Ilitary Ommission Eporter: Olume

MILITARY COMMISSION REPORTER
VOLUME 1
(OCTOBER 17, 2006 JUNE 1, 2009)
MILITARY COMMISSION REPORTER VOLUME 1
Washington, D.C. 2009
Editors Note: National Institute of Military Justice (NIMJ) transcribed every decision,
order, and opinion included in this volume. The editors corrected simple and obvious grammatical errors to create uniformity and clarity.
2009 National Institute of Military Justice. All rights reserved. Copyright is not claimed in the text of the military commission or Court of Military Commission Review opinions, decisions, or any other part of original work prepared by a United States Government officer or employee as part of that persons official duties.
DEDICATED TO
The victims of the September 11, 2001 terrorist attacks and to those killed and wounded in the cause of freedom and Captain Kevin J. Barry 1942-2009 Capt. Barry served as an operations officer and navigator aboard Coast Guard cutters, Officer Candidate School instructor, and judge advocate over the course of a distinguished military career. As a judge advocate, Capt. Barry served as trial and defense counsel and as a trial and appellate military judge. After retiring, he maintained a law practice concentrating in military and veterans law cases. He wrote extensively on military justice and related topics, including the treatment of detainees and the use of military commissions to try detainees in the War on Terror. Capt. Barry held leadership roles in the American Bar Association, Bar Association of the District of Columbia, and Judge Advocate Association. He was a co-founder, long-time director, and committed supporter of the National Institute of Military Justice. His contributions to the law, his tenacity in the pursuit of justice, and his judicious and empathetic temperament will leave a lasting mark on our field and all who were privileged to know him.
ACKNOWLEDGEMENTS
The National Institute of Military Justice (NIMJ) would like to acknowledge the support of the NIMJ Officers, Directors, Board of Advisors and the American University Washington College of Law. NIMJ is grateful for the generous support of the Open Society Institute, the Atlantic Philanthropies, and the JEHT Foundation, whose assistance made this project possible. The Institute would also like to extend its appreciation to Michelle M. Lindo McCluer and Jonathan E. Tracy for their invaluable contributions as Director and Assistant Director, respectively. Finally, the Institute recognizes the helpful assistance of its Program Coordinator, Irina Vayner, and Deans Fellows Lindsay Kyzer, Michael McNerney, and Aurafe Nayna Malayang.
TABLE OF CONTENTS Preface, Eugene R. Fidell ...............................................................................................xiii Foreword, Patricia M. Wald ........................................................................................... xv National Institute of Military Justice Officers, Directors, Board of Advisers, and Staff........................................................... xxi Military Commissions ....................................................................................................... 1 Commission Personnel............................................................................................... 3
United States v. Hamdan ............................................................................................ 5

Decision and Order: Motion to Dismiss for Lack of Jurisdiction (Corrected Order) (June 4, 2007)....................................................................... 6 Decision on Motion to Reconsider Dismissal of Charges for Lack of Jurisdiction (Oct. 17, 2007) ............................................................ 10 Ruling on Motion to Compel Production of Witnesses (Dec. 7, 2007).................................................................................................... 15 Ruling on Defense Motion for Article 5 Status Determination (Dec. 17, 2007)................................................................................................... 18 On Reconsideration Ruling on Motion to Dismiss for Lack of Jurisdiction (Dec. 19, 2007)............................................................................... 22 Ruling on Defense Motion to Dismiss (Defective Pretrial Advice) (D-010) (Feb. 4, 2008) ....................................................................................... 33 Ruling on Motion to Compel Access to High Value Detainees (D-011) (Feb. 13, 2008) ..................................................................................... 35 Ruling on Motion to Compel Discovery (Corrected Copy) (D-017) (Feb. 15, 2008) ..................................................................................... 40 Ruling on Motion To Dismiss (Unlawful Combatant Status) (D-015) (Mar. 7, 2008) ...................................................................................... 47 On Reconsideration Ruling on Motion for Stay and for Access to High Value Detainees (P-004) (Mar. 14, 2008) ........................................... 49
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Ruling on Motion For Order Implementing Fourth Geneva Convention (D-013) (Mar. 24, 2008)................................................................ 53 Ruling on Motion to Dismiss (Res Judicata) (D-016) (Apr. 2, 2008)............... 60 Ruling on Motion To Compel Production of All Records Relating to the Accuseds Confinement (D-020) (Apr. 4, 2008) ..................... 66 Ruling on Motion To Compel Production of the Names and Contact Information of all Government Agents Involved in the Investigation of this Case (D-018) (Apr. 21, 2008) ............................... 68 Ruling on Defense Motion For Employment of Expert Witness (Dr. Brian Williams) (D-025) (Apr. 23, 2008) ................................... 70 Ruling on Defense Motion for Employment of Expert Witness (Dr. Emily Keram) and Request for Continuance (D-031) (Apr. 23, 2008)..................................................................................... 72 Ruling on Defense Motion to Compel Production of Outof-Country Witnesses at Trial, Deposition Testimony, or Alternatively, Abatement (D-024) (Apr. 24, 2008) ......................................... 74 Order Authorizing Deposition, Testimony and Appointment of Deposition Officer (Apr. 30, 2008) ................................................................... 77 Ruling on Motion to Dismiss (Unlawful Influence) (D-026) (May 9, 2008)..................................................................................................... 78 Ruling on Motion in Limine (Transportation Services) and Start of Hostilities (D-033, D-016) (May 13, 2008) .................................................. 91 Order for Examination Under R.M.C. 706 (May 15, 2008)............................. 93 Ruling on Motion For Continuance of Hearing and Trial Dates (D-040) (May 16, 2008)........................................................................... 97 Ruling on Motion To Dismiss Conspiracy (D-022) (June 1, 2008) ............... 100 Ruling on Motion For Access to HVD Clients by Habeas/DTA Counsel (D-023) (June 2, 2008) ...................................................................... 105 Ruling on Motion For Bill of Particulars (D-036) (June 3, 2008).................. 108 Ruling on Continued Access to High Value Detainees (D-011) (June 4, 2008)................................................................................................... 109
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Ruling on Motion To Suppress Statements of the Accused (D-030) (June 6, 2008)..................................................................................... 112 Ruling on Motion to Deny Production of Professor Corn and to Exclude His Testimony (P-007) (June 13, 2008)........................................ 117 Ruling on Motion for Additional Continuance (D-042) (June 26,2008).................................................................................................. 119 Ruling on Motion To Suppress Statements Based on Coercive Interrogation and Practices and Motion to Suppress Statements Based on Fifth Amendment (D-029 & D-044) (July 20, 2008)...................... 121 Ruling on Motion To Dismiss: Speedy Trial (D-046) (July 20, 2008).................................................................................................. 137 Ruling on Motion For Indictment and Trial by Jury (D-048) (July 20, 2008).................................................................................................. 141 Ruling on Motion for Reconsideration and Resentencing (P-009) (Oct. 29, 2008).................................................................................... 149
United States v. Khadr............................................................................................ 151

Order on Jurisdiction (June 4, 2007) .............................................................. 152 Disposition of Prosecution: Motion for Reconsideration (P-001) (June 29, 2007) ................................................................................... 155 Protective Order #001: Protection of For Official Use Only or Law Enforcement Sensitive Marked Information and Information with Classified Markings (Oct. 9, 2007).................................... 165 Protective Order #002: Protection of Identities of Intelligence Personnel (Oct. 12, 2007)................................................................................ 168 Protective Order #003: Protection of Identities of Witnesses (Oct. 15, 2007) ................................................................................................. 169 Ruling on Defense Motion for a Fair Status Determination Hearing (D-004) (Nov. 7, 2007) ...................................................................... 171 Ruling on Defense Motion to Dismiss for Lack of Jurisdiction (Bill of Attainder) (D-013) (Feb. 20, 2008)..................................................... 173
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Ruling on Defense Motion for Appropriate Relief to Preclude Further Ex Parte Proceedings Under Color of MCRE 505(e)(3)) (D-015) (Feb. 21, 2008).................................................. 175 Ruling on Defense Motion for Relief from the Terms of Protective Order No. 001 (D-020) (Feb. 21, 2008) ........................................ 177 Order Under Seal Authorizing Alternatives to Discovery of Specified Items of Classified Information (Mar. 12, 2008)........................ 179 Ruling on Defense Motion to Compel Discovery of Statements of Omar Khadr (D-029) (Mar. 13, 2008)................................. 180 Ruling on Defense Motion to Compel Production of Documents Relating to Allegations of Interference with the Office of the Chief Prosecutor (D-030) (Mar. 13, 2008) ................ 181 Ruling on Defense Notice of Motion to Compel Production of Identities of Interrogators (D-035) (Mar. 13, 2008) .................................. 182 Ruling on Defense Motion to Dismiss Specification 2 of Charge IV for Multiplicity and Unreasonable Multiplication of Charge (D-16) (Mar. 14, 2008) .......................................... 183 Ruling on Defense Motion for Appropriate Relief (Bill of Particulars) (D-017) (Mar. 14, 2008) .................................................. 188 Ruling on Defense Motion to Strike Surplus Language from Charge III (D-019) (Apr. 4, 2008).......................................................... 193 Ruling on Defense Motion to Dismiss Charge One for Failure to State an Offense and for Lack of Subject Matter Jurisdiction (D-008) (Apr. 21, 2008)............................................................... 199 Ruling on Defense Motion to Dismiss Charge II for Failure to State an Offense and for Lack of Subject Matter Jurisdiction (D-009) (Apr. 21, 2008)............................................................... 203 Ruling on Defense Motion to Dismiss Charge III for Lack of Subject Matter Jurisdiction (D-010) (Apr. 21, 2008) ................................. 206 Ruling on Defense Motion to Dismiss Charge IV for Lack of Subject Matter Jurisdiction (D-011) (Apr. 21, 2008) ................................. 211 Ruling on Defense Motion for Appropriate Relief (Strike Terrorism from Charge III) (D-018) (Apr. 21, 2008) ..................................... 217
Ruling on Defense Motion for Appropriate Relief (Strike Murder in Violation of the Law of War from Charge III) (D-023) (Apr. 21, 2008)................................................................................... 220 Ruling on Defense Motion to Compel Discovery (Documents Relating to Charge III) (D-026) (Apr. 23, 2008) ....................... 221 Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier (D-022) (Apr. 30, 2008) ........................................ 223 Determination and Ruling: Defense Motion to Compel Discovery (Eyewitnesses) (D-025) (May 9, 2008).......................................... 230 Determination and Ruling: Defense Motion to Compel Discovery (Documents Relating to Investigation and Prosecution of Sgt [REDACTED] USA (D-027) (May 9, 2008)................................................................................................... 231 Determination and Ruling: Defense Notice of Motion to Compel Production of Physical Evidence (D-031) (May 9, 2008)................................................................................................... 232 Determination and Ruling: Defense Motion to Compel Discovery (Documents Relating to Investigation and Prosecution of Detainee Abuse) (D-034) (May 9, 2008)................................ 233 Ruling: Defense Notice of Motion to Compel Production of Classified Report (D-038) (May 9, 2008).................................................... 234 Ruling: Defense Motion to Compel Production of Documents (DIMS) (D-043) (May 9, 2008).................................................... 235 Ruling: Defense Special Request for Relief in Light of the Commissions Ruling on D-019 to Strike Surplus Language from Charge III (D-047) (May 2008) ............................................. 237 Ruling: Defense Notice of Motion to Compel Production of the JTF GTMO SERE Interrogation SOP Dated 10 December 2002 (D-048) (May 9, 2008) ..................................................... 239 Determination and Ruling: Defense Notice of Motion to Compel Production of Documents (Reports Relating to Other Special Operations Unit) (D-050) (May 9, 2008) ............................. 240
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Ruling: Defense Notice of Motion to Compel Production of Document (Agent Notes) (D-053) (May 9, 2008) ...................................... 241 Order (Aug. 14, 2008) ..................................................................................... 242 Order: Defense Motion for Appropriate Relief (Right to Public Trial) (D-069) (Aug. 14, 2008) ........................................................................ 244 Ruling Defense Motion to Dismiss (D-067) (Aug. 15, 2008)......................... 245 Ruling: Defense Motion To Dismiss (Unlawful Influence Removal of Military Judge) (D-076) (Aug. 15, 2008) .................................... 246 Ruling: Defense Motion to Dismiss Charge I For Failure to State an Element of the Offense in Violation of Due Process (D-071) (Oct. 6, 2008) ..................................................................................... 247 Ruling for Defense Motion for Reconsideration of the Commissions Ruling on D-060 (D-079) (Oct. 7, 2008)................................. 249 Ruling: Defense Motion for Appropriate Relief, Clarification, and Amendment of the Military Commissions 8 May 2008 Order to Produce Documents Relating to Ahmed Said Khadr (D-088) (Oct. 9, 2008) ..................................................................................... 250 Ruling on Defense Motion for Appropriate Relief (Access to Intelligence Interrogators) (D-092) (Oct. 23, 2008) .................................. 251 Ruling: Defense Motion for a Continuance (D-093) (Oct. 23, 2008)............ 252 Order: Government Request for a Continuance (P-011) (Jan. 21, 2009).................................................................................................. 254 Ruling: Ex Parte Request from the Chief Defense Counsel (D-107) (Apr. 7, 2009)..................................................................................... 255
Scheduling Order (Apr. 28, 2009) .................................................................. 256
Order (June 1, 2009)........................................................................................ 257
United States v. Mohammed .................................................................................. 259

Commission Ruling on Motions for Continuance of Initial Session/Arraignment (D-002-006) (May 22, 2008)........................................ 262
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Protective Order #3: Protection of Classified Information at Arraignment and Other Pretrial Proceedings (June 4, 2008).................... 265 Order: Motions For Special Relief (D-010 & D-011) (July 1, 2008).............. 273 Order (Sep. 15, 2008) ...................................................................................... 279 Commission Ruling on Motion to Compel Discovery (Identities of Medical and Custodial Personnel) (D-023) (Sep. 16, 2008) ...................... 280 Commission Ruling on Motion to Compel Discovery (Related to Unlawful Command Influence) (D-032) (Oct. 1, 2008) ............................ 282 Commission Ruling on Motion to Compel Production of Transcripts in Arabic (D-033) (Oct. 2, 2008)..................................................................... 285 Commission Ruling on Motion to Allow Ex Parte Applications (D-020) (Oct. 6, 2008) ..................................................................................... 288 Commission Ruling on Motion for Resources Necessary to Realize Sixth Amendment Right to Self-Representation (D-035) (Oct. 6, 2008) ..................................................................................... 290 Commission Ruling on Motion for Appointment of Defense Expert Consultant (Dr. Xavier F. Amador) (D-017) (Oct. 26, 2008)............. 293 Commission Ruling on Motion for Appropriate Relief (Access to View and Inspect the Conditions of Confinement in GTMO) (D-041) (Oct. 26, 2008)................................................................. 295 Protective Order #7: Protection of Classified Information Throughout All Stages of Proceedings (Dec. 18, 2008) ................................. 297 Commission Ruling Regarding Government Motion for 120-Day Continuance (P-009) (Jan. 21, 2009) ............................................... 302 Commission Order Regarding Pro Se Filing: The Islamic Response to the Governments Nine Accusations (D-101) (Mar 9, 2009) ................................................................................................... 303 Order on Defense Motion for Special Relief Objection to Public Release of Statement filed with Military Commission on 1 March 2009 by Pro Se Accused (D-101) (Mar. 18, 2009) ................................................................................................ 304
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Order: Defense Motion for Special Relief: Military Commission Must Decline Receipt of Unsolicited Communication Submitted to the Military Judge on 13 March
2009 by Mr. Bin al Shibh (D-102) (Mar. 18, 2009) ............................ 306
Order: Defense Motion for Reconsideration of Military Commission Order D-102, Authorizing Public Release of Military Commission Order D-102 (D-104) (Mar. 20, 2009)....................................... 308 Order: Defense Special Request for Relief from Protective Orders (D-106) (Apr. 13, 2009) ...................................................................... 310 Order: Defense Special Request for Relief from Protective Order #7 (D-107) (Apr. 13, 2009) ................................................................... 311 Ruling on Prosecution Special Request for Relief (Extension of Time to File a Response to D-108: A Defense Motion to Preserve CIA Black Sites) (D-108) (Apr. 26, 2009) ................................... 312
United States v. Kamin ........................................................................................... 313

Ruling on Defense Request for Extensions and Revised Trial Schedule (D-002) (June 4, 2008)..................................................................... 314 Order (July 21, 2008)....................................................................................... 316 Commission Ruling on Government Motion for 120-Day Continuance (Feb. 9, 2009)............................................................................. 317
United States v. Jawad ............................................................................................ 319

Order (June 20, 2008)...................................................................................... 320 Ruling on Motion to Dismiss Unlawful Influence (D-004) (Aug. 14, 2008) ................................................................................................ 322 Ruling on Defense Motion to Dismiss Lack of Personal Jurisdiction (D-002) (Sep. 9, 2008) ................................................................. 327 Ruling on Defense Motion to Dismiss Violation of R.M.C. 703 and 707 (D-017) (Sep. 2008)........................................................ 329 Ruling on Defense Motion to Dismiss Lack of Subject Matter Jurisdiction (D-007) (Sep. 24, 2008) ................................................... 331
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Ruling on Defense Motion to Dismiss Torture of the Detainee (D-008) (Sep. 24, 2008).................................................................... 334 Ruling on Defense Motion to Dismiss Lack of Personal Jurisdiction: Child Soldier (D-012) (Sep. 24, 2008) ....................................... 338 Ruling on Defense Request for Employment of Defense Expert at Government Expense (D-020) (Sep. 30, 2008)............................... 342 Ruling on Defense Request for Expert Consultants (D-023) (Sep. 30, 2008) ................................................................................................. 344 Ruling on Defense Motion to Suppress Out-Of-Court Statements of the Accused to Afghan Authorities (D-022) (Oct. 28, 2008) ................................................................................................. 345 Ruling on Government Motion for Reconsideration (D-007) (Oct. 29, 2008) ................................................................................................. 347 Ruling on Defense Motion to Suppress Out-of-Court Statements by the Accused Made While in U.S. Custody (D-021) (Nov. 19, 2008) .................................................................................. 349
United States v. al-Darbi ........................................................................................ 353

Ruling on Defense Motion to Dismiss for Unlawful Influence (D-011) (Oct. 2, 2008) .................................................................... 354 Ruling on Government Motion for a Continuance (P-012) (Feb. 13, 2009) ................................................................................................. 357 Ruling on Defense Motion for a Continuance (D-023) (May 7, 2009)................................................................................................... 359 Ruling on Government Motion for a Continuance (P-014) (May 19, 2009)................................................................................................. 361
United States v. al-Nashiri ..................................................................................... 363

Ruling on Government Motion to Continue Arraignment (P-002) (Jan. 29, 2009)..................................................................................... 365 Ruling on Defense Motion to Discontinue [REDACTED] (D-002) (Feb. 5, 2009) ..................................................................................... 367
United States v. Ghailani........................................................................................ 369

Ruling on Government Motion for Continuance (P-001) (Feb. 13, 2009) ................................................................................................. 371
Ruling on D-001: Defense Motion for Appropriate Relief, Modification of Protective Order #1 (Mar. 4, 2009)...................................... 373 Protective Order #4: Protection of Classified Information Throughout All Stages of Proceedings (Mar. 4, 2009)................................... 377 Protective Order #5: Protection of Protected But Unclassified Information Throughout All Stages of Proceedings (Mar. 4, 2009).............. 385 Schedule for Trial: Amendment One (Mar. 4, 2009) ..................................387 Ruling on D-006: Defense Motion to Compel Discovery (Apr. 16, 2009) ............................................................................... 390
United States v. Uthman Muhammed ................................................................... 393

Order Regarding Defense Motion to Compel Discovery (D-003) (May 26, 2009) ................................................................. 394
Order Regarding Government Motion for a Second 120-Day Continuance (P-002) (May 28, 2009) ............................................................. 396
Order (D-004) (May 29, 2009)........................................................................ 398
United States Court of Military Commission Review.................................................. 399 Court Personnel...................................................................................................... 401 Administrative Order No. 08-02 (April 10, 2008) ................................................ 402 Rules of Practice ..................................................................................................... 403
United States v. Khadr, Ruling on Motion to Dismiss CMCR 07-001

(Sep. 19, 2008)......................................................................................................... 431
United States v. Khadr, Ruling on Motion to Abate CMCR 07-001

(Sep. 24, 2008)......................................................................................................... 440
United States v. Khadr, Opinion CMCR 07-001 (Sep 24, 2008)........................... 443 United States v. Khadr, Opinion CMCR 08-003 (Oct 3, 2008) ............................ 467
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United States v. Jawad, Appellants Request for Delay CMCR 08-004

(Feb. 4, 2009) .......................................................................................................... 472
United States v. Jawad, Appellants Request for Delay CMCR 08-004

