MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA AE 033K RULING UNITED STATES OF AMERICA DefenseMotion for V. PretrialPunishment Credit and Other Related Relief MAJID SHOUKAT KHAN 4 June 2020 1. BACKGROUND : a. The Accused, through counsel, requests that the Military Judge grant the subject motion and order that he is entitled to meaningful relief for the illegalpretrial punishment he suffered in Government custody from March 2003 until his guilty plea in February 2012. The Accused seeks “ administrative credit equivalent to no less than half of his approved sentence as a comprehensive , prophylactic remedy ” for the torture and other cruel, inhuman , and degrading treatment he suffered in Governmentcustody for the offenses for which he was subsequently charged and pleaded guilty . He requests this relief in addition to the day- for-day confinement credit to which he is entitled from the date of his guilty plea on 29 February 2012 , and notwithstanding any clemency determination by the Convening Authority The Accused also requests that the Military Judge schedule an evidentiary hearing to receive evidence in support of this motion , including the testimony of the Accused , experts , and other witnesses. 10 July 2019, the Defense madea supplemental filing in support, drawing the Commission's attention to the D.C. Circuit's decision in Qassim v. Trump . 4 AE 033, DefenseMotion for PretrialPunishment Credit and Other Related Relief, filed 1May 2019, at 1. 2 AE 033 at 1. 3 Id AE 033 at 2 ; see AE 030, DefenseMotion to Compel Witnesses, filed 1March 2019 AE 033 (SUP), filed 10 July 2019 ; Qassim v. Trump, 927 F.3d 522 (D.C. Cir. 2019) . 1 Appellate Exhibit 033K ( Khan) Page 1 of43 b . The Commissionhas receivedbriefs from three amici curiae. On 1May 2019, an amicus brief was filed by S.ScottRoehm on behalf of theCenter for Victimsof Torture, Sondra Crosby, Claire Finkelstein, Mark Fallon, Juan Mendez, Alberto Mora, Ron Stief, and Stephen Xenakis. Also on 1May 2019 another amicus briefwas filed by Dru Benner- Beck and Rachel VanLandinham on behalfofthe NationalInstitute ofMilitary Justice. ? On 3 May 2019, the third amicusbriefwas filed by JamesG.Connell, III, andMajorAnn Marie Bush on behalf of Ammar alBaluchi; amicus requested oral argument. c. On 8 May 2019, the Commission accepted the three briefs from amicicuriae for consideration. d . On 15 May 2019, the Government filed its response to the subject motion Governmentrecognizes the Accused's rightto request relief, butargues he is not entitled to receive it. In the Government's view , the propermechanism for seeking such relief is presenting the evidence to the panel as extenuation and mitigation and/ or the Convening Authority in clemency. The Government also argues the Accused waived his right to assert a claim for sentencing credit. Ultimately, the Government takes the position that the Military Judge lacks authority to grantany such credit. The Governmentalso opposed the amicusrequest for oral 11 argument e . The Defense filed its reply on 22 May 2019 , 12 noting the Government's accession to its pointsthatthere is a rightto be free from unlawfulpretrialpunishment; the Accused was 6 AE 033A , AmicusBrief, filed 1May 2019. 033B, Amicus Brief, filed 1May 2019. 8 9 AE 033C , Amicus Brief at 28 , filed 3 May 2019 . AE 033F, Ruling on Amicus(Connell/Bush) Requestfor Oral Argument, dated 19 June 2019. 10 AE 033D GovernmentResponseto DefenseMotion for PretrialPunishmentCreditandOther RelatedRelief, filed 15May 2019. 11 Id . at 35 12 AE 033E , Defense Reply to Motion for Pretrial Punishment Credit and Other Related Relief, filed 22 May 2019 . 2 Appellate Exhibit033K ( Khan) Page 2 of43 mistreated; and that there wasno legitimatepurpose for thatmistreatment. The Defensealso pointsout that confinementcredit and pretrial punishment credit are not interchangeable. The Defense also challenges theGovernment's assertion that the Accused is not entitled to the relief soughtbecause he is a law ofwardetainee; althoughthatmuch is true, that fact in no way precludes him from being concurrently held for trial by military commission . The Defense adds that the Accused did notwaive the subjectmotion because paragraph 11ofthePTA only prohibits him from suing the United States f . The Commission found that oral argument from amicus was notnecessary to considerationof the issues presented in the subjectmotion. TheCommissiondenied themotion for oral argument on 19 June 2019.14 g . On 3 July 2019, the Defensemoved for leave to file supplemental filings with respect to the subject motion in order to provide theMilitary Judge with new legal authority 2019, the Commissiongranted thatmotion. highlighting the D.C.Circuit's 5 July Thereafter, the Defense filed AE 033 ( SUP) in Qassim v. Trump . h. On 24 July 2019, the Governmentresponded to the supplemental Defense filing by again requesting the Commission deny themotion . 18 The Government stated its position that Qassim neither confirmsthe Accused's entitlementto pretrialpunishment credit nor recognizes rights pursuantto the Fifth Amendment of theU.S.Constitution. 13 AE 033E at 17 . 14 AE 033F. 15 AE 033G , Motion for Leaveto FileSupplementalFilingswith Respectto AE 033, Motionfor PretrialPunishment Credit and Other RelatedRelief, filed 3 July 2019. 16 17 AE 033H , Ruling on Motion for Leaveto File SupplementalFilings with Respectto AE 033, dated 5 July 2019 . See note 5, supra. 18 AE0331GovernmentResponse to Defense’sSupplementalFilingin Supportof DefenseMotion for Pretrial PunishmentCredit and OtherRelatedRelief, filed 24 July 2019. 3 Appellate Exhibit033K ( Khan) Page 3 of 43 i. On 31July 2019 , the Defense replied, oncemore relying heavily on Qassim v. Trump, 927 F.3d 522 ( D.C. Cir. 2019) . The Defense takes the position that Qassim unresolved the question ofwhat constitutionalprotections apply” leavesopen and themilitary commissions. The Governmentagreeswith thatmuch.20See Al- Qosiv. United States, No.CMCR 17-001 , slip op . at 8–9 (U.S.C.M.C.R.May21 , 2020 ) ( concludingthat in Qassim , “ the D.C.Circuit said that whetherGuantanamodetaineeshave any proceduraldue process rights is an open question.” ) . j . On November2019, the Commissionheld an R.M.C.803 motionshearingsession which was closed pursuant to R.M.C.806 (b )( ) at U.S.Naval Station Guantanamo Bay, Cuba. 21 The Commission heard oral argument on the question of the Military Judge's legal authority to grant the requested relief. 2.RELEVANTFACTS: a. As attachments to the subject motion , the Defense submitted a detailed proffer of how the Accused and other witnesses would the purpose ofthis ruling, the Commission assumes, withoutdeciding, that the facts as presentedby the Defenseare true. 23 See AE 033 at 19 AE 033 , DefenseReply to SupplementalFilingin Supportof DefenseMotion for PretrialPunishmentCreditand Other RelatedRelief, filed 31 July 2019. 20 AE 033 AE 0331at 1. The D.C.Circuit stated in relevantpart, “ The districtcourt'sdenial[ was predicated on that court's conclusionthat Kiyemba firmly closedthe dooron procedural due processclaimsfor Guantanamo Bay detainees. Thatwas error. Kiyembaneitherpresentednor decidedthe questionof whetherGuantanamo det ees enjoy proceduraldue processprotectionsunderthe Amendment( or any other constitutional source, see, e.g., SuspensionClause, U.S.Const. Art. I, 9 cl. 2) in adjudicatingtheir habeas petitions. Circuit precedentleaves openand unresolvedthe question of what constitutionalproceduralprotectionsapplyto the adjudicationof detaineehabeascorpuspetitions, and where thoserights are housed in the Constitution( the Fifth [ ]he districtcourt's judgment[] Amendment'sDueProcessClause, the Suspension Clause, , or elsewhere ). is reversed and the case isremanded.” Qassim v. Trump, 927 F.3d at528, 530, 532. 21 22 Unofficial/Unauthenticated Transcript ofmotions hearing dated 21November 2019 , pp. 535–565 . See AE 033 at2–3; Att. C D , E, F , G. 23“ At this stage, wemay not question [the defendant's] rendition of the horrors he suffered. In reviewing [the ] motion ...wemustacceptall of [his allegations in the complaint as true.” Princz v . Fed. Republic of Germany, 26 F.3d 1166 , 1176 n.1(D.C. Cir. 1994) ; see Moore v . Agency for Int'lDev't, 994 F.2d 874 , 875 (D.C. Cir . 1993) . 4 Appellate Exhibit033K ( Khan) Page 4 of43 . Forthere isno seriousdispute thatMr.Khan was tortured and suffered other illegal pretrial punishment both in CIA detention and at Guantanamo before his guilty plea. b . The Accused entered the United States in 1996.In July 1998, he was granted derivative asylee status as an unmarried minor child when hismother's petition for asylum was granted . Heremained present in the United States until January 2002.25 c . The Accusedwas capturedin Karachi , Pakistan, in March 2003 and taken into CIA custody. On 6 September 2006 , President Bush gave a speech in which mentioned the Accused by name, alongwith several of his co -conspirators, and indicated the U.S. Government's intentto try them by military commission.26 Also in September 2006 , the Accused was transferred to U.S.NavalStationGuantanamoBay, where he remains to this day.27On 21 May 2009, President Obama gave a speech in which he described five distinct categories of detaineesbeingheld atGuantanamo; the second category was comprised of those being held for trialby military commission.28 d . On 13 February 2012 , five chargeswere referred against the Accused under the Military Commissions Act (MCA) of 2009, to wit: Charge I : Violation of 10 U.S.C. Conspiracy; Charge II: Violation of 10 U.S.C. War; Charge III: Violation of 10 U.S.C. 950t( 15) , Murder in Violation ofthe Law of (28 ), Attempted Murder in Violation of the Law ofWar; Charge IV , Violationof10 U.S.C. 24 AE 033 at 7 . 25 AE 033D at 3 . ( 29), ( 25) , ProvidingMaterialSupport for Terrorism ; 26 PresidentGeorgeW. Bush, PresidentDiscusses Creation of Commissionsto Try Suspected Terrorists ( Sep. 6 2006 ) , availableat https://georgewbush-whitehouse.archives.gov/news/releases/2006/09/20060906-3.html , ( last visited June 3 , 2020). 27 AE 033D at 3 ; see Exec . Order, Detention , Treatment, and Trial of Certain Non - Citizens in the War Against Terrorism , 66 Fed. Reg. 57,833 (Nov. 13 , 2001) . 28 President Barack Obama, Remarks by the President on National Security (May 21, 2009 ), available at https://obamawhitehouse.archives.gov/the-press-office/remarks-president-national-security-5-21-09 June 3 , 2020) , ( last visited 5 Appellate Exhibit033K ( Khan) Page 5 of43 and Charge V : Violation of 10 U.S.C. 950t(27 , Spying. The Convening Authority forMilitary Commissions referred these charges and their underlying specifications to a non-capitalmilitary commission on 15 February 2012 . e. On 13 February 2012, the Accused and his counsel submitted an offer for a pretrial agreement (PTA) with the ConveningAuthority. See AE 012.29 The Accused offered to plead guilty to Charges I through V , agreeing to a number of conditions in exchange for certain actions and considerations by the Convening Authority 29 February 2012 , pursuant to the PTA, the Accused pled guilty to five charges, one ofwhich was later dismissed 31 012 . f . In thePTA, the Accused agreednotto “ initiate any legalclaimsagainstthe United StatesGovernment and United States Government Agency or official, or any civilian or civilian agency regarding his capture, detention, or confinement conditions” before his pleas. AE 012 at 3. In addition , in the Appendix to the PTA , the Accused stated he waived any right to assert a claim for any day -for-day credit against his sentence to confinementbased on any capture, detention or confinement prior to the date the Military Judge accepts [ his] plea. ” AE 013 at 1. g. Duringthe 29 February 2012 guilty-plea hearing, the Military Judge discussed, and agreed, with the Accused and the Partiesthatthe waiver in paragraph 11of AE 012 and paragraph 4 of AE 013 referred to a waiver of the Accused's rightto sue the United States Governmentor United StatesGovernmentofficials for damagesdue to his treatmentwhile in the custody of the United StatesGovernment. Itwas also agreed that the Accused was free to bring suit against foreign governments for the same purpose. 32 29 AE 012, Offer for Pretrial Agreement, dated 13, 15 February 2012 . 30 AE 013, Appendix A to Offer for Pretrial Agreement, dated 13 and 15 February 2012 . 