Escolar Documentos
Profissional Documentos
Cultura Documentos
PREFATORY INSTRUCTIONS
Members of the Commission, when you close to deliberate and vote on the
[trililngs, each of you must resolve the ultimate question of whether the
accused is guilty or not guilty based upon the evidence presented before the
Commission and upon the instructions which I will give you.
My duty is to instruct you on the law. Your duty is to determine the facts,
apply the law to the facts, and determine the guilt or innocence of the '
accused. The law presumes the accused to be innocent of the charges
against him.
You will hear an exposition of the facts by counsel as the counsel view
them. Bear in mind that the arguments of counsel are not evidence.
Argument may assist you in understanding and evaluating the evidence, but
you must base the detennination of the issues in the case on the evidence as
you remember it and apply the law as I instruct you.
During the trial some of you took notes. You may take your notes with
you into the deliberation room. However, your notes are not a
substitute for the record of trial.
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I will advise you of the elements of each offense alleged.
There are two (2) elements COlnmon to all the offenses: the government must
prove, beyond a reasonable doubt, that the accused was an alien unlawful
enemy combatant and that the alleged conduct occurred in the context of and
waS associated with an armed conflict.
There is a requirement that, for each Charge, the government prove beyond
reasonable doubt that Mr al Bahlul was an alien unlawful enemy combatant.
Fot your purposes the Government must prove to you, beyond a reasonable
doubt, that Mr. al Bablul:
The tenn "alien" means a person who is not a citizen of the United States.
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Th~ tenn "unlawful enemy combatant" means a person who has engaged in
hostilities or who has purposefully and materially supported hostilities
ag'finst the United States or its co-belligerents who is not a lawful enemy
cpIpbatant. An unlawful enemy combatant includes a person who is part of
t~d Tali ban, al Qaeda, or associated forces.
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A '! l ~wful enemy combatant" means a person who is -
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, respect to each of the offenses listed as objects in the specifications of
Charges, the government must prove beyond a reasonable doubt that the
~f~el).se took place in the context of, and was associated with, armed conflict.
In detennining whether an armed conflict existed between the United States
"11<1 al Qaeda, and when it began, you should consider the length, duration .
an4 intensity of hostilities between the parties; whether there was protracted
a\-med violence between governmental authorities and organized armed
grQups; whether and when the United States decided (0 employ the combat
capabilities of its anned force s to meet the al Qaeda threat; the number of
peisons killed or wounded on each side; the amount of property damage on
eaqh side; statements of the leaders of either side indicating their perceptions
regarding the existence of an anned conflict, including the presence or
absence of a declaration to that effect; and any other facts and circumstances
yo\, consider relevant to the existence of armed conflict. The parties may
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argu,e the existence of other facts and circumstances from which you might
reac" your determination regarding this issue.
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111 d~termining whether the alleged offenses "took place in the context of,
and was associated with," an armed conflict, you should consider whether it
o,cCurred during the period of an armed conflict, as defined above; was
int~nded or performed while the accused acted on behalf of or under the
a~t;hbrity of a party to the armed conflict; and whether it constituted, or was
cldsely
, , and substantially related to, hostilities occurring during the armed
cbnflict, and other facts and circumstances you consider relevant to the
issue.
, Conduct of the accused that occurs at a distance from the area of
cpIiflict or prior to the start of the conflict can still be "in the context of and
a$sopiated with armed conflict" as long as it was closely and substantially
rd~t~d
, . to the hostilities that comprised the conflict.
; 1 SPECIFICATION OF CHARGE I: CONSPIRACY
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In !he specification of Charge I, the accused is charged with the offense of
Conspiracy. In order to find the accused guilty of this offense, you must be
cbrtvinced by legal and competent evidence of each of the following
e)ef1ents, beyond a reasonable doubt:
, I.
(!)ithat Mr. al Bahlul was an alien unlawful enemy combatant
(2) that between about February of 1999 and about December 2001, Mr. al
Bahlul entered into an agreement with Usarna bin Laden, Saif al Ad~l and
olber various other members of the al Qaeda organization, known or
Jnknown,
,, to commit one or more of the following substantive offenses
n;i~l:i1e by military commission: (l)murder of protected persons, (2)attacking
civiilians, (3)attacking civilian objects, (4) murder in violation of the law of
waf,i(5) destruction of property in violation of the law of war, (6) terrorism,
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an9 (7) providing material support for terrorism.