(May 22, 2009) ........................................................................................................ 476 List of Cases.................................................................................................................... 479
Index .............................................................................................................................. 483
PREFACE
The Military Commission Reporter includes every publicly available decision, order, and ruling issued by the military commissions conducted at the U.S. Naval Base, Guantnamo Bay, Cuba, and all known substantive opinions and rulings of the United States Court of Military Commission Review from October 2006 through June 1, 2009. The rulings in this volume were issued under the Military Commissions Act (MCA) of 2006. Shortly after taking office, President Obama ordered a stay in the proceedings of all military commissions pending further review. On May 15, 2009 he informed the public that the military commission system will not be permanently terminated. Certain rules will be changed, however, in an effort to expand some due process rights of detainees tried by military commission. This volume fills in an important part of the historical record of the United States use of military commissions after 9/11. President George W. Bush issued a Military Order on November 13, 2001 directing that suspected terrorists and war criminals be tried by military commission. NIMJ closely followed the resulting process and commented on the procedures that emerged from the Pentagon. We published four volumes of the Military Commission Instructions Sourcebook that include the governing regulations, instructions, and memoranda. Eventually, the Supreme Court invalidated President Bushs system in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), holding that it did not conform with either the Uniform Code of Military Justice or the Third Geneva Convention of 1949. Hamdan led Congress to enact the MCA in October 2006, making a variety of changes in the system for trials by military commission. After the MCA took effect, 28 detainees were charged and 14 cases were referred to military commissions. Some cases have been dismissed. David Hicks, an Australian citizen, pled guilty in 2007 and was released to the custody of his government to serve a nine-month sentence. Salim Hamdan, Osama bin Ladens Yemeni driver, was the first detainee convicted at a contested military commission. He was convicted of providing material support for terrorism and sentenced to time served plus four and one-half months confinement. He was eventually released to the custody of Yemen. Ali Hamza Ahmad Suliman Bahlul, al-Qaedas propaganda minister, was convicted after a trial in which he largely refused to participate. He was sentenced to life imprisonment. On January 22, 2009, President Obama ordered prosecutors in all of the commissions to seek a 120-day stay while the new Administration decided how to handle the pending cases as well as the larger question of what to do with the detainees, most of whom were not
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going to be criminally charged. During the ensuing hiatus, all pending cases were reviewed. With President Obamas May 15, 2009 announcement that military commissions will recommence for some detainees, it seems clear that there will be more opinions and rulings in the coming months and years. The opinions in this volume will therefore be of practical use, historical interest, or both. Teachers, students and practitioners of military justice and the law of armed conflict will find this body of jurisprudence illuminating as to United States law and international humanitarian law. For further information on military commissions, readers are invited to visit NIMJs Web site, www.nimj.org, as well as the Department of Defense Web site, www.dod.mil/news/commissions.html.
EUGENE R. FIDELL
Washington, D.C. June 2009
FOREWORD
The operations of the military commissions, whose published rulings have been compiled by the National Institute of Military Justice (NIMJ) in this informative volume were suspended in the early days of the Obama Administration but are now scheduled to be revived with modifications against some detainees. Conceived in controversy in the immediate aftermath of 9/11, denounced by civil libertarians for their deviations from traditional due process guarantees, and delayed for years in getting started, the original commissions were pronounced an unconstitutional exercise of unilateral executive power by the Supreme Court of the United States in the 2006 Hamdan v. Rumsfeld case 1 before a single trial could be held. Ricocheted back to Congress, an intense period of hearings and negotiations produced the Military Commissions Act of 2006 (MCA) which, in the view of original critics, was arguably more restrictive of individual rights under domestic and international law. In the last few years, a handful of Guantnamo detainees have been designated for trial before the MCA commissions but only two full-scale trials have been completed. A former Chief Prosecutor publicly labeled the Commissions handling of evidence as so chaotic as to make successful prosecution impossible. 2 The Convening Authority who oversees the post-MCA military commission system refused to convene a trial because the defendant had been subjected to torture, 3 and at the beginning of his term President Obama ordered the commissions halted for 120 days. 4 Most recently, the administration has announced that within a few months the commissions will resume operating with proposed rule changes the most important of which (1) make the ban on admissibility of evidence secured by cruel, inhuman or degrading means applicable to all proceedings, not just those evaluating coercive actions taken after passage of the Detainee Treatment Act; (2) reverse the burden of proof to require the party submitting hearsay information to demonstrate its reliability; and (3) permit detainees to choose a military counsel from among those normally available in the Office of Military Commissions. 5 So, why, one may ask, pay attention to the work product of the original commissions, confined as it is to the pretrial rulings and one interlocutory appeal in 8 cases, apart from history for historys sake? There is, I believe, a good answer. Although this genre
Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Peter Finn, Evidence in Terror Cases Said to Be in Chaos, WASH. POST, Jan 14, 2009, at A08. 3 Bob Woodward, Detainee Tortured, Says U.S. Official, WASH. POST, Jan. 14, 2009, at A01. 4 Remarks by Senator Barack Obama, Washington, D.C., Aug. 10, 2008 (As president, I will close Guantanamo, reject the Military Commissions Act and adhere to the Geneva Conventions.). 5 General Counsel of the Department of Defense, Action Memo of 13 May 2009, Re: Changes to the Manual of Military Commissions. The Administration also announced it intended to make other significant changes including ones dealing with classified evidence.
1 2
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of military commissions may disappear, as such, a national debate looms within government and outside among the press and public: should al-Qaeda adherents and other terrorists accused of war crimes against the United States be tried in our regular civilian courts or military courts-martial or instead be relegated to military commissions or to special national security courts which would operate under different rules as to openness, use of classified information, availability of privileges against self-incrimination and admissibility of evidenced secured by coercive methods? Before giving serious consideration to the creation of a separate and less restrictive system of criminal justice for one group of defendants, we would do well to look at how this military commission experiment has played out so far and what if any lessons can be learned from its initial phase. One thing can be said for sure. The handful of defendants represented in the military commission cases had vigorous representation from military and civilian counsel. There were well over a hundred motionsjurisdictional motions to dismiss, motions to compel discovery, motions complaining of unlawful command influence over the military judges trying the cases, motions to suppress evidence obtained through coercion, motions for expert witnesses, speedy trial motions, and motions for access to classified information. Insofar as it is possible to evaluate the energy and stamina of defense counsel from the commissions rulings alone, it appears that they left no stone unturned in advocating for their unpopular clients. But the MCAs mandates and rules issued by the Department of Defense did not make for a level playing field. From my experience as a federal judge and jurist at the International Criminal Tribunal for the Former Yugoslavia (ICTY), which prosecuted and tried crimes very similar to those under the military commissions jurisdiction, I was struck by the almost hopeless lopsidedness of the process. For instance, in the early stages of the Hamdan case (which eventually did go to trial, resulting in a conviction and a net sentence, after allowing for time served, of 4 months), the defense sought to compel the production of nine witnesses, five of them detainees at Guantnamo, where the trials would be held. The government resisted making the detainees available, despite their relevance to the defense, because they were highly placed members of Al Qaeda and their testimony might reveal national security information. The trial judge would go no further than to allow the Defense to propose written questions for the five requested detainee-witnesses from which a government security officer, not associated with the Prosecution, would then redact questions or answers that he deemed to pose a security risk. If, additionally, the security officer thought that the answers attempted to transmit sensitive information to enemy comrades through the Defense team, he could delete them entirely. The military judge had no say in the matter. 6 Still, the Defense team fared better in that instance than when it was told by the judge that a witness who cannot, because of security prohibitions resulting from his association with al-Qaeda, appear to testify is unavailable [and] the Defense is not entitled to the production of an unavailable witness. 7 Defendants of course
6
United States v. Hamdan, 1 M.C. 49 (Mar. 14, 2008) (Ruling on Reconsideration on Motion for Stay and Access to United States v. Hamdan, 1 M.C. 74 (Apr. 24, 2008) (Ruling on Defense Motion to Compel Production of Out-of-
High Value Detainees).

7
Country Witnesses).
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had no access to classified information or in many cases even to the names of witnesses against them. This adversarial disadvantage is, I have been told by military lawyers, exacerbated by the notorious paucity of Arabic speaking translators who can produce for counsel and clients the kind of comprehensible translations that are necessary for effective trial preparation. Statements made by the defendants are presumptively classified and the Defense cannot make public its own pleadings without permission from the Commission. Classified information to which only military counsel has access in many cases is endemic in these proceedings, and unlike civilian courts that operate under the Classified Information Procedures Act (CIPA), 8 if the government chooses not to make the classified matter or an adequate substitute available to the defense, the court will not dismiss the charges. In one bizarre ruling, the Defense was allowed, over the objection of the Prosecution, to view the physical conditions of detention but subject to counsels agreement to be blindfolded on the way there. 9 There is a distinctly Kafkaesque quality to the proceedings. It is not at all clear to me that the announced changes will do much to change the imbalance of the older commissions. Even though only a few judges were involved in the cases represented in this volume, their approaches toward the proceedings varied widely. One judge appeared to be endeavoring within the restrictions imposed by the MCA and implementing rules to approximate regular criminal justice norms. Thus, he granted a suppression motion in the case of a juvenile accused of throwing a hand grenade at a car in which two American servicemen were wounded. The juvenile, he found, had been interrogated while under the influence of drugs by Afghan police who threatened to kill him and his family if he did not confess to being part of a terrorist network. 10 The judge also suppressed confessions made hours later to American interrogators on the ground that the Prosecution had not shown that the coercive effect of the Afghan police interrogation had been dissipated when American interrogators took over his custody. The juvenile was still drugged, hooded and shackled. 11 The ruling was appealed to the Court of Military Commission Review, the intermediate appellate body created by the MCA, but the proceedings were halted by order of President Obama before a decision could be issued. 12 Now that the commissions will recommence a decision is likely later this year. Other judges, however, ruling summarily, denied without explanation what seemed like plausible defense arguments. Typically, one held: The Commission finds that the documents sought are not relevant. 13 Thats it. Should these inherently controversial commissions continue to operate, minimal fairness requires that the presiding judges explain the bases of their rulings apart from mere citation to the Act or the rules. While the proposed change affecting the ban on cruel and inhuman treatment to all proceedings is a step forward, it still allows some forms of coerced or involuntary
8 9
18 U.S.C. App. III 1-16.
United States v. Mohammed, 1 M.C. 295 (Oct. 26, 2008) (Motion for Access to View and Inspect the Conditions of
Confinement).
United States v. Jawad, 1 M.C. 345 (Oct. 28, 2008) (Ruling on Defense Motion to Suppress Out-of-Court Statements of the Accused to Afghan Authorities). 11 United States v. Jawad, 1 M.C. 349 (Nov. 19, 2008) (Ruling on Defense Motion to Suppress Out-of-Court Statements by the Accused Made While in U.S. Custody). 12 10 U.S.C. 948a-950w. 13 United States v. Khadr, 1 M.C. 221 (Apr. 23, 2008) (Ruling on Defense Motion to Compel Discovery).
10
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testimony to be admitted if the statement is reliable, sufficiently probative, and the judge believes the interests of justice would be best served by admission. The danger of unlawful command influence on these commissions has been highlighted by critics. That charge surfaced repeatedly in the proceedings memorialized in this volume, focusing on remarks made to the Chief Prosecutor by the Legal Adviser to the Convening Authority (as well as the Defense Departments General Counsel) about bringing more sexy cases, making greater use of classified information and being less resistant to the use of information elicited by coercive methods in preparing cases for trial. 14 One Chief Prosecutor resigned for alleged command nano-management, declaring publicly that full, fair and open trials were not possible under the current system. 15 Charges were made in one case that a military trial judge had been replaced under suspicious circumstances. 16 In another, the Legal Adviser whose duties usually encompassed making recommendations to the Convening Authority after a trial was completed was disqualified by the trial judge from any participation in the post-trial phase: The Commission finds the current Legal Advisers editorial writings and interviews defending the military commissions system combined with his active and vocal support of and desire to manage the military commissions process and public statements appearing to directly align himself with the prosecution team have compromised the objectivity necessary to dispassionately and fairly evaluate the evidence and prepare the post trial recommendation. 17 Of course it is not possible to judge from these rulings whether unlawful command influence actually occurred, but they do point out the great risk of a system that was created uniquely for a widely despised group of defendants with substantially fewer rights or protections, precedents or traditions than the one used for regular civilian or military populations. Lawyers inside the military commission system place independent judges as their highest-priority concern. Despite the MCAs assurance of judicial independence from unlawful command influence, 18 these early cases are troubling. It remains to be seen how the Administration plans to create a less disquieting atmosphere in which the second round of commissions will operate as far as the independence of the judges are concerned. It bears comment how many significant substantive rulings were made in the earlier troubled process. While not binding or even citable in any other tribunal, 19 these rulings are still accessible to future judges and could still have some effect on the thinking of judges in future cases. Among these are holdings that Guantnamo defendantseven after
United States v. Hamdan, 1 M.C. 78 (May 9, 2008) (Ruling on Motion to Dismiss). Morris Davis, AWOL Military Justice, LA TIMES, Dec. 10, 2007, at A-15. 16 United States v. Khadr, 1 M.C. 246 (Aug. 15, 2008) (Ruling on Defense Motion to Dismiss for Unlawful Command Influence-Removal of Military Judge). 17 United States v. Jawad, 1 M.C. 322 at 325 (Aug. 14, 2008) (Ruling on Motion to Dismiss). 18 10 U.S.C. 949b(a)(2). 19 10 U.S.C. 948b(e).
14 15
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the 2008 Supreme Courts Boumediene decision 20 granting them habeas corpus rightshad no other constitutional rights. Thus it was decided that a statutory right against self incrimination in the MCA 21 applied only to testimony given at trial and not to interrogations conducted prior to trial, and the Fifth Amendment did not apply so as to fill the gap; 22 that multiple charges for acts of terrorism and supporting a terrorist organization could be based on a single act of tossing a hand grenade; 23 that juveniles could be prosecuted in the military commission system; 24 and that Congress could itself legislate as to what the common law of war encompassed and include conspiracy even though international customary law does not recognize it as such. 25 It was disappointing to me that in these rulings there were few if any references to decisions by international courts that have ruled on similar issues. The Commission decisions right or wrong seem to have been made in a vacuum. The spirit of the MCAs rejection of international law in interpreting war crimes prosecuted in U.S. courts 26 appears to have pervaded military commission law as well. The creation of a separate body of constitutional and international common law in a radically different setting and under dramatically different procedures and rules of evidence poses vexing questions for the integrity and consistency of U.S. law which proposals for new hybrid national security courts must confront as well. Finally, the publication of these rulings verifies the practice of torture and coercion at Guantnamo which is still disputed by some government officials. Intentional sleep deprivation designed to disorient selected detainees disrupt their sleep cycles make them more compliant and break down their resistance to interrogation was found to have been practiced on a juvenile as part of an officially abandoned frequent flyer program that moved him from cell to cell, mostly at night at three-hour intervals, shackled much of the time. The same juvenile was beaten, kicked and pepper sprayed and had his nose broken for disobeying a guard; subjected to excessive heat, constant lighting, loud noise, linguistic isolation and physical isolation, when, according to the judge, he had no intelligence value. It was, the judge found, cruel and inhuman treatment indicating flagrant misbehavior on someones part but in the end not sufficient to dismiss the charge in the military commission system. 27 It is to be hoped that the proposed changes would prevent a repetition of that result, but which forms of coerced or involuntary testimony are still admissible must give cause for concern. A new Administration is in pursuit of a safe and fair way to handle detainees, including those charged with war crimes, as it fulfills its promise to close
20 21 22 23
Boumediene v. Bush, 128 S.Ct. 2229 (2008).

10 U.S.C. 948r.
United States v. Hamdan, 1 M.C. 112 (Jun. 6, 2008) (Ruling on Motion to Suppress Statements of the Accused). United States v. Khadr, 1 M.C. 183 (Mar. 14, 2008) (Ruling on Defense Motion to Dismiss Specification 2 of
Charge IV for Multiplicity and Unreasonable Multiplication of Charge). United States v. Khadr, 1 M.C. 223 (Apr. 30, 2008) (Ruling on Defense Motion for Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier). 25 United States v. Hamdan, 1 M.C. 60 (Apr. 2, 2008) (Ruling on Motion to Dismiss); compare Hamdan, supra, at 2777, with 10 U.S.C. 950v(b)(28). 26 10 U.S.C. 948b. 27 United States v. Jawad, 1 M.C. 349 (Nov. 19, 2008) (Ruling on Defense Motion to Suppress Out-of-Court Statements by the Accused While in U.S. Custody).
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Guantnamo. It appears to have concluded that the MCA military commission system is not a failed experiment but rather amenable to enough changes to render it a forum for fair and effective trials. There are many who doubt that. In the forthcoming debate, this compilation will be useful, and the National Institute of Military Justice deserves much credit for assembling these rulings. A careful reading should assist the government and the bench and bar in deciding how to go forward and what history not to repeat.
THE HONORABLE PATRICIA M. WALD United States Circuit Judge (Retired), Former Judge, International Criminal Tribunal for the Former Yugoslavia
Washington, D.C. June 2009
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OFFICERS Eugene R. Fidell, President Hardy Vieux, Secretary-Treasurer Stephen A. Saltzburg, General Counsel DIRECTORS Kevin J. Barry (1991-2009) Philip D. Cave Mary M. Cheh Eugene R. Fidell Elizabeth L. Hillman John D. Hutson Ronald W. Meister Stephen A. Saltzburg Hardy Vieux BOARD OF ADVISORS Diane Marie Amann Brian C. Baldrate David M. Brahms John A. Carr Geoffrey S. Corn Dennis E. Curtis Miles P. Fischer Matthew S. Freedus Robert Kogod Goldman Victor M. Hansen Scott Horton STAFF Michelle M. Lindo McCluer, Director Jonathan E. Tracy, Assistant Director Irina Vayner, Program Coordinator Lindsay C. Kyzer, Deans Fellow Michael C. McNerney, Deans Fellow Aurafe Nayna Malayang, Deans Fellow Fredric I. Lederer Diane H. Mazur Melissa E. Mills Alexander S. Nicholas Diane F. Orentlicher Edward F. Sherman Arnon D. Siegel Gary D. Solis Mark L. Waple Sean M. Watts Donald N. Zillman
MILITARY COMMISSIONS
MILITARY COMMISSIONS PERSONNEL
JUDGES
Ralph H. Kohlmann Colonel, U.S. Marine Corps Raymond E. Beal Lieutenant Colonel, U.S. Marine Corps Keith J. Allred Captain, U.S. Navy Bruce W. MacKenzie Captain, U.S. Navy Moira D. Modzelewski Captain, U.S. Navy Peter E. Brownback III Colonel, U.S. Army Stephen R. Henley Colonel, U.S. Army James L. Pohl Colonel, U.S. Army Patrick J. Parrish Colonel, U.S. Army W. Thomas Cumbie Colonel, U.S. Air Force Nancy J. Paul Lieutenant Colonel, U.S. Air Force Ronald A. Gregory Colonel, U.S. Air Force
CHIEF DEFENSE COUNSELS

