC (AAA), Attach. B, pp. 5, 10.
58
Transcript 20805-06.
59
Transcript 21199, 21349.
60
Transcript 21199.
61
Transcript 21199-21200.

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 avoid intruding on the CA’s authority (as was his consistent practice in conversations with
Mr. Rishikof when the subject arose).62
l. Shortly after the 16 October 2017 meeting, AGC Castle met with DepSecDef
Shanahan, and asked whether he had in fact authorized Mr. Rishikof to contact DOJ.63 The
DepSecDef stated that he had.64 While AGC Castle had begun seriously considering seeking
Mr. Rishikof’s termination from the CA position due to “improper coordination because of the
[AG] phone call,” upon learning the DepSecDef had authorized contact with the DOJ, he decided
this was not an appropriate basis for termination.65 At Mr. Rishikof’s request, AGC Castle then
arranged for a meeting between Messrs. Rishikof and Brown, the DepSecDef, and himself.66
m. At that meeting, which occurred on or about 18 October 2017, Messrs. Rishikof and
Brown briefed the DepSecDef and AGC Castle on various Commissions-related issues, to
include potential pursuit of PTAs in this case.67 Specifically, they briefed on three proposed
overall courses of action (COAs) for future management of the military commissions writ large,
which were: (1) resolving cases by means of PTA; (2) reorganizing various DoD entities to
consolidate commissions-related functions under the authority of the CA; or (3) continuing with
the status quo.68 Before the meeting, AGC Castle advised DepSecDef Shanahan to be in “receive
mode,” meaning “to not indicate approval or disapproval of anything that [Mr. Rishikof] had to

62

Transcript 20903-04, 21301, 21349-50, 21353, 21371-72. During this meeting, DGC (LC) Easton asserted that
OGC “own[s] commissions,” a remark he would clarify and apologize for on 27 October 2018 (stating he only
meant the OMC structure had been set up by OGC). AE 555BB (KSM AAA), p. 31; AE 555CC (AAA), Attach. B,
pp. 5-6, 11, 15-16; Transcript 20806. (AGC Castle remembered that Mr. Easton made the “ownership” remark, but
was unable to recall if it was at the 16 December 2017 meeting. Transcript 21200-01. The Commission will assume
the Defense assertions in this regard are accurate.) Sometime in October 2017, Easton was replaced as DGC (LC) by
Mr. Ryan Newman. AE 555 (AAA 2nd Sup), Attach. B, p. 4; AE 555R (AAA), Attach. B, p. 4.
63
Transcript 21202.
64
Transcript 21202.
65
Transcript 21202.
66
Transcript 21202.
67
AE 555P (GOV), Attach. D; AE 555BB (KSM AAA), pp. 33-34; AE 555CC (AAA), Attach. B, p. 6; Transcript
21203.
68
Transcript 21203.

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 say, especially when it came to [PTAs].”69 DepSecDef Shanahan followed that advice, saying
very little during the meeting.70
n. “Sometime before Thanksgiving” of 2017, as part of internal OGC discussions
regarding the management of Military Commissions as a whole, AGC Castle again began to
consider whether Mr. Rishikof should be terminated.71 In Mr. Castle’s words, “all of these
different . . . concerns . . . were still out there . . . dealing with fast boat [and] other issues. . . .
I’m really starting to be concerned that things are not going well. So we then spun up again the
possibility of . . . terminating Harvey.”72 AGC Castle asked his subordinate counsel to consider
the issue of replacing Mr. Rishikof as CA, and the subject was discussed at a number of internal
OGC meetings.73
o. On 1 December 2017, Messrs. Rishikof and Brown again met with counsel for
Mr. Mohammad to discuss the potential for a PTA.74
p. On 12 December 2017, the CA’s office submitted for DepSecDef signature a
memorandum, subject: “Oversight and Management of Military Commissions.”75 The body of
the memo read as follows:

69

Transcript 21204.
Transcript 21204.
71
Transcript 21207-08.
72
Transcript 21206.
73
Transcript 21208-09.
74
AE 555BB (KSM AAA), pp. 9, 31.
75
AE 555P (GOV), Attach. D. Also on 12 December 2017, OCA returned charges in U.S. v. Encep Nurmajen, a.k.a.
Hambali (hereinafter, “U.S. v. Hambali”), “because the transmittal package lacked the required coordination with
[the Office of the Director of National Intelligence (ODNI)] and also included no supporting evidence.” AE 555P
(GOV), p. 370 of 425. On 15 December 2017, the Office of the Chief Prosecutor (OCP) asked OCA to dismiss the
charges without prejudice in order to allow OCP to re-prefer. AE 555P (GOV), pp. 370-371 of 425. OCP forwarded
this second set of charges to OCA for referral on 19 December 2017. AE 555P (GOV), p. 393 of 425. On 21
December 2017, Messrs. Rishikof and Brown met with outgoing DGC (LC) Newman and discussed, inter alia,
OCA’s anticipated return of the Hambali charges to OCP. AE 555CC (AAA), pp. 14, 19, 24 of 33. On 22 December
2017, OCA returned the Hambali charges to OCP “because they lacked the required ODNI coordination.” AE 555P
(GOV) p. 371 of 425. On 4 January 2018, Messrs. Rishikof and Brown met with (DGC (LC)) Newman and
discussed, inter alia, the return of the Hambali charges. AE 555CC (AAA), pp. 5, 19, 24 of 33.
70

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 1.
In our prior meeting with you in October 2017, we discussed the three courses of
action to address Military Commissions cases at [NSGB]: (1) Continue the status quo at
ever-increasing costs presently over $100M per annum; (2) Consolidate authority for more
cohesive operations; (3) Entertain guilty pleas, speeding resolution of the cases and
bringing closure to the victims and families. We have continued to press ahead on COA
(3) (and will update you), but at this point are recommending you sign the attached
memorandum for COA (2), consolidating control over Military Commissions in order to
significantly improve the effectiveness of the Commissions mission moving forward. See
Tab 1.
2.
The attached draft memorandum for your signature at Tab 1 would greatly improve
the ability of Military Commissions to carry out its core functions and operate with a unity
of effort and authority. This memo would restore the status quo that existed at the outset of
the Commissions and is similar to memoranda issued by prior Deputy Secretaries of
Defense in May 2014 and May 2008 (see Tab 2). For various reasons, the authorities have
eroded over the last sixteen years. The memo for your signature addresses the areas of
concern such as lack of coherent C2; growing personnel, transportation, and infrastructure
costs; protracted timeline of past and future litigation; an aging and resource-demanding
detainee population; ballooning prosecution and defense costs; and national security
implications which both slow information flow and increase costs due to spills or
unauthorized disclosures of classified information.
3.
Also attached is an appendix of substantiating documentation outlining in more
detail the various issues and suggestions for improvement. I look forward to discussing this
issue with you. My sense is that the sooner the memorandum is executed the better for the
process, given the situation we now find ourselves in.76
The packet, which was approximately 65 pages long, contained no reference to PTAs in this case
beyond the italicized language above (emphasis added by the Commission).77 This brief mention
of PTAs essentially repeated information the DepSecDef and AGC had already known for some
time.78 Provided in the packet was a memorandum for DepSecDef signature that, had it been
signed, would have had immediate and substantial cross-cutting effects within DoD on
supervision, coordination, manpower, resourcing, and funding related to the military

76

AE 555P (GOV), Attach. D (emphasis added).
Id.
78
The DepSecDef was aware of potential PTAs as of 6 July 2017—over 5 months before the 12 Dec 2017
memorandum was signed. See para. 2.d, supra. AGC Castle’s staff made him aware of potential PTAs in this case
virtually on his arrival at DoD OGC—certainly not later than September 2017. See para. 2.g, supra. Calculating
from mid-September 2017, AGC Castle had already known of potential PTAs in this case for nearly three months.
77

11

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 commissions.79 No advance copy was provided to DoD OGC.80 There is no indication that any
substantial, formal coordination with DoD OGC and potentially affected stakeholders had taken
place before the memo was submitted for signature.81 The Office of the DepSecDef returned the

See AE 555P (GOV), Attach.’s D-G. For example, the proposed DepSecDef memo stated that “[a]ll DoD
organizations will provide sufficient manpower and resourcing assistance to the Military Commissions . . . as
outlined in the attached document.” Id. (emphasis added). The attachment was a table of recommended changes to
the DoD military commissions structure writ large. AE 555P (GOV), Attach. D, Tab 3. It expressly purported to
make the CA supervisor of OCP; make the CA “sole ‘owner’” of military commissions-related Detainee Affairs,
Periodic Review Board, prosecution, information technology, security, and personnel functions; and directed
reallocation of considerable DoD funding to military commissions efforts (to include approximately $27 million in
construction). Id.; see also Transcript 21244 (AGC Castle’s testimony that the memorandum would have effectuated
“a whole series of changes” that amounted to “fundamentally . . . reorganiz[ing]” the OCA and related
organizations). At least one longtime OCA senior staff member (the Deputy Chief of Operations) apparently
recognized the profound degree of authority the memorandum would have placed under Mr. Rishikof, colloquially
referring to the document as the “King Me” memo. Transcript 20813, 72, 83-84.
80
Transcript 21246, 21351-52; Castle Declaration para. 11.a.
81
There were apparently a number of meetings between OCA and OGC in which they discussed the realignment of
authorities the 12 December 2017 memo was eventually drafted to effectuate. See AE 555BB (KSM AAA)
(asserting “Mr. Rishikof and/or Mr. Brown had no less than twenty-five in-person and electronic meetings with
members of OGC between 28 April 2017 and the submission of the memorandum in December 2017,” and that
“[m]any of these . . . addressed” the three COAs recited in the memorandum. Id. at pp. 32-33); AE 555CC (AAA),
Attach. B, pp. 6, 11, 16 (anticipating testimony that Mr. Rishikof discussed the forthcoming memo with DoD OGC
personnel in several teleconferences prior to the memorandum’s submission); Transcript 20807, 20909 (Defense
investigator relaying statement by Mr. Brown that “The predominant method [OCA used] to keep [OGC] informed
. . . was a weekly . . . video teleconference.” Id. at 20807); see also Rishikof & Brown Declarations 1 and 2
(describing weekly meetings and status reports). AGC Castle acknowledged in his testimony that Mr. Rishikof “was
always talking about” and “advocating for his COAs;” that while he “[didn’t] know the specifics,” there was
“constant communication” between OCA and OGC, to include weekly meetings; and that Mr. Rishikof might well
have advised AGC Castle at some point that he planned to reduce those COAs to “some sort of written document.”
Transcript 21205, 21243-44, 21353. There are also indications that OCA personnel discussed the proposal with at
least some non-OGC stakeholders in various calls and meetings. See, e.g., AE 555BB (KSM AAA), pp. 18, 32
(noting Messrs. Rishikof and Brown discussing need for reorganization with former DepSecDef Work); AE 555CC
(AAA), Attach. B, p. 12 (anticipating Mr. Brown would testify that “he discussed the changes proposed in the 13
December 2017 memorandum extensively with representatives of affected organizations.” Id.). However, it is
notable that in the wake of the memorandum’s rejection, an OGC attorney apparently suggested to Mr. Rishikof that
he begin having regular monthly meetings with stakeholders from the organizations that would have been affected
by the memorandum (AE 555CC (AAA), Attach. B, pp. 7, 17 (anticipated testimony of Mr. Rishikof))—which
indicates that such regular broad-based coordination had not been conducted before. Significantly, Messrs. Rishikof
and Brown themselves expressly acknowledged they had not formally staffed the document, claiming they viewed it
as a mere “vehicle to begin discussions” (despite the profound effects it would have had), which therefore did not
require formal staffing. Rishikof & Brown Declaration 2, para. 1.b; fn 79, supra. In short, nothing presented
materially conflicts with AGC Castle’s declarations that “Mr. Rishikof and Mr. Brown never provided DoD OGC a
copy [of the 12 December 2017 memo] in advance of its submission to DepSecDef” and that they “failed to
appropriately [(i.e., formally)] coordinate with any of these potentially impacted entities in advance of submitting
the memorandum.” Castle Declaration, para. 11.a-b. During his testimony before the Commission, AGC Castle
stressed the significance of this failing, stating uncategorically that he viewed it as a “major process foul.” See fn
187, infra.
79