31 Pursuant to Al Bahlul v. United States, 767 F.3d 1 ( D.C.Cir . 2014) , the original Charge IV , 10 U.S.C. 950t(25) ProvidingMaterial Support for Terrorism , was dismissed . 32 See Transcript dated 29 February 2012 at pp . 79–81, 83–85, and 99–100 . 6 Appellate Exhibit033K ( Khan) Page 6 of43 3.LAW : a . For purposes ofthe subject motion , the Commission will bifurcate its ruling. This, the first ruling, contemplatesonly, as a matter of law , theMilitary Judge's legal authority to grant the requested relief. A second ruling on the merits of the subject motion, based on mixed questionsoflaw and fact, would, if necessary, come at a later date. b . As the moving party , the Defense must demonstrate by a preponderance of the evidence that the requested relief is warranted. R.M.C.905( )(1 - (2 ). c. The universalrightto be free of torture is a jus cogensnorm of internationallaw . 1.“ Any court addressing torture does not write on a clean slate.” Ali v. Rumsfeld, 649 F.3d 762, 783 (D.C.Cir. 2011) (Edwards, S.J., dissenting). Torture “ violates definable, universal and obligatory norms. Tel Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984) , cert. denied, 470 U.S. 1003( 1985), (Edwards, J., concurring); Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941(D.C.Cir. 1988). Of those violations ofhuman dignity thatexist, torture is enumerated as an “ evilofmostimmediateconcern. Estelle v. Gamble , 429 U.S. 97 , 103 (1976 ) ; see Sosa . Alvarez -Machain , 542 U.S.692, 732 (2004 ) ( citing Filartiga v. Pena, 630 F.2d 876 , 890 (2d Cir. 1980)) . Every circuit to address the issue has concluded that official torture violates customary international law (CIL . 2. Torture is now , and has alwaysbeen , abhorrent to the law of ournation and the lawsof all nations. Gregg v. Georgia, 428 U.S.153, 171(1976) (“ Thus the Clause forbidding 33 See, e.g., Kiobelv . RoyalDutch Petroleum Co., 621F.3d 111, 120 (2d Cir. 2010); id . at 155 (Leval, J. , concurring in the judgment) ; Aldana v. DelMonte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250–53 ( Cir. 2005) (per curiam ); Kadic v. Karadzi, 70 F.3d 232, 243–44 (2d Cir. 1995) Hilaov. Estate ofMarcos, 25 F.3d 1467, 1475 (9th Cir. 1994); Tel- Oren v. Libyan Arab Republic, 726 F.2d 774, 788 ( D.C.Cir . 1984) ( Edwards , J., concurring); id. at (Bork, , concurring). 7 Appellate Exhibit033K ( Khan) 7 of43 and unusual punishments ‘ is not fastened to the obsolete butmay acquire meaning as public opinion becomes enlightened by a humane justice. ” quoting Weems v. United States, 217U.S.349, 378 ( 1910) ) . The universalprohibition against torture requiresthat ourcourts treat itwith the utmostattentionas a grave violation of nationalinterest, particularlywhen thattorture is committed underthe “ color of officialauthority” of the U.S.Government . See Kiobelv. Royal Dutch Petro . Co., 569 U.S. 108 , 133 ( 2013) (Breyer, J., concurring ). 3. Torture is : 34 Any actby which severe pain or suffering, whether physical ormental, is intentionally inflicted on a person for such purposes as obtaining from or a third person information or a confession , punishing him him or her or her for an act he or she or a third person as committed or is suspected ofhaving committed , or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.... 8 C.F.R. 1208.18 ( a ) ( 1) . The U.S. ratified the Convention Against Torture ( CAT) in 1988. Omar v. McHugh, 646 F.3d 13, 17 ( D.C.Cir. 2011); 8 C.F.R. 1208.18( a) ( 3 ) Although there is no universal agreement as to the precisemeaning ofthe “ human rights and fundamental freedoms ” guaranteedto all by theUnitedNations Charter, there is at presentno dissent from the view thatthe guaranties include, at a bare minimum, the rightto be free from torture.” 34 Thisdefinition borrowsextensively from ” that in Article 1 of the 1984 ConventionAgainst Torture and Other CruelInhuman and DegradingTreatmentor Punishment , a treaty to which theUnited States is a party. See Price v. SocialistPeople'sLibyanArab Jamahiriya, 294 F.3d 82, 92 (D.C.Cir. 2002); see also S. Rep. No.249, 102d Cong., 1st Sess. , at 3 (1991 ) . The Torture Victim ProtectionAct of1991operatesasU.S. implementinglegislationwith respectto certain aspects of the Convention. See United States v. Belfast, 611F.3d 783, 807–09 (11th Cir. 2010), cert. denied, 131S. Ct. 1511(2011) . 35 United NationsConvention againstTortureand OtherCruel, Inhuman or DegradingTreatmentor Punishment, Dec. 10 1984, 23 I.L.M.1027, 1465U.N.T.S.85 (CAT; seeGeneva Convention Relativeto the Protectionof CivilianPersonsin Time ofWar, Aug. 12, 1949, 75 U.N.T.S.287; Geneva ConventionRelativeto the Treatmentof PrisonersofWar, Aug.12, 1949, 75 U.N.T.S.135; InternationalCovenanton Civil and PoliticalRights, Dec.19, 1966, 999U.N.T.S.171.Congresshas limitedjudicialreview underthe Conventionto claimsraisedin a challenge to a finalorder of removal . 8 U.S.C. 1252(a)(4 ) (“Notwithstandingany other provisionof law ...includingsection 2241of Title 28 , or any otherhabeas corpus provision a petition for review order ofremoval ] shallbe the sole and exclusivemeans for judicialreview of any causeor claim ” arisingunderthe Convention) . Kiyembav. Obama, 561 F.3d 509, 514–15(D.C.Cir. 2009) . Accordingly, the CAT itselfis notself-executingand servesonly to providea definition. Butsee 18 U.S.C.S 2340–2340A; 18 U.S.C. 2441; 10 U.S.C. (11 ( 14) . 8 Appellate Exhibit033K ( Khan) Page of43 Filartiga, 630 F.2d at 882–83. As the Universal Declaration ofHuman Rights (UDHR) plainly states, “ no one shall be subjected to torture. Torture is prohibited atall times and in all circumstances without exception; this prohibition is a jus cogens peremptory norm of internationallaw . Sosa, 542U.S.at 732; Filartiga, 630 F.2d at890. 4. The principles of the UDHR constitute basic principles of international “ Where it isprovedthat an act of torture or other cruel, inhuman or degradingtreatmentor punishmenthas been committed by or at the instigation of a public official, the victim shallbe afforded redress and compensation , in accordance with national The UDHR is an authoritative statement of the international community39 and binding CIL.40 [ I ] nternational law confers fundamental rights upon all people While the ultimate scope of those rights will be a subject for continuing refinement and elaboration , we hold that the right to be free from torture is now amongthem .” Filartiga, 630 F.2d at 884–85. “Officialtorture is clearly and unambiguously prohibited by the law of nations. ” Id. 5. International human rights law (IHRL) focuses on a State's obligation to protect the inherent dignity and inalienable rights of individualhuman beings. IHRL exists in 36General Assembly Resolution (G.A.Res. 217 ( III) (A ) (Dec. 10 , 1948 ), art. 5 . 37 G.A.Res. 2625 (XXV) (Oct. 24, 1970) . The Declaration expressly prohibits any state from permitting torture. Declaration on the Protection of All Persons from Being Subjected to Torture, General Assembly Resolution 3452, 30 U.N.GAOR Supp . (No. 34) 91, U.N.Doc. A /1034 ( 1975) . See also Nayar, “ Human Rights: TheUnited Nations and United States Foreign Policy, ” 19 HARV. L.J.813, 816 n.18 ( 1978 ). 38 Id .;see also CAT Art. 14 . 39 E.Schwelb , Human Rights and the InternationalCommunity 70 (1964) . 40 Nayar , supra note 37 at 816–17; Waldlock, “ HumanRights in ContemporaryInternational Law and the Significanceof the EuropeanConvention,” COMP. , Supp . Publ . No.11at 15 ( 1965). See, e.g., American Conventionon Human Rights , Art. 5 , OAS Treaty SeriesNo.36 at 1, OASOff. Rec. OEA/ Ser 4 v/II23, doc. 21, rev. 2 (English ed. , 1975) ( No one shallbe subjected to tortureor to cruel, inhuman or degrading punishmentor treatment International Covenanton Civiland PoliticalRights , U.N.GeneralAssembly Res. 2200 (XXI U.N.Doc . A /6316 (Dec.16, 1966) (identicallanguage ); EuropeanConventionfor the ProtectionofHuman Rights and FundamentalFreedoms , Art. 3 , Councilof Europe, European TreatySeriesNo.5 (1968) , 213 U.N.T.S. 211(semble) 41UniversalDeclarationofHumanRights, G.A.Res. 217A ( III ) , U.N.GAOR, 3d Sess., U.N.Doc. A /810 (Dec.10, 1948) , pmbl 9 Appellate Exhibit033K ( Khan) Page 9 of43 two forms: treaty law and CIL.42 The field of IHRL developed after World War IIin response to the systematic abuse and genocide of the twentieth century , beginningwith the formation of the United Nations . The UN Charter and one of its earliest resolutions, the UDHR , are considered foundational IHRL. There is virtually unanimousagreement43thattorture is prohibitedby internationallaw : In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free of torture. Spurred first by the GreatWar, and then the Second , civilized nations have banded together to prescribe acceptable norms of international behavior. From the ashes of the Second World War arose the United Nations Organization, amid hopes that an era of peace and cooperation had at last begun. Though many of these aspirations have remained elusive goals, that circumstance cannot diminish the true progress that has been made. ... Among the rights universally proclaimed by all nations, as we have noted , is the right to be free ofphysical torture. Indeed, for purposes of civil liability, the torturer has becomelike the pirate and slave trader before him hostis humani generis, an enemy of allmankind. Filartiga, 630 F.2d at 890. 6.IHRL and the Law of Armed Conflict (LOAC) are widely viewed as complementary accordingly, the LOAC does not displace IHRL during armed conflict. Instead, IHRL serves to regulate state conduct towardsindividualsduring armed conflict if its rules are a better fit than LOAC in a given situation . LOAC is accepted as the lex specialis in armed conflict, particularly internationalarmed conflict . However, in non- internationalarmed conflict, where there are fewer codified LOAC protections, IHRL may apply. A variety of sources determine what constitutes customary IHRL, including, but not limited to , the Restatement 42 LCDR David H.Lee, JAGC, USN , Editor, Operational Law Handbook , International and Operational Law Department, The Judge Advocate General's Legal Center & School, U.S.Army, Chapter 3, International Human Rights Law ( 2015). See RESTATEMENT ( THIRD ) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ( 1987 . 43 Ian Hurd , How to Do Things with International Law 17 2017) . 10 Appellate Exhibit033K ( Khan) Page 10 of 43 ( Third ) of U.S. Foreign Relations Law , Common Article 3 of the Geneva Conventions , and authoritative pronouncements ofU.S.policy by ranking government officials. 7. The Geneva Conventions44 have been signed and ratified by every country in the world , including the United States, meaning they have the force of U.S. Const. art. VI, cl. 2 ; United States v . Hamidullin , 888 F.3d 62, 66 (4th Cir . 2018 ) , cert. denied , 139 S. Ct. 1165 (2019). The text and drafting history of the 1949Geneva Conventions demonstrate specific intent to afford judicially -enforceable individual rights to detainees in military custody. 46 The 1949 drafters included these rights to remedy the egregious failure of diplomatic mechanismsto impose compliancewith the protectionsofthe 1929 Geneva Conventionsduring World War II . The Geneva Convention of 1949, art. 3 (“Common Article 3 ), prohibits torture any time and in any place” in an “ armed conflict not of an international character.” Ever since the Vietnam War — the first war in which the U.S. had to apply the Geneva Conventions to insurgents— U.S. military policy hasbeen to apply Common Article 3 to all detaineesupon capture. 44 Ali, 649 at 783 ( Edwards , J., dissenting) . See Geneva Convention( III) Relativeto the Treatmentof PrisonersofWar, art 87 , Aug.12, 1949, [ 1955] 6 U.S.T.3316 ( C ]ourtsor authoritiesof the DetainingPower... be at libertyto reducethepenaltyprovided for the violation of which theprisonerof war is accused, and shall therefore notbebound to applytheminimum penalty prescribed. ); GenevaConvention( IV ) Relativeto the Protection of CivilianPersonsin TimeofWar, art. 118, Aug.12, 1949, 6 U.S.T.3516 (sameinvolvingnon- POWs ). 45 TheGenevaConventionof August 12, 1949, as identified in section 6 ( ) of the WarClaimsActof 1948, as amended, is the “Geneva ConventionRelativeto the Treatmentof PrisonersofWar of August 12, 1949” which is includedunderthe “Geneva Convention of August , 1949, for the Protection of War Victims , ” entered into by the UnitedStates and other governments, includingthe former governmentin North Vietnam which acceded to it on June 28, 1957.AUTHORITY: Sec. 2 , Pub.L.896, 80th Cong amended( 50 U.S.C.App. 2001) . 