Colonel William A. Gunn, U.S. Air Force (2003 2005) Colonel Dwight Sullivan, U.S. Marine Corps (2005 2007) Colonel Steven David, U.S. Army (2007 2008) Colonel Peter R. Masciola, U.S. Air Force (2008 Present)
CHIEF PROSECUTORS
Colonel Frederic L. Borch, U.S. Army (2003 2004) Colonel Robert L. Swann, U.S. Army (2004 2005) Colonel Morris Davis, U.S. Air Force (2005 2007) Colonel Lawrence Morris, U.S. Air Force (2007 2009) Captain John F. Murphy, U.S. Navy (2009 Present)
UNITED STATES v. SALIM AHMED HAMDAN
______________
Background Salim Hamdan, a Yemeni, was captured during the invasion of Afghanistan. He admits to being Osama bin Ladens personal driver and bodyguard, claiming he needed the $200 monthly salary that came with the job. Military Commissions Charges were sworn against Hamdan on February 2, 2007. The Convening Authority referred charges on May 10, 2007. Additional charges were referred on July 21, 2008. Charges AQUITTED of Conspiracy (Violation of 10 U.S.C. 950v[b][28]): Conspired, in Afghanistan with al-Qaeda and knowing acted as Osama bin Ladens body guard and personal driver. CONVICTED of Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): Provided material support for terrorism by engaging in numerous activities. Sentence Hamdan was sentenced to five-and-a-half years of imprisonment by a military jury, being counted as having already served five years of the sentence at the time. In November 2008, Hamdan was transferred to Yemen to serve out the remainder of his sentence. He was released on January 8, 2009 to live with his family in Sana.
UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission June 4, 2007 DECISION AND ORDER: MOTION TO DISMISS FOR LACK OF JURISDICTION (CORRECTED ORDER) Keith J. Allred Captain, U.S. Navy Military Judge
1. Mr. Hamdan (hereinafter the accused) was captured in Afghanistan in November of 2001 and thereafter came into the custody of the United States. The accused has been held by the United States, either in Afghanistan or in Guantanamo Bay, since that time. 2. On February 7, 2002, the President issued a Memorandum entitled Humane Treatment of Al Qaeda and Taliban Detainees in which he determined that Taliban detainees are unlawful combatants and therefore do not qualify as Prisoners of War under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al Qaeda, al Qaeda detainees also do not qualify as prisoners of war. (Paragraph 2.d.) 3. On 7 July 2004, the Deputy Secretary of Defense published an Order Establishing Combatant Status Review Tribunals (CSRT). This order defined enemy combatant as an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. 4. The Order directed that a Tribunal be held for each detainee to determine whether he was an enemy combatant using that definition. The Tribunals were also directed to determine whether the detainee is properly detained as an enemy combatant. 5. On 2 October, 2004, the accused appeared before a CSRT at Guantanamo Bay and participated in such a hearing. The Tribunal received evidence and
The Defense has moved this military commission to dismiss all charges and specifications against the accused on the basis that the Commission lacks jurisdiction over him. The Government opposes the motion. Both parties have filed written briefs and attached various documents to their briefs without objection. These documents, which primarily reflect the instructions establishing, and the report of the Combatant Status Review Tribunal of 2004, were admitted without objection by either side. Neither party asked the Court to hear the evidence and decide the question of the accuseds status itself. The Court heard oral argument and the Courts ruling was announced in open court on 4 June 2007. This decision and Order corrects the document signed at Guantanamo Bay on 4 June 2007. The Court finds that the following facts are true:
determined that he was a part of or associated with al-Qaeda forces, and was properly detained as an enemy combatant. The CSRT was not charged with determining, and therefore did not determine that the accused is an alien unlawful enemy combatant. 6. Charges under the MCA were referred against this accused on 10 May 2007, alleging that he is subject to the jurisdiction of this tribunal as an alien unlawful combatant. 7. The accused challenges the jurisdiction of the Court on the basis that the Government has not determined in a competent tribunal that the accused is an unlawful enemy combatant. He claims, therefore, that he is entitled to the protections that are accorded to a Prisoner of War until such a determination is made by a competent tribunal. 8. On 8 November 2004, the U.S. District Court for the District of Columbia, ruling on the accuseds petition for habeas corpus, concluded that it is at least a matter of some doubt as to whether or not Hamdan is entitled to the protections of the Third [Geneva] Convention as a prisoner of war and that accordingly he must be given those protections unless and until the competent tribunal referred to in Article 5 concludes otherwise. The District Court made this conclusion part of its final order. Hamdan v. Rumsfeld, 344 F. Supp 2d 152, 165, 173 (D.D.C. 2004). The District Court was reversed by the Court of Appeals for the D.C. Circuit, 415 F.3d 33 (2005), which was reversed by the Supreme Court, 126 S. Ct. 2749 (2006). On remand to the U.S. District Court, the petition was dismissed
for want of jurisdiction on 13 December 2006. SUMMARY OF THE LAW 1. On 17 October, 2006, the Military Commissions Act (MCA) became law. The MCA limits the jurisdiction of military commissions to offenses made punishable by that Act or the law of war when committed by an alien unlawful enemy combatant. 10 U.S.C. 948d(a). R.M.C. 201(b)(1) is in accord. 2. The MCA defines unlawful enemy combatant to mean: (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. 10 U.S.C. 948a(1). 3. The MCA makes CSRT determinations, whenever made, that a detainee is an unlawful enemy combatant dispositive of that issue for purpose of determining whether a detainee is subject to the jurisdiction of a military commission. 10 U.S.C. 948d(c). 4. The burden is on the Government to show by a preponderance of the evidence that the accused is subject to the jurisdiction of this tribunal. R.M.C. 905(c)(1); (2)(B).
DISCUSSION AND DECISION The Court is not persuaded that the order of the U.S. District Court for the District of Columbia remains valid and binding, in as much as that Court dismissed the accuseds entire petition for habeas corpus in December of 2006, citing its lack of jurisdiction. Even so, the Court concurs with the District Courts view of the law: there being doubt as to the accuseds status under the law of war, he may not be tried by a military commission until his status is determined by a competent tribunal. The Government invites the Court to find that the 2004 determination that the accused is an enemy combatant, coupled with the Presidents 2002 determination that members of the Taliban are unlawful combatants, amounts to a finding that the accused is subject to the jurisdiction of this Court. The Court declines to do so for the following reasons: 1. The 2004 CSRT determination that the accused is an enemy combatant was made for the purpose of determining whether or not he was properly detained and not for the purpose of determining whether he was subject to trial by military commission. 2. The CSRT finding was made using a different standard than the one the MCA establishes for determining unlawful enemy combatant status. The definition of enemy combatant used by the 2004 CSRT is less exacting than the definition of unlawful enemy combatant prescribed in the MCA. The CSRT could have found a civilian not taking an active part in hostilities, but part of or
supporting Taliban or al-Qaeda forces that were engaged in hostilities to be an enemy combatant. Yet the MCA limits this Courts jurisdiction to those who actually engaged in hostilities or who purposefully and materially supported hostilities. The CSRT did not apply this definition, and its finding therefore does not support the jurisdiction of this Tribunal. 3. The CSRT finding preceded the MCA by two years. The accuseds participation in the CSRT may well have been much different had he realized its finding would be used to impose criminal jurisdiction upon him before a military commission. 4. The Presidents determination, carefully read, was that members of the Taliban were unlawful combatants, and that the Geneva Conventions do not apply to al-Qaeda because al-Qaeda is not a High Contracting Party to Geneva. Thus, with respect to Mr. Hamdan, who the CSRT found to be a member of al-Qaeda, the Presidents determination of unlawful combatancy does not strictly apply. Further, the Presidents determination applied to members of the Taliban and alQaeda as a group, and did not represent an individualized determination that this accused actually supported or engaged in hostilities. There may well be evidence in the Governments possession that could readily support a determination that the accused is subject to the jurisdiction over this Court. Indeed, the very evidence presented to the 2004 CSRT may support such a finding. The Government may be able to easily demonstrate jurisdiction over this accused by reopening the 2004 CSRT, or by organizing a different one,
and directing it to clearly decide the accuseds status. He is either entitled to the protections accorded to a Prisoner of War, or he is an unlawful enemy combatant subject to the jurisdiction of a military commission, or he may have some other status. The Government, having failed to determine, by means of a competent tribunal, that the accused is an unlawful enemy combatant using the definition established by Congress, has not shown, by a preponderance of the evidence, that the accused is subject to the jurisdiction of this Commission. The Defense Motion to Dismiss all Charges and Specifications, for lack of jurisdiction, is GRANTED, without prejudice.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission October 17, 2007 DECISION ON MOTION TO RECONSIDER DISMISSAL OF CHARGES FOR LACK OF JURISDICTION Keith J. Allred Captain, U.S. Navy Military Judge
argues that the Court erred in its decision regarding the combined significance of the Presidential determination and the CSRT. In addition, the Government now urges the Court to hear evidence regarding the accuseds activities in Afghanistan and determine for itself whether the accused is an unlawful enemy combatant subject to the jurisdiction of the Military Commission. The Defense opposed the petition for reconsideration, arguing that the Court ruled correctly the first time, that there has been no change in the law or the facts that would warrant reconsideration, that the Military Commissions Act (MCA) does not expressly authorize the Court to make this finding, and that the Court is not a competent tribunal within the meaning of the statute. Both parties have filed written briefs. The Court invited supplemental briefings regarding this issue, Is there any evidence, in the legislative history or elsewhere, that Congress actually intended the term alien unlawful enemy combatant as used in the MCA to describe that group of persons who had been determined to be enemy combatants by Combatant Status Review Tribunals? Both parties submitted supplemental briefs on this issue, including excerpts from the materials such as the Congressional Record. The Court has read and carefully considered these submissions, and did not find them helpful in resolving the issue. At the request of the Defense, on or about 27 September, both parties were permitted to submit supplemental briefings in light of the decision of the Court of Military Commission Review in the case
On 4 June 2007 this Court granted a Defense motion to dismiss all charges and specifications against the accused. The dismissal was without prejudice and was based on the Courts determination that the government had not shown, by a preponderance of the evidence, that this accused is an unlawful enemy combatant subject to the jurisdiction of this Court. In litigating the motion, the Government relied on the theory that, taken together, a 2002 Presidential determination that the Geneva Conventions do not apply to alQaeda, combined with a 2004 Combatant Status Review Tribunal (CSRT) finding that this accused is an enemy combatant, are sufficient to prove that this accused is an unlawful enemy combatant. This Court rejected that argument, but did not rule conclusively that there is no jurisdiction over the accused. The Government has now petitioned the Court to reconsider its dismissal, offering two arguments. First, the Government
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of United States v. Omar Khadr. The Court has read and considered these supplemental briefings. The parties positions were thoroughly argued in their written filings, and neither party requested, nor was there any need to hear, oral arguments. Having accepted this additional evidence and written argument electronically, the Court now decides this issue based on the parties written submissions and its understanding of the law. a. A military judge may, in the exercise of his sound discretion, reconsider a motion already decided, admit additional evidence, and allow a party to rely upon a theory not offered when the motion was first decided. The Governments motion squarely raises this issue: may a military judge reconsider a motion that has been decided, allowing the parties to offer new or additional evidence, and to rely upon a theory not raised at the first litigation of the motion? If so, when, and under what circumstances, may a military judge do so?
judge in the case except a previously granted motion for a finding of not guilty, at any time during the trial. Based on these MMC provisions alone, a military commission judge may reconsider (1) any ruling except one amounting to a finding of not guilty; (2) at any time during the trial or prior to authentication of the record of trial; (3) on request of a party or on his own initiative. In the case at bar, the granted motion to dismiss did not amount to a finding of not guilty, the Court has not authenticated the record of trial, and there has been no motion from one of the parties. The Rules for Military Commissions, then, would clearly permit the Court to grant this motion for reconsideration.
ii. Evaluation of authorities cited by Defense:

The Defense has invited the Courts attention to a number of civil cases from the federal courts of the United States that use a different standard for the grant of a motion to reconsider. Characteristic of these is Brumark Corp v. Samson Resources Corp., 57 F.3d 941 (10th Cir. 1995) where the Court of Appeals upheld a district court denial of a motion for reconsideration because, among other things, a motion for reconsideration is an extreme remedy to be granted in rare circumstances; the decision to grant reconsideration is committed to the sound discretion of the district court; in excising that discretion, courts consider whether there has been an intervening change in the law, new evidence, or the need to correct clear error or to prevent manifest injustice; none of these three factors has occurred or is present; and appellants
i. Review of the issue under the Rules for Military Commissions:

R.M.C. 905(f) answers the first half of the question in the following terms: On request of any party or sua sponte, the military judge may, prior to authenticcation of the record of trial, reconsider any ruling, other than one amounting to a finding of not guilty, made by the military judge. R.M.C. 801(e)(1)(B) provides further guidance: The military judge may change a ruling made by that or another military
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have failed to present any rationale for reconsideration save their disagreement with the courts conclusion. Id. For a number of reasons, this Court finds these authorities not controlling. First, the standard to be applied for reconsideration in military commissions is obviously more flexible than the standard the federal courts apply. Both R.M.C. 905(f) and R.M.C. 801(e)(1)(B) expressly permit a military commission judge to reconsider any motion not amounting to a finding of not guilty, without condition and as a matter of discretion. Neither of these rules cites the new facts or evidence standard urged by the Defense. Second, the federal cases all acknowledge that reconsideration is within the discretion of a trial judge, the same standard that applies in military courts. See, e.g. Cobell v. Norton, 226 F. Supp. 2d 175, 177 (D.D.C. 2002). Third, the Defense has cited federal civil cases, rather than criminal cases, and civil rules and presumptions are different in many ways from criminal rules, even in the federal courts. Fourth, the Defense concentrates on language in the federal cases emphasizing factors that oppose reconsideration (intervening change of the law, presence or absence of new evidence, and the need to correct manifest injustice) but minimizes or overlooks other factors (the discretion of the court and the presence or absence of a rationale for reconsideration other than disagreement with the courts conclusion). Fifth, and perhaps most significantly, the federal courts are applying a well-established body of law and many years of federal practice in a system known for the crush of litigation and long backlogs. (To preserve scarce judicial resources and to avoid piecemeal liti-
gation, a motion for reconsideration is narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court. United States v. RW Profl. Leasing Servs. Corp., 327 F. Supp. 2d 192 (E.D.N.Y. 2004)). But military commissions are a largely new system of tribunals, finding their way through the very first cases ever to be tried, with no body of controlling appellate case law peculiar to them, and only two cases presently referred for trial by two judges. In light of these many differences between military commissions and federal courts, most of the arguments against reconsideration that carry weight in the federal courts are simply not controlling in a military commission.
iii. Application to the case at hand:

The cited R.M.C.s provide ample authority for the Court to grant the motion and reconsider its decision of 4 June 2007. This Court concludes that it may, receive additional evidence regarding the issue of jurisdiction, and may permit the parties to argue a different theory. b. A military commission may determine its own jurisdiction, and need not await a new determination by a CSRT. The discretion to reconsider its 4 June 2007 Ruling, hear additional evidence and reach a different conclusion is not helpful, of course, unless the Court can, under the Military Commissions Act of 2006, determine for itself that it has jurisdiction. This issue was resolved by the recent decision of the Court of Military Commission Review (CMCR)
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decision in United States v. Omar Khadr, which held that military commission judges may hear the evidence and determine for themselves whether an accused is subject to the jurisdiction of a military commission. The Defense argued for this very result in its 16 May 2007 motion to dismiss for lack of jurisdiction, 1 where it wrote: Although Congress has the authority to define the jurisdictional boundaries of military commissions, this Commission must determine for itself whether the facts of any case fit within those boundaries. [citations omitted]. c. A hearing to determine the facts regarding the accuseds status would not pose insuperable complexities. Arguing against the Courts holding a hearing to decide whether the accused is subject to its jurisdiction, the Defense posits a host of procedural difficulties that would be thrown up, and for which, it argues, there is no established procedure. The Court is not persuaded by this argument, as the Manual for Military Commissions (MMC) provides evidentiary rules and a procedural framework for the litigation of contested issues. R.M.C. 703 addresses the production of witnesses and evidence; R.M.C. 905(c) assigns the burden of proof and persuasion; M.C.R.E. 101 et seq. provide rules of evidence, including special rules for the handling of classified material. Indeed, had the Government offered to prove jurisdiction
in this manner at our 4 June hearing on the motion, rather than relying on the CSRT findings, it seems perfectly clear that the parties could have litigated the issue that day in accordance with these rules. d. Factors considered in the Courts exercise of its discretion: The Court now turns to the question of reconsideration. The Court does not intend to set a precedent of giving the parties two chances to present their evidence and argue their motions. Here, the higher standard that applies in the federal courts has some persuasive power. Yet the Court finds that deciding the issue of jurisdiction now will enhance judicial economy and the orderly administration of the trial. Because the accused has challenged the jurisdiction of the Court by his motion to dismiss and in light of the recent ruling of the CMCR making clear that a military commission may determine its own jurisdiction, the interests of justice are served by reopening the hearing and making that determination now. e. Decision: The motion to reconsider is GRANTED in part, and DENIED in part, as follows: To the extent the motion seeks to reargue or re-litigate the issues resolved against the Government on 4 June 2007, the motion for reconsideration is DENIED; To the extent the motion seeks leave to present evidence of the accuseds activities in Afghanistan and elsewhere from which the Court may determine whether he satisfies the standard set out
Dated 18 May 2007, Appellate Exhibit 008, at 1011.