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 memorandum unsigned, and advised AGC Castle that the CA “[had] submitted a memorandum .
. . directly to the DepSecDef without prior notice to OGC.”82
q. On 15 December 2017, AGC Castle drafted and signed a memorandum to the SecDef,
subject: “Plan for the Disposition of Future Unprivileged Enemy Belligerent Cases.”83 The
document provided “a four-part plan for current and future legal actions involving unprivileged
enemy belligerents.”84 The first proposal was to replace the military commissions CA and Legal
Advisor,85 in order to “enhance the prospect for a cohesive effort for the disposition of pending
cases”86—a reference to AGC Castle’s concern regarding lack of sufficient coordination by
Mr. Rishikof.87 The proposal states that the CA “serves at the pleasure of the Secretary and can
be removed at any time,” and that the CA’s legal advisor “can be removed . . . by the General
Counsel.”88 The proposal makes no apparent reference to PTAs.89
r. On 4 January 2018, DGC (LC) Newman drafted an action memorandum for
consideration by AGC Castle, recommending termination of Mr. Brown and subsequent
appointment of Acting Legal Advisors.90 The proffered rationale for the action was “[t]o
effectuate a more cohesive effort by the [DoD] for the administration of military commissions.”91

82

Transcript 21352; Castle Declaration para. 11; AE 555P (GOV), Attach. D, Tab 1.
AE 555DD (GOV), Government Reply to AE 555W (WBA); AE 555X (RBS); AE 555BB (AAA, KSM)
Defense Response to Government’s Motion to Reconsider AE 555O, Order, Defense Motion to Compel Discovery
Regarding the Firing of the Convening Authority and Legal Advisor, filed 6 August 2018, Attach. L.
84
AE 555DD (GOV), Attach. L, p. 1. The copy of this document provided by the Government is heavily redacted,
based on a Government assertion that the redacted portions “are not relevant to the Unlawful Influence allegation in
this case.” AE 555DD (GOV), fn 1. The Prosecution was apparently conveying an assertion of privilege made by
DoD OGC, as OGC, not the Prosecution, had redacted the document based on grounds of both privilege and
relevance. Transcript 21341-43.
85
AE 555DD (GOV), Attach. L, pp. 1, 2.
86
AE 555DD (GOV), Attach. L, p. 1.
87
Transcript 21221.
88
AE 555DD (GOV), Attach. L, p. 2.
89
During his testimony, Mr. Castle answered in the affirmative when asked if “one of the provisions” of the
December 15, 2017 memorandum noted “the Secretar[ial] . . . authority to take away the [PTA] power of the [CA].”
Transcript 21365. This appears to have been in error, however, as no such provision is apparent in the document.
90
AE 555D (GOV), Attach. C.
91
Id.
83

13

A285

 The memorandum specified that the Acting Legal Advisors “will inform and coordinate with the
[DGC (LC)] on all matters of law and policy that may require the attention of the DoD [GC],
except . . . those . . . that impact the Office of the [CDC].”92 The document does not mention
PTAs.
s. By early January 2018, OGC was actively searching for an interim or successor CA. 93
As part of this process, AGC Castle had engaged in at least three preliminary conversations
about the role with a potential candidate: RADM James E. McPherson.94 In one of these
conversations, however, AGC Castle mentioned as a concern the unexpected phone call by AG
Sessions to Secretary Mattis.95 Concerned RADM McPherson might misconstrue this comment
as disagreement with Mr. Rishikof’s pursuit of PTAs (rather than his failure to notify OGC of his
engagement with DOJ), AGC Castle ceased considering RADM McPherson as a candidate.96 By
12 January 2018, AGC Castle had decided instead to recommend Mr. James M. Coyne as Mr.
Rishikof’s successor.97
t. On 12 January 2018, AGC Castle drafted an action memorandum for consideration by
SecDef Mattis recommending Mr. Rishikof’s removal.98 The memorandum recommended the
Secretary rescind Mr. Rishikof’s designations as CA and Director, terminate his DoD
employment, and designate Mr. Coyne to act in his stead.99 The basis cited for the action was

92

Id.
Transcript 21254 (AGC Castle noting that he’d engaged in conversation with at least one potential successor CA
prior to 12 January 2018).
94
Transcript 21253-54.
95
Transcript 21240-43.
96
Transcript 21242-43, 21337-39 (AGC Castle’s testimony that “I told [RADM McPherson] . . . why [Mr. Rishikof]
was . . . talking to the Department of Justice,” but “shortly thereafter . . . realized . . . that could be misinterpreted as
. . . coming down or trying to push the scales . . . one way or the other on PTAs,” such that he determined to “find
somebody else.” Id. at 21339); AE 555DD (GOV), paras. 3.k-l.
97
AE 555DD (GOV), Attach. D.
98
Id.
99
Id.
93

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A286

 “[t]o effectuate a more cohesive effort by the [DoD] for the administration of military
commissions.”100 The document did not mention PTAs.101 On or about that same day, however,
AGC Castle withdrew this memorandum before action.102 AGC Castle directed the
memorandum’s withdrawal because (1) having little or no military justice experience, his
understanding of UI was limited, and (2) he “didn’t think the information [he] was getting on the
law regarding UIs was complete.”103 In order to ensure the legal footing of the proposed
termination was sound, AGC Castle “created [a] panel . . . of experts” to reexamine the matter.104
Two weeks later (26 January 2018), this panel would produce for AGC Castle a memorandum
(discussed in greater detail below) advising that termination of Mr. Rishikof was legally
supportable.105 When Mr. Rishikof was ultimately terminated, AGC Castle “completely
disregarded” the 12 January 2018 memorandum in recommending that action, and instead, relied
solely on the 26 January 2018 “panel of experts” memorandum.106 Regardless, as noted above,
the 12 January 2018 memorandum makes no reference to PTAs.
u. On or about 23 January 2018, Messrs. Rishikof and Brown held a conference call with
ADM Kurt W. Tidd, the then-Commander of U.S. Southern Command (CDR, USSOUTHCOM),
in which they sought (among other things) more recent imagery of the Expeditionary Legal
Center (ELC) at NSGB.107 The most current imagery then available was 10 years old,108 and

100

Id.
Id.
102
AE 555DD (GOV), p. 11. The Government initially asserted this to be the case “on information and belief.” Id.
This assertion was later confirmed by AGC Castle, who testified that he “pulled down” the memo for further
consideration due to concerns regarding its legal footing. Transcript 21230-36.
103
Transcript 21228.
104
Transcript 21228, 21230-33.
105
AE 555DD (GOV), Attach. E. This matter is discussed in greater detail below. See para. 2.w, infra, and
accompanying text.
106
Transcript 21228.
107
AE 555 (AAA 2nd Sup), p. 10, Attach. B, pp. 1-3, 5; AE 555R (AAA), Attach. B, pp 1-3, 5; AE 555BB (KSM
AAA), pp. 5, 37; AE 555CC (AAA), Attach. B, p. 2; AE 555UU (AAA), p. 12; Transcript 20816-24.
108
Transcript 20815.
101

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A287

 Mr. Rishikof believed having up-to-date imagery would help in his efforts to obtain additional
facilities funding.109 More recent imagery was not forthcoming.110 ADM Tidd neither prohibited
Messrs. Rishikof and Brown from continuing to seek updated imagery, nor encouraged them to
do so.111 At the time of the conference call (and at present), the Regulation for Trial by Military
Commission (R.T.M.C.) stated with regard to the CA’s responsibilities: “Communications to the
Commanders of the Combatant Commands, except in unusual circumstances, shall be
transmitted through the Chairman of the Joint Chiefs of Staff.”112 There is no indication that
OCA personnel coordinated with the Office of the Chairman of the Joint Chiefs of Staff prior to
initiating direct contact with CDR, USSOUTHCOM.
v. On or about 24 January 2018, Messrs. Rishikof and Brown held a conference call with
Rear ADM (RADM) Kevin Lunday, U.S. Coast Guard (USCG), and requested he obtain updated
ELC imagery for them.113 Mr. Rishikof made no apparent effort to determine whether there were
any specific coordination or approval requirements with regard to USSOUTHCOM or CDR,
NSGB; rather, he assumed “all relevant coordination [would] be handled by parties with relevant
subject matter knowledge.”114 RADM Lunday first checked whether existing current imagery of
the ELC already existed within USCG and certain other U.S. Government entities; it did not.115
RADM Lunday then reached out to RADM Peter J. Brown, who was at that time the commander
of USCG District 7 (the USCG operational subdivision containing NSGB), for assistance.116 On

109

Transcript 20814.
AE 555 (AAA 2nd Sup), p. 10; Rishikof & Brown Declaration 2 para. 1.a; AE 555CC (AAA), Attach. B, p. 2;
Transcript 20817.
111
AE 555 (AAA 2nd Sup), p. 10; AE 555CC (AAA), Attach. B, p. 2; Transcript 20817-21.
112
R.T.M.C. (2011) para. 2-3.a(16).
113
AE 555 (AAA 2nd Sup), p. 10; AE 555BB (KSM AAA), p. 5, 37-38, Attach’s L-M; AE 555CC (AAA), Attach.
B, p. 7; AE 555UU (AAA), pp. 12-14; Rishikof & Brown Declaration 2 para. 1.a; Transcript 20824-31, 20838-52.
114
AE 555CC (AAA), Attach. B, p. 7.
115
Transcript 20840-41.
116
Transcript 20842.
110