45 C.F.R 506.15. See 18 U.S.C.A. 2441( Added Pub.L.104-192, 2( a), Aug.21, 1996, 110 Stat. 2104, 2401; renumbered 2441, Pub.L.104-294, Title VI, (p )( 1), Oct.11 , 1996, 110 Stat. 3510; amended Pub.L.105-118, Title V , 583, Nov.26 , 1997, 111 Stat. 2436 ; Pub.L.107-273, Div. B Stat. 1810; Pub.L.109-366, 46 Title IV , 4002( ) 7) , Nov.2 , 2002, 116 b ) ( 1) , Oct. 17, 2006 , 120 Stat. 2633.). See Hamdan v. Rumsfeld, 2006 WL 53982 (U.S., 2006 ) (Briefof AmiciCuriaeInternationalHuman Rights Organizations ) ; Adriana Sinclair, Geneva Conventions , in 1 The OxfordEncyclopediaofAmericanMilitaryand DiplomaticHistory 414 ( Timothy J.Lynch ed. , 2013) . 47 James F.Gebhardt, The Road to Abu Ghraib : US Army Detainee Doctrine and Experience 120 (2005 ); see also William H.Taft, IV , The Law of Armed Conflict After 9/11: Some Salient Features , 28 YALE J. 319, 321 11 Appellate Exhibit033K ( Khan) Page 11of 43 8. Common Article 3 provides that in an “ armed conflict not ofan international characteroccurringin the territory ofoneof the High ContractingParties, each Party to the conflictshall be bound to apply, as a minimum ,” certain provisions, includingtheprocessesof“ a regularly constituted court affordingall the judicial guarantees which are recognized as indispensableby civilized peoples. Hamidullin , 888 F.3d at 67–68 (citing art 3); see also Hamdan v. Rumsfeld, 548U.S.557, 629–30 ( 2006 ); Al- Qosi, No.CMCR 17-001 , slip op . at 10 ( citing R.M.C.102( a ) ) (“ These guaranteesareincorporatedinto the proceduraland evidentiary rules that govern military commission cases to provide for the just determination of every proceedingrelating to trialby military commission.” ) . Common Article 3 is widely regarded as establishing the most fundamental guarantees ofhumane treatment for all persons in all conflicts. Itprohibits murder, summary execution , torture , andhumiliating and degrading treatment. The Third Geneva Convention also guarantees the rightto humane treatment including protection from torture and coercive interrogation tactics, and requires due process and fair trial rights. ( 2003 ) ( Terrorists forfeit any claim to POW status under the lawsofarmed conflict, butthey do not forfeit their rightto humane treatment — a rightthat belongs to allhumankind , in war and in peace. ”) . 48 ArmyRegulation 190-8 confirmsthat persons taken into custodybyU.S.forceswill beprovided Geneva Conventionprotections. 49 See ThirdGeneva Convention, art. 99 ( statingthat“ [n ]o moralor physical coercion may be exerted on a prisoner ofwar in order to inducehim to admit himself guilty of the actof which he is accused. ) ; ProtocolI, art. 75 (forbidding “ torture of all kinds, whether physical or mental .” ) . See also Hamdan v. Rumsfeld, 548U.S.557 628–29 ( 2006 ) (discussing the conflict in Afghanistanbetween theU.S.and al- Qaedaand applying Article 3) ; ICRC, Commentaryon the Additional Protocolsto the Geneva Conventionsof 12 August 1949 1350–51(1987) (discussing the Conventions' distinctionbetween internationaland non- internationalconflictsand explainingthat“ in a non internationalarmed conflictthe legalstatus of theparties involved in the struggle is fundamentallyunequal. Insurgents(usually partof the population), fightagainstthe governmentin power” ). 12 Appellate Exhibit033K ( Khan) Page 12 of 43 9. The CAT, to which the United States is a signatory party , was implemented by the Torture Victim Protection Actof The CAT appliesto U.S.activitiesworldwide, including military operations. Article 2 (1) requires each state party to take effective legislative, administrative , judicialorothermeasuresto preventacts of torture in any territory underits jurisdiction.” Article 2 (2 ) expressly applies the CAT to situations of armed conflict, and requires that“ [ n ] o exceptionalcircumstanceswhatsoever, whethera state of war or a threatof war, internal political instability or any otherpublic emergency , may be invoked as a justification of torture.” Underthe CAT, each State Partymust ensure that allacts of torture are offences under its criminallaw , ” including attempts, complicity , and participation. Furthermore, “ [ e ]ach State Party shall ensure in its legalsystem that the victim ofany actof torture obtains redress and has an enforceable rightto fair and adequate compensation, including themeans for as full rehabilitation as . 10. The Restatement( Third) ofU.S.Foreign RelationsLaw defines CIL as the “ general and consistent practice of states followed by them from a sense of legal obligation. ” Princz v. Fed. Republic ofGermany, 26 F.3d 1166 , 1180 (D.C.Cir . 1994) (Wald , J. , dissenting) ( citing 1 Restatement ( Third ) 102 2 ) ) . To ascertain CIL , judges resort to “ the customs and usages of civilized nations, and, as evidence ofthese , to the worksof jurists and commentators. 50 “ ConventionAgainst Torture” shall refer to theUnitedNationsConventionAgainst Torture and Other Cruel, Inhuman or DegradingTreatmentor Punishment, subjectto any reservations , understandings , declarations , and StatesSenate resolutionofratificationofthe Convention, as implementedby provisoscontained in the Un section 2242of the Foreign AffairsReform andRestructuringActof 1998 ( Pub.L.105-277, 112 Stat 2681–821 ) . See 8 C.F.R. . , 51Torture Victim ProtectionAct (“ TVPA” ) of 1991 , Pub. L.No.102-256, 106 Stat. 73 (1992), reprintedin 28 U.S.C. 1350 (2000). 28 U.S.C. 1350(Notes), Pub. L.No. 102-256,Mar.12, 1992, 106 Stat. 73, the Torture Victim ProtectionAct of1991.“ An Act...[ t]o carry out obligationsofthe UnitedStatesunder theUnitedNations Charterand other international agreementspertainingto theprotectionof human rightsby establishinga civilaction for recoveryof damages from an individualwho engagesin torture or extrajudicialkilling, availableat https://www.congress.gov/bill/102nd-congress/house-bill/2092/text,(last visited June 3, 2020). 52 Article 4 . 53 Article 14 . 13 Appellate Exhibit033K ( Khan) Page 13 of 43 The PaqueteHabana, 175U.S.677, 700 ( 1900) (“ Internationallaw is part ofour law , ...where there is no treaty and no controlling executive or legislative act or judicial decision, resortmust be had to the customsand usages of civilized nations, ; also RESTATEMENT, 111. To crystallize into a rule of CIL , there mustbe consistentstate practicedone outofa sense oflegal obligation (opinio juris). State practice is evidenceofhow governments understand the context oftheir obligations, and thus what they consider to be lawful and unlawful. To determine what is lawful for a state, one must firstknow whatrules it hasaccepted, and what reservations54 or understandingsithas imposed 11. These sametools are used to determinewhether a norm of CIL has attained the special status of jus cogens. See Siderman de Blake v. Republic of Argentina , 965 F.2d 699, 715 (9th Cir. 1992) , cert. denied, 507 U.S.1017 ( 1993) . A jus cogensnorm existswhen the internationalcommunityrecognizesthe norm as so fundamentalthat it is “ nonderogable. ” Princz, 26 F.3d at 1180; Nicaragua, 859 F.2d at 940 ( quoting Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, U.N.Doc . A /Conf. 39/27, 8 I.L.M.679) . Derogation is the legal rightto suspend certain treaty provisions in time of war or in cases of national emergencies. Certain rights, however, may notbe derogatedfrom , including the prohibitionon torture. Unlike general rules of CIL (jus dispositivum ), whereas states are not constricted by CIL norms to which they persistently object, jus cogens normsare binding upon all nations. Princz, 26 F.3d at 1181. 54 In its ratification oftheCAT, the United States interposeda reservation as the cruel, unusual, and inhuman treatmentor punishmentprohibited by the Fifth, Eighth, and/or Fourteenth Amendmentsto the Constitutionofthe United States.” (emphasis added) ; see 136 Cong. Rec. S17486-01(daily ed . , Oct.27 1990), available at http://www1.umn.edu/humanrts/usdocs/tortres.html,(last visited June 3, 2020) . “ Becausestatescannotmaketreaties to contractaroundjus cogensnorms, USobligation under the norm against torture should be unalteredby its RUDs. One can putthis issue aside, however, becausetheabuse of detainees consisted of torture even under the restrictive US definition.” Joshua A.Decker, Is the United States Bound by the Customary InternationalLaw of Torture? A Proposalfor ATS Litigationin the War on Terror, 6 CHI. J. L.803, 822 ( 2006). 55 Hurd, supra note 43, at44. 14 Appellate Exhibit033K ( Khan) Page 14 of43 12. The establishment ofthe concept ofjus cogens norms (peremptory norms) in internationallaw has occurred through the 1969Vienna Convention on theLaw of Treaties (VCLT). 138 Article 53 of the VCLT provides, “ a peremptory norm of general internationallaw is a norm acceptedand recognizedby the internationalcommunity of Statesas a whole as a norm from which no derogation is permitted and which can bemodified only by a subsequentnorm of general international law having the same character. 56 The prohibitions against genocide, slavery, murder, disappearance, torture and cruel, inhuman, and degrading treatment, prolonged arbitrary detention, and systematic racial discrimination are considered to bejus cogens. Princz , 26 F.3d at 1173. 13. The prohibition against torture is not only jus cogens, but it also holdsan even higherrank than CIL or treaty law . internationalaction could ever legitimizethe use of torture. Khulumaniv. Barclay Nat. BankLtd., 504 F.3d 254 (2d Cir. 2007) , aff'd sub nom. Am . Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008). 58 BecauseCIL has the force ofU.S.law , jus cogensnorms of fundamentalhuman rights are binding on U.S. forces during all overseas operations. Accordingto the Restatement, the United States accepts the positionthat a state violates jus cogenswhen , as a matter of policy, it practices, encourages, or condones, inter alia, 56 Matthew Saul, The Normative Status of Self- Determination in International Law : A Formula for Uncertainty in the Scope and Content of the Right?,11: 4 HUMAN RIGHTS LAW REVIEW 609 , 610 ( 2011) . 57 Prosecutor v. Furundzija , Case No. IT -95-17/ 1, Trial Chamber Judgment, P 59, 153 ( Dec. 10, 1998) ; see Tibi v. Ecuador, Preliminary Objections Merits , Reparations , and Costs , Judgment , InterAm . Ct. H.R. ( ser. C ) No. 114, 143 (Sept. 7 , 2004 ) . 58 Hurd , supra note 43, at 108–09; see Questions relating to the Obligation to Prosecute or Extradite ( Belgium v. Senegal) , Judgment, I.C.J. Reports 2012 , p. 422, 457 ( [ T he prohibition of torture is part of customary international law and it hasbecome a peremptory norm ( jus cogens) . That prohibition is grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application ( in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection of war victims , and it has been introduced into the domestic law of almost all States; finally , acts of torture are regularly denounced within national and international fora . ) . 59 MAJKeith E.Puls, Editor, Law ofWar Handbook, International& OperationalLaw Department , The Judge AdvocateGeneral'sSchool , U.S.Army( 2005) . Chapter 10 Human Rights. 15 Appellate Exhibit033K ( Khan) Page 15 of 43 torture or other cruel , inhumane, or degradingtreatmentor punishment. , 26 F.3d at 1173–74 (Wald , J., dissenting ) . 14.Domestically, torturehas been prohibited since the nineteenth century. Ali, 649 F.3d at 781( Edwards, J., dissenting) ( citing Estelle, 429 U.S.at 102; Wilkerson v. Utah, 99 U.S. 130, 136 (1879)); Ingraham v. Wright, 430 U.S.651, 665–66 ( 1977) ( citing Weems, 217 U.S.at 371–373). U.S. law has always encompassed the freedom from bodily punishment. See Rochin v. California, 18 U.S.C. Treatment 2340A . U.S. 165 ( 1952) . Congresshas also prohibitedtorture abroad. Within armed conflict, Congress has declared , in the 2005 Detainee and the 2006 and 2009 versions of the Military CommissionsAct, that “ [ n] o individualin the custody or under thephysical controlof the United StatesGovernment, regardless of nationality or physical location , shallbe subject to cruel, inhuman, or degrading treatment or punishment and has further prohibited any treatment or technique of interrogation not authorized by and listed in the United States ArmyField Manualon 60 Id . 