1
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in 10 U.S.C. 948d(a), the motion is GRANTED. The Court will first hear evidence regarding whether Mr. Hamdans participation in hostilities subjects him to the jurisdiction of a military commission under 948d(a). Other issues raised by the parties in their briefs and not discussed or expressly ruled upon herein may be re-urged at an appropriate time after the resolution of this issue. The invitation to stay the proceedings pending the outcome of other litigation is declined. f. Allocation of Time R.M.C. 707 requires a case to be brought to trial within 120 days of service of charges, and permits the military judge to grant departures from this time limit in accordance with R.M.C. 707(b)(E). Under that authority, this Court excludes the time between 4 June 2007, when the Court granted the motion to dismiss, and the date on which the parties reassemble in Guantanamo Bay for a re-opening hearing on the issue of jurisdiction. In connection with this exclusion of time, the Court finds that the interests of justice were and are served by the need of the parties to research and brief an issue of first impression before a military commission, and by the Courts need to carefully read and understand the positions of the parties, conduct its own research, and carefully balance the competing demands in the case, and await a decision by the CMCR. The Court is fully aware of the publics and the accuseds interest in the prompt trial of these charges, opening the hearing and
litigating the issue of jurisdiction in the trial court may ultimately be the best way to achieve the speedy trial of this case. The Court assumes responsibility for the delay. Alternatively, the Court finds that the R.M.C. 707 clock stopped on 4 June 2007 when the motion to dismiss was granted without prejudice, and will not start again until the Court hears the additional evidence and reviews its decision to dismiss. g. Scheduling The next session of Court will be set for 9 November 2007, at 9 a.m. in the Courtroom in Guantanamo Bay, Cuba. The Court will issue a further order regarding the conduct of that proceeding. So ordered this 17th day of October, 2007.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission December 7, 2008 RULING ON MOTION TO COMPEL PRODUCTION OF WITNESSES Keith J. Allred Captain, U.S. Navy Military Judge
testimony would be requested for this hearing. The Prosecution did not respond. 2. On 20 November, the Defense again requested the Prosecutions help in interviewing the five named witnesses. This request resulted in a request for additional information, and an exchange of email about which rule governed access to the detainees. 3. On 28 November, the Defense submitted a request for the production of nine witnesses, including the five detainees it had not yet interviewed, three witnesses located in Yemen, and one witness located in Massachusetts. 4. The motion to compel production of the witnesses was filed with the Court on the morning of 5 December, the date of the hearing, after all the parties had assembled at Guantanamo Bay. 5. Three of the requested witnesses from Guantanamo Bay detention facility are Khalid Sheik Mohammad, Ramzi bin alshibh, and Abu Faraj al Libbi. The Court takes judicial notice that Khalid Sheik Mohammad has admitted to being the mastermind of most, if not all, al-Qaeda attacks against the United States, and accepts the Governments assertion that all three are extremely highly placed members of al-Qaeda, and special security procedures are required in order to access them. 6. Mr. Said Boujaadia, detained at Guantanamo Bay, is represented by habeas counsel, who objects to any party speaking to Mr. Boujaadia unless habeas counsel is present and several other conditions are met.
The Defense has moved the Court to compel production of nine witnesses to testify at the 5-6 December hearing into the issue of military commission jurisdiction over the accused. The witnesses included Professor Brian Williams from Massachusetts, five named detainees held here at Guantanamo Bay, and three witnesses currently held in Yemen. The Government conceded the relevance and necessity of Professor Williams, but objected to production of the other eight witnesses. The Court heard argument in open court at Guantanamo Bay on the afternoon of 5 December 2007. With respect to the eight witnesses at issue, the Court amplifies here the oral ruling made on the record on 5 December. FINDINGS OF FACT 1. On 15 November, the Defense requested the Prosecutions assistance in interviewing five named detainees in order to determine whether their
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7. Mr. Abdul al-Sharqawi is detained at Guantanamo Bay and is not surrounded by any special security measures. Defense Counsel has requested access to this witness via a separate motion in order to interview him and determine whether his testimony would be helpful. The parties represented to the Court on 5 December that this witness is also represented by habeas counsel, who may or may not permit his client to speak to the defense or testify. 8. The final three witnesses are located in Yemen. The Defense did not show or represent that they possess Yemeni passports or U.S. visas. Nasser al-Bahri is described as Osama bin Ladens former chief of security, and is likely to be on a terrorist watch list. 9. Table 16.6 of Military Commission Trial Regulations suggest lead times of 2 weeks for stateside witnesses, and 90 days for overseas witnesses in order to procure their presence in Guantanamo Bay. 10. The Court notes that this Defense team has been in place, and representing Mr. Hamdan, for a period from one month (LT Mizer) to a period of several years (Mr. Swift). SUMMARY OF LAW R.M.C. 703 provides procedures for obtaining witnesses to testify at military commissions, and includes a procedure for resolving disputes over the production of witnesses. The rule requires the defense to submit its witness production request to the trial counsel, who will either grant or deny the request. The defense may challenge denied requests by a motion filed with the Court. The Defense is
entitled to the production of witnesses whose testimony is relevant and necessary to the resolution of issues before the Court. R.M.C. 703(c)(2)(C) expressly requires the defense to submit requests for the production of witnesses sufficiently in advance of any hearing to permit the witness to be produced for that hearing. The same rule expressly authorizes the court to deny any witness production request that is not timely filed. Although the Court set a Not Later Than date of 28 November for witness production requests in its order to the parties, the Defense was still bound by the requirement of R.M.C. 703 to submit its witness requests in sufficient time to actually permit them to be produced at this hearing, and for the matter to be litigated before the date of this hearing if the Government declined the Defense request. CONCLUSION AND RULING The Court rejects as patently unreasonable the argument that a request for overseas witnesses and high value detainees, delivered to the government on the 28th of November, only six days before the hearing in Guantanamo Bay, was reasonable or timely. The Defense must have known that some or many of these witnesses could not actually be produced with such a late request. The motion to compel, delivered to the Court in Guantanamo Bay on the morning of the hearing, was also untimely. The three witnesses located in Yemen clearly cannot be produced to testify at this hearing, and are therefore
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unavailable within the meaning of R.M.C. 703(b)(3). The Defense has not shown good cause for this untimely request, and the motion to compel production of these witnesses is denied as untimely. The three High Value Detainees, though located here at Guantanamo Bay, are likewise impossible to produce, on no notice, given the security procedures governing access to them. Khalid Sheik Mohammad, Ramzi bin al-Shibh, and Abu Faraj al-Libi, are also unavailable within the meaning of R.M.C. 703(b)(3), and the motion to compel production is also denied as untimely to them. Messrs. Boujaadia and al-Sharqawi are represented by habeas counsel who object to their being interviewed or testifying outside their presence. The Court reserves a ruing on the production of these witnesses until these issues are resolved. [As a post-script, the Court notes that the issue with respect to Mr. Boujaadia was resolved, and he testified at the hearing.] Done this 7th day of December, 2007 at Guantanamo Bay, Cuba.
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UNITED STATES OF AMERICA v.
and argues that the correct standard is preponderance of the evidence. BURDEN OF PROOF
SALIM AHMED HAMDAN Military Commission December 17, 2008 RULING ON DEFENSE MOTION FOR ARTICLE 5 STATUS DETERMINATION Keith J. Allred Captain, U.S. Navy Military Judge Having read the written briefs of both parties, and carefully reviewed the authorities cited in each, the Commission concludes that the burden upon the Government in an initial showing of jurisdiction is preponderance of the evidence. R.M.C. 905(c)(1); United States v. Khadr, (C.M.C.R. 07-001, 24, 25). At trial, if the accused raises an affirmative defense, such as the defense of lawful combatancy, the Government will be required to disprove that defense beyond a reasonable doubt. R.M.C. 916(b). United States v. Khadr, at 7. Thus, the burden of demonstrating that the accused is subject to the jurisdiction of this Commission is on the Government, by a preponderance of the evidence. ENTITLEMENT TO AN ARTICLE 5 STATUS DETERMINATION: Article 5 of the Third Geneva Convention, by which the United States is bound, provides: The Present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belongs to any of the categories enumerated in Article 4, such persons shall enjoy the
The Defense has moved this Commission to make a status determination, as required by Article 5 of the Geneva Conventions Relative to the Treatment of Prisoners of War (hereinafter GPW), or that the charges against him be dismissed for lack of personal jurisdiction. The Defense argues that the accused has claimed to be entitled to Prisoner of War Status, that as a result he is not subject to trial by military commission absent a determination of his status, and that the burden of proof in any such determination is upon the Government, beyond a reasonable doubt. The Government opposes the motion, arguing alternatively that the accused is not entitled to an Article 5 status determination because GPW is implemented by the Military Commissions Act and does not apply; that if it does apply, the accuseds October 2004 CSRT hearing satisfies it; and finally, that this Commission can hear the evidence and perform the Article 5 determination. The Government disputes the Defense contention that it must prove jurisdiction beyond a reasonable doubt,
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protection of the present Convention until such time as their status has been determined by a competent tribunal. Referring to Article 5, Howard S. Levie writes: The present article was an attempt to eliminate, or at least to reduce, the number of instances in which military personnel in the field make an arbitrary decision that a captured individual is an illegal combatant and impose summary justice....[it] assures the accused not only of a determination by a competent tribunal, but of a further judicial tribunal but only if the detaining power proposes to try him for an offense arising out of hostilities. Howard S. Levie, The Code of International Armed Conflict, Vol. I, Oceana Publications, (Rome, London, New York: 1986) at 305-6 (emphasis added). Discussing the same provision, Jean S. Pictet of the International Committee of the Red Cross described the deliberations in these terms: At Geneva in 1949, it was first proposed that for the sake of precision the term responsible authority should be replaced by military tribunal. This amendment was based on the view that decisions which might have the gravest consequences should not be left to a single person, who might often be of subordinate rank. The matter should be taken to a court, as persons taking part in the fight without the right to do so are liable to be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment... Jean S. Pictet, Commentary Relative to the Treatment of Prisoners of War, III. International Committee of the Red Cross, Geneva 1960 at 77 (emphasis added).
When the drafters sought to clarify when such a determination should be made, there was disagreement. In view of the great differences in national judicial procedures, it was not thought possible to establish a firm rule that this question [an accuseds status] must be decided before the trial for the offense, but it should be so decided if at all possible, because on it depends the whole array of procedural protections accorded to Prisoners of War, by the Third Convention, and the issue may go to the jurisdiction of the tribunal. Yves Sandoz, et al., eds. Commentary on
the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. International Committee of the Red
Cross (Geneva 1987) at 556. These authorities suggest that the United States is bound not only to perform an initial status determination, such as that provided for under Army Regulation 1908, but a second, judicial, determination when it proposes to try a detainee for his participation in hostilities. The Government argues that he has done nothing to trigger Article 5, but the Commission finds that his claim of entitlement to POW status, made by his counsel before this tribunal, is sufficient to do so. It further finds that because the United States, as Detaining Power, proposes to try the accused for his participation in hostilities, the Geneva Conventions clearly contemplated a judicial determination of his status before any such proceeding. Congress was clearly aware of these obligations under Article 5 when it debated and enacted the Military Commissions Act. Congress clearly intended that the Combatant Status Review Tribunal (CSRT) would satisfy the
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requirements of Article 5. Senator Lindsey Graham characterized CSRTs as Article 5 tribunals on steroids. 151 Cong. Rec. S12,754 (daily ed. Nov. 14, 2005), and the Government concedes that there was a bipartisan consensus that the CSRT would satisfy the requirements of Article 5. In support of this concession, the Government invited the Commissions attention to this colloquy: SEN Graham: Okay, now, we have a CSRT procedure that Senator Levin and myself and others worked on that deals with determining enemy combatant status. This is a non-criminal procedure that is designed to comply with...Article 5 of the Geneva Convention, a competent tribunal. Does everyone on the panel believe that the CSRT procedures...as constituted, meet [] the test of what the Geneva Convention had in mind as determining status? GEN Romig: Yes, Sir. GEN Black: Yes, Sir. SEN Graham:...Not only does it meet the test, its gotten better over time...Not only did we put in place the CSRT...procedure that would comply with Geneva Convention status determination/ competent tribunal standards, we also allowed civilian review of those decisions for the first time.... Hearings Before the Senate Committee on Armed Services, Military Commissions
S. Hrg. 1090-881, at 62-63 (July 13, 2006). Elsewhere in the Congressional Record, Senator Kyl opined that the CSRT process would satisfy Article 5s requirement of a status determination before a competent tribunal, and give even more protections than Article 5 requires. Id., at S10, 268. It is clear to the Commission that Congress intended that the accused have an Article 5 status determination in any case in which his status was in doubt, and that it intended the CSRT process to make such a determination. DID THE ACCUSEDS OCTOBER 2004 CSRT SATISFY ARTICLE 5? The CSRT held in this case was governed by a Deputy Secretary of Defense Memorandum dated 7 July 2004 and a Secretary of the Navy Order dated 29 July 2004. The Report of the CSRT, dated 8 October 2004, concludes in pertinent part that: 2. (U) On 3 October 2004, the Tribunal determined, by a preponderance of the evidence, that [the accused] is properly designnated as an enemy combatant as defined in [DEPSECDEF Memo of 7 July 2004]. 3. (U) In particular, the Tribunal finds that this detainee is a member of, or affiliated with, alQaida forces, as more fully discussed in the enclosures. It is clear from a reading of the balance of the CSRT Report that the panel members
in Light of the Supreme Court Decision in Hamdan v. Rumsfeld.
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found Hamdan to be an enemy combatant because of his membership in al-Qaeda, and because he had been employed by Osama bin Laden as a bodyguard and driver. The CSRT did not address his entitlement to Prisoner of War Status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accuseds participation in hostilities. Indeed, it was not tasked to do so, the DEPSECDEF and SECNAV Memoranda having ordered the CSRT to make a different determination: whether the accused was an enemy combatant, as defined in those references, for purpose of continuing his detention. As a consequence, this Commission cannot accept the 2004 CSRT determination that the accused is properly detained as an enemy combatant in satisfaction of the required determination regarding his entitlement to Prisoner of War Status. Even if the Commission were to agree with the Government that the 2004 CSRT process satisfied Article 5, it is clear from the Commentaries on the Geneva Conventions that a second status determination must be made by a judicial officer for detainees the Detaining Power proposes to punish. Both parties have conceded that this Commission is a competent tribunal within the meaning of Article 5. The hearing the Commission will undertake to determine whether the accused is an alien unlawful enemy combatant, and therefore subject to the Commissions jurisdiction will also determine his status for the purposes of Article 5. This procedure is fully consistent with the intent of Congress, the Law of Armed Conflict, and the decision of the Court of Military Commission Review in United States v. Khadr.
The Commission notes the terms of MCA 948b(g), which provide, No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights. Because the accused has not yet been determined to be an alien unlawful enemy combatant by any tribunal, this section does not apply to defeat his right to rely on the Geneva Conventions for the purposes of determining his status. The Defense motion for an Article 5 status determination is GRANTED. So ordered this 17th day of December, 2007.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission December 19, 2007 ON RECONSIDERATION RULING ON MOTION TO DISMISS FOR LACK OF JURISDICTION Keith J. Allred Captain, U.S. Navy Military Judge
Bahri of Sana'a, Yemen. Both sides offered documentary and photographic evidence. The Defense concedes that Mr. Hamdan is an alien for purposes of the Motion. The Commission received and considered the Amicus Curiae brief filed by Frank Fountain, Madeline Morris and the Duke Guantanamo Defense Clinic. Having considered this evidence, the Commission finds that the following facts are true: 1. In 1996, the accused was recruited in Yemen to go to Tajikistan for jihad. As a result of difficulty crossing the border into Tajikistan, he remained in Afghanistan. Because of his experience driving vehicles, he soon came in contact with Osama bin Laden, and was offered work as a driver. 2. The accused began his work driving farm vehicles on bin Ladens farms, and after a probationary period, was invited to join the bin Laden security detail as a driver of one of the security caravan vehicles. With the passage of additional time, the accused became bin Ladens personal driver sometime in 1997, and continued in that capacity until the fall of 2001. 3. On occasion, the accused also served as a personal bodyguard to bin Laden. It was customary to rotate bodyguards as a security measure, and the accused engaged in this rotation. Bodyguards not actually protecting bin Laden would serve as fighters, receive training at al-Qaeda training camps, serve as emirs of al-Qaeda guesthouses, and perform other duties
After a hearing on 4 June 2007, the Commission granted a Defense motion to dismiss for lack of jurisdiction. Thereafter, the Government moved the Commission to reconsider that dismissal, and to hear evidence regarding the accuseds activities that would make him subject to the jurisdiction of a military commission, i.e. the Government sought to show the Commission directly that the accused was an alien unlawful enemy combatant, as defined in the Military Commissions Act (MCA) 948a(l)(i). The Commission granted the motion for reconsideration, and a hearing was held at Guantanamo Bay on 5 and 6 December 2007, at which the government presented testimonial evidence from Major Hank Smith, U.S. Army, FBI Special Agent George Crouch, and DoD Special Agent Robert McFadden. The Defense offered the testimony of Professor Brian Williams of the University of Massachusetts at Dartmouth, Mr. Said Boujaadia, a detainee being held at Guantanamo Bay, and the stipulated testimony of Mr. Nasser al
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during their rotations away from body guarding duties. 4. During this period as bin Ladens personal driver and sometimes bodyguard, the accused pledged bayat, or unquestioned allegiance to bin Laden. The bayat extended to bin Ladens campaign to conduct jihad against Jews and crusaders, and to liberate the Arabian Peninsula from infidels, but the accused reserved the right to withdraw his bayat if bin Laden undertook a mission he did not agree with. The accused told investigators after his capture that there were some men in bin Ladens company who did not agree with everything bin Laden did or proposed to do. 5. The accused was aware of two of bin Ladens fatwas, including the 1998 fatwa issued by the International Islamic Front for Jihad against the Jews and Crusaders, and which called upon all Muslims to kill Americans and their allies, both civilian and military...in any country where it is possible, to liberate Al-Aqsa Mosque and the Holy Mosque from their grip, and to expel their armies from all Islamic territory... 6. During the years between 1997 and 2001, the accuseds duties sometimes included the delivery of weapons to Taliban and other fighters at bin Ladens request. On these occasions, he would drive to a weapons warehouse, present a document that contained bin Ladens order, and his vehicle would be loaded with the required weapons. He then delivered the weapons to fighters or elsewhere as directed by bin Laden. On at least one occasion, he took weapons to an al-Qaeda base in Kandahar.
7. As bin Ladens driver and bodyguard, the accused always carried a Russian handgun. It is not unusual for men in Afghanistan to carry weapons, and the accused had a Taliban-issued permit to carry weapons when he was apprehended. His duty in case of attack was to spirit bin Laden to safety, while the other vehicles in the convoy were to engage the attackers. 8. The accused received small arms and other training at al-Farouq training camp. 9. The accused became aware, after the alQaeda attacks on the U.S. embassies in Africa, and after the USS Cole attack, that bin Laden and al-Qaeda had planned and executed those attacks. No evidence was presented that the accused was aware of the attacks in advance, or that he helped plan or organize them. 10. Osama bin Laden told the accused that he wanted to demonstrate that he could threaten America, strike fear, and kill Americans anywhere. On hearing this declaration, the accused felt uncontrollable enthusiasm. 11. In the days before 9/11, Osama bin Ladin told the accused to get ready for an extended trip. After the 9/11 attacks, the accused drove bin Laden and his son on a ten-day jaunt around Afghanistan, visiting several cities, staying in different homes or camping in the desert, and otherwise helping bin Laden escape retaliation by the United States. During this period, he learned that bin Laden had been responsible for the attacks.
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THE ANSAR BRIGADE 12. Between the early 1990s and the fall of 2001, there was in Afghanistan a bona fide military fighting force composed primarily of Arabs, known as the Ansars. This force engaged the Soviets during their occupation of Afghanistan. They were subject to a rigid command structure, were highly disciplined, usually wore a uniform (or uniform parts), and carried their arms openly. The Ansar uniforms usually consisted of either completely black attire or traditional military camouflage uniform parts. 13. Taliban leaders did not permit the Ansars to operate independently. As a result, the Ansars were integrated with, subject to the command of, and usually formed the elite fighting troops of, the Taliban army. 14. The Taliban had a conventional fighting force that may well be described as a traditional army. They possessed aged-but-functional battle tanks, helicopters, artillery pieces and fighter aircraft. The Ansars comprised up to 25% of the Taliban army. 15. Osama bin Laden contributed forces to the Ansars, and provided them with weapons, funding, propaganda and other support. 16. By 1997, al-Farouq training camp, and several other training camps, were under the symbolic control of bin Laden. 17. The Ansars were primarily motivated by the desire to expel the Soviets and other foreigners from Afghanistan, but also fought against the Northern Alliance.
Some of the Ansar units rejected bin Ladens calls for war against America, and the attacks of 9/11. 18. During the U.S. invasion of Afghanistan in the fall of 2001, the Ansars were engaged in the defense of Kandahar. 24 NOVEMBER 2001 19. On 24 November 2001, U.S. forces were operating in the vicinity of Takta Pol, a small Afghan village astride Highway 4, which ran between Kandahar and the Pakistani border. Major Hank Smith had under his command a small number of Americans and six to eight hundred Afghanis he referred to as his Anti-Taliban Forces (ATF). Their mission was to capture Takta Pol from the Taliban and prevent arms and supplies from Pakistan from entering Kandahar by means of Highway 4. 20. Highway 4 was the main, and perhaps the only, road between Kandahar and the Pakistan border. It was a significant supply route for people and materials transiting between Pakistan and Kandahar. 21. During the battle for control of Takta Pol and Highway 4, U.S. and coalition forces fought all night with the Taliban forces in the area. A U.S./ATF negotiating party attempting negotiations under a flag of truce was ambushed by Taliban forces, and the U.S. and coalition troops engaged the Taliban in combat, taking casualties. The Taliban forces engaged against coalition forces at Takta Pol did not wear uniforms or any distinctive insignia. 22. After an overnight battle on 23-24 November, the Taliban vacated the town,
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and coalition forces entered Takta Pol the morning of 24 November 2001. They swept and secured the town, and set up a road block south of town to intercept troops, munitions or other war materials, and explosive vehicles before they entered the town. The road block was also intended to prevent munitions and war materials from being carried toward Kandahar. 23. After capturing the town of Takta Pol, and while securing the town and establishing his road blocks, Major Smith and his ATF continued to receive rocket or mortar fire from outside the town. 24. At the same time, Kandahar to the north was occupied by a large number of Taliban forces. Coalition forces, including Major Smiths forces, were preparing to participate in a major battle for control of Kandahar, which was already under way. 25. During the late morning or early afternoon of 24 November, a vehicle stopped at the road block engaged Major Smiths ATF in gunfire. Two men, apparently Egyptians, from the vehicle were killed, and an occupant later identified as Mr. Said Boujaadia was captured. 26. On hearing the gunfire, Major Smith proceeded to the road block, arriving within 3-15 minutes of the firing. By the time he arrived, the accused, driving a different vehicle, had also been stopped at the roadblock. His vehicle carried two SA-7 missiles, suitable for engaging airborne aircraft. The missiles were in their carrying tubes, and did not have the launchers or firing mechanisms with them.
27. The accused was captured while driving north towards Kandahar from the direction of the Pakistani border. The vehicle carrying Mr. Boujaadia and the two Egyptian fighters was also traveling north, towards Kandahar when it was stopped. 28. The only operational aircraft then in the skies were U.S. and coalition aircraft providing close air support and other support for coalition troops on the ground. 29. Major Smiths ATF did not have any surface-to-air missiles in their inventory because the Taliban had no operational aircraft in the skies. There was no need for missiles that had no target. 30. After consulting with higher headquarters, Major Smiths forces photographed the two missiles on the tailgate of one of their vehicles, and destroyed the missiles to prevent them or their explosives from being used against Coalition forces. 31. Major Smith took control of the accused from the Afghan forces who, he feared, would kill the accused if he remained in their control. The accused was fed, protected and otherwise cared for while he was in U.S. custody. A medic checked on him several times a day, and Major Smith visited him at least once a day until he was evacuated by helicopter a few days after his capture. 32. At the time of his capture, the accused was wearing traditional Afghan civilian clothes, and nothing suggestive of a uniform or distinctive emblem.
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DISCUSSION OF LAW The personal jurisdiction of a military commission is limited to those who are found to be alien unlawful enemy combatants, defined in the MCA as those who have engaged in hostilities or who ha[ve] purposefully and materially supported hostilities against the United States or its co-belligerents, who [are] not lawful enemy combatant[s].... MCA 948a(l)(i). Mr. Hamdan may only be tried by this Commission if he falls within this definition. The burden is on the Government to demonstrate jurisdiction over the accused by a preponderance of the evidence. R.M.C. 905(c)(1). This Commission assumes that Congress intended to comply with the International Law of Armed Conflict when it enacted the Military Commissions Act and chose this definition of unlawful enemy combatant. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). International Law scholars and experts have long debated the exact meaning of Law of Armed Conflict terms such as hostilities and direct participation. Professor Dinstein explains, It is not always easy to define what active participation in hostilities denotes. Usually, the reference is to direct participation in hostilities. However, the adjective direct does not shed much light on the extent of participation required. For instance, a driver delivering ammunition to combatants and a person who gathers military intelligence in enemy-controlled territory are commonly acknowledged to be actively taking part in hostilities. Yoram Dinstein, The
International Armed Conflict 27 (Oxford

University Press 2004). It is ironic that Professor Dinstein should have chosen the driver delivering ammunition to combatants as his example of someone who is obviously taking an active part in hostilities. Other scholars have debated the scenario of a driver delivering ammunition, and held that the issue of direct participation should depend on how close the driver actually is to the ongoing hostilities. See International Committee of the Red Cross, Summary Report, Third Expert
Meeting on the Notion of Direct Participation in Hostilities, Geneva, 3233,(2005),http://www.icrc.org/Web/eng/ siteengO.nsf/htmlall/participation-hostil ities-ihl311205/$File/Direc_participation _in_hostilities_2005_eng.pdf (arguing that a distinction had to be made between driving the same ammunition truck close to the front line, which would constitute direct participation, and driving it thousands of miles in the rear, which would not. Even after making this distinction, it is widely acknowledged that driving close to the front line is direct participation). Writing in the Chicago Journal of International Law, Professor Michael Schmitt acknowledges that the meaning of direct participation is highly ambiguous. He concludes, however, that The Commentary appears to support the premise of a high threshold: [d]irect participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place. It also describes direct participation as acts which by their nature and purpose are intended to
Conduct of Hostilities under the Law of
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cause actual harm to the personnel and

equipment of the armed forces and defines hostilities as acts of war which are intended by their nature or their purpose to hit specifically the personnel and the materiel of the armed forces of the adverse Party. Michael N. Schmitt,
the Battle of Kandahar was already under way, with a larger contest expected in the near future, for control of the city. Both the local battle for control of Takta Pol and the ongoing battle for the more distant Kandahar amount to hostilities. The Commission also finds that the accused directly participated in those hostilities by driving a vehicle containing two surface-to-air missiles in both temporal and spatial proximity to both ongoing combat operations. The fact that U.S. and coalition forces had the only air assets against which the missiles might have been used supports a finding that the accused actively participated in hostilities
Direct Participation in Hostilities by Private Contractors or Civilian Employees, Chicago Journal of International Law,
511, 531, 533 (2004) (internal citations omitted; italics in original). Jean-Francois Quguiner, in a working paper sponsored by Harvard Universitys Program on Humanitarian Policy and Conflict Research, addresses the term direct participation as contained in Article 51 of Additional Protocol I to the Conventions, and notes that direct participation has been held to be broad enough to encompass direct logistical support for units engaged directly in battle such as the delivery of ammunition to a firing position. Jean-Francois Quguiner, Direct Participation in
against the United States and its coalition partners. Although Kandahar was a short
distance away, the accuseds past history of delivering munitions to Taliban and alQaeda fighters, his possession of a vehicle containing surface to air missiles, and his capture while driving in the direction of a battle already underway, satisfies the requirement of direct participation. If the two vehicles stopped within minutes of each other at Major Smiths road block were in fact traveling together, a point of dispute during the hearing, it is arguable that the accused was also traveling towards the battle in the company of enemy fighters. Taken together, the evidence presented at the hearing supports a finding that the accused engaged in hostilities, or... purposefully and materially supported hostilities against the United States or its cobelligerents... MCA 948a(l)(i). The Government also argues that the accused purposefully and materially supported hostilities by (1) serving as the personal driver and bodyguard of the alQaeda mastermind Osama bin Laden, (2)
Hostilities Under International Humanitarian Law 4 (2003), http://www.