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(3):
, ,that Mr. al Bahlul knew the unlawful purpose of the agreement and
joil'~d in it willingly, with the intent to further the unlawful purpose; and
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(4)!tj1at while this agreement continued to exist, and while Mr. al Baltlul
r~",~ined a party to the agreement, Mr. al Baltlul knowingly committed at
least one of the following overt acts for the purpose of bringing about one of
tb~ ~bjects of the agreement:
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,!I ' a. traveled to Afgh'lIlistan with the purpose and intent of joining al
. .I : Qaeda;
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" b. met with Saif al 'Adl, the head of the al Qaeda Security Committee,
I i as a step toward joining the al Qaeda organization;
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c. underwent military-type training at an al Qaeda sponsored training
camp then located in Afgh'lIlistan near Mes Aynak;
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:: I d, pledged fealty, or "bayat," to the leaderofal Qaeda, Usama bin
i' I Laden, joined a! Qaeda, and provided personal services in support of
I :1 i al Qaeda;
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(~) ~at this ~onduct occurred in the context of and was associated with an
, ~d conflict.
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' 'q or more persons are required in order to have a conspiracy. Knowledge
of Ie identity of co-conspirators and their particular connection with the
a" efment~f eBI8f1'rise need not be establ!shed. A person may be guilty of
~p,1'jPrracy although mcapable of commlttmg the mtended offense: The
JCj>'tu:ng of another consp,rator after the conspIracy has been establIshed does
~ou create a new conspiracy or affect the status of the other conspirators.
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;r4Jf that the offen.'e o~ (~). murder of protected persons, (2) attacking
ClvtJ.lt' ans, (3) attacking clVllIan objects, (4) murder 10 vIOlatIOn of the law of
~~~, (5) destruction of property in violation ?fthe law of war, (6) terrorism,
an4 7) provldmg matenal support for terronsm actually occurred IS not
r~9ulred. However, it must be proved beyond a reasonable doubt that the
agijeement intended every element of at least one of the offenses that the
Go\rllITUnent has alleged as objects of the conspiracy.
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4('~Jast six (6) of the nine (9) members must agree on the same object of the
Cf~~sriracy to find that the conspiracy existed.
1hj ' ~greement in a conspiracy does not have to be in any particular form or
ek rssed in formal words. It is sufficient if the minds of the parties reach a
CFTfnon understanding to accomplish the. object of the conspiracy, and this
IDWibe proved by the conduct of the partIes. The agreement does not have
t~J~press the manner in which the conspiracy is to be carried out or what
paJ;t fOach conspirator is to play.
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'IIi overt act required for this offense does not have to be a criminal act, but
it ' ~'st be a clear indication that the conspiracy is being carried out.
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1hJ, I Iol vert act may be done in preparation for, during or after the time of the
a~~eFment.
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1[Ijrlbvert act must clearly be independent of the agreement itself; that is, it
,*~s .be more than merely the act of entering into the agreement or an act
~eadssary to reach the agreement.
~ 'UWili note that more than one overt act has been li sted in the
s flfication. You may find Mr. al Bahlul guilty of Conspiracy only if you
ar: '4l'nvinced beyond a reasonable doubt that he personally committed at '
le~fl one of the overt acts described in the specification and that such act
*~ indeed an act in furtherance of the alleged agreement.
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il,d ' rdingly, if you find beyond a reasonable doubt that Mr. al Bahlul
cb~ itted one or more such overt act, but not all of them, your fmdings
sb: ~Id reflect this by appropriate exceptions. At least six (6) of the members
n? ,sr concur that the accused committed the same overt act.
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1jh l $~ you may find Mr. al Bahlul guilty of the Specification of Charge I if
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pnd beyond a reasonable doubt that he conspired to do any ofthe
dwing:
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fU (IJonspire to M urder Pr otected Persons:
W:~~der to find Mr. al Bahlul guilty of Conspiracy to Murder Protected
Pe~sons, you must find beyond a reasonable doubt that Mr. al Bahlul:
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:i I {l) entered into an agreement;
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I I .' , (3) that Mr. al Bahlul knew or should have known of the factual
i 11 : circumstances that established the person 's or persons protected status
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II,I'I I' (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
and joined, with the intent to further its unlawful purpose;
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'i '[I i. (ii) military personnel placed hors de combat by sickness, wounds, or
'i ' I i detention; or
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'II (iii) military medical or religious personnel.