61 Added Pub. L.103-236 , title V , ( a), Apr. 30 , 1994 , 108 Stat. 463; amended Pub. L.103-322, title VI, $ , Sept. 13, 1994, 108 Stat. 1979; Pub . L.107-56 , title VIII, 811( g), Oct. 26 , 2001, 115 Stat. 381. “ Section 2340A of Title 18 United States Code , prohibits torture committed by public officials under color of law against persons within the public officials custody or control . Torture is defined to include acts specifically intended to inflict severe physical or mental pain or suffering . (Itdoes not include such pain or suffering incidental to lawful sanctions .) The statute applies only to acts of torture committed outside the United States . There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States , irrespective of the nationality of the victim . https://www.justice.gov/jm/criminal-resource-manual-20-torture-18-usc-2340a , ( last visited June 3, 2020 ) . 62 The McCain Amendment soon became an example ofvertical, transnational human rights enforcement. Against the vigorous objections and lobbying efforts of the Bush Administration , a transnational network arose, consisting of private citizens and some twenty -eight retired generals, led by former Secretary of State Colin Powell, who came forward to speak in favor of the Amendment . At the same time, numerous human rights NGOs, such as Human Rights First, and Human Rights Watch vigorously pressed the case for the Amendment. The federal courts also weighed into the general debate Thus, a transnational network against torture provoked an interaction , which led to an interpretation of law , which promoted the internalization of a norm against torture and cruel, inhuman , or degrading treatment into U.S.law .” Harold Hongju Koh, Can the President Be Torturer in Chief?,81 . L.J. 1145, 1154 (2006 ) 63 DTA, Pub. L.No. 109-148, div . A , title X , 1003 a ), 119 Stat. 2680, 2739 ( codified at 42 U.S.C. 2000dd(a )) ; 2006 MCA, Pub. L.No. 109-366, 6 ( ) , 120 Stat. 2600, 2635 ( codified at 42 U.S.C. through Pub.L.116-140, Apr.28, 2020, 134 Stat. 631). - 1) current 16 Appellate Exhibit033K ( Khan) Page 16 of 43 Intelligence Interrogation . 65 15. In lightof the universaljus cogensprohibition, “ an act oftorture committed by a state officialagainstone held in detention violates established normsof the international law ofhuman rights, and hence the law ofnations.” Filartiga, 630 F.2d at 880 (citing United States v. Smith , 18 U.S. (5 Wheat.) 153, 160–61(1820) Lopes v. Schroder, 225 F.Supp. 292, 295 ( E.D.Pa. 1963)). The prohibition does not distinguish between treatment of aliens and citizens and appliesto everyone, everywhere, and atall times, both in peace and in war. See Filartiga, 630 F.2d at884–85; see also, CAT art. 2 (“ No exceptionalcircumstanceswhatsoever, whether a state of war or a threat ofwar, internalpolitical instability or any other public emergency, may be invoked as a justification of torture.” ). 16.Jus cogensnormsmay well restrain the U.S.government in the sameway the Constitution does. Nicaragua, 859 F.2d at 941–42. The jus cogensnorm against torture binds the 64 DTA , Pub. L.No. 109-148, div. A , title X , 1002( a ), 119 Stat. at 2739 (codified at 10U.S.C. 801(note)) . Individuals in U.S.custody not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual2-22.3. U.S.C. 2000dd- 2 (2015) . See also 18 U.S.C. 2441(makingwar crimes committed by or against a member of the U.S. Armed Forces or a U.S.nationalpunishable by fine, imprisonment, and/ or death , regardless ofwhere the crime occurred ). Asstated in the U.S. Army Field Manual: “ U.S.policy expressly prohibits acts of violence or intimidation, including physical or mentaltorture, threats, insults, or exposure to inhumane treatmentas ameansof or aid to interrogation. ... Such illegal acts are not authorized and will not be condoned by the U.S. Army.” U.S. DEP’T OF ARMY, FIELD MANUAL 34-52, at ( 1992), available at http://www.fas.org/irp/doddir/army/fm34 52.pdf, ( last visited June 3, 2020) . This manualdescribes the legalstandards governing interrogationsby U.S. military personnel and specifically defines physicaltorture” to include “ infliction of pain through chemicals or bondage ” “ forcing an individual to stand, sit or kneelin abnormal positions for prolonged periods of time, ” “ food deprivation ,” and “ any form of beating. ” Id. 65 Military necessity does notadmit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It admits ofdeception, but disclaimsacts of perfidy; and , in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult. the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information.” See Art. 16 , 75–76 , 80 , Instructions for the Government of Armies ofthe United States in the Field, Adjutant General's Office, prepared by Francis Lieber, promulgated as GeneralOrders No. 100 by President Lincoln, 24 April 1863.Washington 1898: Government Printing Office. 66 SeeHamdan v. Rumsfeld, 548U.S.at630 (explainingthatthe phrase conflictnotof an internationalcharacter was used in contradistinctionto GenevaConvention Common Article2’s applicationto conflictsbetweennations, such that Common Article 3 appliesto the United States' conflictwith al Qaeda) . 17 Appellate Exhibit033K ( Khan) Page 17 of 43 United States, but its domestic law controls how this binding force is expressed. Even when the United Statesacts outside itsborders, its powers are not“ absolute and unlimited butare subject “ to such restrictions as are expressed in the Constitution. ” Boumedienev. Bush, 553 U.S.723, 765 ( 2008) (quotingMurphy v. Ramsey, 114U.S. 15 ( 1885) ) . Remediesmay lie from shocking acts of violence, torture or custodialinterrogation perpetrated by or at the direction ofUnited States officials. United States v. Abdalla , 317 F.Supp. 3d 786 , 792 n.2 (S.D.N.Y.2018); see United States v . Noorzai, 545 F.Supp. 2d 346 , 352 (S.D.N.Y 2008) ; United States v. Reed, 639 F.2d 896 , 901 (2d Cir. 1981). d . The D.C.Circuithas left an opening for remedies in egregious cases of torture. 1.An illegalarrest, withoutmore, has been viewed as a bar to subsequent prosecution, noras a defense to a valid conviction. United Statesv. Crews, 445 U.S.463, 474 ( 1980 ( citingGerstein v. Pugh, 420 U.S. 103, 119 ( 1975) ; Frisbie v. Collins, 342 U.S.519 1952) ; Ker v. Illinois, 119 U.S.436 ( 1886) ) . This principle is generally referred to as the Ker- Frisbiedoctrine. However, in United States v. Toscanino, 500 F.2d 267, 269 ( 2d Cir. 1974), 67 the Second Circuit created an exception to this doctrine where the U.S. government engages in “misconduct‘ of themost shockingand outrageouskind.” Matta-Ballesteros, 71F.3d 754, SeeUnited States v. (9th Cir. 1995) ( quoting United States v. Valot, 625 F.2d 67 Toscaninowas kidnappedbyU.S.agents, surveilled, tortured and taken to the U.S.for prosecution. Hewas violently kidnapped,” “ brutally tortured ” deprived [ ] of food and sleep, and interrogated[ ] for seventeen days. U.S.ex rel. Lujan v. Gengler, 510 F.2d62, 64–65 ( Cir. 1975). “ [ H e was denied sleep andnourishment forced to walk up and down a hallwayfor seven or eighthours at a time, kicked and beaten, jolted with electricitythrough electrodes attached to hisbody, and flushed with alcoholinto his eyes and nose. United States v . alLiby, 23 F. Supp. 3d 194, 198( S.D.N.Y.2014). Healleged thathewas pistol -whipped, bound, blindfolded, brutally tortured, and interrogatedhim for seventeen days, and finally drugged and broughthim to the United Statesby airplane, all with the knowledgeof an AssistantUnited States Attorney.” United States v. Matta- Ballesteros, 71F.3d 754, 763 (9th Cir. 1995), opinion amended on denialof , 98 F.3d 1100 (9th Cir. 1996) . Toscanino further alleged that a gun blow knockedhim unconsciouswhen hewas firsttaken into captivity[ : ] ... that drugswere administeredto subdue him for the flightto the United States[: ] ...[ and] thattheUnited StatesAttorney wasawareofhis abduction [ and] interrogation.” Lujan, 510 F.2d at66.The appeals courtremandedthe caseand ordered the governmentto respond to his allegationsin an affidavit. The indictmentwas ultimately void because Toscanino’spresencewas illegally obtained. United States v . Toscanino, 500 F.2d267, 269 ( 2d Cir. 1974) . 18 Appellate Exhibit033K ( Khan) Page 18 of 43 308, ( 9th Cir. 1980) ) ; see also United States . Anderson, 68 M.J.378, 383 ( C.A.A.F.2010) (citing United States v. Russell, 411U.S.423, 431–32 ( 1973) ) . Facedwith a conflictbetween the Ker- Frisbie doctrine and an “ expanded and enlightened interpretation expressed in more recent decisions of the Supreme Court ...to the extentthat the two are in conflict, the Ker- Frisbie version must yield.” Toscanino, 500 F.2d at 275.U.S.courts no longer disregard the behaviorof agents outside U.S.borders. 2.In the D.C.Circuit, outrageousgovernmentconductclaimsare governedby the SupremeCourt's holding in Sosa thatthemeans used to bringa defendantbefore the court do notaffect jurisdiction . United States v. Mejia, 448 F.3d 436 , 442 (D.C.Cir. 2006 ); see Sosa , 542 U.S.692. However, the court “ ha s ] suggested that theremay be a very limited certain cases of brutality, and similaroutrageousconduct. for United States v. Rezaq, 134 F.3d 1121 , 1130 (D.C.Cir. 1998) ( citingUnited States v. Yunis, 924 F.2d 1086 , 1092–93( D.C. Cir. 1991) ( quoting U.S. ex rel. Lujan v. Gengler, 510 F.2d62, 65 ( 2d Cir. 1975) ) ) . “ The Toscanino issue exemplifies the case in which the district court exercisesdiscretion because there is no law to apply. ” v. Rolls- Royce Ltd., 702 F.2d 255, 259 (D.C.Cir. 1983) . 3. Sufficiently outrageous conductwas found in Rochin, wherein “ an emetic solution was forced through a tube into a defendant's stomach to recover two morphinecapsules which hehad swallowed; the capsules were later introduced at his trial. ” Lujan, 510 F.2d at Justice Frankfurter reversed the conviction because the misconduct“ offend[ ed] those canons of decency and fairness which express the notions ofjustice.” Rochin, 342U.S.at 169. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove whatwas there, the forcible extraction of his stomach's contents course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation . Ithas long since ceased to be true that due process of law is 19 Appellate Exhibit033K ( Khan) Page 19 of 43 heedless of the means by which otherwise relevant and credible evidence is obtained . ... [ ]onvictions cannot be brought about by methods that offenda sense ofjustice . Id. at 172–73. “ The rack and torture chamber may not be substituted for the witness stand.” Brown v. State of Mississippi, 297 U.S.278, 285–86 ( 1936 ). “ [ T ] o sanction the brutal conduct ... would be to afford brutality the cloak of law . Nothingwouldbemore calculatedto discredit law and thereby to brutalizethe temper of a society. Rochin, 342 U.S.at 173–74; see Russell, 411 U.S.at 431–32 ( “we may someday bepresented with a situation in which the conduct of law enforcementagentsis so outrageousthatdue process principleswould absolutely bar the government from invoking judicial processes to obtain a conviction” ). Cruel, inhuman , and outrageous treatmentdemands a remedy. Lujan , 510 F.2d at65–66 . 4. The traditionalremedy for government pretrialmisconduct is the exclusionary rule, which servesto deny the governmentthe fruits of its exploitation of any deliberateand unnecessary lawlessness on its part .” United States v. Fernandez , 500 F. Supp . 2d , 665 (W.D.Tex. 2006) ( quoting Toscanino, 500 F.2d at275, 279 ( exclusionary rule insufficient)) ; see Wong Sun v. United States, 371U.S.471, 488 ( 1963) (“ Where suppression of evidence willnot suffice, however, we mustbe guided by the underlyingprinciple thatthe governmentshouldbe denied the right to exploit its own illegalconduct.” ) . In Sullivan, which involvedanti-war protests in Washington, D.C. , on MayDay, 1971 , “ the police did notgovern themselvesby their ordinary procedures.” Sullivan v. Murphy, 478 F.2d 938, 965–67 (D.C. Cir. 1973). The premise of the legal system , that unlawful arrests can be avoided or remedied by holding individual policemen accountable, evaporated when field arrest procedureswere suspended and when persons other than arresting officers were permitted to execute field arrest forms. This lack of accountability was heightened by the fact that officers appeared on duty without customary name tags or numbered badges, which likewise precluded complaints to departmental superiors. Since the disorderly conduct and other offenses charged did not involve 20 Appellate Exhibit033K ( Khan) Page20 of 43 tangible evidence, implements or fruits , the exclusionary rule evolved by the courts to restrain unlawful arrests had no meaningfulpertinence or influence. Sullivan, 478 F.2d at 967.When governmentactivity violates a protected right, courts have oversightauthority. Hampton v. United States, 425 U.S.484, 489 ( 1976). e. Federal courts are empowered to fashion a remedy for the violation ofa known right. 