ihlresearch.org/ihl/pdfs-/briefing3297.pdf. APPLICATION & CONCLUSION The Commission finds that hostilities were in progress on the 24th of November 2001 when the accused was captured with missiles in his car. Major Smith and his Anti-Taliban Forces were actively engaged in a firefight with Taliban forces on the night of 23-24 November, had taken casualties, and had been attacked while attempting to negotiate under a flag of truce. Even after capturing the town of Takta Pol and while securing it, they continued to receive mortar or rocket fire from troops in the distance. In addition,
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continuing to work for bin Laden after he became aware that bin Laden had planned and directed the USS Cole bombing, the attacks on the two U.S. Embassies in Africa, and the 9/11 attacks on the United States; and (3) by driving bin Laden around Afghanistan after the attacks of 9/11, in an effort to help him avoid detection and punishment by the United States. While these arguments may well provide grist for the debates of future generations of Law of Armed Conflict Scholars, the Commission does not reach them here. Having found that the accused drove a vehicle to and towards the battlefield, containing missiles that could only be used against the United States and its co-belligerents, the Commission finds that the accused meets the first half of the definition of unlawful enemy combatant. The final element of MCA 948a(l)(i)s definition of alien unlawful enemy combatant is that the accused must not have been a lawful combatant. The MCA defines lawful combatant in 948a(2) to include: (A) a member of the regular forces of a State party engaged in hostilities against the United States; (B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (C) a member of a regular armed force who professes allegiance to
a government engaged in such hostilities, but not recognized, by the United States. The Defense does not argue that the accused is entitled to lawful combatant status under any of these alternatives. After an examination of the evidence presented, the Commission agrees. Alternatively, the Defense has urged the Commission to find the accused entitled to lawful combatant/ Prisoner of War status under alternative definitions contained in the Third Geneva Convention. ARTICLE 5 STATUS ISSUE This Commission has elsewhere granted a Defense motion to determine the accuseds status under Article 5 of the Third Geneva Convention. The Defense has argued that the accused may have been a lawful combatant, and therefore entitled to Prisoner of War status, under any of the following subsections of Article 4.A of the Third Geneva Convention: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the
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following conditions: [recitation of the conditions is omitted here]. (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favorable treatment under any other provisions of international law, (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. The Commission has searched carefully through the evidence presented by the Defense, and finds nothing that would support a claim of entitlement to lawful
combatant or Prisoner of War Status under options (1) or (2) above. While the Defense showed, through the testimony of Professor Williams, that the Ansars were members of the armed forces of a Party or members of a militia or volunteer corps forming part of such armed forces there is no evidence that the accused was a member of the Ansars or any other militia or volunteer corps. Nor is there any evidence before this Commission suggesting that the accused qualifies for prisoner of war status under option (4) a civilian accompanying the armed forces. He fails to fit into any of the suggested categories of civilians who might properly accompany the armed forces, or any similar categories of persons, there is no evidence that he accompanied such forces, or that he was properly identified as required by the rule. Indeed, it is clear that even civilians who fall into this category can forfeit their entitlement to prisoner of war status by directly participating in hostilities. With respect to categories (5) and (6) above, there is likewise no evidence that the accused was a member of a merchant marine or civil aircraft crew, or that he engaged in the traditional leve-en-masse. The Commission is left to conclude that the accused has not presented any evidence from which it might find that he was a lawful combatant, or that he is entitled to prisoner of war Status under any Geneva Convention Category. The Commission concludes, then, that he is an alien unlawful enemy combatant, and not a lawful combatant entitled to prisoner of war protection. The accused is subject to the jurisdiction of this Commission.
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CONSTITUTIONAL ARGUMENTS Notwithstanding this finding of jurisdiction under the Military Commissions Act and the Law of International Armed Conflict, the Defense has raised three Constitutional objections to this Commissions exercise of jurisdiction over him. These are summarized briefly below:
Ex Post Facto: The Defense argued, in its May 2007 motion to dismiss, that it would be a violation of the Constitutional prohibition against ex post facto laws to give a Combat Status Review Tribunal (CSRT) determination additional force after the fact, by making them determinative of the accuseds status before a military commission. Motion to Dismiss at 11. The Defense objected that when Congress passed the MCA, and retroactively expanded the effect of a CSRT determination, it deprived detainees of the defense of lawful combatancy by making the CSRT finding determinative of military commission jurisdiction over the accused. The Defense also argued that subjecting a detainee to military commission jurisdiction constitutes a punishment because it subjects a defendant to higher penalties and disadvantageous evidentiary rules, among other limits on due process. The Defense argued that Mr. Hamdan did not know at the time of the CSRT that its determination would be used to subject him to a criminal proceeding before a military commission, and thereby deprived him of a meaningful opportunity to contest the evidence.
The Court notes at the outset that the United States Court of Appeals for the D.C. Circuit has held that the Constitution of the United States does not
protect detainees held at the U.S. Naval Base, Guantanamo Bay. Boumediene v. Bush, 375 U.S. App. D.C. 48 (2007). In that case, the Court of Appeals concluded a lengthy discussion about the entitlement of aliens to Constitutional rights with this summary: Precedent in this circuit also forecloses the detainees claims to constitutional rights. In Harbury v. Deutch, 344 U.S. App. D.C. 68, 233 F.3d 596, 604 (D.C. Cir. 2000), revd on other grounds sub nom. Christopher v. Harbury, 536 U.S. 403, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002), we quoted extensively from Verdugo-Urquidez and held that the Courts description of Eisentrager was firm and considered dicta that binds this court. Other decisions of this court are firmer still. Citing Eisentrager, we held in Pauling v. McElroy, 107 U.S. App. D.C. 372, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam), that non-resident aliens ... plainly cannot appeal to the protection of the Constitution or laws of the United States. The law of this circuit is that a foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise. Peoples
Mojahedin Org. of Iran v. U.S. Dep't of State, 337 U.S. App. D.C. 106, 182 F.3d 17, 22 (D.C. Cir. 1999); see also 32 County Sovereignty Comm. v. U.S. Dept of State,
352 U.S. App. D.C. 93, 292 F.3d 797, 799 (D.C. Cir. 2002). In light of this holding, all of the Defenses arguments are deemed to be without merit (emphasis in original). In light of this current state of the law in the Circuit under which military commissions are reviewed, all of this accuseds Constitutional arguments are also deemed to be without merit.
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Beyond this, the Commission finds that the ex post facto violations the Defense complains of have been cured by the Commissions refusal to accept the October 2004 CSRT finding as binding, and by holding its own hearing to determine whether the accused would be subject to the jurisdiction of a military commission. At that hearing, the accused was represented by no less than six counsel, had the benefits of an open and public proceeding before a military judge, and at which representatives of the world press, Human Rights groups, and organizations interested in the application of International Humanitarian Law were present. He confronted the witnesses against him, called and presented his own witnesses, and persuaded the Commission to hold open the receipt of evidence so an additional witness on his behalf could be heard. It has long been a principle of the International Law of Armed Conflict that unlawful combatants may be tried for their participation in hostilities by the courts of the Detaining Power, and the United States determination to exercise this right against Mr. Hamdan does not involve surprise or the ex post facto application of the laws. Schmitt, supra, at 521. The Defense argument against the exercise of jurisdiction on the basis of the ex post facto clause is rejected.
has been no non-judicial finding of unlawful combatant status. There has been no legislative finding that any specific group is unlawful. This Commission, having heard the evidence in a public trial, has determined that the accused is an alien unlawful enemy combatant, subject to the jurisdiction of a military commission, in a regularly constituted court, affording all the necessary judicial guarantees which are recognized as indispensable by civilized peoples. There is no merit to this argument.
Equal Protection: Because the jurisdiction

of the military commission is limited to alien unlawful enemy combatants, the Defense challenges its Constitutionality as a violation of the equal protection clause of the United States Constitution. In support of its claim, the Defense cites, inter alia, Graham v. Richardson, 403 U.S. 365, 371 (1971); In re Griffiths, 413 U.S. 717, 721-22 (1973). As before, the United States Court of Appeals for the D.C. Circuit, under which the review of military commissions falls, has expressly ruled that the United States Constitution does not protect detainees at Guantanamo Bay. The accuseds challenge to the exercise of jurisdiction as a violation of the equal protection clause must likewise fail. CONCLUSION
Bill of Attainder: The Defense also

argued, in its May 2007 motion to dismiss, that the Bill of Attainder Clause prevents the MCA from authorizing a non-judicial finding of unlawful combatant status. Defense Motion at 12. This objection, in the Commissions view, is likewise mooted by the evidentiary hearing held in Guantanamo Bay on 5-6 December. There The Government has carried its burden of showing, by a preponderance of the evidence, that the accused is an alien unlawful enemy combatant, subject to the jurisdiction of a military commission. The Commission has separately conducted a status determination under Article 5 of the Third Geneva Convention, and
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determined by a preponderance of the evidence that he is not a lawful combatant or entitled to Prisoner of War Status. There being no Constitutional impediment to the Commissions exercise of jurisdiction over him, the Defense Motion to Dismiss for Lack of Jurisdiction is DENIED. The accused may be tried by military commission. So Ordered this 19th day of December, 2007.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission February 4, 2008 RULING ON DEFENSE MOTION TO DISMISS (DEFECTIVE PRETRIAL ADVICE) (D-010) Keith J. Allred Captain, U.S. Navy Military Judge
advisor provides his advice to the convening authority as required by that rule. The Discussion of the rule instructs that the legal advisor is personally responsible for the advice, which must be both independent and informed. The advice need not set forth the underlying analysis or rationale for its conclusions. The standard of proof to be applied is probable cause. (R.M.C. 406, Discussion). The Legal Officer in this case prefaces his advice to the Convening Authority with the introductory language after examining the charge sheet, allied papers, and supporting evidence, I have concluded as follows. He makes express reference to the charge sheet dated 2 February 2007, and concurs with the Chief Prosecutors recommendation that those charges be dismissed in favor of the current charge sheet. The Chief Prosecutors Memorandum, attached to the Government reply brief, contains a detailed description and discussion of the evidence against the accused, apparently with copies of that evidence attached in associated tabs. Thereafter, the Legal Advisor reports his conclusions with respect to each of the four required items. With respect to personal jurisdiction over the accused, he reports, A Combatant Status Review Tribunal concluded on October 3, 2005 that Hamdan is an enemy combatant, who was a member of or affiliated with al Qaeda. The MCA defines such persons as unlawful enemy combatants. Applying the plain language of the Rule to the Legal Officers Advice, the Commission finds that all of the required conclusions were properly reached and communicated unambiguously to the convening authority.
The Defense has moved this Commission to dismiss the charges and specifications against the accused on the grounds that the Legal Advisors pretrial advice to the Convening Authority was defective. Alternately, the Defense seeks a continuance to permit correction of the defect. The Defense finds a defect in the Legal Advisors improper reliance on the findings of a 2004 Combatant Status Review Tribunal (CSRT) as the basis for jurisdiction over the accused, rather than making an informed, personal judgment. The Government opposed the motion. The Legal Officers Advice is attached to the Defense motion as Attachment C, and the Prosecutors Memorandum to the Convening Authority is attached to the Government reply. ANALYSIS AND DISCUSSION R.M.C. 406 prohibits the referral of any charge to trial by military commission unless the convening authoritys legal
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The advice expressly indicates that the legal officer has considered both versions of the charge sheet, allied papers, and supporting evidence, as well as the report of the CSRT. The 2 February 2007 Charge Sheet, which he recommends be dismissed, contains a long list of actions in which the accused is alleged to have engaged as an unlawful enemy combatant. The Prosecutors Memorandum discusses the evidence supporting the charges, and both documents read much like the findings of fact upon which this Commission based its findings of jurisdiction on 19 December 2007. These documents, all of which were considered by the Legal Officer, reflect the Legal Officers awareness of the evidence supporting the commissions jurisdiction over the accused. This Commission finds that the Legal Advisor was aware of the detailed allegations regarding Mr. Hamdans unlawful participation in hostilities and the evidence supporting them, as well as the finding of the CSRT, when he offered his opinion that a military commission would have jurisdiction over the accused. The Commission finds that the Legal Advisor conducted the independent and informed review required by the rule, and properly gave the Convening Authority the benefit of his advice. The finding of the CSRT, coupled with this additional evidence that was before him, satisfied the probable cause standard required by the rule with respect to personal jurisdiction. The Commission finds no defect in the Legal Officers Advice that requires correction. The Commission also finds no prejudice to the accused, in that jurisdiction over the accused has already been established
by this Commission after an evidentiary hearing. The Defense Motion to Dismiss, or for a Continuance, is DENIED.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission February 13, 2008 RULING ON MOTION TO COMPEL ACCESS TO HIGH VALUE DETAINEES (D-011) Keith J. Allred Captain, U.S. Navy Military Judge
ment argues that there are other, lowvalue detainees in the Camps who can provide the accused with comparably exculpatory evidence. The Commission heard oral argument at Guantanamo Bay, Cuba on 7 February 2008. There are seven witnesses at issue. In an effort to proffer to the Commission the substance of the testimony they will give, detailed defense counsel traveled to Yemen and interviewed Mr. Nasser alBahri, a former deputy chief of security for al-Qaeda from 1996 until 2000. Based on this interview LCDR Mizer submitted an affidavit that contains a summary of Mr. al-Bahris testimony regarding his own involvement with al-Qaeda, what he knows regarding the other witnesses at issue, and what he believes they would say if called on behalf of the accused. According to LCDR Mizers Affidavit, Mr. al-Bahri was familiar with bin Ladens activities, and with the personnel in his inner circle who helped plan and carry out those activities. Mr. al-Bahri would testify that the planning of terrorist or outside activities was a closely guarded process, and that a very limited number of key personnel were invited to participate in those activities. Even senior al-Qaeda leaders would only have known generally that an attack on the United States was planned, but would not have been informed of details until just before the attack happened. Based on this interview with Mr. al-Bahri, and presumably on comments of the accused himself and other evidence available to the Defense, the following proffers of expected testimony have been submitted by the Defense.
The Defense has moved this Commission to compel access to certain detainees whom it believes will offer evidence favorable to the accused. He is charged with conspiracy, and his alleged coconspirators are the very leaders of alQaeda, including Osama bin Laden and Ayman al-Zawahiri. The witnesses to whom the accused seeks access are themselves highly-placed members of alQaeda, and the Defense believes they may testify that the accused was not a member of the al-Qaeda inner circle, that he did not conspire or plan, or have foreknowledge of, any al-Qaeda attacks, but was merely a driver in a motor pool. The Government argues that the Defense has not shown the relevance and necessity of access to these detainees, points out that they are high value detainees subject to the greatest security considerations, and argues that they may reveal or disclose various types of sensitive information if allowed to speak to the Defense. In addition, the Govern-
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1. KHALID SHEIK MOHAMMAD Khalid Sheik Mohammed was a member of al-Qaedas military counsel and was involved in outside activities, which is understood to mean terrorist attacks against the West. Mr. Mohammed and his family lived in the same neighborhood in Kandahar as Mr. Hamdan and his family, and Mr. Mohammed knew Mr. Hamdan. As one of six drivers in a motor pool, however, Mr. Hamdan was not involved in outside activities and was not a participant in terrorist activities. In contrast, as the mastermind of the September 11 attacks, Mr. Mohammed is one of only two individuals in U.S. custody who knew the details of those attacks in advance, and is only one of several individuals in the world still alive who was specifically involved in the detailed planning and execution of the attacks. Based on his contact with Mr. Hamdan, Mr. Mohammed is expected to testify that Mr. Hamdan was only a member of bin Ladens motor pool, was not involved in outside activities, did not have advance knowledge of the September 11 attacks, much less specific intent to conspire with the perpetrators or materially support their efforts, and that he did not participate in any way in the planning or execution of such attacks. 2. RAMZI BIN AL-SHIB Ramzi bin al-Shib Mohammed was the communications link between Khalid Sheikh Mohammed and the military committee in Afghanistan including those who would execute the attacks of September 11, 2001. He knows the details of the plot and the identities of those involved. He can substantiate Hamdans
claim of simply being one of six drivers in the motor pool, who did not have prior knowledge of the attacks. 3. ABU FARAJ AL-LIBI Abu Faraj al-Libi was in charge of the alQaeda training camps in Afghanistan. He can substantiate that attendance at one of these camps did not automatically make one a member of al-Qaeda. He was responsible for the conventional weapons training for the Ansars, the Arab fighters in Afghanistan, and would know if Hamdan was involved in the transporttation of Taliban weapons to the Ansars on the frontlines. 4. ABDUL-RAHIM AL-SHARQAWI Mr. Sharqawi facilitated travel arrangements for al-Qaeda fighters into Afghanistan, and did not facilitate travel for Mr. Hamdan. The Defense believes that Mr. Shawqawi can testify that the accused was merely a driver, and not a member of al-Qaeda. He spent most of his time in Afghanistan working on cars. 5. WALID BIN ATTASH Walid bin Attash was very close with Osama bin Laden and always accompanied him when the two men were in Kandahar. He also frequently interacted with Hamdan. He can verify that Hamdan was a member of the motor pool and that he was uninvolved in terrorist activities. 6. ABDUL RAHIM AL-NASHIRI Abdul Raham al-Nashiri was the principal planner of the attacks on the USS Cole and the French supertanker, Limberg. He is the only person in U.S. custody who
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knows the details of those attacks and the identities of those involved. He has known Mr. Hamdan since 1996, when he traveled with Mr. Hamdan and Mr. alBahri to the border between Afghanistan and Tajikistan. Like Walid bin Attash, Abdul Rahim al-Nashiri was very close with Osama bin Laden and he would have frequently interacted with Mr. Hamdan as a driver in the motor pool. He was in a position to observe Mr. Hamdans relationship to al-Qaeda and Osama bin Laden. He will state that Mr. Hamdan was a member of the motor pool only and that he was not involved in terrorist activities. 7. ABDUL HADI AL-IRAQI Abdul Hadi al-Iraqi was the commander of the Arab ground forces, or Ansars, in Afghanistan. He reported to a Taliban general who exercised command and control over the Ansars. While his unit was supplied with weaponry from the Taliban armories, drivers from the alQaeda affiliated motor pool were often used to transport Taliban weapons to the Ansars at the front. He is aware of the identity of the drivers from the motor pool who delivered weapons to the lawful enemy combatants under his command. As commander of the Ansars, he would know when weapons shipments were arriving and the identities of the drivers delivering them. He may have been in command of the Ansars at the battle of Kandahar in November 2001, and, if he were in command of the Ansars there, he would know if Mr. Hamdan was delivering a weapons shipment to the lawful enemy combatants under his command on November 24, 2001.
8. MUSTAFA AHMED AL-HAWSAWI Mustafa Ahmed al-Hawsawi was involved in the funding of the September 11 attacks. He spent much time in Kandahar, and would have interacted with Mr. Hamdan as a driver. He will state that Mr. Hamdan was a member of the motor pool and that he was not involved in terrorist activities. He will state that Mr. Hamdan was not involved in the terrorist attacks on the United States that occurred on September 11, 2001. THE LAW An accused being tried before a military commission shall have an adequate opportunity to prepare [his] case and no party may unreasonably impede the access of another party to a witness or evidence. R.M.C. 701(j). The military judge is expressly authorized to regulate the time, place, and manner of discovery, including the prescription of such terms and conditions as are just, including the issuance of protective and modifying orders. R.M.C. 701(l). The government may invoke the National Security Privilege when disclosure of information would be detrimental to the National Security. R.M.C. 701(f). ANALYSIS AND RULING The Commission finds that the Defense has made a colorable claim that these detainees may have potentially exculpatory evidence. On this record, the Governments interests in protecting information that may be damaging to the National Security are limited to certain aspects of post-apprehension interaction with U.S. intelligence agencies. The Commission finds that the Defenses
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interests in determining whether these witnesses will speak to them, and what these witnesses will say on behalf of the accused, can be accommodated without hazarding the Governments interests in protecting the information it seeks to protect. The interests of both parties in a fair trial demand that the Defense be able to determine whether potentially exculpatory witnesses located at Guantanamo Bay, the site of the trial, will actually testify as alleged in the Affidavit. Balancing all of these factors, the Commission GRANTS the Defense Motion for Access, subject to the following limitations: 1. The Defense may submit written questions to each of these potential witnesses. The questions shall be submitted in both English and Arabic, and may address areas such as:
planning, conspiracy, or a common criminal enterprise to conduct attacks against the West.
2. The Defenses questions may be reviewed by a Government Security Officer who has no contact with the Prosecution, to ensure that the questions do not inquire into any sensitive or classified information. A Government linguist not aligned with the Prosecution may review the Arabic version of the questions to ensure the accuracy of the translation and the propriety of the Arabic version. The Linguist and the Security Officer may consult in this review of the questions. The questions, after this review and approval, shall be submitted to the witnesses. 3. The witnesses, if they desire to respond, shall do so in writing. Their responses shall be translated into English by a Government linguist, and shall again be subject to review by a Government Security Official. Neither the Linguist nor the Security Officer may be aligned with the Prosecution, and neither may communicate the witnesss responses to any member of the Prosecution in any manner. 4. The Security Officer may redact any portion of a witnesss response that he believes would endanger the national security or reveal classified information, before delivering the witnesss responses to the Defense. 5. The Security Officer shall maintain the unredacted version of the witnesss reply, and shall treat such
a. The witnesss background in the alQaeda organization, including the duties he performed, the people he worked with, and the duties they performed in the organization; b. The witnesss familiarity with Mr. Hamdan, his history of activities between 1996 and 2001, his duties, and his involvement or lack thereof, in so-called outside activities; c. The witnesss familiarity with the planning of outside an activity, who was and who was not involved, and what part Mr. Hamdan played in any such activities; d. The relationship between the accused and the leaders of al-Qaeda, including whether he was involved in
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unredacted documents as classified documents or otherwise safeguard them as appropriate. If the Defense challenges the redaction performed by the Security Officer, the military judge shall determine the matter under M.C.R.E. 505. 6. If necessary, the Commission will consider alternatives, or sanctions, as warranted under M.C.R.E. 505(h)(6) and (7). In order to facilitate this process of discovery, the Prosecution shall identify a Government Security Officer who will perform these review and screening functions, and a Linguist who may perform the translation functions, not later than Tuesday, February 19th, and provide the Security Officers contact information to the Defense. The Defense shall determine whether any of these prospective witnesses are represented by counsel, and shall act accordingly. So Ordered.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission February 15, 2008 RULING ON MOTION TO COMPEL DISCOVERY (CORRECTED COPY) (D-017) Keith J. Allred Captain, U.S. Navy Military Judge
(Brigadier General Hartmann, USAF) was attempting to interfere with the performance of his duties as Chief Prosecutor. The Government objects to the discovery of these investigations on the grounds that they do not contain anything of relevance to the case. The Commission agreed to review both investigations in camera before deciding whether either must be disclosed to the Defense. The 2004 investigation consists of a 31 page summary of the statements of approximately 41 witnesses interviewed, and the conclusion that the investigation was Closed as unfounded. In conducting an in camera review of this investigation, the Commission spent five to six hours reading nearly 500 pages of transcribed testimony and witness statements. Each page of transcribed testimony was classified SECRET/NOFORN, although not every page appeared to contain SECRET information. The 2007 Assessment consists of a six page cover letter signed by Brigadier General Tate, followed by 225 pages of emails, transcribed testimony, and other documents. The Commission spent four to five hours reviewing each of these 231 pages. Having reviewed these documents in camera, the Commission makes the following Findings: WITH RESPECT TO THE 2004 INVESTIGATION: 1. The report of this investigation consists of a 31-page, unsigned cover document that summarizes the statements of 41 witnesses who were interviewed in connection with the investigation. The names of five of these witnesses are
The Defense has moved this Commission for an order compelling the Government to provide discovery regarding two investigations into alleged prosecutorial misconduct that may touch upon or affect the case of this accused: The first investigation occurred in 2004, and involved allegations made in an email from an Air Force officer, to the effect that the Prosecutors were destroying documents, concealing allegations of prisoner abuse, and that there was an atmosphere of deceit and secrecy in the Office of Chief Prosecutor (OCP). The Defense has in its possession a redacted copy of the Investigation, which is available on the Office of Military Commissions (OMC) Web site. The second investigation occurred in September of 2007, and followed allegations by the Chief Prosecutor (Colonel Morris Davis, USAF) that the Legal Advisor to the Convening Authority
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disclosed, the remaining 36 witnesses have had their names redacted by blacking out, throughout the investigative report. 2. Some witnesses are partially identified by rank and branch of service, federal agency or position within the organization, even though their names have been redacted. 3. In addition to the redaction of names, a cumulative total of about 35 lines of other text appear to have been redacted to protect classified information, organizational affiliations, or references to particular cases pending in the Office of the Chief Prosecutor. 4. The reports conclusion is that, The project is closed as unfounded. 5. Apart from the redactions, the 31-page document fairly summarizes the statements of the witnesses interviewed. The following statements from the redacted version of the report support this conclusion (paragraph numbers from the report are used as a reference): 6. This witness, identified as a Naval Reservist, opined that allegations made by [name omitted] were not correct, but were likely made as a result of personality conflicts with the OMC. 7. This witness, a member of the U.S. Army, related that he is not aware of any criminal or unethical conduct on the part of OMC personnel.
9. This witness, an Air Force Reservist, (who had heard an allegation of prisoner abuse from another Government official) indicated that a full briefing of the possible mistreatment was provided to [two names omitted] upon his return from the trip. [Name omitted], U.S. Army, was briefed on the possible mistreatment... [and] the information was forwarded to the Criminal Investigation Task Force (CITF). The same witness stated that he had no knowledge of unethical or criminal conduct committed by OMC personnel. 10. This witness, a Marine, did not have any knowledge of the specific allegations brought up in the emails... [and] has no knowledge of any destruction of evidence involving OMC, nor can he see any motivation to do so. 13. This witness, an NCIS agent, is not aware of any information regarding abuse of detainees, or unethical or criminal conduct on the part of OMC Personnel. 15. This witness, apparently a civilian attorney from Washington D.C., did not believe any statements or actions on the part of any OMC member constituted false statements, dereliction of duty, or other criminal violations of the UCMJ. Rather, he believed that major disagreements on specific issues amongst the prosecutors were due to greatly differing interpretations of certain
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information and events. [He] did not believe that anyone willfully and knowingly misinterpreted anything and ascribed problems within the OMC to serious leadership failings on the part of one person. 16. This witness refuted allegations that [name omitted] lied or made misrepresentations ...[He] knows of no attempt to suppress FBI allegations of alleged detainee abuse .... and] did not believe [name withheld] destroyed or hid evidence. 17. This witness, an NCIS Agent, did recall receiving some information from OMC regarding suspected abuse of detainees. 18. This witness, a Marine, believes that all allegations of abuse of detainees were forwarded to proper authorities... [and] was not aware of any criminal or ethical wrongdoing by anyone in the OCP, OMC, except for disrespectful conduct by [name omitted]. 19. Brigadier General Hemingway, USAF, then-serving Legal Advisor to the Appointing Authority, considers the majority of the allegations relative to potential destruction of evidence to be management/ leadership related issues versus allegations of criminal wrongdoing...[and] that to suggest that [evidence could be destroyed by a Prosecutor] would be stupid.
20. This witness, a member of the USAF, did not have any direct knowledge of allegations related to destruction of evidence, missing statements, suppression of detainee statements, or any of the other allegations. She had never heard anyone in the OMC make material false statements or misrepresentations. 21. This witness, an Air Force Reservist, When asked specifically if he was aware of any criminal wrongdoing or ethical misconduct in the OCP, replied in the negative.... [He] did not have any knowledge of the alleged systematic destruction of statements while detailed to the OCP. 23. This witness, from the FBI, knows of no willful misrepresenttations on the part of OMC personnel but noted OMC personnel did not appear to have a thorough understanding of their discovery obligations.... [He] has no knowledge of the systematic destruction of evidence or the suppression of information regarding the abuse of detainees. 25. This witness, a Resident Agent in Charge, felt that [names withheld] did not have a good idea of the process of information flow pertaining to detainees and did not understand the big picture.
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27. This witness, a U.S. Marine, had no firsthand knowledge of any criminal or ethical misconduct, to include: false statements, destruction of evidence, allegations of missing notes from FBI 302, or suppression of statements of abuse. 29. This witness, a U.S. Marine, was not aware of any criminal or ethical misconduct within the OCP to include destruction of evidence. The Commission need not continue this recitation. It is sufficient to note that my own examination of the transcribed testimony of the numerous witnesses whose testimony was provided is consistent with these conclusions. The Commission found no evidence, in any part of the Investigation, to suggest that the problems in the Office of the Chief Prosecutor in 2004 resulted from anything other than leadership, management, or personality issues, or perhaps from inter-service tensions as a completely new office was established to try completely new [to the participants] offenses under the Law of Armed Conflict, in a system of military commissions that was itself getting its own footings. The Commission found no evidence of criminal or unethical behavior, nothing suggesting prosecutorial misconduct, and nothing related to the case of Mr. Hamdan. Beyond this, the Defense already has its own copy of this investigation, sans names and a few other details, and can make its own conclusions whether any of the matters described in the report merit their further attention.
WITH RESPECT TO THE 2007 INVESTIGATION: The Defense has access to General Tates six page summary of his investigation, which is publicly available. The Commission reviewed this document and the accompanying 225 pages of material, including email traffic, memoranda, and the transcribed testimony of several witnesses. With respect to this investigation, the Commission finds: 1. The investigation was conducted between 7 and 10 September 2007 by Brigadier Generals Clyde Tate (U.S. Army) and Richard Harding (U.S. Air Force) and Captain (now Rear Admiral (retd) Hal Dronberger, JAGC, U.S. Navy. The members of this team did not refer to their undertaking as an investigation, but rather as an assessment and recommendation regarding the organization and roles of the Legal Advisor to the Convening Authority and the Office of the Chief Prosecutor. 2. The completed report consists of a 6 page memorandum for the Department of Defense General Counsels Office, and is dated 17 September 2007. Attached to the six-page memorandum are 225 pages of emails, documents, and the transcribed testimony from several key witnesses, including General Hartmann (Legal Advisor to the Convening Authority since 2 July 2007); General Hemingway (former Legal Advisor to the Appointing Authority, and later to the Convening Authority); and Colonel Morris Davis (former Chief Prosecutor, OMC). 3. The assessment followed and resulted from a complaint filed by Colonel Davis, with Judge Susan Crawford, the Con-
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vening Authority, alleging that General Hartmanns actions as Legal Advisor threatened to interfere with his performance as Chief Prosecutor. Distilled to its central themes, the complaint alleged three ways in which Colonel Davis believed that General Hartmann threatened to exceed his authority: a. Involvement prepared for trial in cases being
Colonel Davis further denied that this pressure impacted any particular case, because we never gave him what he asked for at first. (See pages 132, 134, 137/225). Given this state of the evidence, the Commission finds that Colonel Davis resisted the pressures he considered an improper excursion into his office and its decision making, and accepts Colonel Daviss testimony that his refusals to provide the requested information resulted in the Generals backing off on his demands. There is no likelihood that access to the details of this information would give rise to a claim of improper command influence because Colonel Davis has testified that he did not submit to these demands. b. General Hartmann wanted to dictate the order in which cases would be charged Colonel Davis objected to General Hartmanns demands that certain cases, or certain types of cases, be brought to trial before others. Colonel Davis considered this a decision that belonged to him, by virtue of his assignment as Chief Prosecutor, his greater familiarity with the evidence, his better appreciation of the issues relating to the availability of getting witnesses ready to testify, and his better overall understanding of the Prosecutorial process. Colonel Daviss testimony, given to the panel assessing the relationship between the Legal Advisor and the Chief Prosecutor, was that this pressure from General Hartmann, though irritating and troublesome, did not affect his decisions. He told the assessment team that, We never
Colonel Davis believed that General Hartmann tried to get too much detailed information about individual cases, including the names of the witnesses, what they would say, and who they are. General Hartmann desired to consult in detail with Prosecutors, wanting to hear their opening and closing arguments, and to preview the precise manner in which they would present their cases. General Hartmann also wanted to have classified documents declassified, and insisted that the process proceed more quickly than it was taking. Colonel Davis objected to this on several grounds: he feared that giving General Hartmann written documents might make those documents discoverable to the Defense; he feared that General Hartmanns security clearance was not then appropriate for him to be given certain classified information; and that he might be disqualified to conduct the post-trial legal review of the case by virtue of too much involvement in the prosecutions preparation of the case. In testimony before the assessment team members, Colonel Davis testified on several occasions that after he objected to General Hartmanns overtures, the General backed off on these demands.
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changed the order of cases sent forward in response to this pressure, in large part because the entire process of preparing cases for trial was at a standstill between June of 2007 and when CMCR issued its decision. (See page 144 of 225). C. General Hartmann wanted three cases to be ready for referral as soon as the CMCR issued its decision in
agencies. Weve done that and a guy comes to me with a referral binder and tells me hes ready, then Ill move forward, not a day sooner. (See pages 153 and 154/225). With respect to each of these instances of alleged overreaching, the Commission finds that they did not affect Colonel Davis in the performance of his duties, because he resisted General Hartmanns demands. Colonel Davis either persuaded the General that his demands were unreasonable or otherwise persuaded him to back off. With respect to each of the three ways in which Colonel Davis believed General Hartmann was potentially interfering in the performance of the prosecutorial function, General Hartmann was persuaded to withdraw his demand, or Colonel Davis simply declined to comply with it. Thus, there was no impact on this case. CHRONOLOGY OF EVENTS The Commission has determined, from other documents filed in the case, the following order of events in the case of United States v. Hamdan (all dates in 2007): Charges Referred for trial: 10 May Dismissed for lack of jurisdiction: 5 June Motion for Reconsideration Filed: 8 June General Hartmann Reports for Duty: 2 July Judge Requests Supplemental Briefing: 6 August
U.S. v. Khadr
Colonel Davis objected to General Hartmanns efforts to accelerate the process of trying military commission cases soon upon his arrival. General Hartmann wanted the Prosecutor to have three cases ready for referral as soon as the (presumptively favorable) CMCR decision was reached. As soon as General Hartmann issued this demand, however, one prosecutor jumped up and declared that it was not possible, because of ongoing declassification reviews, interagency coordination, and other procedural hurdles that could not be surmounted that quickly. As history has borne out, no additional cases were referred with the announcement of the CMCRs decision. With respect to whether this direction (to have three cases ready for referral as soon as CMCR issued its decision) affected his decision making, Colonel Davis responded: I filed a complaint. He testified that he would not take a case forward to referral prematurely: Im not going to sign a charge sheet until my prosecutor comes to me and says Look, Ive interviewed the witnesses, Ive got the evidence declassified, Ive vetted these charges we go through a vetting process internally on charges. We coordinate with the DOJ, the CIA, a number of other
46
Supplemental Briefing Provided: 17 August Colonel Davis Files Complaint: 23 August CMCR Issues Decision: 4 September Judge Grants Motion Reconsideration: 17 October for
CONCLUSION AND RULING With respect to the 2007 assessment of the relationship between the OCP and the Legal Advisor to the Convening Authority, this Commission finds that it is not relevant to the Defense of this case because it does not contain evidence of unlawful command influence; because this case was already insulated from General Hartmanns actions by virtue of having previously been referred and placed under the control of the Commission; and because Colonel Davis himself expressly denied under oath that any of his decisions were affected by the Generals actions. The 2004 investigation is also irrelevant for several reasons: it does not contain any reference to this case or allegation that this case was impacted; it was properly dismissed as unfounded; and it occurred four years ago before these charges were referred to this forum. The Defense Motion to Compel Production of these investigations is DENIED. All documents reviewed in connection with this motion, both the 2004 investigation and the 2007 assessment, shall be sealed and attached to the Record of Trial as the next two Appellate Exhibits in order.
Parties Assemble in Cuba to re-litigate the issue of Jurisdiction: 5 December Judge finds Jurisdiction over accused: 19 December This chronology also makes it apparent that none of the Generals activities affected this case for two other reasons: the case had already been referred, and was under the Commissions control between 2 July and 23 August; and because the period of this challenged activity 2 July to 23 August the case was essentially inactive, while the parties briefed the case of United States v. Khadr before the Court of Military Commission Review and awaited the Commissions ruling on the motion for reconsideration. Beyond this, the panels assessment was that General Hartmanns requests for information or cooperation from the OCP and his efforts to provide direction and guidance were not unlawful influence in any event, in light of Paragraph 8-6 of the Regulations for Trial by Military Commissions, which holds, The Chief Prosecutor shall report to the Legal Advisor to the Convening Authority and Unless stated otherwise, the person to whom an individual reports shall be deemed to be such individuals supervisor....
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ment from the parties at Guantanamo Bay on 7 February 2008. ANALYSIS
SALIM AHMED HAMDAN Military Commission March 7, 2008 RULING ON MOTION TO DISMISS (UNLAWFUL COMBATANT STATUS) (D-015) Keith J. Allred Captain, U.S. Navy Military Judge It is well established in the Law of Armed Conflict that lawful combatants are entitled to the combatants privilege, or combatant immunity, for lawful acts of war in which they engage during the course of armed conflict. United States v. Lindh, 21 F. Supp. 2d 541, 553 (E.D. Va. 2002); Yoram Dinstein, The Conduct of
Hostilities under the Law of International Armed Conflict, (Cambridge: Cambridge