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:: :11 (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
:I! I and joined with the intent to further its unlawful purpose;
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: ,'I (5) that Mr, al Bahlul committed an overt act in furtherance of the
i agreement; and
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I (6) that the agreement and the intended attack on civilians took place
! I. in the context of and was associated with an armed conflict.
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' )~teral deaths or injuries incident to a lawful attack do not support the
d nse of attacking civilians.
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(3). onspire to Attack Civilian Objects:
In~' ~der to find Mr. al Bahlul guilty of Conspiracy to Attack Civilian
o,. Iects, you must find beyond a reasonable doubt that Mr. al Bablul:
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(I) entered into an agreement;
(4) that Mr. al Bahlul knew the unlawful purpose of the agreement
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i and joined with the intent to further its unlawful purpose;
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:, I i. (5) that Mr. al Bahlul committed an overt act in furtherance of the
,!I I' I, agreement; and
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!: (6) that the agreement and the intended attack on civilian objects took
j i, place in the context of and was associated with an armed conflict.
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GQUateral damage, death, or injury incident to a lawful attack do not support
thd dffense of attacking civilian objects.
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',IIi! II (I) entered into an agreement;
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::! I' (2) to intentionally kill one or more persons;
, ~ I, (3) in violation of the law of war;
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I (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
I' and joined with the intent to further its unlawful purpose;
1 ~I !' (6) that the agreement and the intended killing took place in the
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context of and was associated with an armed conflict.
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(iii) military medical or religious personnel.
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A,/p Uing may al so violate the law of war where an accused regardless of
sPit4s (as a lawful or unlawful combatant) intentionally and without
j~ffrcation kills any person by a method, manner, or ~nder circumstances,
tha,'! ~ lOlate the law of war. Such method, manner or clTcumstances, may
ill91~de, but are not limited to, attacking United States and allied forces by
!pel41s of perfidy or treachery, improperly using a flag of truce or a
dislifictive symbol (e.g., a Red Cross or Red Crescent), or in the course of
spMiiig.
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'1'1 ': : (2) to intentionally and without consent destroy property of another
i , ,i which is not a military objective;
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,i '! ! (3) that the destruction of the property would have been in violation of
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:I . .~;1,:" t he Iaw 0 f war",
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'" ,I (4) that Mr, al BaWul knew the unlawful purpose of the agreement
J , I and joined with the intent to further its unlawful purpose;
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" I, (5) that Mr. al Bahlul committed an overt act in furtherance of the
'i Ii I agreement; and
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1 ,i ; (6) that the agreement and the intended destruction of property took
:1 ! place in the context of and was associated with an armed conflict.
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Military
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objectives are combatants and those objects during an armed
cot)4ict:
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,j:; (i) which by their nature, location, purpose, or use, effectively
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:", I (ii) the total or partial destruction, capture or neutralization of which
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'I Cll'cumstances at the ume of the attack.
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Civilian objects are all objects that do not qualify as military objectives.
~. i ' (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
:, ' and joined with the intent to further its unlawful purpose;
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, , ' (5) that Mr. al Bahlul committed an overt act in furtherance of the
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!: agreement; and
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,:Ii i' (6) that the agreement and the intended act of terrorism took place in
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nRrorected
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persons are: tl
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'111 :,:: I (ii) military personnel placed hors de combat by sickness, wounds, or
.'1 ',': iI detention;
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" ;'1; (iii) military medical or religious personnel.
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(V)i'(ilonspire to Provide Material Support for Terrorism:
'l'Iiis: bffense can be proven by either of two ways.
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It ~ai1 be proven that Mr. al Bahlul:
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(1 ) entered into an agreement;
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,,' ii (2) to provide material support or resources to be used in preparation
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"i' ' for or in carrying out an act of terrorism;
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i, (3)that Mr. al Bahlul knew or intended that the material support or
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resources were to be used for those purposes
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!' !' (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
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, and joined with the intent to further its unlawful purpose;
(6) that the agreement and the intended act of terrorism took place in
, 'I the context of and was associated with an armed conflict.