1. The concept of fundamental fairness “derives from the Due Process Clause that guarantees the fundamental elements of fairness in a criminal trial. ” Al- Qosi, No. CMCR 17 001, slip op . at 8 (quoting Spencer v. Texas, 385 U.S.554, 563–64 ( 1967) ). Even in cases of conduct which offends fundamental canons of decency and fairness,” the due process clause applies only “ when the bad behavior precipitates serious prejudice to some recognized legal right. ” United States v. Payner, 447 U.S. 727 ( 1980) ; see United States v. Dyke, 718 F.3d at 1282, 1285 ( 10th Cir. 2013) (“ What authority the due process clause does give courts to oversee the execution of the laws come s ] into play only when the Governmentactivity in question violates some protected rightof the defendant. quoting Hampton, 425 U.S.at 489). No federal court hasdefined the requirements of the outrageous government conduct doctrinewith any degree of precision. However, that which is “ , outrageous, and clearly intolerable” to “ the universalsenseofjustice” would seem satisfactory. See Russell, 411U.S.at432. This “ is an extraordinary defense reserved for only themost egregiouscircumstances.” United States v . Mosley, 965 F.2d 906 , 910 ( 10th Cir. 1992 ) . 2.Decades after Sullivan, U.S.citizen Jennifer Harbury alleged CIA officials tortured and murdered her husband, a Guatemalan citizen . Harbury v. Deutch, 233 F.3d 596 , 598 (D.C. Cir . 2000). 68 The D.C. Circuit stated , “ [n ]o one doubts interrogation by torture like that As amended (Dec.12, 2000 ), rev’d sub nom . Christopher v. Harbury, 536 U.S.403 2002 ),and vacated,No. 99 5307,2002 WL 1905342 (D.C.Cir . Aug. 19, 2002). 68 21 Appellate Exhibit 033K ( Khan ) Page21of 43 alleged by Harbury shocksthe conscience. ” Harbury, 233 F.3d at 602. The questionbeforethe court , however, was which rules protected non- resident foreign nationals from torture abroad . Id . “ [ C ] ourts have suggested that non - residentaliensabducted by the government for trialwithin the United Stateshave basic due process rights.” Id. at603 (citing Toscanino , 500 F.2d 267 ; see Cardenasv. Smith, 733 F.2d 909, 915 ( D.C.Cir. 1984) . 3. An alien must first haveboth voluntary presence in U.S.territory and substantialU.S.connections. Harbury, 233 F.3d at603 ( citing United States v. Verdugo Urquidez, 494 U.S.259, 271( 1990) . In adjudicatingthe application of constitutionalrightsto aliens, the SupremeCourt has looked ... to whether the aliens have comewithin theterritory of the United States and developed substantialconnectionswith this country. ” Harbury, 233 F.3d at 603.The court, viewing the torture and abduction as part of the pretrialprocess, focused on the fact that such conduct threatens the integrity ofthe judicial process . Id . at 603–04 ; see Toscanino, 500 F.2d at 275–79. The properinquiry is notwhetherthe Constitutionprohibits torture but “whether the rights the plaintiffs press ...were clearly established at the timeof the alleged violations. ” Ali, 649 F.3d at 770–71. 4.An accusedwho demonstratesa violation ofa known right“ and who atthe same time ha [ s] no effectivemeans other than the judiciary to enforce these rights, mustbe able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutionalrights. ” Davisv. Passman, 442 U.S.228, 242 ( 1979). “ The very essence of civil liberty, wrote Mr.Chief Justice Marshallin Marbury v. Madison, 5 U.S.137, 163 (1803), “ certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford thatprotection. ” Id. 22 Appellate Exhibit033K ( Khan) Page22 of 43 5. Oncea right and a violation havebeen shown, the scope of a “ court'sbroad and flexible equitable powers” remedypastwrongs is extensive, for breadth and flexibility are inherent in equitable remedies. Sullivan, 478 F.2d at 971; Milliken v. Bradley, 433 U.S.267, 281 (1977). “ The qualities ofmercy and practicality have made equity the instrument for nice adjustmentand reconciliation between the public interest and private needsas well asbetween competing private claims. Hecht Co. v. Bowles, 321U.S. 321, 329 ( 1944). Thenature of the violation determines the scope of the remedy. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 392 (1971). 6. Assuming a violation, “ it is undeniable thatthe Federal courts having subject matter jurisdiction also have broad equitable power to remedy and obviate alltraces of the constitutionalwrong.” Sullivan, 478 F.2d at Chief Justice Burger, speaking for a unanimous Court, pointed out the “ historic equitableremedialpowers” of the courts to fashion equitable remediesto repair the denialofa constitutionalright. ” Id . ( citing Swann v. Board of Education, 402 U.S. 1, 15 ( 1971)) In this case we may rely simply upon oursupervisory power over the administration of criminal justice in the district courts within our jurisdiction . ” Toscanino , 500 F.2d at 276 ( citingMcNabb v. United States, 318U.S.332 ( 1943) ) . 7. “ [ W ] here federally protected rights have been invaded, it has been the rule from thebeginning that courts will be alert to adjusttheir remedies so as to grantthe necessary relief. And it is also well settled that where legal rights have been invaded ... courts may use any available remedy to make good the wrongdone.” Bellv. Hood, 327 U.S.678, 684–85 ( 1946) . The federal courts' power to grant relief notexpressly authorized by Congress is firmly established. Bush v. Lucas, 462 U.S. 367, 374 ( 1983) . The courtspossess the authority to choose amongavailablejudicial remediesin orderto vindicate constitutionalrights. Id.;see Bivens, 403 23 Appellate Exhibit033K ( Khan) Page 23 of43 U.S.388; Davis, 442 U.S.228; Carlson v. Green, 446 U.S. 14 ( 1980) . In the absenceofa congressional directive providing a remedy, “ the federal courts mustmake the kind of remedial determination that is appropriate for a common -law tribunal, paying particular heed, however, to any special factors . ” Lucas, 462 U.S. at 378. 8.Federal courts are “ empowered to grant equitable relief [where] congressional action extend[s ] jurisdictionover the subjectmatter of the suit. ” Bivens, 403 U.S.at 404 (Harlan, J., concurring). “ The question then, is, as I see it , whether compensatory reliefis necessary appropriate to the vindication of the interestasserted.” Id . at 407.First, a court should ask whether any alternative remedialprocess exists. Klay v. Panetta, 758 F.3d 369, 373 (D.C.Cir. 2014) . Second, the court should examine“ any specialfactors counsellinghesitation before authorizing a new kind of remedy. Id . (quoting Lucas, 462 U.S.at 378). “ Of course, every error does notdemand the samedegree of relief. Rather, our precedents indicate that this Court balances the error complained of, theharm suffered, and the surroundingcircumstancesto determine whether the accused receivedmeaningfulrelief. United States v. Zarbatany, 70 M.J. 169, 178 (C.A.A.F.2011) (Stucky, J., dissenting). 9.“ [ W ] hereno other remedy is appropriate, a military judge may, in the interest of justice , dismiss charges because ofunlawful pretrial punishment.” United States v. Fulton, 55 M.J.88, 89 ( C.A.A.F.2001). The SupremeCourt has “ implicitly recognizedthenecessity for preservingsociety's interest in the administration ofcriminal justice [and] thatremedies should be tailored to the injury suffered from the constitutionalviolation and should not unnecessarily infringe on competing interests .” Id . ( quoting United States v. Morrison, 449 U.S. , 364 ( 1981)). “ [ W ]here established remedies are available ... those remedies mustbe tried and exhausted before resortingto dismissalof the charges. , 55M.J. at 90 (Crawford, C.J. 24 Appellate Exhibit033K ( Khan) Page 24 of 43 concurring); see United States v. Williams, 504 U.S. 36 , 46 ( 1992) ( a court's supervisory power should not be used to prescribenorenforce standardswhen other remediesare available) . “ It is axiomatic [ ] that a court with appropriate jurisdictionmay remedy an ongoing Article 13, UCMJ (Uniform Code of Military Justice), violation” through “ the only meaningfulrelief available. ” Zarbatany, 70 M.J. at 175, 177. f . Pretrialdetentionmay notbeany morerigorousthan the circumstancesrequired to ensure the accused's presence attrial. 1.Pretrialdetaineesmay “ be subjected to only those restrictionsand privations which inhere in their confinement itself orwhich are justified by compelling necessities ofjail administration. ” Bellv. Wolfish , 441U.S.520 , 523–24 ( 1979) . A detainee may notbepunished priorto adjudicationof guilt in accordancewith due process of law . Id. at 535.Pretrial confinementmaynotbe anymore rigorous than the circumstancesrequired to insure the accused's presence at trial. United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003) . The right implicated is the detainee's right to be free from punishmentand his understandable desire to be as comfortable as possibleduring his confinement. Wolfish, 441U.S. at 534.Ifconditions are not reasonably related to a legitimate goal— ifarbitrary or purposeless — a court may infer the government's action constitutes punishment thatmay notbe inflicted upon detainees qua detainees. Id. at 539. A courtmustaccountfor the legitimateinterests that stem from the government's need to manage the facility , appropriately deferring to those jail policies and practices necessary to preserve internal order , discipline , and security . Id . at 540. 2.“ Courtsmustbe sensitive to the State's interest in punishment, deterrence, and rehabilitation, aswell as the need for deference to experienced and expert prison administrators faced with the difficult and dangeroustask ofhousing largenumbersof convicted criminals. ” See Wolfish, 441U.S.at 547–48. “ For example, in times ofwar or insurrection, when society's 25 Appellate Exhibit 033K ( Khan ) Page 25 of43 interest is at its peak , theGovernmentmay detain individualswhom the governmentbelievesto be dangerous.” United Statesv. Salerno, 481U.S.739, 748 (1987) ; see Ludeckev. Watkins, 335 U.S.160 (1948) ; Moyer v. Peabody, 212 U.S.78, 84–85 ( 1909) . Courts neverthelessmustnot shrink from their obligation to “ enforce the constitutional rights of all persons, including prisoners. ” v. Beto, 405 U.S.319, 321 ( 1972) (per curiam ) . 3.As William Blackstone observed more than two centuries ago, in the dubious interval ” between capture, detention and trial“ a prisoner oughtto beused with the utmost humanity and neitherbe loaded with needless fetters, or subjected to other hardshipsthan such as are absolutely requisite for the purpose of confinement only ” 4 W.Blackstone, Commentaries. “ Congress has decreed that, until convicted, one charged with a crime shall not be subjected to punishment, and wemust enforce that edict.” United States v. Nelson, 39 C.M.R. 177, 181(1969). “ The principle that there is a presumption of innocence favor of the accused is the undoubted law , axiomaticand elementary, and its enforcementlies atthe foundation of the administration of our criminal law .” Taylor v. Kentucky, 436 U.S.478, 484 1978) (quoting Coffin v. United States, 156 U.S.432, 453 ( 1895 ) . Our society'sbelief, reinforced over the centuries, that all are innocentuntil the state has proved them to be guilty likethe companion principle that guiltmustbe proved beyond a reasonable doubt, is“ implicit in the concept of ordered liberty. ” Palko v. Connecticut , 302 U.S.319, 325 ( 1937) . Honoring the presumption of innocence is often difficult ; sometimes wemust pay substantial social costs as a result of our commitment to the values we espouse. But at the end of theday the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and ultimately , ourselves . Throughout theworld today there are men , women , and children interned indefinitely , awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be dangerous.” 