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A288

 or about 26 January 2018, pursuant to the request made to RADM Lunday, a DoD employee
aboard a USCG helicopter photographed the ELC.117 While it remains somewhat unclear from
the record whether this action was, in fact, properly authorized,118 any ambiguity regarding this
issue is not germane to the Commission’s ultimate analysis.119
w. On 26 January 2018, Mr. Chris Jenks, Special Counsel to the DoD General
Counsel,120 submitted a memorandum to AGC Castle, subject: “Legal Considerations on
Potential Military Commissions Personnel Action.”121 The most salient parts of the
memorandum for purposes of this matter are recited below; a comprehensive summary is not
provided.
(i) The memorandum was a report of a group of legal expert consultants
assembled at AGC Castle’s request.122 The report was “inten[ded] and expect[ed] . . . [to be] a
confidential communication made for the purpose of . . . formulat[ing] legal advice.”123

AE 555 (AAA 2nd Sup), p. 10; AE 555BB (KSM AAA), pp. 5, 38-40; Attach’s L-M; AE 555UU (AAA), pp. 1214; Transcript 20824-31, 20838-52.
118
A Defense investigator providing a proffer of expected testimony for the Defense stated that: (a) RADM Lunday
and the then-Chief of Incident Management for USCG District 7 told him the USCG had authority to conduct the
flight and no USSOUTHCOM policies had been violated; (b) the then-commander of JTF-GTMO (RADM Edward
Cashman) said he had been unaware of the overflight and that USSOUTHCOM would have had to authorize it; and
(c) the CA’s Office apparently coordinated the action with OMC-South Security personnel and JTF-GTMO Public
Affairs (who RADM Cashman acknowledged had some role in approving photography of NSGB facilities).
Transcript 20826-28, 20841-42, 20844-46, 20850-52. The investigator’s notes (which were received as an exhibit
during his testimony) indicate that on 25 January 2018 the Naval Station Guantanamo Bay (NAVSTA GTMO)
Public Affairs Officer (PAO) notified a number of people—including a Washington Headquarters Service security
representative and two USSOUTHCOM PAO personnel—of the overflight. AE 555SS (WBA), In-Court
Submission (Defense Investigator’s Notes), filed 12 September 2018, p. 325 of 341. It is not clear, however, whether
any of these USSOUTHCOM personnel could authorize the overflight or aerial photography of the ELC, or whether
they obtained or arranged such authorization. Neither Mr. Rishikof nor Mr. Brown themselves received any
complaints following the 26 January 2018 overflight. Rishikof & Brown Declaration 2, para 1.a.
119
See para. 5.g, infra.
120
The “Special Counsel to the DoD General Counsel” is a law professor hired annually by DoD OGC as a special
assistant to the GC. Transcript 21172.
121
AE 555DD (GOV), Attach. E.
122
AE 555DD (GOV), Attach. E, para. 1.
123
AE 555DD (GOV), Attach. E, para. 1.
117

17

A289

 It provided (1) advice as to how to replace Mr. Rishikof while minimizing legal and public
relations risk, and (2) an assessment of associated legal risks.124 The report recognized that the
primary potential risk of this action was “subsequent allegation of [UI],” because “there are
indications [the CA] may entertain a [PTA] if offered by an accused.”125
(ii) The report also (a) noted Mr. Rishikof had “displayed questionable judgment
. . . temperament and . . . decision making” from the beginning of his tenure;126 (b) noted AGC
Castle “spoke with the CA on several occasions but did not discuss PTAs;”127 (c) recognized the
CA’s independent authority to conclude PTAs absent Secretarial withholding;128 (d) cited failure
to provide notice of engagement with DOJ, the 12 December 2017 memo, the ELC imagery
request and several other instances of poorly-coordinated actions as reasons justifying the CA’s
removal;129 and (e) noted that a potential replacement CA had been dropped from consideration
specifically due to concern that a conversation with AGC Castle regarding the AG Sessions
phone call might be interpreted as asserting a restriction on CA authority to enter PTAs.130
(iii) Ultimately, the report concluded that “you may appropriately recommend that
the Secretary rescind Mr. Rishikoff’s [sic] designation . . . and designate someone else.”131 The
report also cautioned, “in order to minimize . . . risk of misperceptions . . . you should . . .
clarify[] to the Secretary the factors you did and did not consider . . . and . . . advise the Secretary
[of] factors [he] should and should not consider.”132 The memo also recommended AGC Castle

124

AE 555DD (GOV), Attach. E, para. 1.
AE 555DD (GOV), Attach. E., para. 2.
126
AE 555DD (GOV), Attach. E, para. 3.e.
127
AE 555DD (GOV), Attach. E, para. 3.g.
128
AE 555DD (GOV), Attach. E, para. 3.g.
129
AE 555DD (GOV), Attach. E, paras. 3.i, 3.j(1), (3).
130
AE 555DD (GOV), Attach. E, paras. 3.k-l. This refers to AGC Castle’s conversations with RADM McPherson,
which are the subject of separate findings, above. See para. 2.s, supra.
131
AE 555DD (GOV), Attach. E, para. 2.
132
AE 555DD (GOV), Attach. E., para. 2.
125

18

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 “[c]ontinue the approach of not saying anything to [potential successor CAs] about the potential
performance of judicial or quasi-judicial actions as Acting CA.”133
x. On or about 2 February 2018, AGC Castle briefed DepSecDef Shanahan and the Chief
of Staff (CoS) regarding his intent to (a) seek removal of the CA from SecDef, and (b) terminate
Mr. Brown’s appointment as Legal Advisor.134 In a supporting memorandum to the DepSecDef,
AGC Castle cited a litany of badly-coordinated actions by the CA, including the 12 December
2017 memorandum and the ELC imagery request.135 He primarily referenced those events in his
verbal briefing to the DepSecDef and CoS.136 In the memorandum, AGC Castle recommended
Mr. Rishikof be removed “because of his escalating pattern of either not properly coordinating
actions or coordinating in a manner that is needlessly disruptive,” and remarked that “[i]f we
don't replace [him], it is not a question of if he will do something that jeopardizes the conduct of
the military commissions, but when.”137 By this, AGC Castle meant that Mr. Rishikof “was a
loose cannon[, ]that we did not know what he was going to do, and that . . . he was not properly
coordinating.”138
y. Shortly after briefing the DepSecDef and CoS, AGC Castle submitted to the DoD
Executive Secretariat an action memorandum for Secretary Mattis’s consideration,139 subject:
“Removal of Mr. Harvey Rishikof as Convening Authority for Military Commission and
Designation of an Acting Convening Authority.”140 AGC Castle recommended this action “[t]o

133

AE 555DD (GOV), Attach. E., para. 8.a.
AE 555DD (GOV), Attach. F; Transcript 21272-74.
135
AE 555DD (GOV), Attach. G.
136
Transcript 21276-78. AGC Castle did not have personal knowledge of the ELC imagery request and its
circumstances, but relied on the reports of subordinate senior counsel regarding CAO activities. Transcript 2129095.
137
AE 555DD (GOV), Attach. G.
138
Transcript 21275.
139
AE 555DD (GOV), Attach. G; Castle Declaration para. 3; Transcript 21281.
140
AE 555P (GOV), Attach. K.
134

19

A291

 effectuate a more cohesive effort by the [DoD] for the administration of military
commissions.”141 AGC Castle noted that, in making this recommendation, he considered
Mr. Rishikof’s “professional judgment, temperament and decision-making,” but “not . . . his
performance of any judicial or quasi-judicial actions.”142 In the memorandum, AGC Castle
advised SecDef Mattis to do the same in deciding whether to follow that recommendation.143 In
accordance with DoD staffing procedures, the action memo was submitted for the SecDef’s
signature through the Executive Secretariat, and the DepSecDef and CoS (with the benefit of
AGC Castle’s earlier input) briefed Secretary Mattis and obtained his decision.144 AGC Castle
did not, to his recollection, personally brief the SecDef on the matter.145
z. On 3 February 2018, SecDef Mattis signed memoranda removing Mr. Rishikof’s
designations and replacing him with Mr. Coyne as Acting CA and Director, OCA, pending
designation of a new CA.146 In doing so, Secretary Mattis relied on the supporting information
and advice provided by AGC Castle, as conveyed by the DepSecDef and Chief of Staff.147 On 5
February 2018, AGC Castle signed the memo terminating Mr. Brown’s employment and
appointment as CA’s Legal Advisor.148
aa. On 5 February 2018, Messrs. Rishikof and Brown were notified of their dismissal by
AGC Castle.149 The notifications did not list any reasons for the terminations, nor were any

141

Id.
AE 555DD (GOV), Attach. G.
143
Id.
144
Transcript 21281.
145
Transcript 21281, 21287.
146
AE 555DD (GOV), p. 77-78, 92 of 117; Castle Declaration para. 3.
147
Mattis Declaration para. 5-6; AE 555P (GOV), Attach. K; Transcript 21281.
148
AE 555DD (GOV), p. 94 of 117. Secretary Mattis had no involvement in Mr. Brown’s termination. Mattis
Declaration para. 9.
149
Rishikof & Brown Declaration 1, p. 1.
142

20

A292

 recited by AGC Castle.150 On the same day, Mr. Mark W. Toole was appointed acting Legal
Advisor for this case.151
bb. There is no indication that any person in authority over either Mr. Rishikof or
Mr. Brown at any point throughout their tenure discouraged them from exploring potential PTAs
with Defense Counsel in this case.152
cc. On 6 August 2018, Mr. Coyne in a sworn declaration stated:
I have had no discussions with anyone, to include personnel from the DoD Office of the
General Counsel (to include the former Acting General Counsel, William Castle), the
Office of Secretary of Defense (to include the Secretary of Defense), the Office of the
Deputy Secretary of Defense (to include the Deputy Secretary of Defense), or personnel
from the Executive Branch officials outside of DoD (to include the Attorney General of
the United States), regarding the topic of entering into pre-trial agreements in any present
or future Military Commission case, to include United States v. Mohammad, et al. When I
assumed my current duties, I had no awareness of whether there had been any consideration
by my predecessor of plea agreements in United States v. Mohammad, et al, or any other
active military commission case prior to my appointment.153
The parties have neither asserted nor presented evidence that counsel for the Accused have
approached OCA regarding potential PTAs since Messrs. Rishikof’s and Brown’s termination.