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Or, il 'can be proved that Mr. al Bahlul:
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'I (I) Entered into an agreement;
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I, I (2) to provide material support or resources to an international
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terrorist organization engaged in hostilities against the United
States
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I (3) that Mr. al Bahlul intended that the material support or resources
be provided to an international terrorist organization
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(4) that Mr. al Bahlul knew that al Qaeda has engaged in or engages
in terrorism;
(7) that the agreement and the intended act of terrorism took place in
the context of and was associated with an armed conflict.
"T~ftorism" has been previously defined and should also be used in the
c;o~ideration of this offense.
"q~,terial Support or Resources" means any properry, tangible or intangible,
or' service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
s~e ,houses, false docwnentation or identification, communications
equipment, propaganda, recruiting materials, facilities, weapons, lethal
substances, explosives, personnel (one or more individuals who may be or
indu~e oneself) and transportation, except medicine or religious materials.
~au
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If have a reasonable doubt that any overt act alleged in the specification
was committed, or that any overt act was committed in furtherance of the
alleged agreement, you may still reach a finding of guilty so long as you
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cOllqlude that Mr, al BaWul committed one of the alleged overt acts in
rn4.Jihance of the agreement, and all the other elements of the offense are
pr~~~d beyond a reasonable doubt, but you must modifY the specification to
c~*#:t1y reflect your findings in this regard,
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SPECIFICATION OF CHARGE n
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ljl'lh:e specification of Charge II, the accused is charged with the offense of
Soli,citation to commit (1) murder of protected persons, (2) attack civilians,
(3) attack civilian objects, (4) murder in violation of the law of war, (5)
ddiroy property in violation of the law of war, (6) terrorism, and (7) provide
material support for terrorism.
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In, order to find the accused guilty of this offense, you must be convinced
by ,I~gal
, and competent evidence of each of the following elements,
b,,,y~nd a reasonable doubt:
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(1) Jhat Mr, aI Bahlul was an alien unlawful enemy combatant,
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(2~: that Mr, al BaWul did, in the context of and associated with an armed
cdrUlict, from in or about February 1999 through in or about December
2001, at various locations in Afghanistan, Pakistan and elsewhere,
V{fopgfully solicit, order, induce and advise la.alla Sal@A Muhammad Ka:hla
.a! : M:~i, Yahya Goba, Yassein Taher, Faysal Hussein Galab, Shafal Mosed,
. Sarulll Ahmed Alwan, and other persons, known and unknown, to commit
suos/antive offenses triable by military commissions;
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(3} that the accused intended that one or more of these offenses actually be '
cQtp.mhted; and
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, the solicitation took place in the context of and was associated with
(4) that
an l\f111ed
,.. conflict
SO,!lcitation means any statement or any other act which may be understood
to bF a serious request to commit the offenses listed in the specification of
Chlirge II, The person solicited must know that the act requested is part of a
cr\minal venture, although it is not necessary the person solicited agree to
th,f,'e quest or act upon It.
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'(Q '1r dvise" means any statement or any other act which may be understood
t?'~!f a serious recommendation or suggestion to commit the offenses
iillt~ed. The person advised must know that the act advised is part of a
c~al venture, although it is not necessary the person advised agree to the
*~tipe or act upon it. '
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){1'U' iue advised that there is no requirement that all of the persons who were
sol/cited be named in the specification or that all such persons be subject to
th~ Military Commissions Act.
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y~,J i pre further advised that proof that the offenses listed in the specification
o~C~arge II actually occurred is not required. However, it must be proven
li~yohd a reasonable doubt that the accused intended that persons known or
unkh.~wn would commit every element of the offense or offenses listed in
t\l~ ' fpecification of Charge II.
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T~U:S, you may find the accused guilty of Charge II only if you fmd beyond a
rea~qnable doubt that the accused solicited persons known and unknown to
c0irjIDit all of the elements of one or more of the alleged following offenses.