69 SeeUDHR, art. 11.1(“ Everyonecharged with a penaloffencehas therightto be presumedinnocentuntilproven guilty accordingto law in a public trial atwhich he hashad all the guarantees necessary for his defense. ” ) . 26 Appellate Exhibit033K ( Khan) Page 26 of 43 Salerno, 481U.S. 739 767 (Marshall, J., dissenting) . “ Itis a fair summary ofhistory to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. ” United Statesv. Rabinowitz, 339 U.S.56 , 69 ( 1950) ( Frankfurter, J., dissenting) 4.“ As a consequence of their own actions, prisonersmaybe deprived of rights that are fundamental to liberty. Yet ...[ p ] risoners retain the essence of human dignity inherentin all persons. Respect for that dignity animates the [ ] prohibition against cruel and unusual punishment. ... The basic concept underlying the Eighth Amendment is nothing less than the dignityofman.” Brownv. Plata, 563 U.S.493, 510–11 2011) (quotingAtkins v. Virginia, 536 U.S. 304, 311( 2002) ( quoting Trop v. Dulles, 356 U.S.86 , 100 ( 1958) (plurality opinion) ) ) . Every individual, “ even the vilest criminal remainsa human being possessed of common human dignity. ” Furman v. Georgia, 408 U.S.238, (1972) ( Brennan, J., concurring) (discussing the Crueland UnusualPunishmentsClause) . Pain is inflictedon a human being, and to allow cruelty is to “ treatmembersofthehuman race as nonhumans , as objects to be toyed with and discarded .” Id . at 272–273. 5.Punishments rise to the level of cruel and unusualwhen they are incompatible with the evolving standards of decency thatmark the progress of a maturing society , or which involvethe unnecessary and wanton infliction of pain. ” United Statesv. Lovett, 63M.J.211, 214 (C.A.A.F. 2006 ) (quoting Estelle, 429 U.S.at 102–03). “ This reflects a societaljudgment that there are somepunishmentsthat are so barbaric and inhumanethatwewillnotpermit them to be imposed on anyone, no matter how opprobrious the offense. ” Ingraham , 430 U.S.at 684–85 (White , J., dissenting); see Robinson v. California , 370 U.S. , 676 ( 1962) (Douglas, J., concurring ) . Under Article 55, UCMJ , inhumanedetention is notpermitted. Lovett, 63M.J.at 27 Appellate Exhibit033K ( Khan) Page27 of 43 215; Farmerv. Brennan, 511U.S.825, 832 (1994) see Hudson v. McMillan, 503 U.S.1 ( 1992) ; United States v. Brennan, 58 M.J. 351, 353–54 (C.A.A.F.2003) . 6.“ Ifthere are somepunishments that are so barbaric that they may notbe imposed for the commission of crimes, designatedby oursocialsystem as themostthoroughly reprehensible acts an individual can commit then , a fortiori, similar punishments may notbe imposed on persons” in pretrial detention. Ingraham , 430 U.S.at684 (White, J., dissenting) “ Weare fortunatethat in oursociety punishmentsthat are severe enough to raise a doubtasto their constitutionalvalidity are ordinarily not imposedwithoutfirst affordingthe accused the full panoply of proceduralsafeguardsprovided by the criminalprocess.” Id . at 686 . 7. A prison's failure to treat detainees properly “may actually produce physical or a lingering death.” Estelle, 429 U.S.at 103 (quoting In re Kemmler, 136 U.S.436 , 447 ( 1890) ) . Deprivationofbasic sustenance, includingadequatemedicalcare, is incompatible with the concept ofhuman dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibilityto remedy it. See Hutto v. Finney, 437 U.S.678, 687 n.9 ( 1978 ). A prisoner is entitled to a remedy when , though lawfully in custody, he is deprivedof some rightto whichhe is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonmentmore burdensomethan the law or curtails his liberty to a greater extent than the law permits. Miller v. Overholser, 206 F.2d 415 , 420 (D.C. Cir. 1953) ( citing Logan v. United States , 144 U.S.263 (1892)). 70 Where prisonofficialused graphic languageand brutally threatenedinmate with anal sodomy; isolated her in a locked room ; trapped her in a corner; and physically assaultedher, this“ raw exercise ofpower over a prisoner transformedher lawful period of confinementinto a different form ofpunishmentby imposingrepeated physical and verbalabuse, ” constitutingharm sufficiently injuriousto establish punishmentin violation of Article55. 28 Appellate Exhibit033K ( Khan) Page 28 of43 g. Military judges have the authority to fashion remedies for illegalpretrial punishment. 1.“ Themilitary judge is the presiding authority in a military commission and is responsible for ensuringthat a fair trial is conducted. ” United States v. Quintanilla, 56 M.J. 37 41(C.A.A.F.2001) ( citing Art. 26 , UCMJ, 10USC 826 ); R.M.C.801(a), Discussion (“ The military judge is responsible for ensuring that military commission proceedings are conducted in a fair and orderly manner.” ) . “ Itis elementary that a fair trialin a fair tribunal is a basic requirement ofdue process. Weiss v. United States, 510 U.S.163, 178 ( 1994) (quoting In re Murchison, 349 U.S.133, 136 (1955) ) “ Due process of law requiresthatthe proceedings shall be fair, butfairness is a relative, notan absolute, concept. It is fairnesswith referenceto particular conditions or particular results. ” Al- Qosi, No. CMCR 17-001, slip op . at 11(quoting Snyder, 291U.S.at 116) . “ [J]udicialauthoritiesmusttake those steps necessary to preserveboth the actualand apparentfairnessof the criminalproceeding. UnitedStates v. Lewis, 63 M.J.405, 407 ( C.A.A.F.2006 ) (citing United States v. Rivers, 49 M.J.434, 443 ( C.A.A.F. 1998) ; United States v. Sullivan, 26 M.J.442, 444 ( C.A.A.F.1988) ) . Military judgeshave the “ sua sponte duty to insure [] that an accused receives a fair trial.” United States v. Andrews, 77 M.J.393, 403 (C.A.A.F.), reconsideration denied, 78 M.J.34 (C.A.A.F. 2018 ), and cert. denied , 139 S.Ct. 434 ( 2018) (citing UnitedStatesv. Watt, 50 M.J. 102, 105 (C.A.A.F.1999) ( internalquotationmarks omitted ) (citation omitted ) ) . 2.Military judges exercise “ broad discretion” in carrying out “ notionsof fundamental fairness. ” United States v. Quintanilla, , M.J. 312 , 314 (C.A.A.F. 2008 ) ( citing M.J.at 41 ) ; United Statesv. Cassity, 36 M.J.759, 762 ( N - M . C.M.R.1992) ; see United States v. Green, 1 M.J.453, 456 (C.M.A.1976) (“ trial judges mustshare the responsibility ...to insure ...adherence to basic notions of fundamentalfairness . ; United 29 Appellate Exhibit033K ( Khan) Page 29 of States v. Partin, 7 M.J.409, 412 (C.M.A. 1979) ; see also Hamdan v. Gates, 565 F.Supp. 2d 130, 137 ( D.D.C.2008) (“ The eyes of the world are on GuantanamoBay. Justicemustbe donethere, and must be seen to be done there , fairly and impartially . ” ). 3. In 1775, the Articles ofWar provided: To the end that offenders may be brought to justice ; whenever any officer or soldier shall commit a crime deserving punishment, he shall, by his commanding officer, if an officer, be put in arrest; if a non-commissioned officer or soldier, be imprisoned till he shallbe either tried by a court -martial, or shall belawfully discharged by proper authority . UnitedStates v. Bayhand, 21 C.M.R.84, 87–88 (1956). There was no substantialchange until 1920, when Article 69 ofthe Articles ofWar ofthat date, 41 Stat 802 , was enacted “ favoring a moreintelligentand humanetreatmentof personswhose guilthad notbeen determined.” Id at 88. It provided “ [a ] ny person subject to military law charged with crime or with a serious offense under these articles shallbe placed in confinement or in arrest, as circumstancesmay require. Paragraph 19 of the 1949Manual for Courts-Martial , U.S.Army, took another step toward relaxing restraints, stating “ [ t] he character and duration of the restraint imposed before and during trial, andpending final action upon the case, will be the minimum necessary under the circumstances. ” The 1951Manualfor Courts-Martialstated that ...Confinementwill not be imposed pendingtrialunless deemed necessary to insure the presence of theaccused at the trial or because of the seriousness ofthe offense charged. ” [ Paragraph 20c. ] In Bayhand, the CourtofMilitary Review reasoned: the earlier Articles of War and Manual provisions failed to take cognizance of the fact that confinement itself was a form ofpenal servitude, and that if the restraint imposed wasmore than that needed to retain safe custody , the unnecessary restrictions were in the nature of punishment. Present- day enactments in this field seem to show a Congressional and Executive recognition of that principle, and an intentto change the old order by softening the injustice which is inherent in a system not permitting freedom on bail. If, therefore , Congress directed some 30 Appellate Exhibit033K ( Khan) Page 30 of 43 preferment for an unsentenced person in one area , it could be expected to do the same in other areas if they , too , created unnecessary injustices . 21C.M.R. at 88 ( charges dismissed for illegalpretrialpunishment) . 4. The applicabilityofArticle 13 principlesis a question of law thatmustbe answered by the military judge. United States v. Spaustat, 57 M.J.256 , 260 (C.A.A.F. 2002). Themilitary judge is in the bestpositionto makethis evaluation. United States v . McCarthy, 47 M.J. 162, 165 ( C.A.A.F.1997) . Article 13, UCMJ , 10 U.S.C. 813, provides: No person, while beingheld for trial, may be subjected to punishment or penalty other than arrest or confinementupon the charges pending against him , nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence attrial] . See Inong, 58 M.J. at 463. In Article 13 was enacted by Congress as an amendment to Article of War 16 in order to clarify and confirm the long - standing rule ofmilitary custom and practice that detainees may not be subject to punishment prior to conviction. See W.Winthrop , Military Law and Precedents124 ( 2d ed. 1920) (“ A prisoner is to be presumedto be innocenttill [ ] duly convicted and till [ ] thus convicted he cannot legallybepunished as if hewere guilty or probably so . 5. An accused is presumed innocent untilproved guilty ; therefore, punishment for an alleged offense is prohibited before trial. “ Any rule to the contrary would be to deny an accused due process of the law .” United States v. Heard, 3 M.J.14, 20 (C.M.A.1977) . Conditions of restraintwhich have impacted upon a service member in a manner indistinguishable from those serving sentences for adjudicated criminal offenses may of course, be improper and “ punitive,” regardless of the administrative characterization of such persons. Status categories such as “ legalhold” , “ pending investigation,” and “ awaiting disciplinary action” do not shield government officials from judicial determinations ofillegal, punitive treatment. 71 10 U.S.C. (Aug.10, 1956 , c. 1041, 70A Stat. 41; Pub.L.97-81, 3, Nov.20, 1981, Stat. 1087.). 72 See , e.g., Winthrop ( citing G.106 Dept. of Dakota 1871) (“ In one of the Orders lastcited Gen. Hancock condemns as unlawful the treatment of a soldier thus confined who was compelled to carry a heavy log for long periods, and, because of such treatment, remits the sentence subsequently imposed by the court.”) . 31 Appellate Exhibit 033K ( Khan ) Page 31of 43 United States v . Southers , 12 M.J.924 , 926 ( N - M . C.M.R. 1982) . 6. Article 13 prohibits: ( 1) intentionalimposition of punishmenton an accused before his or her guilt is established at trial; and ( 2 ) arrest or pretrialconfinementconditions that aremore rigorous than necessary to ensure the accused's presence at trial. United States v. King, 61 M.J.225, 227 (C.A.A.F.2005) ; Inong, 58 M.J.at463; United States v . Fricke, 53M.J.149, 154 (C.A.A.F.2000). If an accused, or appellant, can demonstrate that either existed, he is entitled to sentence relief. United States v. Mosby, M.J. 309, 310 ( C.A.A.F.2002) (“ burden is on appellant to establish ... violation of Article 13” ). 7. A military judge hasbroad authority to order administrative credit against adjudged confinement as a remedy for Article 13 violations. United States v. Stringer, 55 M.J. 92, 94 (C.A.A.F. 2001) ; see United States v . Suzuki, 14 M.J. 491, 493 (C.M.A. 1983) ; United States v. Crawford, 62 M.J.411, 414 (C.A.A.F.2006) ( citationsomitted); see Fulton, 55M.J. at 89–90 (“ [ W ] here no other remedyis appropriate, a military judgemay, in the interestof justice, dismiss charges because of unlawful pretrial punishment,” but“ [ d ] ismissal of charges is an extraordinary remedy that is rarely appropriate.) ( internal quotationsomitted). 