150

AE 555DD (GOV), pp. 77, 94 of 117; Rishikof & Brown Declarations 1 and 2.
AE 555DD (GOV), p. 47 of 117.
152
See Rishikof & Brown Declaration 1 para. 2, 7 (Speculating that a long list of actions they undertook as CA and
Legal Advisor, to include guilty pleas, might have been the motivation for their firing, but acknowledging that
“[t]here was never any attempt made at any time to approach us about any issue concerning out duty performance
during our tenure,” and that “[i]t is unknown to us if [these actions] played a role in our removal”); Rishikof &
Brown Declaration 2 (stating nothing that contradicts the language quoted above); Transcript 21349 (AGC Castle
noting his reluctance to “have much contact” with the CA about issues, due to concerns about UI).
153
AE 555DD (GOV), Attach. M, para. 2. The Commission takes notice of the facts that (1) Mr. Coyne retired from
his position as General Counsel for the Defense Logistics Agency (DLA) in mid-August 2018, and (2) on 9 August
2018 was replaced as CA / Director, OCA by his successor at DLA, Ms. Melinda L. Perritano. Chris Erbe, DLA
General Counsel Coyne retires after 38 years with DoD,
http://www.dla.mil/AboutDLA/News/NewsArticleView/Article/1601330/dla-general-counsel-coyne-retires-after38-years-with-dod/ (14 August 2018); SecDef Memorandum, Subj: Removal of Designation as Convening
Authority for Military Commissions, dated 9 August 2018 (removing Mr. Coyne’s designations); SecDef
Memorandum, Subj: Designation of Melinda L. Perritano as Director of the Office of the Convening Authority for
Military Commissions, dated 9 August 2018; SecDef Memorandum, Subj: Designation of Melinda L. Perritano as
Convening Authority for Military Commissions, dated 9 August 2018.
151

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 dd. On 11 and 12 September 2018, Lieutenant Douglas R. Newman, U.S. Navy, an
investigator supporting Mr. Ali’s Defense Team, testified before the Commission regarding the
anticipated testimony of persons he had interviewed.154 Based on his demeanor and the manner
and content of his testimony, the Commission found this witness to be highly credible.
ee. On 13 November 2018, AGC Castle testified before the Commission.155 Based on his
demeanor and the manner and content of his testimony, the Commission found this witness to be
highly credible. AGC Castle expressly reaffirmed under oath the statement made in his 29
January 2018 memorandum to Secretary Mattis that, in advising Mr. Rishikof’s removal, he
“considered Mr. Rishikof's professional judgment, temperament, and decision-making. . . . not
. . . his performance of any judicial or quasi-judicial actions.”156
3. Law.
a. Burden of Proof. Generally, a party moving the Commission for relief bears the
burden of proving any prerequisite facts by a preponderance.157 This applies to all motions
addressed by this ruling, save for the motion to dismiss based on UI. The burden for that motion
is described in the discussion of law regarding UI, below.
b. Reconsideration. The Commission may reconsider any ruling prior to authentication
of the record of trial, except the equivalent of a finding of not guilty.158 Either party may move
for reconsideration, but grant of the request is in the Military Judge's discretion. Generally,
reconsideration should be based on a change in the facts or law, or instances where the ruling is
inconsistent with case law not previously briefed. Reconsideration may also be appropriate to

154

Transcript 20768-20956.
Transcript 21128-21377.
156
Transcript 21376-77.
157
R.M.C. 905(c)(1)-(2).
158
R.M.C. 905(f).
155

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 correct a clear error or prevent manifest injustice.159 Motions for reconsideration are not
appropriate to raise arguments that could have been, but were not, raised previously and
arguments the Commission has previously rejected.160 Nor are motions for reconsideration
appropriate for the proffer of evidence available when the original motion was filed, but, for
unexplained reasons, not proffered at that time.161
c. Unlawful Influence.
(i) UI Generally. UI is prohibited by section 949b of the Military Commissions
Act of 2009 (M.C.A. 2009), which states in pertinent part: “No person may attempt to coerce or,
by any unauthorized means, influence . . . the action of any convening . . . authority with respect
to their judicial acts.”162 This language mirrors that of Article 37 of the Uniform Code of
Military Justice (U.C.M.J.), which addresses Unlawful Command Influence (UCI).163 UCI is the
court-martial equivalent of UI, and is substantially similar (save that UCI can only be committed
by persons subject to the U.C.M.J.).164 Accordingly, military UCI case law (discussed further
below) provides a useful framework for analyzing UI claims.165

159

See U.S. v. Libby, 429 F. Supp. 2d 46 (D.D.C. 2006); U.S. v. McCallum, 885 F. Supp. 2d 105 (D.D.C. 2012).
See U.S. v. Booker, 613 F. Supp. 2d 32 (D.D. C. 2009); U.S. v. Bloch, 794 F. Supp. 2d 15, 19 (D.D.C. 2011).
161
See Bloch, 794 F. Supp. 2d at 19-20.
162
10 U.S.C. § 949b(a)(2). The statute prohibits a much broader range of UI than that directed at CAs; however, the
quoted language is that germane to the issues raised here. The Commission notes that, while the various Defense
motions are styled as motions to dismiss based on UI of the CA and his legal advisor, neither party has identified
any authority specifically extending UI protections to the latter. By contrast, the M.C.A. 2009 elsewhere expressly
protects “the military commission [and] any member, military judge, or counsel thereof” from UI with regard to
their functions, including any findings or sentence adjudged. 10 U.S.C. § 949b(a) (emphasis added). 10 U.S.C. §
949(a)(2)(B), on the other hand, protects “convening, approving, or reviewing authorit[ies],” but makes no reference
to their counsel. At present, the Commission assumes (without so deciding) (a) that the M.C.A. 2009’s protection of
CAs from UI extends equally to a CA’s primary legal advisor, or at least (b) that evidence of UI directed at the CA’s
legal advisor may be evidence of UI directed at the CA.
163
Article 37, U.C.M.J. states in pertinent part: “No person subject to [the U.C.M.J] may attempt to coerce, or, by
any unauthorized means, influence the action of . . . any convening . . . authority with respect to his judicial acts.” 10
U.S.C. § 837(a).
164
Id.
165
See 10 U.S.C. § 948b(c) (stating that military appellate precedent is persuasive authority before M.C.A. 2009
military commissions).
160

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 (ii) UCI Generally. UCI has long been characterized as “the mortal enemy of
military justice,”166 as it tends to denigrate both critical rights of the accused167 and public
confidence in the military justice system as a whole.168 There are two overall types of UCI—
actual and apparent169—and the litigation framework for each differs somewhat.
(iii) Actual UCI. Actual UCI “occur[s] when there is an improper manipulation
of the criminal justice process which negatively affects the fair handling and/or disposition of a
case.”170 If an accused makes a sufficient initial showing of UCI, the burden shifts to the
Government to disprove the UCI, or show it to be harmless.
[T]he military judge engages in a two-stage process to permit the parties to establish the
factual predicate related to any issues of unlawful command influence. The military judge
initially requires the defense to carry the burden of raising an unlawful command influence
issue. This threshold showing must be more than mere “command influence in the air” or
speculation. But because of the congressional prohibition against unlawful command
influence and its invidious impact on the public perception of a fair trial, we have stated
that this threshold is low. The test is “some evidence” of facts which, if true, constitute
unlawful command influence, and that the alleged unlawful command influence has a
logical connection to the court-martial in terms of its potential to cause unfairness in the
proceedings.
If the military judge concludes that the defense has raised the issue of unlawful command
influence, the burden shifts to the government to show either that there was no unlawful
command influence or that the unlawful command influence did not affect the proceedings.
[There are] three options available to the government: The Government must prove beyond
a reasonable doubt: (1) that the predicate facts do not exist; or (2) that the facts do not
constitute unlawful command influence; or (3) that the unlawful command influence will
not prejudice the proceedings or did not affect the findings and sentence.171

166

U.S. v. Reisbeck, 77 M.J. 154, 166 (C.A.A.F. 2018) (quoting U.S. v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986)).
U.S. v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).
168
U.S. v Harvey, 64 M.J. 13 (C.A.A.F. 2006) (noting that “vigilan[ce] in protecting a court-martial from improper
influence” was necessary to “foster public confidence in court-martial proceedings.” Id. at 20) (quoting U.S. v
Rosser, 6 M.J. 267, 273 (C.M.A. 1976)) (internal quotation marks omitted).
169
“Congress and [the Court of Appeals for the Armed Forces] are concerned not only with eliminating actual
[UCI], also . . . even the appearance of [UCI] at courts-martial.” U.S. v Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)
(quoting Rosser, 6 M.J. at 271) (internal quotation marks omitted); see also U.S. v. Boyce, 76 M.J. 242 (C.A.A.F.
2017) (“Two types of unlawful command influence can arise in the military justice system: actual unlawful
command influence and the appearance of unlawful command influence.” Id. at ___, *6 (slip op.)(emphasis in
original)).
170
Barry, 70 M.J. at 77 (quoting Boyce, 76 M.J. at 247) (alteration in original).
171
Harvey, 64 M.J. at 18 (internal footnotes omitted; some internal quotation marks omitted).
167

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 If the Government is unable to do so, the Military Judge must craft an appropriate remedy.172
(iv) Apparent UCI. The litigation framework for apparent UCI is similar, but
there are key differences.
[U]nlike actual unlawful command influence, where prejudice to the accused is required,
no such showing is required for a meritorious claim of an appearance of unlawful command
influence. . . . [I]t is sufficient for an accused to demonstrate the following factors in support
of a claim of an appearance of unlawful command influence: (a) facts, which if true,
constitute unlawful command influence; and (b) this unlawful command influence placed
an “intolerable strain” on the public’s perception of the military justice system because “an
objective, disinterested observer, fully informed of all the facts and circumstances, would
harbor a significant doubt about the fairness of the proceeding.”
In light of these two factors, the following process ensues when an appellant asserts there
was an appearance of unlawful command influence. The appellant initially must show
“some evidence” that unlawful command influence occurred. This burden on the defense
is low, but the evidence presented must consist of more than “mere allegation or
speculation.”
Once an appellant presents “some evidence” of unlawful command influence, the burden
then shifts to the government to rebut the allegation. Specifically, the government bears the
burden of proving beyond a reasonable doubt that either the predicate facts proffered by
the appellant do not exist, or the facts as presented do not constitute unlawful command
influence. If the government meets its burden, the appellant’s claim of unlawful command
influence will be deemed to be without merit and no further analysis will be conducted.
If the government does not meet its burden of rebutting the allegation at this initial stage,
then the government may next seek to prove beyond a reasonable doubt that the unlawful
command influence did not place “an intolerable strain” upon the public’s perception of
the military justice system and that “an objective, disinterested observer, fully informed of
all the facts and circumstances, would [not] harbor a significant doubt about the fairness of
the proceeding.” If the government meets its evidentiary burden at this stage of the analysis,
then . . . no relief [based on] appearance of unlawful command influence [is merited].173
Again, if the Government is unable to refute the claim, the Military Judge fashions an
appropriate remedy.174

172

Id. at 21 (noting trial judge was responsible to provide an appropriate remedy for actual UI).
Boyce, 76 M.J. at ___, *10-12.
174
Lewis, 63 M.J. at 416.
173

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 (v) Judicial Acts. As with UCI, UI is actionable only “with respect to [a CA’s]
judicial acts.”175 With regard to the scope of the term “judicial acts,” the Commission finds the
following discussion by the Court of Military Appeals (C.M.A.) instructive:
In military law, the convening authority performs a number of judicial functions. Initially,
he has been authorized . . . to appoint and convene courts-martial, including the
appointment of the judicial officers necessary to the conduct thereof. . . .. [to] decide[]
whether to refer charges to trial and the grade of courtmartial [sic] to which the charges
should be referred. Prior to trial, any defense or objection which is capable of determination
without trial of the issue may be raised by reference to the convening authority. Subsequent
to trial, he is empowered to act on the findings and sentence of the court-martial, and while
he may approve only such findings of guilty and the sentence, or such part or amount of
the sentence, as he finds correct in law and fact, he may, in the exercise of his discretion,
disapprove a finding and sentence for any reason or for no reason.176
The Commission finds it appropriate to rely on this language as an instructive (though not
exhaustive) list of examples of judicial acts in which a CA may engage. Mere administrative,
organizational and/or resource management decisions, on the other hand, do not rise to the level
of “judicial acts,” even if they may have some measure of practical impact on litigation of a
particular case or cases.177