University Press 2004) 31; U.S. Army Operational Law Handbook, JA 422 (1998) 7-5. To the extent members of the Taliban and the Ansar unit that fought with them met the criteria of the Third Geneva Conventions Article 4, they would be entitled to this immunity from prosecution for their lawful participation in hostilities. Importantly, this lawful combatant immunity is not automatically available to anyone who takes up arms in a conflict. Rather, it is generally accepted that this immunity can be invoked only by members of regular or irregular armed forces who fight on behalf of a state and comply with the requirements for lawful combatants. Lindh, supra at 554; [m]en and bodies of men who, without being lawful belligerents nevertheless commit hostile acts of any kind are not entitled to the privileges of prisoners of war if captured, and may be tried by military commission and punished by death or lesser punishment. Ex
The Defense has moved the Commission to dismiss Specification 2 of Charge I, and Specifications 3 and 4 of Charge II under the special defense of combatant immunity. The gist of the Defense argument is this: Hamdan was transporting missiles to Taliban and Ansar fighters in Kandahar. These forces were lawful combatants. Because these fighters were lawful combatants entitled to combatant immunity, Mr. Hamdans support for these fighters necessarily qualifies him to share in their immunity. The Government opposes the motion, arguing two themes: first, that the intended users of the missiles is an issue of fact that must be reserved for trial, and second, that the accused has not presented some evidence with respect to each element of the affirmative defense of lawful combatancy that would entitle him to rely on that defense at trial because it has not made a threshold showing of entitlement. The Commission heard argu-
48
Parte Quirin, 317 U.S. 1, 34

(1942). The Commission has already determined, by a preponderance of the evidence, that Hamdans participation in hostilities against the coalition forces was unlawful, because he was not a member of the armed forces or otherwise entitled to engage in hostilities. The Defenses argument that an unlawful combatant should be entitled to combatant immunity because he is supporting lawful combatants is without any support in the law. The Government argues that the Defense should be foreclosed from raising the defense of combatant immunity at trial, and notes that lawful combatancy is not listed as a special defense under R.M.C. 916. It seems clear that the defense of Lawful Combatancy is not listed as an affirmative defense because only unlawful combatants are subject to the jurisdiction of a military commission. MCA 948c. Lawful combatants must be tried by court-martial. The issue, then, is whether an unlawful combatant, being tried before a military commission, can nonetheless raise the defense of lawful combatancy. Affirmative defenses are raised when the accused offers some evidence of each element of an affirmative defense. United States v. Bailey, 444 U.S. 394, 415 (1980); United States v. Tokash, 282 F.3d 962, 967 (7th Cir. 2002). To raise the defense of lawful combatancy, Hamdan must show some evidence that he was a member of the armed forces of a regular militia of a nation, that he wore a uniform or some other distinctive insignia or mark, that he carried arms openly, and that he and the military organization of which he was a
part conducted their operations in accordance with the law of war. Lindh, supra at 557. Although the Commission has found by a preponderance of the evidence that the accused is an unlawful combatant, it is still conceivable that he can offer some evidence of each element of lawful combatancy. If he does so, he would arguably be entitled to an instruction on the defense. United States v. Lindh, 212 F. Supp. 2d 558 United States v. Bailey, 444 U.S. 394, 415 (1980); United States v. Tokash, 282 F. 3d 962, 967 (7th Cir. 2002); United States v. Caban, 173 F. 3d 89, 95 (2d Cir. 1999). The resolution of this issue must await the presentation of evidence on the merits at trial. CONCLUSION AND DECISION The Motion to Dismiss pursuant to combatant immunity is DENIED.
49
UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission March 14, 2008 ON RECONSIDERATION RULING ON MOTION FOR STAY AND FOR ACCESS TO HIGH VALUE DETAINEES (P-004) Keith J. Allred Captain, U.S. Navy Military Judge
four of the HVDs. The Defense opposed both motions. LEGAL STANDARD FOR ACCESS TO WITNESSES The Government objects to the Commissions reliance on R.M.C. 701, which controls pretrial discovery, and argues that access to these detainees should be governed by R.M.C. 703, which addresses the production of witnesses and evidence at trial. The Commission sees these initial interviews of witnesses with potentially exculpatory evidence as part of the process of discovery, and as an element of the adequate opportunity to prepare its case assured by R.M.C. 701(l). Thus, the Commission is not persuaded by the governments argument that 10 U.S.C. 949j(a) and R.M.C. 703 control. After the Defense has determined what, if anything, these witnesses will say, it may seek to compel their production at trial. Should that occur, the defense will have to provide a synopsis of the expected testimony sufficient to show the relevance and necessity of each witnesss testimony, as required by R.M.C. 703. In addition, the Government invited the Commissions attention to United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), Giakoumelos v. Coughlin, 88 F. 3d 56 (2d Cir. 1996) and United States v. Grant, 256 F. Supp. 2d 236, 243-244 (D. Del. 2003) for the proposition that detainees should not have access to potentially exculpatory witnesses under the circumstances in this case. None of these cases are persuasive. In Valenzuela-Bernal, the Supreme Court upheld the defendants conviction for transporting aliens within the United
After a hearing on 7-8 February 2008, the Commission granted a Defense motion for access to certain High Value Detainees (HVDs). The Commission ordered the Government to permit the Defense to submit written questions, passed through a Government Security Officer and Linguist, so the Defenses questions and the detainees answers could be reviewed for classified material without disclosing the exchange to the Prosecution. The Government filed a request to stay implementation of that order, and a Motion for Reconsideration. This Ruling addresses both Government motions. The Government argues that the Ruling is premised on an incorrect legal standard (R.M.C. 701); that access to the HVDs is not warranted under the correct legal standard (R.M.C. 703); that the Ruling is unfair and does not permit the Government to adequately protect classified information; and that the Ruling fails to account for complications created by criminal charges later preferred against
50
States, even though two of the three aliens he transported had been deported, and were not available to testify in defendants trial. Because the defendant had not given a plausible explanation of how these witnesses might have helped him, he could not show any prejudice from their unavailability. Giakoumelos was a federal civil rights action challenging a New York State decision upholding an administrative punishment awarded in a prison-discipline hearing for attempted escape. It is true that the Second Circuit upheld the States refusal to identify another prisoner who had informed against the accused, but the Court also noted the lesser standards of proof and due process applicable at prison discipline procedures, and observed that, At each stage of the case[Giakoumelos]s defenses and claims have been defeated by evidence to which he has had no access. 88 F.3d 56, 63. The possibility of convictions based on evidence to which detainees had not had access was among the concerns that led the Supreme Court to reject military commissions in Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2787 (2006). Grant moved for disclosure of the identity of a confidential informant because it could lead to exculpatory information. The Court held that [b]ecause Defendants have not shown a likelihood that disclosure would lead to exculpatory evidence, the Court concludes that Brady does not mandate disclosure of the CIs identity in the instant case. 256 F. Supp. 2d 243. What is instructive about these cases is the standard the Courts have applied for defense requests for access to witnesses: likelihood and plausible explanation. In United States v. Moussaoui, 382 F. 3d 453 (4th Cir. 2004) the Court was satisfied by a plausible showing.
The Commission concludes that the Governments authorities are not persuasive that the Defense should not be able, even under the restrictive limits the Commission has established, to determine whether any of these witnesses can provide exculpatory evidence. ACCESS NOT WARRANTED UNDER THE CORRECT LEGAL STANDARD Having rejected the Governments argument that R.M.C. 703 is the correct legal standard, there is no need to consider the Governments argument that R.M.C. 703 does not warrant access to the HVDs. THE APPROVED SYSTEM OF INTERROGATORIES DOES NOT ALLOW THE GOVERNMENT TO PROTECT CLASSIFIED INFORMATION The Government argues that the Commissions system of interrogatories does not adequately permit it to protect classified or sensitive information. The Government references the Hilton Declaration for the proposition that access to these detainees could lead to serious harm to the National Security. The governments concerns for the National Security are well taken, and the Commission envisions a process that will protect them. The Commission has circumscribed the permissible areas of questioning, and required a Government Security Officer to review the questions posed to, and the answers provided by, each witness. This adequately protects the Governments interests in preventing the disclosure of classified or sensitive information, as well as the concerns outlined in the Hilton Declaration. If the Government believes other safeguards are
51
necessary, the Commission will entertain a petition for modification of the terms of its Order. The Government asserts that trial counsel, and not a Security Officer, are charged with protecting classified information from disclosure. Because the Security Officer will only be providing unclassified responses to the Defense, the Commission does not agree that M.C.R.E. 505 is implicated. The Government argues further that the system of submitting written interrogatories is unfair to it. The Government urges that the Commission require that the questions posed to the HVDs be openended, so as to avoid leading them to give the answers the Defense hopes to receive, and that Government counsel should have an opportunity to comment on the questions. The Commission rejects these arguments. The Government objects to access to these detainees on the ground that the Commission has misunderstood the nature of the charges against Hamdan. Specifically, the Government argues that [t]he accused is not charged with having foreknowledge of the attacks of September 11th, nor is the accused charged with conspiring in or supporting those attacks. While the Government has not expressly charged the accused with having foreknowledge of the September 11th attacks or conspiring in or supporting those attacks, it has charged him with a conspiracy with those who did have foreknowledge and who did plan those attacks, and alleged that he knew the unlawful purpose of the agreement and joined willfully, with the intent to further said unlawful purpose. The issue of whether the accused was merely a
driver or knew the unlawful purpose and was actively engaged in the unlawful work of al-Qaeda seems to be very much at issue. It is not unfair to permit the Defense to seek to show that while he may have been a body guard and driver he knew little or nothing about the inner workings of this conspiracy, or that he was not a party to it, if they can. Finally, the Government raises the specter that one of these High Value Detainees may use their answers to the written interrogatories to surreptitiously convey a message to someone outside the area where they are detained. The Commission will modify its Order to address this possibility below. PROFESSIONAL RESPONSIBILITY Finally, the Commission did not order access to detainees represented by counsel over the objections of those counsel. The last sentence in the Ruling expressly directed the Defense to determine whether any of the prospective witnesses are represented by counsel and to act accordingly. The Defense reply acknowledges its ethical responsibilities to identify and consult with such counsel and expresses its intent to do so. CONCLUSION AND DECISION The Motion to Stay is moot, inasmuch as the Commission has now heard and decided the Motion for Reconsideration. The Motion for DENIED, but is particulars: Reconsideration is clarified in these
1. The Government Security Officer may forward the questions, after his and the
52
Linguists review, to other Government Security Officers and authorities in Guantanamo Bay, or to other JTF officers or representatives there who are not aligned with, and who will not communicate with the Prosecution, for delivery to and recovery from the witnesses. 2. The Government may propose additional security measures it considers necessary to protect classified information from disclosure. 3. If the Government Security Officer has procedural questions about implementation of this Order, he shall pose them to the military judge via email to the MCTJ Staff, copy to the parties. The military judge will entertain comments from the parties before giving direction to the Security Officer. 4. If the Security Officer suspects that a detainee is attempting, through his written answer to a question, to communicate some message to a colleague or a confederate, he may delete the detainees reply to that question entirely, excise the questionable part, or summarize the answer in terms that do not contain any suspect information. So Ordered this 14th day of March, 2008.
53
UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission March 24, 2008 RULING ON MOTION FOR ORDER IMPLEMENTING FOURTH GENEVA CONVENTION (D-013) Keith J. Allred Captain, U.S. Navy Military Judge
BURDEN OF PROOF The Defense characterizes this motion as one challenging jurisdiction, and urges assignment of the burden of proof/ persuasion to the Government. R.M.C. 905(c)(2)(B) The Government considers the burden to be on the Defense, as the moving party. R.M.C. 905(c)(2)(A). The Commission concludes that this motion is not a challenge to the jurisdiction of the Commission, and that the burden belongs to the Defense. MCTJ Rule 3(7)(a). The Commissions conclusions would be the same were the burden assigned to the Government. DOES THE FOURTH GENEVA CONVENTION APPLY TO THE CONFLICT IN AFGHANISTAN? The Defense argues that the Commission implicitly recognized that the Geneva Conventions apply to the conflict in Afghanistan when it ruled that the accused is entitled to an Article 5 status hearing. In fact, that Ruling was based on Congresss clearly expressed intent that in case of doubt, a detainees status should be determined under Article 5, that the CSRTs would make this determination, and on the Commissions conclusion that Mr. Hamdans CSRT had not properly done so. The Fourth Geneva Convention applies, by its terms, in three different circumstances: all cases of declared war or any other armed conflict between two or more high Contracting Parties; in cases of partial or total occupation of the territory of a High contracting Party; and when a non-signatory Power in conflict accepts and applies the provisions of the Geneva Conventions.
The Defense has moved this Commission for an Order implementing the provisions of the Fourth Geneva Convention (GC IV). The Defense argument is simple: the Commission has determined that the accused is not entitled to prisoner of war status or the protections of the Third Geneva Convention (GC III), thus he must be considered a civilian protected by the Fourth Geneva Convention. The Defense asks the Commission to enforce, inter alia, Articles 49, 65, 66, and 76, which provide certain protections to civilians in occupied areas. The Government opposes the motion, arguing variously that the Fourth Convention does not apply to the conflict with alQaeda; that the accused is not a protected person within its terms; that GC IV is not self-executing; and that Congress has expressly foreclosed appeal to the Geneva Conventions as a source of rights. The Commission heard oral argument from both sides in Guantanamo Bay, Cuba on 7 February 2008.
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The Government argues that the conflict between the Coalition and the Taliban is separate from the conflict between the Coalition and al-Qaeda. These conflicts may be separate for many purposes, but the Commission is not persuaded that on 21 November 2001, when the accused was apprehended transporting missiles on the battlefield, the United States was engaged solely in a conflict with al-Qaeda. The most likely recipients of the missiles appear to have been Taliban forces around Takta Pol or those defending Kandahar. At that time and place, Major Smith and the coalition forces under his command (his Anti Taliban Forces) were engaged in combat against primarily Taliban forces. Afghanistan was a High Contracting Party to the Geneva Convention, and the Taliban was then its de facto government. For the purposes of this motion, the Commission concludes that the accused was unlawfully engaged in, and apprehended during the course of, an armed conflict between two or more High Contracting Parties. The Fourth Geneva Convention applies to such a conflict. IS THE ACCUSED PROTECTED BY THE FOURTH GENEVA CONVENTION? The Defense cites the work of several international law scholars for the proposition that every person on the battlefield must be protected by one of the Geneva Conventions. There is no intermediate status; nobody in enemy hands can be outside the law. Pictet,
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. Applying this definition to the accused, the Commission finds, for the purposes of this motion, that the accused meets the initial, broad definition of a protected person in that he at any given moment and in any manner whatsoever, [finds himself]in the hands of a Party to the conflict or Occupying Power of which [he is] not [a] national. But the second paragraph excludes nationals of a neutral state (such as Yemen) who find themselves in the territory of a belligerent state (such as Afghanistan) while the state of which they are nationals has normal diplomatic relations with the State in whose hands they are (such as the United States). As the Government indicates in its reply brief, Yemen has long had and continues to have full diplomatic relations with the United States. U.S. Department of State, Background Note: Yemen, U.S.-Yemen
Commentary on the Geneva Conventions, Vol. IV, 51. This is undoubtedly the
general rule. Article 4 of GC IV identifies Persons protected by the convention in these terms:
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Relations, available at www.state.gov /r/pa/ei/bgn/35836.htm. The Government argues that Hamdan is clearly excluded from protected person status by this second paragraph. Pictets Commentary appears to modify the language of Article 4. He asserts that the definition of protected person may be easier to grasp under enumerated conditions that would apply on the territory of belligerent states or in occupied territories. GC Commentary at 46. Under Pictets construction, Hamdan would be excluded from the definition of protected person so long as the State in question [Yemen] has normal diplomatic relations in the State in whose territory [Afghanistan] they are. Unfortunately, his version does violence to the plain language of the Article, which excludes from its protection Nationals of a neutral state [Yemen] who find themselves in the territory of a belligerent state [Afghanistan]while the State of which they are nationals [Yemen] has diplomatic representation in the State in whose hands [American] they are. Pictet is correct when he acknowledges that the meaning does not stand out very clearly, but it appears that he has changed the meaning of this Article in his Commentary. Applying the plain terms of Article 4, the Commission concludes that the accused is not a protected person within the meaning of Article 4 because Yemen then had and continues to have diplomatic relations with the United States. Pictet, Commentary on the Geneva Conventions, 48-49. This construction of Article 4 is not without precedent. Helen Duffy acknowledges that [c]ertain limited categories of persons may, however, be
excluded [from protected person status] by GC IV, which is principally directed towards the protection of civilians associated with the adversary against whom the state is engaged in conflict. The Convention appears on its face to exclude nationals of co-belligerent states and neutral states. Helen Duffy, The War on
Terror and the Framework of International Law (Cambridge: Cam-bridge