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AHe~st six (6) of you 'must agree that the accused solicited at least one of
the, pamed offenses in the specification of Charge II in order to find the
acc*sed guilty of the separate offense of solicitation. Accordingly if you
(J,~ beyond a reasonable doubt that the accused intended to agree to commit
ope,irr more solicited offenses, but notal! of them, your findings should
refl~ct this by exceptions.
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Adbast six (6) members preseIl! when die vote js tlrke!> must concur that the
acq~sed intended the same solicited offense or offenses .
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(1): Solicitation to Commit M urder of P r otected Persons:
iIi'\Jrder to find Mr. al Bahlul guilty of soliciting others to Murder Protected
I1ei,lons, you must find beyond a reasonable doubt that Mr. al Bahlul:
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, , (J) wrongfully solicited, ordered, induced or advised one or more
:1.:1 persons;
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(2) without justification or excuse, to intentionally kill one or more
Protected Persons;
, ,:I!, (4) that Mr, al Bahlul intended that the offense actually be committed;
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, :':1 ' (5) that the solicitation and the intended killing took place in the
, context of and was associated with an armed conflict
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!1r{irected Persons are:
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(i) civilians not taking an active part in hostilities;
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I': : (ii) military personnel placed hors de combat by sickness, wounds, or
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J"; such or against individual civilians not taking direct part in hostilities
,,::, to be the object of the attack;
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(3) that ML al Bahlul knew or should have known the factual
',,' i ' circumstances that established such civilian status;
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,,' (4) that Mr. al Bahlul intended that the offense actually be committed;
: ", and
il'il : (5) that the solicitation took place in the context of and was associated
, with an armed conflict,
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ad) !teral deaths or injuries incident to a lawful attack do not support the
AiffW.L:se of attacking civilians.
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(3)1Solicitation to Attack Civilian Ob jects:
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' 'ilii:ler to find Mr. al Bahlul guilty of Solicitation to Attack Civilian
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you must find beyond a reasonable doubt that Mr. al Bahlul:
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::,1' I (I) wrongfully solicited, ordered, induced or advised one or more
-I persons;
,,-:;; (3) that Mr. al Bahlul knew or should have known that such property
;.: was not a military objective;
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. . til tirat Mr. al Bat\lul knew the un lawfo l purpose of dIe agreement
. ,J. aRdjGin~Q williRgly, with th~ iRtem to 6Jrtber the 1In.1awfiI ) pw=pQse;
;J, ~ that Mr. al Bahlul intended that the offense actually be committed;
.: and
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'; :' !fJ that the solicitati?n took place in the context of and was associated
. With an armed confhct.
Civilian objects are those objects that do not qualify as military objectives.
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A 'killing may also violate the law of war where an accused regardless of
stains (as a lawful or unlawful combatant) intentionally and without
justi/lcation kills any person by a method, manner, or under circumstances, ,
th~~i ~iolate the law of war. Such method, manner or circumstances, may
incNde, but are not limited to, attacking United States and allied forces by
means of perfidy or treachery, improperly using a flag of truce or a
distinctive symbol (e.g., a Red Cross or Red Crescent), or in the course of
spYIng.
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~~' ~dy occurs when a combatant (lawful or unlawful) invites an adversary
to ' ffheve that he IS entItled to, or IS obhged to accord, protectIOn to the
c~~~atant under the law of war, with the intent to betray that confidence,
~ot !*,ample, feigning status as a non-combatant civilian in order to attack a
Dilili!fY installation or personnel may violate the law of war,
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(~W~ ~~licitation to Destrov Property in Violatio n ofthe Law of War:
In otder
,, to fmd Mr, al Bablul g uilty of Solicitation to Destroy Property in
Violation of the Law of War, you must find beyond a reasonable doubt that
Mr, ;;I Bablul:
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"" (I) wrongfully solicited, ordered, induced or advised one or more
persons;
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, (2) to intentionally and without consent destroy property of another
which is not a military objective;
(3) that the destruction of the property would have been in violation of
I the law of war
(5) thaI the solicitation took place in the context of and was associated
, with an armed conflict
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MII,ifary objectives are combatants, and those objects during an armed
cot)J).)ct:
,!' ,. (i) which by their nature, location, purpose, or use, effectively
contribute to the opposing force's war-fighting or war-sustaining
capabi lity, and
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Ci Uian objects are all objects that do not qualifY as military objectives,
Destruction of property may violate the law of war where an accused
regardless of status (as a lawful or unlawful combatant) intentionally and
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4!\~utjUStification destroys any property-including military property-by a
,*~~od, mamler, or under circumstances, that violate the law of war. Such
m~od, manner or circumstances, may include , but are not limited to,
a~"~king United States and allied property by means of perfidy or treachery,
i.r;np~operly using a flag of truce or a distinctive symbol (e.g., a Red Cross or
Re~ :Crescent), or in the course of spying.