175

10 U.S.C. § 949b(a)(2); 10 U.S.C. § 837(a).
U.S. v. Nix, 36 C.M.R. 76, 78-79 (C.M.A. 1965)(internal cites omitted). Note that the C.M.A. also gave the courtmartial CA’s grant or denial of search authorizations as an example of a “judicial act.” Id. This was not included in
the quoted language above, however, as military commission CAs are not empowered to approve searches.
177
See, e.g., Ayestas v. Davis, ___ U.S. ___, 138 S.Ct. 1080 (2018) (noting that “[a]dministering judicial
operation[s] requires many ‘decisions’ in the ordinary sense . . . about such things as facilities, personnel,
equipment, supplies, and rules of procedure,” and that it would be “absurd to suggest” that every such decision is
“made in a judicial capacity.” Id. at __, 1090); see also U.S. v. Williams, 28 C.M.R. 789 (1959) (Air Force Board of
Review’s act of forwarding a request for a psychiatric examination “as an administrative matter,” where there was
“no assignment or issue raised before the Board,” was “not a judicial act” of the board. Id. at 792). The Commission
expressly declines to adopt the Defense’s proposed Murray’s Lessee-based definition of judicial acts (see AE 555J
(AAA, KSM), Mr. al Baluchi’s and Mr. Mohammad’s Reply to Government Combined Response, filed 10 April
2018, p. 12 (citing Den ex dem. Murray v. Hoboken Land & Improvement Co. (“Murray’s Lessee”), 59 U.S. 272
(1856)). The Defense asserts that this case stands for a principle that would require treating as a judicial act any
decision of the CA “that involves inquiry into the existence of facts and the application of law thereto.” Transcript
19630. This would essentially rewrite 10 U.S.C. 948b(a)(2) to reach virtually any act of the CA, rather than his
genuinely judicial ones. The Commission declines to find that the statute was intended to be so broad.
176

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 d. Discovery and Witness Production. With regard to this subject, the Commission
adopts and incorporates the discussion of law from its 23 May 2018 Order in this series (AE
555O).178
4. Analysis: Judicial Acts.
a. Over the course of litigation, the Defense has claimed that (1) a number of decisions
involving Messrs. Rishikof and/or Brown were “judicial acts;” (2) their termination was
motivated by one or more of those decisions; and (3) their terminations therefore constituted UI.
The Commission finds, however, that the Defense has identified here only two matters genuinely
qualifying as “judicial acts:” (1) Mr. Rishikof’s discussion of the potential for PTAs in this case;
and (2) his refusal to refer charges in U.S. v Hambali. In the Commission’s view, the other
matters identified by the Defense are ancillary administrative decisions not falling within the
ambit of “judicial acts” for UI purposes.
b. Regarding the Hambali charges, the Commission finds their rejection, while a judicial
act, is not an act in this case—and is therefore not an appropriate basis for relief here.179 The
only “judicial act” forming a possible basis for a UI claim in this case is discussion of potential

178

AE 555O, para. 2.
The Defense asserts the CA’s rejection of the Hambali charges is relevant as potential circumstantial evidence of
UI, in that it tends to show, e.g., (a) animosity between OCP and Messrs. Rishikof and Brown, and/or (b) a
willingness or tendency on the part of senior DoD officials to engage in improper retaliatory behavior. To the extent
this may be so, the Commission will give such information the weight and consideration it is due. These
considerations do not, however, transform the rejection of the Hambali charges into an appropriate independent
basis for relief in this case. Furthermore, the Commission notes that, well before the initial return of the Hambali
charges on 12 December 2017, OGC had been seriously considering Mr. Rishikof’s removal. See para. 2.n, supra
(finding AGC Castle had tasked OGC personnel to look into the possibility, in his words, “before Thanksgiving” of
2017). As early as October 2017, AGC Castle had already expressed serious concerns regarding the CA’s poor
coordination. See para. 2.k, supra. AGC Castle’s 15 December 2017 memo regarding future disposition of
commissions cases, signed three days after the Hambali charges’ first return, makes no mention of them. AE 555DD
(GOV), Attach. L. Similarly, DGC (LC) Newman’s 4 January 2018 action memo concerning removal of Mr. Brown
(drafted the same day he met with Messrs. Rishikof and Brown regarding the Hambali charges, and only two weeks
after the new charges were returned by OCA) makes no mention of Hambali, instead repeating the coordinationfocused “cohesive effort” language of AGC Castle’s 15 December 2017 memo, and expressly stressing that the CA
“will inform and coordinate with” OGC. AE 555DD (GOV), Attach. C. In short, whatever their relevance, there is
no indication the Hambali charges factored into any decision regarding Messrs. Rishikof and Brown’s termination
(or at least nothing amounting to more than speculation).
179

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 PTAs. Accordingly, the Commission concludes the Defense could not have met their initial
burden of proof with regard to UI unless and until they made a sufficient showing (in light of all
available information) that the termination of Mr. Rishikof and/or AGC Castle was, at least in
part, due to their discussion of potential PTAs with counsel for the Accused in this case.
5. Analysis: Proof of UI.
a. Having determined that there is only one “judicial act” at issue here (potential PTA
discussions), the Commission will next address whether remediable UI associated with this act
has been shown. The Defense argues, in essence, that (1) Mr. Rishikof and Mr. Brown were
terminated due to their having discussed potential PTAs regarding the Accused in this case, and
(2) that the reasons advanced by Secretary Mattis and AGC Castle are pretextual. The evidence
presented by the Defense in this regard is largely speculative. Even assuming arguendo that the
Defense has made its required initial showing of UI, however, the full evidence before the
Commission demonstrates beyond reasonable doubt that there was none.
b. Leaving aside the long, complex mesh of crisscrossing meetings, messages, and
memoranda that ultimately resulted in the terminations of Messrs. Rishikof and Brown, two
critical overarching facts remain: (1) Mr. Castle became aware of the pursuit of pleas in this case
virtually upon his arrival at DoD (and his staff even before that);180 and (2) they could at any
time have simply asked the SecDef to limit or withhold the CA’s authority to conclude such
agreements.181 Furthermore, DoD OGC was well aware that DOJ did not support the agreements,

180

See para 2.g, supra.
R.M.C. 705(a) (“Subject to such limitations as the [SecDef] may prescribe, an accused and the [CA] may enter
into a [PTA] in accordance with this rule.” Id. (emphasis added); R.T.M.C. para. 12-1. The Defense argues that,
despite the language of R.M.C. 705(a) and R.T.M.C. para. 12-1, there is in fact no authority to withhold PTA
authority from the CA, because (a) the UI provisions of the M.C.A. 2009 protect the CA’s “judicial acts” from such
interference, and (b) R.T.M.C. para. 12-1 reserves PTA decisional authority to “the sole discretion of the [CA] who
referred the case to trial.” AE 555BB (KSM AAA), pp. 47-49 of 467. In light of the clear language of R.M.C. 705(a)
and R.T.M.C. § 12-1, the Commission finds there is no merit in these arguments. Even assuming arguendo that
there was, it is clear AGC Castle and his subordinate counsel believed the SecDef had the power to withhold PTA
181

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 which made it highly unlikely the Defense would follow through with them (given their
negotiating posture).182
c. The Defense advances the theory that AGC Castle and other OGC attorneys wished to
prevent Messrs. Rishikof and Brown from securing guilty pleas with unacceptable terms, and
that to attain this end they had the duo pretextually fired. However, such a scheme would have
been wholly unnecessary, given (1) the known and readily-available avenue of having the
SecDef partially or entirely withhold the CA’s power to enter into PTAs (which would have
required action at no higher a level than firing did),183 and (2) the strong unlikelihood of any
PTA’s successful conclusion, given DOJ’s clear non-concurrence and the Defense’s negotiating
posture.184
d. Given the speculative nature of the Defense’s evidence of any such intent, to believe
senior DoD officials would willfully violate the law, perjure themselves, and risk potentially
upending a historic capital trial in this manner—when (1) a known and completely safe alternate
method was readily available, and (2) the Defense’s own negotiating posture already rendered
the risk of unacceptable PTAs essentially nil—simply beggars credence. Viewed through this
lens, the actions of AGC Castle and his associates are entirely consistent with the Government’s
claimed motivation, specifically: (1) that they sought termination of Messrs. Rishikof and Brown
due to duty performance issues having nothing to do with PTA negotiations, while (2) taking
careful steps to avoid any actual or apparent UI from arising due to their knowledge that such
negotiations were ongoing.

authority. See, e.g., AE 555DD (GOV), Attach. E; Transcript 21267. Accordingly, nothing Defense offers in this
regard undercuts the Commission’s finding that AGC Castle and his subordinates would have seen no need to
pursue a high-risk avenue to prevent PTAs when, in their view, low- or no-risk methods to do so were readily
available, and PTAs were highly unlikely in any event.
182
See paras. 2.g, j-k, supra.
183
R.M.C. 705(a); R.T.M.C. para. 12-1.
184
See paras. 2.g, j-k, supra.

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 e. The Commission is likewise unpersuaded that AG Sessions’ displeasure with a
proposed PTA spurred Secretary Mattis or AGC Castle to commit UI. The evidence indicates
that both were initially caught off guard by AG Sessions’s mid-October 2017 phone call—not
knowing what the AG was referring to when he said he wanted “no deal.” Even upon learning
the call related to pretrial negotiations in this case, neither Secretary Mattis nor AGC Castle gave
any indication they were displeased, beyond AGC Castle expressing dissatisfaction at what he
perceived as a lack of appropriate coordination. Neither AGC Castle nor any other entity took
action after this October 2017 phone call to derail the pretrial negotiations; rather, AGC Castle
made overt efforts to keep at arms’ length from discussions with the CA on the topic. Finally,
any argument that the SecDef, when presented by his senior staff with discrete, specific
justifications for Mr. Rishikof’s termination that were unrelated to PTAs, instead based his
decision on a brief, vague telephone conversation from several months prior, raises no doubt that
may be described as “reasonable.”
f. The Commission finds beyond reasonable doubt that, whatever their motivations may
have been, AGC Castle and the other OGC personnel who coordinated the firing of Messrs.
Rishikof and Brown were not prompted to do so by the potential for conclusion of PTAs in this
case; nor did they say or do anything that Messrs. Rishikof and Brown could have misconstrued
as discouraging them from pursuing such agreements.185 The Commission also finds beyond
reasonable doubt that SecDef Mattis’s 3 February 2018 decision to terminate Mr. Rishikof was

185

Messrs. Rishikof and Brown themselves had no clear idea as to why they were terminated, and claimed to have
received no negative feedback or discouragement whatsoever during their tenure. Rishikof & Brown Declaration 2,
para. 1.c. The only contrary indication is a Defense proffer that, if called, Messrs. Rishikof and Brown would
essentially confirm Mr. Castle’s testimony that, at their 16 October 2018 meeting, he expressed dissatisfaction
regarding OCA’s failure to coordinate with OGC regarding contact with DOJ. AE 555BB (KSM AAA), pp. 5, 15
(stating that, if called, Messrs. Rishikof and Brown would testify that “Mr. Castle was clearly agitated” about AG
Sessions’s call, “wanted to know why Mr. Rishikof was coordinating with people . . . in the DOJ” and “said that the
DOD all needs to move together and the OGC needs to be informed.” Id.). The Defense investigator’s testimony was
consistent with this proffer. Transcript 20805-06.