8. Illegalpretrial punishment doesnot create a per se right to sentencing credit . United States v. Adcock, 65 M.J.18, 23 (C.A.A.F. 2007) . Likewise, a military judge's discretion to award credit for pretrialpunishmentdoesnotcreate an enforceable per se rightto additional 73 TimothyRiley, ProtectingServicemembersfrom IllegalPretrialPunishment : A Survey ofArticle 13, Uniform Code ofMilitary Justice, Caselaw, ARMYLAW. , December2006 , 36 , 47 ( Ultimately, there isno defining formula formilitarycourts to use when grantingrelieffrom illegalpretrialpunishment . When reliefis granted, themilitary judge generally grantsadministrativecredit to the accused's sentenceor takes judicialnoticeof the illegal punishmentwhen drafting a sentenceupon a findingof guilt...As each Article 13 issueis unique, military courts have substantialjudiciallatitude to craft individualizedremediesto appropriatelyrespondto illegalacts of confinementor commandinfluencedpretrialpunishment . . See also MajorM.Patrick Gordon, SentencingCredit: How to Setthe Conditionsfor Success, ARMY LAW ., October2011, at 7, 11(“ The amountof credit awarded is leftto the discretion of themilitary judge . ) . 32 Appellate Exhibit033K ( Khan) Page 32 of 43 sentence credit. Adcock, 65 M.J.at 24.Article 13 does not provideexplicitauthority formilitary judges to grant relief for illegal pretrial punishment 13 is silent on the issue. Rather, like federaldistrictcourts, military courtshave routinely invokedtheir “ inherentauthority” to fashion appropriate relief for violationsof Article 13 and other pretrialpunishmentviolations. United States v. Gregory , 21M.J.952 , 958 n.15 (C.M.R. 1986 ) Suzuki, 14 M.J. at 493. 9. Article 13 is neither an explicit or exclusive source of authority for nor a limitation on , the authority ofmilitary judges to provide relief for unlawful pretrial punishment. Military judges havebroad discretion to fashion remedies in order to ensure that relief is effective andmeaningfuland sufficientto deter future violations. See Zarbatany, 70M.J.at 175 (“ ifa court can dismiss a charge in response to violations of Article 13 a court can ” do something less); United States v. Larner, 1M.J.371 (C.M.A.1976) (military judgemay award administrativecredit againstan approved sentencewhere that is “ the only legaland fully adequate remedy for” unlawfulpretrialpunishment). Such reliefcan range from dismissalof the charges, to confinement credit or to the setting aside of another part of the sentence. Where it is available , meaningful relief is required. 74 Zarbatany , 70 M.J. at 170 . 4.ANALYSIS : a . Contrary to Defense Counsel's repeated assertions throughout the pleadings, the authority of the military judge presiding over a military commission to order administrative credit againstan approved sentence to confinementfollowing a finding of pretrialpunishmentby U.S. Government officials is not obvious . This isthe subject of serious and significant dispute . This dispute, in large part, is due to Congress, whether intentionally or 74 oversight, not See generally CAT art. 14; General CommentNo.3 ; UDHR, art. 8 (“ Everyonehas the right to an effective remedybythe competentnationaltribunals for acts violating the fundamentalrightsgranted him by the constitution or law .” . 33 Appellate Exhibit033K ( Khan) Page 33 of 43 includinga provision similarto Article 13, UCMJ , or specifically indicating a lack of authority in the 2006 or 2009 Military Commission Acts. Furthermore , the Secretary of Defensehasnot included guidance oneway or another in promulgating the Rules for Military Commission or amendments thereto , despite ample opportunity over the years . b . Defense’s reliance on Colonel Stephen Henley’s September 2008 ruling in the military commission case of United States v. MohammedJawad (D -008) is of little assistanceto this military judge. Despitemy upmost respect for ColonelHenley, hewas seated as a trial judge just likemyself. His rulings thus havelittle to no precedential value in this military commission. Additionally, ColonelHenley provided no serious analysis to support his conclusory decision . c. The Commission assumes, without deciding, that the Defense allegations are true regarding the mistreatmentthe Accused suffered in U.S. custody. Taken as true, this mistreatmentrises to the levelof torturerecognizedin Toscanino and Rochin, and violated the jus cogens universal right to be free of torture under U.S.and international law . The Commission recognizes, for purposesofthis legal ruling, the violation of a knownright. Even with this finding ofmistreatment for purposesofthis ruling on the Commission's legalauthority , the Commission declines to acceptthe assertion of amicusthatitis this Commission'sresponsibility to hold others accountable for whatever their actions may havebeen in their treatment or mistreatment of this Accused. The acceptance ofsuch a responsibility and any resulting requirementto fashion a remedy far exceeds the limited jurisdiction of this Commission as it impacts individuals who are not alien unprivileged enemy belligerents. d . TheGovernment'sargumentthat the Accusedwaivedhisrightto claim pretrial punishment or pretrial confinement credit under the terms of the PTA and the Addendum to the 75 10 U.S.C. 948d . 34 Appellate Exhibit033K ( Khan) Page 34 of43 PTA is also misplaced. Asnoted earlierin this opinion, paragraph 11ofAE 012 ( the PTA ) and paragraph4 of AE 013 ( Addendum to thePTA) referredto a waiverofthe Accused'srightto sue the United States Government orUnited StatesGovernment officials for damages due to his treatmentwhile in the custody of theUnited StatesGovernment . Presumably this lawsuitwould be underthe Torture Victim ProtectionAct of 1991 , 28U.S.C. 1350. e. Finally, as explained above in the Law Section, how one labels the underlying factual basis for the relief requested in this instance has legal significance. Administrative credit for time spent in confinementor detention after a plea of guilty is accepted is differentfrom administrative credit for the conditions of that same or any other confinement/ detention prior to being sentenced. The Accused in this case did notbargain away orwaive day - for-day credit for the time he spends in confinement or detention after he plead guilty and his plea was accepted. As noted above he did notbargain away or waiveany credit for the conditionsunderwhich he has been detainedatany pointin timesince his capture in 2003.It is this latter circumstance which is the subjectof this Defensemotionand, in part, the rulingwhich follows. f Under D.C.Circuitprecedent , there existsa limited exceptionto the Ker- Frisbie doctrine in cases of torture. Rezaq, 134 F.3d at 1130 ; Yunis, 924 F.2d 1092–93. The traditional remedy is the exclusionary rule, but that is not applicableto the Accused, who pled guilty. Furthermore, in egregiouscases, the exclusionary rule providesan insufficientremedy. Wong Sun, 371U.S.at 488. Thewrit of habeascorpus is also unavailable to the Accused. Taking special factors into consideration, includingthe seriousness of the offenses to which the Accused pled guilty , as well as the shocking mistreatment to which the Commission has found hewas subjected ( for purposesof this initialruling on this motion) , the narrowly- tailored, meaningful, and available remedyof administrative sentencingcredit seemsnecessary and appropriate. 35 Appellate Exhibit033K ( Khan) Page 35 of43 Althoughby nomeans required to do so, whereno otherremedy is appropriate, military judges have broad authority to order administrative credit against the sentence. Stringer, 55 M.J. at 94 ; Suzuki, 14 M.J.at 493 . g . The SupremeCourt has recognized an “ ascending scale of rights” for individuals depending on their connections to the United States. Rasul v. Bush, 542 U.S.466 , 486 2004 ) (Kennedy, J., concurring in the judgment). An alien's physical presence within the United States “ Judiciary power to act.” Id. “ The place of the detention [ is] also important to the [] question Physicalpresencein the United States implied protection.” This is a distinction from Eisentragerwhere “ th[ e ] prisoners at no relevanttimewere within any territoryoverwhich the United States is sovereign.” Id . ( citing Johnson v. Eisentrager, 339 U.S.763 (1950)); see Harbury , 233 F.3d at604 (“ The Eisentrager opinion acknowledged that in some cases constitutional provisionsextend beyond the citizenry ; alien ...has been accorded a generous and ascendingscale of rights asheincreaseshis identitywith our society.” h . “GuantanamoBay is in every practicalrespecta United Statesterritory.” Rasul, 542 U.S.at 487 (Kennedy, J., concurring) . “ What matters is the unchallenged and indefinite control that theUnited Stateshas long exercised over GuantanamoBay.” Guantanamodetainees are entitled to “ the privilegeof litigation in U.S. courts. ” Aamer v. Obama, 742 F.3d 1023, 1028 ( D.C.Cir. 2014) ( citingRasul, 542 U.S.466 ) . Furthermore , the Accused is due some degree of protection beyond thatwhich the Government recognizes, by virtue of having comewithin the territory of the United States and developed substantial connectionswith this country. ” Harbury, 76 This suggeststhe possibility of a stronger argumentfor applicationof the outrageousgovernmentconduct doctrinefor abuse which occurred at Guantanamo Bay. In Jawad, the military judge assumedbutdid notdecidethat the accused was tortured, and recognizedtheavailabilityof remediesincludingsentencecredit. D -008 at4–6 , Judge Henley'sRulingon the DefenseMotion to Dismiss for Torture in United States v. Jawad, available at https://www.mc.mil/Portals/0/pdfs/Jawad/Jawad%20(AE084%20-%20D008)%20MJ%20Ruling.pdf , (lastvisited June 3 , 2020) 36 Appellate Exhibit033K ( Khan) Page 36 of 43 233 F.3d at 603 ( citing Verdugo- Urquidez, 494 U.S.at271 ) ; see Rasul, 542 U.S.at 486 ; see also note 25, supra . i. Itis themilitary judge's duty to ensure the trialis fundamentally fair . Quintanilla, 56 M.J.at 41.When governmentactivity violates a protectedright, courts haveoversightauthority. Hampton, 425 U.S. at 489; see also Sullivan, 478 F.2d at 965–67. An accused who can show the violation of a known rightmay invoke the court's authority in the absence of other remedies. Davis, 442 U.S.at 242. This is t he very essence of civilliberty.” Marbury, 5 U.S.at 163. When the violation of a known righthasbeen demonstrated, the court enjoysbroad and flexible powers to remedy pastwrongs. Sullivan , 478 F.2d at971; Milliken, U.S. at 281. The nature of the violation determines the scope of the remedy. See Bivens, 403 U.S.at 392 . j . Through the MCA, Congress has granted the Commission subject matter jurisdiction . See Bivens, 403 U.S.at 404 (Harlan, J., concurring) ; Zarbatany, 70M.J. at 175, 177.While the Rules for Military Commissions are based upon the procedures for trials by general courts-martialunder chapter 47 of title 10, Article 13 ofthe UCMJwas not incorporated into the MCA and the rules promulgated thereunder. Nevertheless, while the Accused's detention not constitute pretrial confinement,” R.M.C. 1001(g ) and the Rules expressly prohibit the military judge from granting confinementcredit, with regard to the UCMJandMCA alike, “ Congresshas not acted to require credit for lawful pretrial confinement, nor has it constrained the authority of the Presidentor the Secretary of Defenseto grant credit.” United States v. Smith , 56 M.J.290, 293 (C.A.A.F. 2002 ); AE 033D at 11, 14 (“ Congress itselfmade no effort to create rule restrictingthe availability of pretrialpunishmentcredit ( emphasis added) 77 Confinement creditand pretrialpunishmentcreditare not interchangeable . See United Statesv. Allen, 17 M.J. 126 ( C.M.A.1984) ( confinementcredit is thatwhich is credited toward the service of the sentencefor any days spentin custodyin connectionwith the offense or acts for which sentencewas imposed); cf. United States v. Adcock, 65 M.J. 37 Appellate Exhibit033K ( Khan) Page 37 of 43 k . The principlesunderlying Article 13 were based upon the presumptionof innocence, a fundamentalnecessity prerequisite to a fair trial. However, even theoretically , Article 13, by its terms, only applies to persons “ held for trial.” United States v. Kreutzer, 70 M.J.444 , 447 (C.A.A.F. 2012 ) citing Inong, 58 M.J.at463). An individual is held “ in custody of the United States when the U.S. official charged with his detention has the power to produce” him . Aamer, 742 F.3d at 1036 ( citingMunafv. Geren, 553U.S.674, 693 2008) ; Wales v. Whitney, 114 U.S. 564, 574 ( 1885) ) ; see also 28 U.S.C. 2243. 