University Press) 2005, 402. WAS THE UNITED STATES OCCUPYING POWER AFGHANISTAN? AN IN
Because the definition of protected person also makes reference to occupied territory, and because the specific relief the Defense requests is required in occupied territory, it is important to determine whether the United States was an occupying power in Afghanistan in the fall of 2001 and the Spring of 2002. The Defense contends that the United States occupied Afghanistan during that time, and that the GC IV provisions relating to an Occupying Power therefore apply to its actions. In support of this argument, the Defense cites language in Pictets Commentary urging a very broad and inclusive standard. Pictet suggests that the term in the hands of applies in an extremely general sense[I]t simply means that the person is in territory which is under the control of the Power in question. GC Commentary, 47. He also writes, Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets. When it withdraws, for example, it cannot take civilians with it, for that would be contrary to Article 49 which prohibits the
56
deportation or forcible transfer from occupied territory. GC Commentary, 60. The Government opposes this result, urging the Commission to use the more traditional definition of occupation, which would have the United States labeled an Occupying Power only when it actually assumes the functions of government and takes full control of Afghan territory. Article 42 of the Hague Regulations provides: Territory is considered occupied when it is actually placed under the authority of the hostile army and [t]he occupation extends only to the territory where such authority has been established and can be exercised. This is the traditional meaning of the word occupation in the International Law of Armed Conflict. U.S. Army Field Manual, 27-10 defines occupation, consistent with the Hague Convention, in these terms: [t]erritory is considered occupied when it is actually placed under the authority of the hostile army and [t]he occupation extends only to the territory where such authority has been established and can be exercised. Id. 351. Beyond this, the Government points to the remarks of delegates from Italy, Monaco, the Soviet Union, United Kingdom, Bulgaria and Switzerland, whose comments make plain that they, at least, adopted the Hague definition of occupation. 2A Final record
the Fourth Geneva Convention to civilian personnel protected by its terms. If the drafters of GC IV intended a new and different definition of occupation than existed in international law, it is surprising that they did not make the new definition clearer. The Commission concludes that Pictets liberal view of the meaning of occupation is his personal view, perhaps a minority view, but is simply outweighed by other authorities who hold a more widely accepted view and by the express words of the Convention itself. Thus, the Commission concludes that the Defense has not shown, by a preponderance of the evidence, that the United States presence in Afghanistan was an occupation within the meaning of GC IV or traditional international law of military occupation. This conclusion reinforces the Commissions determination that the accused is not a protected person under the Fourth Geneva Convention, and that the relief he seeks, which applies only in occupied territory, should be denied. DEROGATIONS FROM THE PROTECTED STATUS OF ARTICLE 4 Even during the discussions surrounding the adoption of the Fourth Geneva Convention, the matter of derogations from its protections was addressed. Pictet describes the issue in these words: Some people considered that the Convention should apply without exception to all persons to whom it referred, while to others it seemed obvious that persons guilty of violating the laws of war were not entitled to claim its benefitsThose who take part in the struggle while not belonging to the armed forces are acting
of the Diplomatic Conference of Geneva of 1949, at 624-629, 718-720. A host of

scholarly commentators agree. Government Response Brief at 11-14. GC IV Article 152 indicates that the Fourth Geneva Convention is supplementary to the Hague Regulations, yet the Defense cites Pictet for the proposition that Article 42 of The Hague Convention has no direct influence on the application of
57
deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. Pictet, Commentary at 52, 53. The result of these debates was Article 5, which provides: Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. GC IV, Article 5. Even if the accused was initially entitled to the protections of the Fourth Convention, this article may warrant derogation from his entitlement, as he appears to meet its definition. Where in the territory of a party to the conflict [in this case, Afghanistan] the latter [a party to the conflict] is satisfied that an individual protected person [such as Hamdan] is definitely suspected of or engaged in activities hostile to the security of the State he loses his entitlement to the rights and privileges of the Civilian Convention to the extent they are prejudicial to the security of the United States. A more restrictive reading of the Article might require Afghanistan to determine that Hamdans activities were injurious to its security, but once again, the meaning is somewhat opaque. Professor Dinstein gives support for derogation from the protected status of unlawful combatants when he writes that
an unlawful combatant is a combatant in the sense that he can be lawfully targeted by the enemy, but he cannot claim the privileges pertaining to lawful combatancy. Nor does he enjoy the benefits of civilian status: Article 5 (first Paragraph) of the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in the Time of War specifically permits derogation from the rights of such a person Yoram Dinstein, The Conduct of Hostilities
Under the Law of International Armed Conflict, (Cambridge: Oxford University

Press, 2004), 29-30 (emphasis added). Ms. Duffy properly asserts the general rule that every person on the battlefield is entitled to the protection of one of the conventions, but acknowledges that there may be exceptions. If any of the [Guantanamo] detainees are for any reason deemed excluded from both categories protected by GC III and GC IV, they are nonetheless protected by customary international law, binding on the United States. i.e., Common Article 3. Helen Duffy, The War on Terror and
the Framework of International Law