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 based on the rationale presented to him at that time, and not on a brief, vague phone call from
AG Sessions that occurred three months before. Furthermore, the Commission finds beyond
reasonable doubt that no objective, disinterested observer, fully informed of the relevant facts
and circumstances, would harbor any significant doubt about the fairness of these proceedings.
Accordingly, neither actual nor apparent UI has been shown.
g. To the extent the Defense contests the facts underlying the incidents relied on by the
SecDef and AGC Castle as the bases for termination of Messrs. Rishikof and Brown (e.g., the
coordination of Mr. Rishikof’s 12 Dec 2017 memo and the ELC imagery request), the
Commission finds that, given (1) the evidence that the terminations were not predicated on
PTAs; (2) the lack of any other relevant judicial act of the CA on which UI could have been
based; and (3) the equivocal (at best) evidence of any impropriety in those asserted bases (which
are themselves non-judicial acts),186 to the extent these events may be relevant, they provide no
evidence of any pretext that is sufficient to warrant any differing result or further inquiry. 187

186

See paras. 2.p, u-v, supra.
The Commission finds very credible the assertions of AGC Castle that the inadequate coordination of the 12
December 2017 memo was a primary factor motivating the termination of Messrs. Rishikof and Brown. In his
testimony before the Commission, Mr. Castle emphatically affirmed his statement that, informal discussion of a
potential implementing document notwithstanding, given the need in DoD for thorough advance coordination of
significant actions, Mr. Rishikof’s failure to provide DoD OGC an advance copy of the 12 December 2017
memorandum and formally staff it with affected stakeholders was “a huge process foul.” Transcript 21245-48.
Messrs. Rishikof and Brown themselves expressly acknowledged that formal coordination had not occurred,
claiming they thought it premature because the memorandum was just “a vehicle to begin discussions.” Rishikof &
Brown Declaration 2, para. 1.b; see also Transcript 20910. This view is neither reasonable nor credible, however, in
light of the immediate, profound effects the memorandum would have had, had it been signed. See fn 79, supra.
This also undercuts any assertion this memorandum would have been subject to any invitation by DepSecDef Work
for Mr. Rishikof to submit “his views on paths forward in a written document” for which “no formal coordination
was expected.” See para. 2.b, supra. The 12 December 2017 memorandum went far beyond merely expressing
“views on a path forward”—it would have immediately implemented an aggressive strategy of consolidation of
authority and resources under the CA. This is further underscored by the memorandum’s rejection. Furthermore, to
the extent Mr. Rishikof may have been given such dispensation, AGC Castle was apparently not aware of it.
Defense proffers indicate OGC was rebuffed regarding such concerns with statements that DepSecDef was the CA’s
direct supervisor, not by reference to any special dispensation by the DepSecDef regarding staffing. AE 555CC
(AAA), Attach. B, pp. 3, 10, 14, 20. Even senior OCA staff apparently found direct, informal coordination between
the CA and DepSecDef highly unusual (See Transcript 20815, 20875-77, 20879-82). Even assuming AGC Castle
mistakenly believed Messrs. Rishikof and Brown owed OGC greater coordination than DepSecDef Work would
have in fact required, any such erroneous belief would still be consistent with his asserted bases for termination. In
187

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 h. Based on evidence adduced (a significant portion of which was received after AE
555O, the Commission’s interim ruling on discovery), there is no reasonable likelihood further
discovery or testimony will produce information relevant and necessary to resolution of this
matter. Accordingly, (1) no proper basis for any of the relief requested by the Defense exists; and
(2) reconsideration of the Commission’s earlier ruling in that regard is appropriate.
6. Ruling.
a. That portion of AE 555P (GOV) previously deferred is now GRANTED. The
Commission will compel production of neither the CA’s monthly status reports nor
Mr. Rishikof’s testimony.
b. AE 555GG (KSM) is DENIED. Resolution of this matter does not require the
Commission to make a definitive ruling as to whether the Defense met its initial burden of
production, as the evidence in any event demonstrates beyond reasonable doubt that there was no
UI.
c. The relief requested in AE 555 (AAA), AE 555 (AAA 2nd Sup), AE 555R (AAA), and
AE 555CC (AAA) is DENIED.

January 2018, when he sought the CA’s termination, AGC Castle would first provide an advisory memorandum to
DepSecDef Shanahan in which he listed the 12 December 2017 memo as one supporting reason—undercutting any
notion AGC Castle in fact believed the DepSecDef would have been satisfied with the 12 December 2017
memorandum’s coordination. AE 555DD (GOV), Attach. F. Regardless, by the time the 12 December 2017
memorandum was submitted, DepSecDef Work had been replaced by DepSecDef Shanahan, rendering Mr. Work’s
informal views regarding workplace coordination requirements of limited relevance. DepSecDef Shanahan’s
administrative staff apparently had received no instruction that the CA was empowered to submit memoranda of this
nature for his signature without formal, documented staffing through OGC—as they rejected the 12 December 2017
memorandum packet without action, and alerted AGC Castle. Castle Declaration para. 11; AE 555P (GOV), Attach.
D, Tab 1; Transcript at p. 21352.

32

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 d. All requests for oral argument in this series, to the extent not already granted, are
DENIED.

So ORDERED this 10th day of January, 2019.

//s//
K. A. PARRELLA
Colonel, U. S. Marine Corps
Military Judge

33

A305

 UNITED STATES OF AMERICA

AE 579L

v.

RULING

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

Motion to Dismiss All Charges
For Unlawful Influence by Director of
Central Intelligence Agency

3 December 2018

1. Procedural Background.
a. On 14 June 2018, Mr. Mohammad filed a motion to dismiss all charges and
specifications with prejudice or, in the alternative to remove death as a possible punishment. The
motion was based on alleged actual and apparent unlawful influence (UI) arising out of
statements made by Ms. Gina Haspel, the current Director of the Central Intelligence Agency
(CIA), during her confirmation hearings in May 2018 and a series of tweets by the President of
the United States related to those confirmation hearings. 1
b. The Government opposed the motion, arguing the Defense failed to meet its initial
burden of raising some evidence of UI. 2
c. The Defense replied on 5 July 2018, arguing that even if the comments of Director
Haspel and the tweets of the President are found not to constitute actual UI, they “clearly create
an appearance of unlawful influence” and should therefore result in corrective action by the
Commission. 3 Additionally, the Defense posited that the cumulative effect of the Director’s

1
AE 579 (KSM), Motion to Dismiss all Charges for Unlawful Influence by Director of Central Intelligence Agency,
filed 14 June 2018 at 1-2.
2
AE 579A (GOV), Government Response to Defense Motion to Dismiss all Charges for Unlawful Influence by
Director of Central Intelligence Agency, filed 28 June 2018 at 5.
3
AE 579B (KSM), Mr. Mohammad’s Reply to the Government’s Response to Defense Motion to Dismiss all
Charges for Unlawful Influence by Director of Central Intelligence Agency, filed 5 July 2018 at 5.

A306

 testimony and Presidential tweets coupled with “years of prejudicial statements made to the
public, military members, commission personnel and potential members by government
officials” warrants “dismissal of all charges, or in the alternative, removing the death penalty as a
potential punishment.” 4
d. Unclassified oral argument on the base motion was held on 23 July 2018. 5 After
conducting an in camera Military Commission Rule of Evidence (M.C.R.E.) 505(h) hearing on
24 July 2018 to determine the use, relevance, and admissibility of classified information
previously noticed by the Defense, 6 the Commission found the noticed classified information
was relevant and decided to hear oral argument regarding the information at a later date. 7
Although classified oral argument was scheduled for 25 July 2018, it was postponed at the
request of the Defense after the Government provided additional classified discovery related to
the AE 579 series.
e. Thereafter, the Commission granted a Defense request for leave to file a supplement to
the original filing. On 7 September 2018, Mr. Mohammad filed a classified pleading citing to
discovery provided by the Government to the Defense regarding Director Haspel to argue that
she made changes to classification guidance, which have adversely impacted Defense Counsel’s
ability to investigate the case, thereby resulting in “unlawful influence” over the Defense
Counsel’s judgment. 8

4

Id. at 5-6.
Unofficial/Unauthenticated Transcript of the U.S. v. Khalid Shaikh Mohammad, et al, Motions Hearing, dated 23
July 2018 from 9:07 A.M. to 4:11 P.M. at pp. 19931-19944.
6
See AE 579D, Ruling, Pursuant to Military Commission Rule of Evidence 505(h) and Rule for Military
Commissions 806(b)(2), dated 25 July 2018 at 1.
7
Id. at 2-3.
8
AE 579 (KSM Sup), Supplement to Mr. Mohammad’s Motion to Dismiss all Charges for Unlawful Influence by
Director of Central Intelligence Agency, filed 7 September 2018.
5

A307

 f. The Government opposed the supplement, arguing the information contained therein
was irrelevant to the instant motion. 9
g. The Defense reply, citing to United States v. Barry, 10 a recently-decided case from the
Court of Appeals of the Armed Forces (C.A.A.F.), argued “the professional judgement” of
Defense Counsel in this case “has been and continues to be unlawfully influenced” by
subordinates of Director Haspel. 11
h. Defense Counsel requested further oral argument. 12 The Government opposed the
granting of oral argument, averring that it was unnecessary because the facts and legal
contentions were adequately presented in the material before the Commission. 13
i. On 5 November 2018, the Defense filed a motion 14 to compel the production of
Director Haspel and “any and all individuals who serve as ‘the original classification authority
assigned to provide classification guidance or review any information in this case’” as witnesses
on the UI motion.
j. On 12 November 2018, the Commission heard unclassified oral argument on both the
AE 579 (KSM) base motion and supplement thereto, as well as AE 579J (KSM), the motion to
compel the production of witnesses. 15 Classified oral argument was held on 16 November 2018
in a closed session.

9

AE 579G (GOV), Government Response to Supplement to Mr. Mohammad’s Motion to Dismiss all Charges for
Unlawful Influence by Director of Central Intelligence Agency, filed 20 September 2018.
10
78 M.J. 70 (C.A.A.F. 2018).
11
AE 579H (KSM), Mr. Mohammad’s Reply to AE 579G (GOV) Government Response to Supplement to Mr.
Mohammad’s Motion to Dismiss all Charges for Unlawful Influence by Director of Central Intelligence Agency,
filed 27 September 2018.
12
AE 579 (KSM Sup) at 9 and AE 579H (KSM) at 5.
13
AE 579G (GOV), at 3.
14
AE 579J (KSM), Mr. Mohammad’s Motion to Compel Production of Witnesses Whose Testimony is Relevant
and Necessary to Address the Question in AE 579 (KSM), filed 5 November 2018.
15
Unofficial/Unauthenticated Transcript of the U.S. v. Khalid Shaikh Mohammad, et al. Motions Hearing, dated 12
November 2018 from 10:48 A.M. to 11:21 A.M. at pp. 21017-21038.