1.At the timeofthe Accused'sinitialcapture in 2003, PresidentBush had signed an Executive Order78 providing that suspected members of Al Qaeda could be detained by the Secretary of Defense and tried before military commissions established by the Secretary of Defense. The Executive Order also set forth broad standards for this detention. The Accused was transferred from CentralIntelligenceAgency custody to Departmentof Defensecustody at U.S.NavalStation Guantanamo Bay, Cuba, in September 2006 to be triedby military commission. At the timeofhis transfer, the Supreme Court had recently invalidated the then existingmilitary commissions system as unlawful. See Hamdan, 548 U.S.557.Consequently, 18 , 23 (C.A.A.F. 2007 ) ; United States v . Suzuki, 14 M.J. 491, 492 (pretrial punishment credit is the authorization of additional credit for “ unusually harsh circumstances ” in pretrial confinement ). 78 Exec . Order , supra note 27 . 79 “ In early November 2001, CIA Headquarters further determined that any future CIA detention facility would have to meet U.S. prison standards and that CIA detention and interrogation operations should be tailored to “ meet the requirements of U.S. law and the federal rules ofcriminal procedure , adding that “ [s]pecific methods of interrogation w [ould ] be permissible so long as they generally comport with commonly accepted practices deemed lawful by U.S. courts . The CIA's search for detention site locations was then put on hold and an internal memorandum from senior CIA officials explained that detention at a U.S.military base outside of the United States was the option . Thememorandum thus urged the DCI to “ p ] ress DOD and the US military , at highest levels, to have the US Military agree to host a long -term facility , and have them identify an agreeable location, ” specifically requesting that the DCI“ [ s] eek to have the US Naval Base at Guantanamo Bay designated as a long - term detention facility ” U.S. Senate Select Committee on Intelligence , Committee Study of the Central Intelligence Agency's Detention and Interrogation Program , Executive Summary at 38 ( 2014 ) ( citing Memorandum for DCI from J. Cofer Black , Director of Counterterrorism , via Deputy Director of Central Intelligence, General Counsel, Executive Director , Deputy Director for Operations and Associate Director of Central Intelligence /Military Support , entitled , “ Approval to Establish a Detention Facility for Terrorists . . 38 Appellate Exhibit033K ( Khan) Page 38 of 43 Congress enacted theMCA to authorizetrialbymilitary commission. PresidentBush's remarks confirmed that the Accused and others were transferred to Guantanamo for trial. 80 President Bush stated: Some of these individuals are taken to the United States Naval Base at Guantanamo Bay, Cuba. It's important for Americans and others across the world to understand the kind of people held atGuantanamo. These aren't common criminals, or bystanders accidentally swept up on the battlefield — wehave in place a rigorous process to ensure those held at Guantanamo Bay belong at Guantanamo. Those held atGuantanamo include suspected bomb makers, terrorist trainers, recruiters and facilitators, and potential suicide bombers. They are in our custody so they cannotmurder our people ... In addition to the terrorists held at Guantanamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate operated by the Central Intelligence Agency ... During questioning, KSM told usabout another al Qaeda operative he knew was in CIA custody — a terrorist namedMajid Khan. KSM revealed that Khan had been told to deliver $ 50,000 to individuals working for a suspected terrorist leader named Hambali, the leader of al Qaeda's Southeast Asian affiliate known as “ - . ” CIA officers confronted Khan with this information. Khan confirmed that the money had been delivered to an operative named Zubair , and provided both a physical description and contact number for this operative . ...Soon after the war on terror began , I authorized a system ofmilitary commissions to try foreign terrorists accused ofwar crimes. Military commissions have been used by Presidents from George Washington to Franklin Roosevelt to prosecute war criminals ...The SupremeCourt determined that military commissions are an appropriate venue for trying terrorists, but ruled that military commissions needed to be explicitly authorized by the United States Congress. So today, sending Congress legislation to specifically authorize the creation of military commissions to try terrorists for war crimes. ...Theprocedures in the bill I am sending to Congress today reflect the reality that we are a nation at war, and that it's essential for us to use all reliable evidence to bring these people to justice . I'm announcing today that Khalid Sheikh Mohammed , Abu Zubaydah , Ramzi bin al- Shibh , and 11 other terrorists in CIA custody have been transferred to the United States NavalBase at Guantanamo Bay . (Applause . ) They are being held in the custody ofthe Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed , themen our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th , 2001, can face justice. (Applause. ) 80 See PresidentBush , supra note . 81PresidentBush's statementconnectingGuantanamomilitary commissionsto the RDIprogram serves as a legally significant connectionbetween the alleged torture and any liberty deprivationresultingfrom the criminal prosecution. See United States v. Ghailani, 751 F.Supp. 2d502, 504–05 (S.D.N.Y.2010). 39 Appellate Exhibit033K ( Khan) Page 39 of 43 President George W. Bush ( Sep. 6 , 2006 ) , available at https://georgewbush-whitehouse.archives.gov/news/releases/2006/09/20060906-3.html (last visited June 3 , 2020 ) . , 2. Then after taking office in 2009, PresidentBarack Obamastated Guantanamo detainees “ [ fell ] into five distinct categories. First, those who would be tried in federal (Article III) court; second, those who , like the Accused, would be tried throughmilitary commissions. AE 033D , Att. B.“ The third category ...includesthose who havebeen ordered released by the courts. ... The fourth category ... involves detainees who wehave determined can be transferred safely to another country ...finally, there remains the question of detainees at Guantanamowho cannotbe prosecuted yet who pose a clear danger to the Americanpeople. 3. It seemsclear the Accused wasbeingheld for trialno later than the date of his transfer into the custody of the DepartmentofDefense consistent with PresidentBush's November 13, 2001 , ExecutiveOrder. At somepointafter being taken into CIA custody, the Accused went from being solely a law ofwardetainee to also beingheld for trialby military commission. 84 Ultimately, however, the question ofwhether one was held for trial is a question of factrelating to the treatment of the accused, rather than the date a criminal proceeding formally commences. 1. The Government concedes “ the Accused has a right to be free of cruel and unusual punishmentunder theMCA as it related to the chargesbefore themilitary commission.” AE 033D at 27.As discussed previously, a detainee — noteven a law of war detainee — may be mistreated in a manner divinable only as punishment. No one who is detained may bepunished absentan adjudicationof guilt. Id.;see AE 033D at 26 ( “ The United States accepts that 82 PresidentObama, supranote 28 . 83 Id. 84 pp.558–562 Riley ,supra note 73 at 36 , 37 ; (citing United States v.Davis , 30 M.J. Transcript at 85 981–82 A.C.M.R. 1990 )). 40 Appellate Exhibit033K ( Khan) Page of 43 should not be criminally punished before trial.” ). Contrary to the Government's argument, the fact the Accused's detention was lawful does not excuse the abuse he allegedly suffered. See AE 033D at25 ( arguingthe Accused wasnot punished for these offensesbutwas instead “ independently mistreated” ). The Government reasons that the Accused was not being held in pretrial confinement because, “ irrespective of his military commission case, he was also being held as a LOW detainee. As such, his detention status under the of war separate and apart from whatever happens in his military commission trial associated with his war crimes.” AE 033D at 15. TheGovernment contradicts its own argument here by acknowledging the Accusedwasboth held for trialandheld as a law of war detainee. The lawfulbasis for that law of war detention does not relieve the Government of its obligation to treat detainees humanely . “ Prisonersretain the essence of human dignity inherentin all persons.” Plata, 563U.S. at 510 . Deprivationof a knownright entitles a detainee to a remedy. Miller, 206 F.2d at 420 ; Logan, 144 U.S.263; Mosby, 56 M.J.at 310. m . “ While no [ Allen credit is given for pretrialdetention, the defensemay raise the nature and length of pretrial detention as a matter in mitigation. R.M.C. 1001( ) Discussion. Day- for-day Allen creditgiven as a remedyfor pretrialconfinementis not to be conflated with pretrial punishment credit given as a remedy for violations of Article 13principles, including the presumption of innocenceor the rightto be free of punishment . The law doesnotprohibit an accused from presenting evidence of an Article 13- type violation to the military judge as well as to the panel, so long as that evidence is otherwise admissible pursuant to the relevantrules of evidence and procedure. United States v. Carter, 74M.J.204, 205–06 (C.A.A.F.2015) . 86 Riley, supra note 73 at 36 , 43( citing UnitedStatesv. King, 61M.J.225, 227–28 (2005) ; United States v. Crawford, 62M.J.411( 2006 )) ; seealso MarcMiller & Martin Guggenheim, PretrialDetentionand Punishment , 75 . L. . , 368 ( 1990) . 41 Appellate Exhibit 033K ( Khan ) Page41of 43 Presenting Article 13, UCMJ, evidence in these two different contexts serves two distinctpurposes. A military judge considers evidence of Article 13, UCMJ, violations to determine, as a matter of law , whether the accused is entitled to credit for the government's conduct. However, when a panel considers that same evidence properly admitted as mitigation on sentencing, it is doing so for the purpose of determining an appropriate sentence for an appellant's conduct. Id n . The Commission concludes the Defense hasmet their burden in this Commission to show , by a preponderanceof the evidence, that thisMilitary Judge has theinherentauthority to grant a remedy in the form of administrativesentencing credit for abusive treatmentamounting to illegal pretrial punishment, especially when no other remedy is available. This Military Judge has an obligation to ensure this accused receives a fundamentally fair trial. The absence of Article 13 from the MCAs is not dispositive, as Article 13 codified the longstanding military practice of judicialremedies for violationsof the presumption of innocence, a foundational principle of a fair trial. Despite the lack ofan Article 13- like provision in the 2009MCA, this Military Judge has broad discretion to fashion a remedy for illegal pretrialpunishment a violation of the universalrightto be free of torture — by virtue of the sua sponte duty to ensure the fundamentalfairness, aswellas the appearanceoffairness, of the tribunal. 5.RULING : a . The Commission hereby rules that, as a matter of law , this Military Judge has legal authority to grant administrative creditas a remedy for illegal pretrialpunishment. b . The Commission DEFERS ruling on themixed questions of law and fact underlying themerits ofthe subjectmotion willconcurrently consider the Defense’scase in extenuation and mitigation at sentencing for the purpose of ruling on the merits of the subject motion. the 87 Theanalysis above focuseson therightto be freefrom tortureand potentialremediesfor violationof that right. This should notbe construed as implyingthe Commissionwill not also consider evidenceof otherpotentially unlawfulpretrialpunishment , such as degradationofthe rightto counsel as allegedby the Defensein AE033. 42 Appellate Exhibit033K ( Khan) Page42 of 43 Defense desires to presentcertain evidence on thismotion outside of the presence of the members, it will be afforded an opportunity to do so during deliberations, excusal of the members, or at some other opportune time during trial and before adjournment. So ORDERED this 4th day of June, 2020 // s DOUGLAS K.WATKINS COL , JA , USA Military Judge 43 Appellate Exhibit033K ( Khan) Page 43 of 43