DEPUTY CHIEF PROSECUTOR ROBERT C.

MOSCATI
REMARKS AT GUANTANAMO BAY
11 JULY 2016
Good evening. Tomorrow the Military Commission convened to try the charges against
Abd al Hadi al-Iraqi will hold its eighth series of pre-trial sessions without panel members
present. Abd al Hadi is charged with committing serious violations of the law of war by
conspiring with and leading others, as a senior member of al Qaeda, in a series of unlawful
attacks and other offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These
attacks and other offenses allegedly caused death and injury to U.S. and coalition service
members and civilians and caused damage to or destruction of property.
The charges are only allegations. The Accused is presumed innocent unless and until
proven guilty beyond a reasonable doubt. Matters under consideration by a military commission
in this or any other particular case are authoritatively dealt with by the presiding Judge. Any
comments addressing systemic issues that are the subject of frequent questions by interested
observers should always be understood to defer to specific judicial rulings, if applicable.
Although I will not comment on the specifics of any motions pending before a military
commission, I will provide background for tomorrows pre-trial sessions, and then I will survey
important developments in ongoing military commission cases.
Developments in United States v. Abd al Hadi al-Iraqi
The most recent pre-trial sessions in this case were held on 17 May 2016. During these
sessions, the Military Judge heard argument on the defense motion requesting an 18-month
continuance. AE 55G at 2. The Judge denied the request and ordered the parties to conference
and seek agreement upon future litigation milestones. AE 15R. According to the order, the
parties were to submit a joint pleading listing the agreed-upon subjects of future milestones by
24 June 2016. Id. The Military Judge also ordered the parties to submit proposed timelines for
their milestones, jointly, if the parties could agree, or separately, if not. Id. Milestones to which
the government and the defense agreed included completion of discovery, filing of discoveryrelated and evidentiary motions, filing of law motions, and providing notice of witnesses. See
AE 057A; AE 057B; AE 057C. However, the defenses proposed milestone for processing of
defense team security clearance applications was opposed by the government; nor could the
parties agree upon milestone dates.
According to the Military Judges Amended Docketing Order, the hearings scheduled to
begin tomorrow have been ordered to address three matters. The Military Judge will hear
argument and receive evidence, as necessary, related to Appellate Exhibit 020U, a Defense
Motion to Withdraw Appellate Exhibit 020 Without Prejudice; Appellate Exhibit 056A, a
Defense Motion for Appropriate Relief, namely seeking a continuance; and Appellate Exhibit 58,
a Defense Motion for Appropriate Relief, namely attribution of Speedy Trial Delay. AE 056B
(Amended Docketing Order).

In Appellate Exhibit 020, the defense sought to have the case dismissed and requested a
hearing under Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of
War. AE 020. Since the defense filed that motion, it has been the subject of significant
litigation, including multiple pleadings and orders filed on at least 22 separate occasions, as well
as oral argument. See AE 020A-T; Unofficial/Unauthenticated Transcript at 67-85. On 1 June
2016, the defense filed Appellate Exhibit 020U, in which the defense moves the Commission to
withdraw its motion to dismiss without prejudice.
In Appellate Exhibit 056A, the defense moved for a continuance until Mr. Abd al Hadis
newly requested pro bono civilian attorneys receive their security clearances and until those
civilian attorneys have had sufficient time to review the governments discovery. AE 056A.
Mr. Abd al Hadi has requested, by name, that four new civilian attorneys be added to his
defense team. The government filed its opposition brief on 29 June 2016. AE 056C.
The subject of the newly requested pro bono civilian attorneys security clearances and
their ability to review the governments discovery disclosures is also central to resolving the
final motion at issue in tomorrows hearing, Appellate Exhibit 058. The defense filed Appellate
Exhibit 058 on 15 June 2016, seeking to reverse the Military Judges prior rulings regarding the
attribution of delay for purposes of the speedy trial requirement of Rule for Military
Commissions 707. AE 058. The government filed its opposition on 28 June 2016. AE 058A.
The Military Judge has set the next hearing dates in this case for 19-23 September 2016.
The Scheduling Order for those hearings is Appellate Exhibit 015M.
Upcoming Proceedings in United States v. Mohammad, et al.
On 18 July 2016, the Military Commission convened to try Khalid Shaikh Mohammad,
Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and
Mustafa Ahmed Adam al Hawsawi will hold another series of pre-trial sessions without panel
members present. The five Accused stand charged with plotting the attacks of September 11th,
which resulted in the deaths of nearly 3,000 persons. I emphasize that the charges are only
allegations. The accused are presumed innocent unless and until proven guilty beyond a
reasonable doubt.
Chief Prosecutor Mark Martins will discuss the upcoming proceedings in this case in
greater detail next week. This round of pre-trial sessions is scheduled from 18-29 July 2016,
though the actual length of the proceedings will be determined by the Military Judge. The
Docketing Order for these sessions is Appellate Exhibit 433. The Commission is set to receive
evidence, as necessary, and oral argument regarding 59 motions. See AE 433. Each of these
59 motions has previously been fully briefed.
Many of the motions that will be argued during the sessions beginning next week
address discovery issues. One significant motion involving discovery is the Defense Motion to
Compel Discovery of Documents Captured During the Raid in Which Osama bin Laden Was
Killed, Appellate Exhibit 409. Other areas of litigation that will be argued next week include
issues related to the Written Privileged Communications Order, in the Appellate Exhibit 18
2

series, and the defenses motion to recuse the Military Judge and the current prosecution team,
Appellate Exhibit 425.
*

We thank the Soldiers, Sailors, Airmen, Marines, Coast Guardsmen, and government
civilians of Joint Base Andrews, Joint Task Force Guantanamo, and Naval Station Guantanamo
Bay for their continuing support to these proceedings in the coming weeks.