A308

 2. Findings of Fact.
a. The Commission accepts the undisputed facts as set forth in subparagraphs (a)-(c) and
(e)-(f) of paragraph 5 of AE 579 (KSM). 16 The Commission further accepts the readily verifiable
facts alleged in paragraph 4 of AE 579A (GOV) regarding the colloquy between Director Haspel
and Senator Richard Burr during her 9 May 2018 confirmation hearing. 17
b. The Commission accepts as fact the information in the discovery provided by the
Government to the Defense identified in AE 579 (KSM Sup) regarding Director Haspel.
c. Although the Director of the CIA is an original classification authority (OCA), the
Commission accepts the Government assertions that she “is not, nor has she ever been, the
original classification authority assigned to provide classification guidance or review any
information in this case.” 18
d. Certain members of each of the Defense teams have been granted Top Secret – Special
Compartmented Information (TS-SCI) Clearances and access to Special Access Program (SAP)
information relevant to the CIA Rendition, Detention, and Interrogation (RDI) Program.
e. The Government has provided the Defense voluminous classified and unclassified
discovery related to the Accuseds’ time in the CIA RDI Program. On many occasions, however,
the Government invoked the National Security privilege in order to withhold some of the
requested information through the process mandated by 10 U.S.C. § 949p-4 and M.C.R.E.
505(f)(2). In most of those instances, after careful review and comparison of the information
sought to be withheld with the information proposed to be provided to the Defense, the

16

AE 579 (KSM) at 2-4.
AE 579A (GOV) at 3-4.
18
AE 579G (GOV) at 2. See also AE 579A (GOV) at 10.
17

A309

 Commission authorized the Government to produce to the Defense various summaries and
substitutions of classified information related to the CIA RDI Program. 19

19

See e.g., AE 542O, Order, Government Motion to Request Substitutions and Other Relief Regarding Classified
Continuing and Trial Discovery, dated 21 August 2018; AE 542J, Order, Government Motion to Request
Substitutions and Other Relief Regarding Classified Continuing and Trial Discovery, dated 26 July 2018; AE
308RRRR, Order, Government Motion to Request Substitutions and other Relief from Ordered Discovery of
Classified Information So As to Comply With Paragraphs 2.c. and 2.h. of AE 397, dated 31 August 2017; AE
308OOOO/AE 497B, Order, Government Motion to Request Substitutions and other Relief from Ordered Discovery
of Classified Information So As to Comply With Paragraphs 2.b., 2.c., 2.e., 2.h., and 2.j. of AE 397 and Defense
Motion to Compel Production of Durham Investigation Documents, dated 17 July 2017; AE 308MMMM, Order,
Government Motion to Request Substitutions and other Relief Regarding Classified Information Responsive to
Paragraphs 2.b, c, e, h, and j of the Commission’s Ten-Category Construct, dated 13 June 2017; AE 308LLLL,
Order, Government Motion to Request Substitutions and other Relief from Classified Information Responsive to
Paragraph 2.c. of the Commission’s Ten-Category Construct, dated 7 June 2017; AE 308IIII, Order, Government
Motion to Request Substitutions and other Relief from Classified Information Responsive to Paragraph 2.h. of the
Commission’s Ten-Category Construct, dated 19 May 2017; AE 308HHHH, Order, Government Amendment to
Government Motion to Request Substitutions and other Relief Regarding Classified Information Responsive to
Paragraphs 2.d., 2.f., and 2.g. of the Commission’s Ten-Category Construct, dated 19 May 2017; AE 308CCCC,
Order, Government Motion to Request Substitutions and other Relief from Classified Information Responsive to
Paragraph 2.h. of the Commissions Ten Category Construct, dated 19 April 2017; AE 308BBBB, Ruling,
Government Motion to Request Substitutions and other Relief from Classified Information Responsive to Paragraph
2.h. of the Commissions Ten Category Construct, dated 19 April 2017; AE 308AAAA, Order, Government Motion
to Request Substitutions and other Relief from Classified Information Responsive to Paragraph 2.h of the
Commission’s Ten-Category Construct, dated 19 April 2017; AE 308VVV, CORRECTED Order, Government
Motion to Request Substitutions and other Relief from Classified Information Responsive to Paragraph 2.h of the
Commission’s Ten-Category Construct, dated 6 March 2017; AE 308NNN, Order, Government Motion to Request
Substitutions and other Relief from Classified Information Responsive to Paragraph 2.h. of the Commission’s TenCategory Construct, dated 18 January 2017; AE 308KKK, Order, Government Motion to Request Substitutions and
other Relief from Classified Information Responsive to Paragraph 2h of the Commission’s Ten-Category Construct,
dated 17 January 2017; AE 308JJJ, Order, Government Motion to Request Substitutions and other Relief from
Ordered Discovery Of Classified Information Responsive to Paragraphs 13.i. and 13.j. Of the Al Nashiri TenCategory Construct, dated 17 January 2017; AE 308III, Order, Government Motion to Request Substitutions and
other Relief from Ordered Discovery Of Classified Information Responsive to Paragraphs 13.e. Of the Al Nashiri
Ten-Category Construct, dated 12 January 2017; AE 308HHH (Corrected Copy), Ruling, Government Motion to
Request Substitutions and other Relief from Classified Information Responsive to Paragraph 2h of the Commissions
Ten Category Construct, dated 12 January 2017; AE 308GGG, Ruling, Government Motion and Memorandum for
A Protective Order Pursuant to the Military Commissions Act of 2009, 10 U.S.C § 949-4, § 949-6 and M.C.R.E.
505, dated 12 January 2017; AE 308BBB (Corrected Copy), Ruling, Government Motion to Request Substitutions
and other Relief from Classified Information Responsive to Paragraph 2h of the Commissions Ten Category
Construct, dated 3 January 2017; AE 308AAA (Corrected Copy), Ruling, Government Motion to Request
Substitutions And other Relief from Classified Information Responsive to Paragraph 2.h. of the Commissions Ten
Category Construct, dated 3 January 2017; AE 308ZZ (Corrected Copy), Ruling, Government Motion to Request
Substitutions and other Relief from Classified Information Responsive to Paragraph 2h of the Commissions Ten
Category Construct, dated 29 December 2016; AE 308V, Order, Government Motion to Request Substitutions and
other Relief from Ordered Discovery of Classified Information Responsive to Paragraphs 13.a. and 13.b. of the Al
Nashiri Ten-Category Construct, dated 4 August 2016.

A310

 3. Law - UI.
a. “No person may attempt to coerce or, by any unauthorized means, influence … the action of
a military commission under this chapter or any member thereof in reaching the findings or sentence
in any case.” 20 The UI standard set forth in the Military Commissions Act (MCA) mirrors the
Unlawful Command Influence (UCI) standard articulated in the Uniform Code of Military Justice
(UCMJ) 21 with the exception that the UCMJ prohibition applies to persons subject to the UCMJ,
while the MCA prohibition applies to any person. Notwithstanding this distinction, the decades of
military case law applying the UCI standard provide a useful framework for analyzing the present
motion.
b. UCI is actionable as either actual or apparent UCI. In order for an accused to prevail on a
claim of actual UCI, he or she must meet the burden of demonstrating “facts, which if true, constitute
[UCI] and that the alleged [UCI] has a logical connection to the court-martial, in terms of its
potential to cause unfairness in the proceedings.” A claim of apparent UCI, on the other hand, only
requires that the defense show “(a) facts, which if true, constitute unlawful command influence; and
(b) this unlawful command influence placed an ‘intolerable strain’ on the public's perception of the
military justice system because ‘an objective, disinterested observer, fully informed of all the facts
and circumstances, would harbor a significant doubt about the fairness of the proceeding.’” 22
c. In United States v. Stoneman, the C.A.A.F. set forth the following analytical framework

for resolving claims of actual UCI at trial:
At trial, the initial burden is on the defense to “raise” the issue [of UCI]. The burden
of proof is low, but more than mere allegation or speculation. The quantum of
evidence required to raise unlawful command influence is “some evidence.”
The defense must show facts that, if true, constitute unlawful command influence,
and it must show that the unlawful command influence has a logical connection to
20

10 U.S.C. § 949b(a)(2).
10 U.S.C. § 837.
22
United States v. Boyce, 76 M.J. 242, slip op at 9 (C.A.A.F. 2017).
21

A311

 the court-martial in terms of potential to cause unfairness in the proceedings. If the
defense shows such facts by “some evidence,” the issue is raised.
Once the issue is raised, the burden shifts to the Government. The Government may
show either that there was no unlawful command influence or that any unlawful
command influence did not taint the proceedings. If the Government elects to show
that there was no unlawful command influence, it may do so either by disproving
the predicate facts on which the allegation of unlawful command influence is based,
or by persuading the military judge that the facts do not constitute unlawful
command influence. The Government also may choose to not disprove the
existence of unlawful command influence but to prove that it will not affect the
proceedings. Whichever tactic the Government chooses, the quantum of evidence
required is proof beyond a reasonable doubt. 23
d. The C.A.A.F.’s analytical framework for resolving apparent UCI is similar, except the
Government, if it “does not meet its burden of rebutting the allegation at this initial stage,” must
“prove beyond a reasonable doubt” that the alleged apparent UCI did not place “an intolerable
strain on the public’s perception of the military justice system” and that “an objective,
disinterested observer, fully informed of all the facts and circumstances would not harbor a
significant doubt about the fairness of the proceedings.” 24
e. Recently, in United States v. Barry, the C.A.A.F. held that “unintentional” improper
manipulation of the criminal justice process can constitute actual UCI. 25 Due to the extraordinary
nature of the UCI in Barry and because the case was on appeal, the C.A.A.F. held that no other
remedy that could “eradicate” the UCI and “ensure the public perception of fairness in the
military justice system.” Accordingly, because the error could no longer “be rendered harmless,”
the C.A.A.F. found the unintentional UCI warranted the “drastic remedy” of dismissal with
prejudice.

23

U.S. v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002), affirmed, 61 M.J. 210 (C.A.A.F. 2005), citing U.S. v. Biagase,
50 M.J. 143, 150-151 (C.A.A.F. 1999) (internal citations omitted).
24
Boyce, slip op at 12.
25
78 M.J. 70 (C.A.A.F. 2018).