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Pe,fldy occurs when a combatant (lawful or unlawful) invites an adversary
to believe that he is entitled to, or is obliged to accord, protection to the
combatant under the law of war, with the intent to betray that confidence.
F,or:cxarnple, feigning status as a non-combatant civilian to attack military
prol1erty may violate the law of war.
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(6) Solicitation to Commit Terrorism:
If'order to find Mr. al BaWul guilty of Solicitation to commit Terrorism, you
mll~t fmd beyond a reasonable doubt that Mr, al BaWul:
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" ' olicitation for P rovidin Materia l Su o rt fo r Terr orism:
T :' :r.Wffense can be proven by either of two ways.
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~I .!: be proven that Mr. Al Bahlul:
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Q. (l) wrongfully solicited, ordered. induced or advised one or more
:j,no persons;
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p,: (2) to provide material support or resources to be used in preparation
;; : t for or in carrying out an act of terrorism;
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(3) that Mr. al Bahlul knew or intended that the material support or
resources were io be used for those purposes I
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(4) that Mr. al Bahlul intended that the offense actually be
committed; and
,. (5) that the solicitation took place in the context of and was
associated with an armed conflict.
; .: (3) the accused knew that al Qaeda knew had engaged or was
,I',: engaging in terrorism
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(4) that Mr. al Bahlul intended that the material support or resources
be provided to an international terrorist organization
(5) that Mr. al Bahlul intended that the offense actually be corrunitted;
and
'.; (6) that the solicitation took place in the context of and was
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associated with an armed conflict
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cbn' ' iracy in Charge 1. These explanations and definitions also apply to the
s\IRk ' tive offense of soliciting material support for terrorism as alleged in
Ch' I' ge II. I will not repeat those explanations and definitions as you will
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haY! 'a wntten copy of these InStructiOns as a reference. You should apply
th~~ definitions when you deliberate on the specification of Charge II.
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Fil,ja),ly with regard to Charge II, you may find the accused guilty of the
of:t:~se of Solicitation only if you find beyond a reasonable doubt that the
accused solicited persons known or unknown to commit all of the elements
of one or more of the offenses alleged in the specification.
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At least six (6) of you must agree that the accused solicited at least one of
thb+,amed offenses in the specification of Charge II in order to find the
~cGused guilty of the separate offense of solicitation. Accor~ ifpu -' "-
fm~ ' \>eyond a rea~ble doubt that the accused intended to~~ GSA"'lit (~
orie,or more ~ffenses, but not all of them, your findings should
retlect this by exceptions. At least six (6) members must concur that the
accused intended the same solicited offense or offenses.
In (he specification of Charge III, the accused is charged with the offense
o~Providing Material Support for Terrorism. In order to find the accused
guiiIY of this offense, you must be convinced by legal and competent
evidnce of each of the following elements, beyond a reasonable doubt:
(b) meeting with Saif al 'Ad!, the head of the aI Qaeda Security
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(g) arranging for Muhammed Atta, also known as Abu Abdul Rahman
al Masri, and Ziad al Jarrah, also known as Abu al Qa'qa al Lubnani,
to pledge fealty, or "bayat," to Usama bin Laden;
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At .Jeast six (6) of you must agree that the accused provided material support
by doing at least one of the named acts in the specification of Charge III in
order to fmd the accused guilty of the separate offense providing material
support for terrorism. Accordingly if you find beyond a reasonable doubt
that the accused committed one or more acts, but not all of them, your
findings should reflect this by exceptions. At least six (6) members must
cot)cur that the accused committed the same act.