A312

 4. Law - Classified Information.
a. “Classified information shall be protected and is privileged from disclosure if
disclosure would be detrimental to the national security. Under no circumstances may a military
judge order the release of classified information to any person not authorized to receive such
information.” 10 U.S.C. § 949p-1(a). The military judge, in assessing the accused’s discovery of
or access to classified information, may authorize the United States to delete or withhold
specified items of classified information, and/or substitute a summary for classified information.
See 10 U.S.C. § 949p-4(b); see also M.C.R.E. 505(f)(2)(A).
b. The military judge shall permit the trial counsel to request authorization to delete,
withhold, or substitute in the form of an ex parte presentation to the extent necessary to protect
classified information. See 10 U.S.C. § 949p-4(b). “The military judge shall permit the trial
counsel to make a request for an authorization under M.C.R.E. 505(f)(2)(A) in the form of an ex
parte presentation to the extent necessary to protect classified information.” M.C.R.E.
505(f)(2)(B).
c. The military judge shall grant the request of the trial counsel if the military judge finds
that the summary, statement, or other relief would provide the accused with substantially the
same ability to make a defense as would discovery of or access to the specific classified
information. See 10 U.S.C. § 949p-4(b); see also M.C.R.E. 505(f)(2)(C).
d. “An order of a military judge authorizing a request of the trial counsel to substitute,
summarize, withhold, or prevent access to classified information under this section is not subject
to a motion for reconsideration by the accused, if such order was entered pursuant to an ex parte
showing under this section.” M.C.R.E. 505(f)(3).

A313

 5. Law – Witness and Evidence Production.
a. The MCA provides the accused a reasonable opportunity to obtain witnesses and other
evidence as provided in regulations prescribed by the Secretary of Defense. See 10 U.S.C. §
949j. Rule for Military Commissions (R.M.C.) 703, patterned after Rule for Courts-Martial 703,
provides that “[e]ach party is entitled to the production of any available witness whose testimony
on a matter in issue on the merits or on an interlocutory question would be relevant and
necessary.” See R.M.C. 703(b)(1); see also R.M.C. 701(c)(1). Testimony is relevant when a
“reasonable person would regard the evidence as making the existence of any fact that is of
consequence to a determination of the commission action more probable or less probable than it
would be without the evidence.” M.C.R.E. 401.
b. The Defense bears the burden of showing the relevance and necessity of the witnesses
it seeks to compel. R.M.C. 905(c)(1) and (2).
c. A Defense witness will be produced over Government objection if the witness is
relevant and necessary for resolution of an issue properly before the Commission. R.M.C.
703(c)(2)(D).
d. The Commission need not take evidence of matters when, assuming the facts the
evidence would establish are true, the Commission would not grant relief. Bonin v. Calderon, 59
F.3d 815, 838 (9th Cir. 1995) (evidentiary hearing not necessary if even if the facts as alleged are
true the movant would not be entitled to relief).
6. Analysis.
a. Actual UI as to Military Judge and Members.
(1) The Defense has failed to meet its initial burden of showing “some evidence”
that Director Haspel’s Senate testimony constituted UI. A link between the Director’s comments

A314

 and this Commission simply does not exist. Her remarks were made in response to a direct
question posed to her during a Senate Confirmation hearing. Testifying as an intelligence officer,
she stated conclusions drawn by the intelligence community as to facts which Mr. Mohammad
readily acknowledged during a combatant status review tribunal. 26 The presumption of
innocence is a concept germane to criminal trials, not Congressional testimony.
(2) No evidence exists to suggest that Director Haspel, either intended to, or had
the unintentional effect of, influencing any aspect of this Commission or its participants. 27 Given
the nature and context of her testimony, this Commission does not find that the Director’s
comments constituted actual UI. 28
(3) Further, no evidence supports the existence of any potential for prejudice
related to her comments – as is required for actual UI to exist. First, Director Haspel’s comments
will not impact the military judge’s impartiality. Second, this Commission has yet to set a
timeline associated with the selection of members and trial. In all likelihood, ample time will
elapse between her testimony and trial to eliminate any potential influence on the opinion of the
finder of fact. The prospect that this brief testimony will be recalled by a member some months
or years hence when a panel is actually seated, and that it will furthermore be given any
credence, is beyond speculative. The Director’s comments were obviously not aimed at
influencing the Commission and, if they had been, their timing and obscurity would certainly
have made them ineffective in accomplishing such an aim. Unlike the situation in United States

26

AE 579A (GOV), Attach. B.
United States v. Newbold, 45 MJ 109 (finding no UCI because the commander who made derogatory comments
was not a convening authority, did not provide members for the panel, and no allegation that accused was deprived
of witnesses).
28
Although the Director could have eliminated even the potential of UI by prefacing her comments with the word
“allegedly,” the fact that she did not do so is unpersuasive. Likewise, President Trump’s tweets relating to the
confirmation hearings, issued both before and after the Director’s testimony, do not alter this Commission’s
analysis.
27

A315

 v. Barry wherein no remedies were available for the unintentional influence, in the unlikely event
a potential member of this Commission does recall either Director Haspel’s testimony or the
President’s tweets relating to that testimony, such a potential unintentional influence can be
adequately addressed through voir dire. 29
b. Actual UI as to Defense Counsel. The Defense next argues that Director Haspel’s
confirmation testimony constitutes an attempt to unlawfully influence Defense Counsel in the
exercise of their professional judgment through her role as OCA for certain classified material.
The Commission finds this argument to be without merit. First, most of the classification
guidance at issue in this case was issued prior to the Director’s confirmation. Second, the
Commission has accepted the Government proffer that Director Haspel is not the OCA assigned
to review any information in this case. Third, the Defense has not presented evidence that the
comments of the Director in any way inhibited or negatively affected the Government’s
discovery practice. Fourth, to the extent Director Haspel oversees classification review in her
capacity as the Director of the CIA (as described in footnote 8 of AE 579B (KSM), Director
Haspel testified under oath that she would “ensure that the CIA continues to provide appropriate
assistance to the Chief Prosecutor.” 30 Fifth, the fact that information has been classified by an
OCA does not, in and of itself, preclude that information from being subject to discovery. Sixth,
the Commission, through its detailed involvement in the summary and substitution process is
keenly aware of the classified information which the Government seeks to withhold through its
invocation of the National Security Privilege and has only authorized summaries or substitutions

29
The Commission previously recognized that there exists the “potential for statements and other sources of public
information, made outside the Commission process, to taint the panel.” See AE 031BBB, Order, Joint Defense
Motion to Dismiss for Unlawful Influence at 17, dated 5 April 2016. Accordingly, the Commission indicated it
would “afford the Defense the opportunity to address the need for expanded voir dire and liberal challenges when
the issue of seating the panel is properly before the Commission” and noted that the “Commission will be
continually attentive” throughout the trial “as to any inklings” of UI.
30
AE 579B (KSM) at 3, fn 8.

A316

 that provide the Accused with substantially the same ability to make a defense as would
discovery of or access to the specific classified information.
c. Apparent UI. For the reasons stated above, this Commission also does not find the
comments of Director Haspel to constitute apparent UI. Her remarks during the Senate
confirmation hearing are sufficiently attenuated to this Commission – both in context and in
timing with relation to the eventual trial – such that it does not place an intolerable strain on the
public’s perception of either the military commissions system in general or this Commission in
particular. Given the nature, context, and timing of the Director’s remarks, an objective,
disinterested observer, fully informed of all the facts and circumstances, would not harbor a
significant doubt about the fairness of this proceeding.
d. Cumulative Effect of Various Statements. Because the Defense has failed to show
that Director Haspel’s testimony (or the tweets by the President in support of her nomination)
amounted to some evidence of UI, it is unnecessary to address the cumulative impact of
statements made by various high level government officials at this time. No such statements have
influenced the military judge in this case. If, between now and the time of trial, there are further
statements made by Government officials that raise concerns of actual or apparent UI on
potential members, the Commission will take any necessary corrective action and allow the
parties expanded voir dire of potential members and liberal challenges when the issue of seating
the panel is properly before the Commission.
e. Defense Motion to Compel Production of the CIA Director and Other Original
Classification Authorities. The Commission does not find the testimony of Director Haspel or
other OCAs necessary to resolve the issues raised in AE 579 (KSM) or its supplement. This
ruling on the base UI motion renders the Defense motion to compel witnesses moot.

A317

 7. Ruling.
a. The Defense motion in AE 579 (KSM) is DENIED.
b. The Defense motion in AE 579J (KSM) is DENIED.

So ORDERED this 3rd day of December, 2018.

//s//
K. A. PARRELLA
Colonel, U. S. Marine Corps
Military Judge

A318

 UNITED STATES OF AMERICA

AE 615B

v.

ORDER

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

Expedited Briefing Schedule and Deferral of
Ruling on Motion to Suspend Briefing
Deadlines

11 January 2019

1. On 9 January 2019, Mr. bin ‘Attash moved the Commission to conduct a thorough inquiry into
actual and/or potential attorney conflict of interest based on facts alleged in the motion, and to
cancel proceedings pending the outcome of the inquiry. 1 This filing was served on the Defense
Teams and the Government Special Trial Counsel (STC), but was not served on the
Prosecution. 2
2. On 11 January 2019, Mr. Mohammad moved the Commission to suspend all briefing
deadlines pending resolution of the issue raised by Mr. bin ‘Attash in AE 615 (WBA). 3 This
filing was served on the Defense Teams and the Government STC, but was also not served on
the Prosecution. 4
3. Findings.
a. The Commission finds an expedited briefing schedule on the issue raised by
Mr. bin ‘Attash in AE 615 (WBA) is in the interest of judicial economy, and that the
Government STC is the appropriate counsel to represent the United States for this motion.

1

AE 615 (WBA), Defense Motion to Conduct Thorough Inquiry into Actual and/or Potential Attorney Conflict of
Interest Pursuant to R.M.C. 901 and Holloway v. Arkansas, 435 U.S. 475 (1978) and to Cancel Proceedings Pending
Inquiry, filed 9 January 2019.
2
See AE 003L (GOV), Special Trial Counsel Detailing Memorandum, filed 28 October 2016.
3
AE 615A (KSM), Motion to Suspend Briefing Deadlines Pending Resolution of AE 615, filed 11 January 2019.
4
See AE 003L (GOV), Special Trial Counsel Detailing Memorandum, filed 28 October 2016.

A319

 b. The Commission also finds there is no immediate need to suspend the pending filing
deadlines in this case or to hear oral argument on Mr. Mohammad’s motion. 5
4. Order.
a. Mr. Mohammad’s request for oral argument is DENIED.
b. Mr. Mohammad’s motion to suspend briefing deadlines pending the resolution of the
issue raised in AE 615 (WBA) is DENIED.
c. The Government STC response to AE 615 (WBA) is due No Later Than (NLT)
17 January 2019.
d. Any Defense reply to the Government response is due NLT 23 January 2019.
e. Parties submitting any filings in the AE 615 series shall provide a notice of such filings
to the Prosecution.
So ORDERED this 11th day of January, 2019.

//s//
K. A. PARRELLA
Colonel, U. S. Marine Corps
Military Judge

5

Of note, Mr. Mohammad’s most immediate concern was that his reply to AE 555DDD was due 11 January 2019.
That reply, however, is rendered moot by the Commission’s Ruling in 555EEE issued 10 January 2019.

A320