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b~~~ the act counseled, commanded or procured by a person is done, he is
c~~naUy responsible for all the likely results that may occur from the doing
of\!tat act.
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If48 u are satisfied beyond a reasonable doubt that the accused knowingly
allrl WillfulIy counseled, commanded or procured the conurussion of an
f'e_
of(e(lse with which he is charged, you may find him guilty of that offense
ev~n though he was not the person who actualIy committed the crime.
JUDICIAL NOTICE
I hhve taken judicial notice that that there are no documents within the
control of the United States Government that show that Mr. al Bahlul is or
ever has been a legal resident of the United States.
This means that you are now permitted to recogllize and consider this fact
without further proof. It should be considered by you as evidence with alI
other evidence in the case. You may, but are not required to, accept as
conclusive any matter I have judicially noticed.
EVIDENTIARY INSTRUCTIONS
Credibility of Witnesses:
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ex~.l~'t to which each wi~ess is either supported or ~ontr~dicted by other
evifl nce; the relationship each witness may have With either side; and how
ea~ :i witness might be affected by the verdict.
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In Weighing discrepancies by a witness or between witoesses, you should
c01~der whether they resulted from an innocent mistake or a deliberate lie.
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Taking all these matters into account, you should then consider the
prdbability of each witness' testimony and the inclination of the witness to
tell the truth.
Circumstantial Evidence:
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If evidence has been presented which is relevant te mere than .one .offense,
yeu may censider that evidence with respect te each .offense te which it is
relevant. Fer example, evidence has been presented with respect that Mr. Al
Bahlul\ created the "Cele Videe." Yeu may censider this evidence when
yeu deliberate separately en each .of the Charges
The burden is en the prosecutien te prove each and every element .of each
.offense beyend a reasenable deubt. Preef .of .one .offense carries with it ne
inference that the accused is guilty .of any ether .offense.
Aste any specificatien, if yeu have deubt that the Gevernment has proven
all of the times, places and manners charged in the specificatien, yeu may
stili reach a finding .of guilty se long as all the elements .of the .offense are
preved beyend a reasenable deubt, but yeu must modify the specificatien te
cer:rectly reflect yeur findings.
Expert Testimeny:
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th~1 'h pert witness to that hypothetical question.
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A~h)mplice Testimony:
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Y~~[ peard the testimony of three individuals who are described in the
sp~4j:fication of Charge II and were themselves previously convicted of
tert~;'ism related offenses. Such persons could be considered accomplices.
A )vitness is an accomplice ifhe was criminally involved in an offense with
which the accused is charged. The purpose of this advice is to call to your
attention a factor specifically affecting the witness' believability, that is, a
mot,ve to falsify his testimony in whole or in part, because of an obvious
self-interest
. , under the circumstances. In deciding the believability of these
witnesses,
, you should consider all the relevant evidence.
These three individuals have testified as part of their guilty pleas from their
convictions in federal court. If the witnesses did not tell the truth, they can
be prosecuted for perjury. In determining their credibility you should
consider the fact that they were testifying as part of their guilty pleas along
with all the other factors that may affect the witnesses believability.
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Se~opd, if there is reasonable doubt as to the guilt of the accused, that doubt
mnst,be resolved in favor of the accused, and he must be acquitted;
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Tlij'r~, If there IS a reasonable doubt as to the degree of gUllt, that doubt must
be' r~solved in favor of the lower degree of guilt as to which there is no
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reaS~nable doubt; and
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Lastly, the burden of proof to establish the guilt of the accused beyond a
reasonable doubt is on the government. The burden never shifts to the
accused to establish innocence or to disprove the facts necessary to establish
e~cjl , element oreach offense. Thus, the Commission should take no adverse
inffrence toward the accused from the accused s choice that he and his
counsel
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stand mute. This is a permissible defense. The accused has an
,
absolute right to stand silent and do nothing but require the Government to
prove its case against him beyond a reasonable doubt.
The term "reasonable doubt" does not mean a fanciful or ingenious doubt or
conjecture, but an honest, conscientious doubt suggested by the material
evidence or lack of it in the case. It is an honest misgiving generated by
insufficiency of proof of guilt. Proof beyond a reasonable doubt means proof
to an evidentiary certainty, although not necessarily to an absolute or
mathematical certainty. The proof must be such as to exclude not every
hypothesis or possibility of innocence, but every fair and rational hypothesis
exeppt that of guilt. The rule as to reasonable doubt extends to every element
of the offense, although each particular fact advanced by the prosecution,
which does not amount to an element, need not be established beyond a
re,\sonable doubt. However, if, on the whole evidence, you are satisfied
beyond a reasonable doubt of the truth of each and every element, then you
shO,l1ld find the accused guilty.
Bear in mind that only matters properly before the Commission as a whole
should be considered. In weighing and evaluating the evidence you are
expected to use your own common sense, and your knowledge of human
nature and the ways of the world, In light of all the circumstances in the
case, you should consider the inherent probability or improbability of the
evidence. Bear in mind you may properly believe one witness and disbelieve
se~~ral oth~r witnesses whose testimony conflicts with .the one. The fmal
de1eimmatlOn as to the weIght or sIgnificance of the eVIdence and the
credibility of the witnesses in this case rests solely upon you.
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~?lb:)ust disregard any comment or statement or expression made by me
d')1~1g the course of the tnal that mIght seem to mdICate any opmlOn on my
pa'~,'~s t.o :-:hether the accused is g~illJ:' or not guilty since yo~ alon~ have the
res, ' bnslhIllty
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to make that detennmatlOn. Each of you must unparhally
deCide
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whether the accused is guilty or not guilty according to the law r have
givep you, the evidence admitted in court, and your own conscience.
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At :!his time you will hear argument by counsel. As the government has the
burden of proof, trial counsel may open and close. Counsel for the
Government, you may proceed.
ARGUMENT BY COUNSEL
PROCEDURAL INSTRUCTIONS
The following procedural rules will apply to your deliberations and must be
observed:
YoUr deliberation should include a full and free discussion of all the
evidence that has been presented. After you have completed your discussion,
then voting on your findings must be accomplished by secret, written ballot,
and all members of the Commission are required to vote.
The order in which the several charges and specifications are to be voted on
should be detennined by the president subject to objection by a majority of
the, members. You vote on the specifications under the charge before you
vote,on the charge.
If you fmd the accused guilty of any specification under a charge, the
finding as to that charge must also be guilty. The junior member will collect
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arJ~l ~ount the votes. The count will then be checked by the president, who
wijliimmediately announce the result of the ballot to the members .
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Th~:boncurrence
, of at least two-thirds of the members is required for any
finding of guilty, Since we have nine (9) members that means six (6)
men!bers
, must concur in any finding of guilty.
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If yO\! have at least six (6) votes of guilty of any offense then that will result
in a finding of guilty for that offense. If fewer than 6 members vote for a
finding
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of guilty, then your ballot resulted in a finding of not guilty.
,
You'may reconsider any finding prior to its being announced in open
se~:si (;m . However, after you vote, if any member expresses a desire to
re~onsider any fineting, open the Commission and the president should
OfU1ounce only that reconsideration of a finding has been proposed, Do not
state:
(2) which specification (and charge) is involved. I will then give you
specific further instructions on the procedure for reconsideration.
As soon as the Commission has reached its fmetings, and I have examined
the .Findings Worksheet, the findings will be announced by the president in
the presence of all parties,
Because of the number of acts alleged each is listed on the worksheet under
each offense,
To indicate those acts for which you find Mr. al Bahlul guilty, if any,
please circle,
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Then line through any of the acts for which you find him not guilty
'f.
Th" ~Y'0rk sheet'III no way III
. d'lcates an oplruon
.. by me or counseI '
concemmg
th'1 findings you should reach or as to any degree of guilt of this accused.
~isl i ~ merely included to aid you in understanding what fmdings might be
m~\I~ in the case, and for no other purpose whatsoever. Are there any
qUes,\ions about the findings worksheet?
If, d~ring your deliberations, you have any questions, please write the
quest,ion on one of the question forms that have been provided to you, and
sena it to me via the bailiff. I will then open the Commission and try to
answer your questiol). The Manual for Military Commissions prohibits me
and everyone else from entering your closed session deliberations. You may
not consult the Manual for Military Commissions or any other legal
publication unless it has been admitted into evidence.
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