(Cambridge: Cambridge University Press) 2005, 403. In addition, the International Criminal Tribunal for the Former Yugoslavia has written: There is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Geneva Convention as a prisoner of war or of the First or Second Convention, he or she necessarily falls within the ambit of [the Fourth Convention],
provided that its requirements are
Article 4 satisfied.
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Prosecutor v. Delalic et al., Case IT-96-21-T, Judgment (Trial Chamber) 16 November 1998, para. 271 (emphasis added).
The general rule is clearly as the Defense describes it: every person on the battlefield is intended to be protected by one of the Conventions. But this is true only if they meet the requirements of Article 4. The Commission concludes that the accused does not meet those requirements, because he is a citizen of Yemen, which has full diplomatic relations with the United States, and because the United States did not occupy Afghanistan. If the Commission has erred with respect to this conclusion, it likewise appears that his status as an unlawful enemy combatant permits derogation from those rights that would otherwise apply to civilians not engaged in hostilities. He is among that unusual class of persons not protected by either GC III or GC IV, but entitled to the minimal protections of Common Article 3. EFFECT OF 10 U.S.C. 948b(g) Congress has decided that [n]o alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights. The parties have labored strenuously over the meaning of this provision of the Military Commissions Act. The Defense points to a Joint Statement by Senators McCain, Warner, and Graham on Individual Rights Under the Geneva Conventions, in which these Senators declared: [T]his legislation would not bar individuals from raising to our Federal courts in their pleadings any allegations that a provision of the Geneva Conventions or for that
matter, any other treaty obligation that has the force of law has been violated. It is not the intent of Congress to dictate what can or cannot be said by litigants in any case. (September 26, 2006) reprinted in 152 Cong. Rec. S10402 (daily ed. Sept. 28, 2006). The statement continued: this legislation would not stop in any way a court from exercising any power it has to consider the United States obligations under the Geneva Conventions, regardless of what the litigants say or do not say in the documents that they file with the court. Id. at S 10401. To the extent there is legislative history regarding this provision, it suggests that the accused may claim rights under the Geneva Conventions before this Commission. The Government argues, however, that there is no need to resort to legislative history. In its mind, the meaning of the words of the statute is clear, and expressly prevents Hamdan from invoking the Geneva Conventions as a source of rights. In support of its argument, the Government cites, in addition to the words of the statute, a series of federal cases that have held various international treaties, including the Fourth Geneva Convention, unenforceable as a source of rights in civil litigation. According to every federal court that has considered the issue, the Fourth Geneva Convention does not create private rights that may be invoked by a private party. (Govt Response Brief at 7-8). In Huynh Thi Anh v. Levi, 586 F. 2d 625, 629 (6th Cir. 1978), the plaintiff sought to rely on Articles 24 and 29 of the Fourth Geneva Convention to prevent the adoption of her grandchildren by an American foster family, after they had been evacuated from Viet Nam. The Sixth Circuit held that GC IV does not create a
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private right of action in the domestic courts of the signatory countries. In In re Iraq & Afghanistan Detainees Litig., 479 F. Supp. 2d 85, 115 (D.D.C. 2007) the Court refused plaintiffs cause of action for money damages for violations of GC IV, writing that it was not convinced that GC IV establishes individual rights that may be judicially enforced in private lawsuits in federal courts. In Iwanona v. Ford Motor Co., 67 F. Supp. 2d 424, 439 n.16 (D.N.J. 1999) a plaintiff alleged that Ford Werke forced her and thousands of others to engage in forced labor under inhuman conditions during World War II, and sought compensation under the Alien Tort Claims Act, relying on customary international law. The Court observed in a footnote that had she relied on GC IV, her claim would have been dismissed because non-self-executing treaties do not confer rights enforceable by private parties. In Am. Baptist Churches v. Meese, 712 F. Supp. 756, 770 (N.D. Cal. 1989) two individual illegal aliens from El Salvador and Guatemala sought to rely on GC IV to prevent their deportation to countries where noninternational armed conflict was in progress. The Court concluded that Article 1 of the Fourth Geneva Convention is not self-executing because it does not impose any specific obligation on the signatory nations, nor does it provide any intelligible guidelines for judicial enforcement. The central theme behind each of these cases is that plaintiffs in civil cases cannot rely on the Fourth Geneva Convention in a private cause of action, especially for money damages. Those scenarios are quite different from a battlefield detainee seeking the protection of the Fourth Geneva Convention before a military
commission. In any event, the Commission need not resolve the issue here. Because the Commission concludes that the accused is not a protected person under the Fourth Geneva Convention in any event, it does not reach this conflict over the meaning of 10 U.S.C. 948b(g). Without resolving the issues regarding 948b(g) in a larger sense, the Commission has addressed this accuseds claim of protection under the Fourth Geneva Convention here. The result is the same whether the Commission accepts the Governments restrictive construction of 948b(g), or entertains but denies the claim. CONCLUSION AND RULING Because the Commission concludes that Hamdan is not a protected person within the meaning of GC IV, and that his protected status (if he was a protected person) was properly derogated by virtue of his unlawful participation in hostilities as an unlawful enemy combatant, the Motion for an Order Implementing the Protections of the Fourth Geneva Convention is DENIED. This result is consistent with the result that would follow a literal application of 10 U.S.C. 948b(g). So ordered.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission April 2, 2008 RULING ON MOTION TO DISMISS (RES JUDICATA) (D-016) Keith J. Allred Captain, U.S. Navy Military Judge
ASSIGNMENT OF BURDEN The Defense characterizes the motion as a jurisdictional issue, and urges the Commission to assign the burden of persuasion to the Government, in accordance with R.M.C. 905(c)(2)(B). Except with respect to the issue of jurisdiction, the Manual for Military Commissions assigns the burden of persuasion to the moving party, R.M.C. 905(c)(2)(A). Appellate Courts have traditionally found that the issue of res judicata is an affirmative defense, rather than a jurisdictional question. United States v. Smith, 15 C.M.R. 369, 372 (C.M.A. 1954). Other federal courts have considered res judicata challenges to be substantive challenges to the sufficiency of the referred charges, and not challenges to jurisdiction. United States v. Delgado-Garcia, 374 F.3d 1337, 1342 (D.C. Cir. 2004); United States v. Gonzalez, 311 F. 3d 440, 442 (1st Cir. 2002). The burden is on the accused to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding. Schiro v. Farley, 510 U.S. 222, 233 (1994), quoting Dowling v. United States, 493 U.S. 342, 350 (1990). The Defense motion cites United States v. Carlisi, 32 F. Supp. 479, 482 (E.D.N.Y. 1940) for the proposition that res judicata is a rule of evidence. The Commission concludes that the burden is on the Defense, as the moving party, to demonstrate that the issue whose re-litigation he seeks to foreclose was actually decided in the first proceeding. Schiro v. Farley, 510 U.S. 222, 233 (1994), quoting Dowling v. United States, 493 U.S. 342,350(1990); R.M.C. 905(c)(2)(A).
The Defense has moved this Commission to dismiss Specification 1 of Charge I (Conspiracy) and Specifications 1,2,5,6,7 and 8 of Charge II (Providing Material Support for Terrorism) for lack of subject matter jurisdiction based on the doctrine of res judicata. The Defense also argues that portions of the charged offenses occurred outside the period of hostilities, and that the Supreme Court has already determined, in this case, that conspiracy is not an offense triable by a military commission. Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). The Government argues variously that the Supreme Courts plurality decision in Hamdan is not binding on this Commission, that a decision made in a habeas corpus proceeding must be limited to the issues necessary to the resolution of that issue, and that in any event, the Court did not fully and finally decide these matters in that opinion. Oral argument was heard in open court at Guantanamo Bay, Cuba on 7 February 2008.
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THE LAW OF RES JUDICATA R.M.C. 905(g) provides that: Any matter put in issue and finally determined by a military commission, reviewing authority, or appellate court which had jurisdiction to determine the matter may not be disputed by the United States in any other military commission of the same accused.This rule also shall apply to matters which were put in issue and finally determined in any other judicial proceeding in which the accused and the United States or a Federal government unit were parties. The doctrine of res judicata is also a part of military law, as R.C.M. 905(g), applicable to CourtsMartial, is identical to the rule for military commissions. The gist of the rule is that an issue, once decided in the case of a particular accused, is finally decided, and that decision binds subsequent courts as to that issue. Finality will be lacking if an issue of law or fact essential to the adjudication of the claim has been reserved for future determination. Restatement (Second) of Judgments 13 cmt. b. If an appellate court terminates the case by final rulings as to some matters only, preclusion is limited to the matters actually resolvedwhether it terminated the case on terms that left it unnecessary to resolve other matters or affirmed on some grounds and vacated or reversed on others. 18A Wright, Miller & Cooper 4432, at 63-64. The Government urges this Commission to distinguish the opinion of the Supreme Court on the grounds that it was issued in a habeas corpus proceeding, rather than after a trial. In the Governments view, a habeas corpus proceeding is not a
proceeding within the meaning of R.M.C. 905(g) that binds a subsequent court. It argues that a proceeding must be another adversarial proceeding, such as a criminal trial. In United States v. Saulter, 5 M.J. 281, 283 (C.M.A. 1978), the Court of Military Appeals determined that there was no jurisdiction over the accused after the United States District Court for the Eastern District of North Carolina, ruling on a habeas corpus petition, had determined that there was. A judgment rendered in a habeas corpus proceeding is res judicata onlyof the issues of law and fact necessarily involved in that result. Collins v. Loisel, 262 U.S. 426, 430 (1923). The Supreme Court having addressed these charges against this accused, the Commission declines to distinguish an opinion of the Supreme Court on so narrow and technical a ground. WHAT IS THE EFFECT OF A PLURALITY DECISION? In the reported decision of Hamdan v. Rumsfeld, four members of the Supreme Court comprised the plurality. Many of the issues the Defense considers to be res judicata by virtue of that plurality opinion were opposed by three other members of the Court. Justice Roberts did not participate in the case and Justice Kennedy did not consider it necessary to address these issues. The issue for the Commission, therefore, is whether a 4-31-1 decision has the effect of res judicata in the current proceedings. The Government cites a host of cases for the proposition that it does not. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the
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holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds. Marks v. United States, 430 U.S. 188, 193 (1977); Greggs v. Georgia, 428 U.S. 153, 169 N. 15 (1976). In CTS Corp v. Dynamics Corp of Am., 481 U.S. 69, 81 (1987), the Court wrote As the plurality opiniondid not represent the views of a majority of the Court, we are not bound by its reasoning. In another case, the Court refused to be bound by a plurality that did not command a majority of the Court. Horton v. California, 496 U.S. 128, 136 (1990). The Defense points to another case holding that a plurality decision, while it may not be binding precedent for other cases, is binding on the litigants in that case. In Durant v. Essex Co., 74 U.S. 107 (1868), the Court explained that: The statement which always accompanies a judgment in such case, that it is rendered by a divided court, is only intended to show that there was a decision among the judges upon the questions of law or fact involved, not that there was any disagreement as to the judgment to be entered upon such division. It serves to explain the absence of any opinion in the cause, and prevents the decision from becoming an authority for other cases of like character. But the
In light of this authority, the Commission concludes that the plurality opinion of the United States Supreme Court in Hamdan v. Rumsfeld meets the finally decided standard of R.M.C. 905(g), and that while the Courts plurality decision may not be precedent in other military commission cases, it is binding on this Commission in the case of Mr. Hamdan. The question for this Commission is whether the matters put in issue before the Supreme Court in 2006 are still in issue before this Military Commission. WHAT MATTER WAS PUT IN ISSUE? The Defense argues that two matters were put in issue and decided in 2006, and therefore are binding upon this commission: 2 whether conspiracy is a violation of the Law of Armed Conflict; and whether a military commission can try Hamdan for offenses that occurred before the beginning of the war. The plurality opinion addressed both of these issues in these words: the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. But the deficiencies in time and place allegations also underscore indeed are symptomatic of the most serious defect of this charge: The offense it alleges is not triable by a law-ofwar military commission. Hamdan, at 2779.
judgment is as conclusive and binding in every respect upon the parties as if rendered upon the concurrence of all the judges upon every question involved in the case.Id. at 113.
2 The Supreme Courts determination that the President did not have authority, independent of Congress, to establish military commissions, identify offenses against the law of nations, and justify deviations from the procedures established by the UCMJ are not challenged or addressed here.
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The Commission addresses these issues separately. 1. Whether conspiracy is a violation of the Law of Armed Conflict. The Plurality was clearly concerned about the conspiracy specification before it in 2006: The charge against Hamdan alleges a conspiracy extending over a number of years, from 1996 to November 2001. The elements of this conspiracy have been defined not by Congress but by the President. All but two months of that more than 5-yearlong period preceded the attacks of September 11, 2001, and the enactment of the AUMF the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions. Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 1, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war. Hamdan at 2777-2778 [footnote 30 inserted in text]. The Plurality opinion that conspiracy is not a violation of the law of war was based on the case then before it. The President, and not Congress, had authorized military commissions and outlined the elements of the offense of conspiracy. When, however, neither the
elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent [for incorporation by reference of the common law of war] must be plain and unambiguous. Id. at 2780. In essence, the issue before the Court was whether conspiracy was plainly and unambiguously a violation of the common law of war. There is no suggestion that Congress has, in exercise of its constitutional authority to define and punishOffenses against the Law of Nations, U.S. Const., Art. I, 8, cl. 10, positively identified conspiracy as a war crime. Id. at 2779-2780. The Court refused to allow the President to identify conspiracy as a violation of the common law of war, reminding us that, The accumulation of all powers legislative, executive and judiciary in the same handsmay justly be pronounced the very definition of tyranny. Id. (quoting James Madison, The Federalist, No. 47). The Courts response was clear: the President does not have authority to establish military tribunals that do not comply with the UCMJ, and he does not have authority, in the absence of Congressional action, to establish conspiracy as a violation of the common law of armed conflict. The Commission concludes that these findings are indeed binding on this Commission, under the principle of res judicata. The issue now before the Commission, however, is different. Congress has now acted under its Constitutional authority to define and punish offenses against the law of nations, and has identified conspiracy as a violation of the law of war. In doing so, Congress declared that it was not creating new offenses, but merely
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codifying existing law. MCA 950p(b). The Presidents establishment of military commissions to try violations of that Act is specifically authorized by Congress. Thus, the issues decided by the Supreme Court are no longer before the Commission. The Supreme Court may ultimately have occasion to address Congresss determination, but it has not yet done so. 2. Whether Hamdan can be tried for offenses that pre-dated the start of hostilities. The Supreme Court also addressed the requirement in military law that to be triable by military commission as a violation of the law of war, an offense must have been committed within the period of the war. Id. at 2778 (quoting Colonel Winthrops treatise, Military Law and Precedent, at 837). The issue before the Court was whether Hamdan can be tried for any conspiracy that predated September 11, 2001. The Justices disagreed over whether the war began on September 11, 2001. Once again, Winthrop was describing, and the Supreme Court was discussing, the common law of war. The Court wrote: All parties agree that Colonel Winthrops treatise accurately describes the common law governing military commissions, and that the jurisdictional limitations he identifies were incorporated in Article of War 15 and, later, Article 21 of the UCMJ. Id. at 2777 (emphasis added). The Court continued: First, Kuehn was tried for the federal espionage crimes under what were then 50 USC 31, 32 and 34, not with common law violations of the
law of war. Id. at 2778 (first two emphasis in original; third emphasis added). It is clear, therefore, that Winthrops well-regarded treatise and the Courts opinion addressed the common law of war, not the situation that currently faces this Commission: whether Congress has determined that offenses occurring before, on or after September 11th may properly be tried by military commission. The Supreme Courts opinion also turned on its finding that the President was bound by Article 21, UCMJ. If nothing else, Article 21 of the UCMJ requires that the President comply with the law of war in his use of military commissions Id. at 2778. Article 21 provides that the UCMJ does not deprive military commissions of jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions Indeed, in 2006 he was so bound, and the offenses a military commission could entertain were only those that by the law of war may be tr[ied] by military commissions. Id. (emphasis added). Since Congress has now acted, the President may, consistent with Article 21, compose military commissions that hear offenses that by statutemay be tried by military commissions. Article 21, UCMJ. In addition, Congress has tempered the effect of Article 21 by making it inapplicable to these military commissions. MCA 4a(2), 120 Stat. 2631, where Article 21 is amended to add: This section does not apply to a military commission established under Chapter 47A of this title. The question before this Commission, therefore, is whether Congress has amended or expanded the reach of the common
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law of war, such that offenses committed prior to September 11, 2001 may be tried by military commission. The Commission finds that Congress intended to enact a system of offenses broader than the common law of war, and that in doing so, it has relied on its express Constitutional authority to define and punish offenses against the law of nations. Because the MCA was so clearly a response to the Supreme Courts opinion in Hamdan, the Commission finds that Congress intended to address the Courts ruling regarding the significance of September 11, 2001 when it chose the before, on, or after language of MCA 948d(a). The language of that section, of course, only applies to unlawful alien enemy combatants, and this term is defined to include one who has engaged in hostilities. MCA 948a(1)(i). Reading these provisions together, the Commission concludes that offenses committed prior to September 11, 2001 by unlawful enemy combatants may be tried by military commission, so long as they affected or were related to the period of hostilities. If Hamdan is to be convicted of a conspiracy in violation of the law of war, it must be a conspiracy that occurred during the period of hostilities, or which affected or related to the period of hostilities. Membership in a conspiracy that planned and carried out the attacks of September 11th, 2001 will be deemed to be in violation of the law of war; membership in a conspiracy that planned or carried out other attacks long before that date and unrelated to hostilities will not. CONCLUSION AND RULING The Defense Motion to Dismiss Charge I and its Specification, and Specifications 1,2,5,6,7 and 8 of Charge II on the
grounds of res judicata is DENIED for the following reasons: 1. The Supreme Court did not address or decide any questions relating to the offense of Material Support for Terrorism. 2. The Supreme Courts opinion regarding conspiracy as a violation of the common law of war is not germane in light of Congresss subsequent action passing the MCA. 3. The Supreme Courts opinion regarding the period of hostilities is based on the common law of war. Congress has decided, in enacting the MCA, that offenses made punishable by the MCA, when committed by unlawful enemy combatants, may be punished whether committed before, on or after September 11, 2001, so long as they are related to the period of hostilities.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission April 4, 2008 RULING ON MOTION TO COMPEL PRODUCTION OF ALL RECORDS RELATING TO THE ACCUSEDS CONFINEMENT (D-020) Keith J. Allred Captain, U.S. Navy Military Judge
tapes, manuals or other records in existence that have not been provided. The Government responded on 2 April, asserting that it had made a diligent search, and searched again, for any materials responsive to the motion. It assured the Commission that JTF [Guantanamo Bay] has conducted an extensive search, and then checked again, and has confirmed that they possess no video interrogations of the accused. Responding to Mr. Houricans declaration that every interrogation conducted at Guantanamo was videotaped, trial counsel asserts that he has given the Defense the only interrogation video of which the trial counsel is awarethe capture video. Trial counsel also confirmed that no specialized SOPs regarding detainee operations existed at Bagram during the time the accused was there, and asserts that the Government will continue to search its files for material responsive to this request and will promptly deliver to the Defense any responsive material that is discovered. As before, the Commission GRANTS this motion. The type of material the Defense is requesting is absolutely appropriate for their preparation for trial, and the Government is ordered to produce it. At the same time, the Commission accepts the Governments assertion that it has already delivered all responsive materials of which it is aware, and that it will comply with its ongoing discovery obligation. Under the circumstances, the Commission need not order the Government to do what it already intends to do, and is conscientiously engaged in doing.
The Defense seeks an order compelling the Government to produce all records regarding the accuseds confinement, including Standard Operating Procedures, videotapes of his interrogations, and records regarding his treatment. At oral argument on 8 February 2008, the Government indicated its intention to comply with the motion. The Commission granted the motion in open court, was informed on the record that additional materials were being gathered in response to the motion, and that they would soon be delivered to the Defense. The Commission left Guantanamo Bay under the impression that the additional materials had already been delivered to the Defense. On 26 March, the Defense filed a supplemental brief, offering the statements or declarations of various individuals that led them to believe that there might still be video-
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Unless the Defense is aware of a specific item it wants the Government to produce, the Commission is satisfied that the Defense has received all discovery responsive to this request.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission April 21, 2008 RULING ON MOTION TO COMPEL PRODUCTION OF THE NAMES AND CONTACT INFORMATION OF ALL GOVERNMENT AGENTS INVOLVED IN THE INVESTIGATION OF THIS CASE (D-018) Keith J. Allred Captain, U.S. Navy Military Judge
another figure who was briefly visible in the videotape. The Government objects to identifying Witnesses B and C on the grounds that (1) the Defense has not shown that they would provide relevant or exculpatory evidence; (2) the Government has provided a copy, a transcript, and a translation of the video, and has identified witness A and Major Smith (the Army Officer whose forces apprehended the accused); and (3) national security considerations argue against identifying the other two witnesses. The Commission heard oral argument at Guantanamo Bay, Cuba on 78 February 2008; considered a classified, ex parte, in camera declaration filed by the Government to support its assertions regarding the national security issues; and considered a supplementary filing submitted by the Defense on 11 April. DISCOVERY IN A MILITARY COMMISSION 18 U.S.C. 949j gives defense counsel a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense and includes authority under which the military judge can protect classified information. The Secretary has prescribed regulations for obtaining witnesses and evidence in the Rules for Military Commissions. R.M.C. 701(j) provides that: Each party shall have adequate opportunity to prepare its case and no party may unreasonably impede the access of another party to a witness or evidence. R.M.C. 703(c)(2)(B)(i) requires a preliminary showing of relevance and necessity when the Defense seeks production of witnesses for trial.
The Defense has moved this Commission for an order compelling the Government to disclose the names and contact information of all government agents involved in the investigation of the case. While the motion seeks the names and contact information of all government investigators who conducted investigations in this case, there is a specific dispute about the names and contact information of all three officials who appeared in a capture video made on 21 November 2001, the day of Hamdans capture. In December of 2007, the Government claims to have identified to the Defense Witness A, who was primarily responsible for the interrogation and who was present throughout the making of the video, but declined to identify Witness B, the interpreter, or Witness C,
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The relevant rule here is R.M.C. 701(j), which allows both parties an adequate opportunity to prepare their cases. The Defense asserts that interviews of the requested witnesses may reveal a basis for suppression of the videotaped interrogation of Mr. Hamdan, but has offered no evidence that such a basis exists. The Government has identified a national security interest in not identifying Witness C, and has generally objected to identifying Witness B on the grounds that he will only provide cumulative evidence. The Defense has already cross examined Major Smith, whose forces apprehended Mr. Hamdan, and who was responsible for his care and protection during this period, and has finally been given access to Witness A, who conducted and was primarily responsible for the interview. Apparently, neither of these witnesses has suggested a basis for suppression of the video. Nor does the video itself suggest any basis for its suppression. The Defense has access to yet another person present during that interview, i.e., Mr. Hamdan, and he does not appear to have given them a basis for suppression of the video. None of this evidence suggests that a basis for suppression of the tape exists. And yet the Defense understandably desires to interview all witnesses. The Government has asserted a national security interest in protecting the identity of Witness C, and the Commission accepts this claim. The Governments general assertion that an interview of Witness B would place an undue burden on the Government and risk damage to national security is merely an assertion by counsel. The motion is therefore GRANTED as to Witness B. If issues of time, distance, or security prevent a personal interview with Witness B or the disclosure of his
location or identity, the Government shall arrange for Witness B to call a member of the Defense team at a pre-arranged time so the Defense may inquire about the circumstances surrounding the making of the video, without necessarily knowing the identity of Witness B. If necessary, he may identify himself during the interview as Witness B, who was present during the making of the capture video. The Government asserts that it is continuing to comply with its ongoing discovery obligations, yet in a supplemental filing dated 11 April, the Defense identified several other witnesses who were present for portions of various sessions at which the accused was interrogated, and whose identities had not been disclosed. The Defense also contradicts the Governments assertion that Witness A was disclosed to them in December. The Defense argues that the Governments failure to timely identify these witnesses suggests that the Government has not continued to promptly fulfill those discovery obligations as it should. The Commission reminds the Government that conscientious compliance with discovery is expected. CONCLUSION AND DECISION The motion is DENIED as it pertains to Witness C, and GRANTED as it pertains to Witness B, subject to the conditions described above. With respect to other government officers who participated in the various interrogations of the accused, and whose identities are not subject to national security considerations, the motion is GRANTED.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission April 23, 2008 RULING ON DEFENSE MOTION FOR EMPLOYMENT OF EXPERT WITNESS (DR. BRIAN WILLIAMS) D-025 Keith J. Allred Captain, U.S. Navy Military Judge
of assistance is not sufficient to prevail on the request. Bresnahan, 62 M.J. at 143. Instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense and (2) that denial of expert assistance would result in a fundamentally unfair trial. To establish the first prong, the accused must show (1) why the expert assistance is needed; (2) what the expert assistance would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop. Bresnahan, 62 M.J. at 143; United States v. Freeman, 65 M.J. 451 (C.A.A.F. 2008). To meet its burden with respect to the employment of Dr. Williams, the Defense has argued various themes: 1. Dr. Williams will be able to help the Defense defeat several of the Specifications laid under Charge II by testifying that the intended recipients of the missiles the accused was carrying on November 21, 2001 were neither terrorists nor an international terrorist organization. This is an element of the offense of providing material support for terrorists. MCA 950v (24), (25). 2. Dr. Williams can help the accused establish the affirmative defense of lawful combatancy or that he was a supply contractor for lawful combatants, by providing some evidence that the accused was entitled to one or both of the defenses. Specifically, he can help establish that the Ansars and the Taliban were regular armed forces that complied with the law of war.
The Defense has moved for an order compelling the employment of Professor Brian Williams as an expert witness to assist the Defense in preparation for, and at, trial. The Government opposes the motion, arguing that Dr. Williams is irrelevant because he cannot raise the defense of lawful combatancy; that the Defense does not invoke the defense of combatant immunity; and that Dr. Williams is not needed as a consultant for The Al-Qaeda Plan, a video documentary that Government proposes to offer. The Defense waived oral argument and both parties submitted the matter for decision in Chambers. The Defense, as moving party, bears the burden of persuasion. R.M.C. 905(c(2)(A). An accused is entitled to investigative or other expert assistance when necessary for an adequate defense. United States v. Garries, 22 M.J. 288, 290 (C.M.A. 1986); United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005). The mere possibility
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3. Dr. Williams is needed to consult with the Defense about the documentary the Government proposes to introduce (The Al-Qaeda Plan). Relying on United States v. Lee, 64 M.J. 213, 217 (C.A.A.F. 2006), the Defense argues that because the Government has apparently retained the expertise of Mr. Kohlmann, the producer of the video, that it should have access to an expert who can help them examine Mr. Kohlmanns credentials and consult with them about the objectivity of his video. ANALYSIS AND DECISION With respect to the first argument, the Commission finds that the Defense is entitled to the assistance of Dr. Williams to testify regarding the intended recipients of the missiles. Whether the missiles were intended for an individual or an organization, that entitys status as a terrorist, a terrorist organization, or an unlawful fighting force is relevant to the defense against Charge II at trial. With respect to the proposed affirmative defenses, the Commission has already found, by a preponderance of the evidence, that the accused is an unlawful combatant. But if the Defense can show some evidence regarding each element of the defense of lawful combatancy or another affirmative defense), the accused is entitled to have the defense put before the members. Thereafter, the Government must disprove the affirmative defense beyond a reasonable doubt. (R.M.C. 916). Here the Defense proposes to use Dr. Williams to testify that the Taliban and the Ansars were the legitimate military forces of Afghanistan at the time the accused was captured, and that his participation in
hostilities in support of those forces may have been as a lawful combatant or as a supply contractor for lawful combatants. If Dr. Williams is able to establish that the recipients of the missiles were lawful combatants, the Defense may be able to show, through other evidence, that he meets the definition of supply contractor, and may thus be able to raise an affirmative defense. With respect to the Defenses need to consult with an expert regarding the Governments proposed documentary video on al-Qaeda, the arguments are less clear. The Commission has not seen the documentary, and its objectivity may or may not be in question. The Government does not admit that it has retained Mr. Kohlmann as its expert. But because the Defense is entitled to have the services of Dr. Williams with respect to its first two issues raised above, the Commission also approves his employment to consult with the Defense regarding the video. The Defense has not established the need for 80 hours of pretrial preparation and consultation, and this figure seems very high under the circumstances. Without a better showing, the Commission approves only 20 hours for preparation and consultation. If Dr. Williams is to be compensated for his travel time, some of this preparation may and should be done while traveling. The hours requested for travel and testimony are approved as requested. Subject to this caveat, the motion for the employment of Dr. Williams is GRANTED.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission April 23, 2008 RULING ON DEFENSE MOTION FOR EMPLOYMENT OF EXPERT WITNESS (DR. EMILY KERAM) AND REQUEST FOR CONTINUANCE (D-031) Keith J. Allred Captain, U.S. Navy Military Judge
in connection with two different motions. One challenges the conditions of the accuseds pretrial confinement, alleging that they are unnecessarily severe and constitute pretrial punishment, and seeking pretrial punishment credit for the time the accused has spent in solitary confinement. The other seeks to suppress statements of the accused that were allegedly obtained through coercive techniques. After a protracted exchange of correspondence between the Defense and the Convening Authority between June of 2007 and April of 2008, the Convening Authority denied the request for additional compensated service by Dr. Keram on 4 April 2008. The Convening Authority denied the request for Dr. Kerams services with respect to the pretrial confinement motion on the grounds that there has been no judicial determination that the accused is in pretrial confinement, or that the conditions of his detention are illegal. Even assuming, arguendo, that multi-day credit is a remedy available in military commissions practice, the standard is objective and would not require the expert testimony of a psychiatrist. With respect to the motion to suppress the accuseds statements because they were obtained through coercive techniques, the Convening Authority wrote: Your 17 March 2008 request does not provide any indication that the accuseds pretrial statements were obtained through the use of coercion, other than the Defense expects Dr. Keram to testify that Hamdan experienced a real fear of death in Afghanistan Your motion to suppress states that Dr. Keram will testify about the facts of various interrogation techniques alleged[ly] used on Hamdan. The motion does not identify the
The Defense has moved the Commission to compel the Convening Authority to provide funding for 132 hours of additional work by Dr. Emily Keram, a forensic psychiatrist who has been employed by the Defense for various consultations and interviews since 2004. Between 2004 and the present, Dr. Keram had devoted more than 100 hours of work to this case. The Government opposes the motion, arguing that the Convening Authority has properly evaluated and denied the Defense request. The Defense also seeks a continuance of the scheduled litigation of the motions with respect to which Dr. Keram was to have testified, until the session of Court beginning 28 May 2008. The Government also opposes this request, arguing that Dr. Kerams testimony on both motions is neither relevant nor necessary. The Defense seeks the continued employment of Dr. Keram for testimony
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statement with respect to interrogation technique, nor does it inform me of Dr. Kerams expertise as a forensic psychologist [sic] is relevant and necessary for purposes of your Motion to Suppress. As a consequence, the Convening Authority denied the services of Dr. Keram with respect to both pending motions. At the same time, the Convening Authority (1) approved funds for Dr. Kerams travel to Guantanamo Bay to testify regarding the interrogation methods allegedly used on Mr. Hamdan, and (2) offered to reconsider her denial if the Defense is able to provide a link between Dr. Kerams expertise as a forensic psychiatrist and alleged connection between the solitary confinement and an impairment of the accuseds right to counsel and his right to be present at trial. ANALYSIS AND DECISION The Commission concurs with the Convening Authoritys determination that the testimony of a forensic psychiatrist is unnecessary to the resolution of a motion regarding the conditions of confinement or the issue of pretrial punishment The Commission concurs that the Defense has not shown how a generalized fear that arose in Afghanistan, when the accused was apparently beaten and threatened by Afghan and Egyptian forces, rendered his subsequent statements to American interrogators (some of which were given years later) the product of coercion. The Commission concurs with the Convening Authoritys willingness to entertain additional hours by Dr. Keram if the Defense shows a connection between
those professional services and the accuseds right to counsel and to be present at trial. In order to permit the Defense to make that showing, the Commission GRANTS the motion up to four additional hours of Dr. Kerams services. At this late date, Dr. Keram may not reasonably be expected to travel to Guantanamo Bay for the next session of trial. If the Defense prefers another month of continuance over addressing the conditions of the accuseds confinement at the end of April, the continuance is granted. The continuance also permits the Defense to make its additional showing regarding right to counsel, and may permit Dr. Keram to prepare more thoroughly before she travels to Guantanamo Bay in May.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission April 24, 2008 RULING ON DEFENSE MOTION TO COMPEL PRODUCTION OF OUT-OFCOUNTRY WITNESSES AT TRIAL, DEPOSITION, TESTIMONY, OR ALTERNATIVELY, ABATEMENT (D-024) Keith J. Allred Captain, U.S. Navy Military Judge
to a partys presentation of the case in some positive way on a matter in issue. R.M.C. 703(f)(1) discussion. R.M.C. 703(c) (2)(D) provides that trial counsel shall arrange for the presence of witnesses listed by the defense if they are deemed relevant and necessary. R.M.C. 703(3) permits the use of two-way video teleconference for testimony, and R.M.C. 914(A) provides specifically for the use of live video testimony for any witness unable to be secured via legal process. The Defense has inquired and indicates there are no video-teleconferencing facilities available in Yemen. With respect to each witness it requests, the Defense must submit a request that contains identifying information, if known, and a synopsis of the expected testimony of the witness sufficient to show its relevance and necessity. The Defense has given what information about these witnesses it has, and made proffers it is able to make. The Commission addresses each witness separately: NASSER AL-BAHRI Mr. al-Bahri will apparently testify that he was bin Ladens chief of security, and that he knew the accused as a salaried driver who never joined al-Qaeda and who had no interest in fighting, whose association with al-Qaeda was purely professional, which the Commission understands to mean an employment relationship. The synopsis indicates that al-Bahri will testify about the circumstances under which the accused was photographed in uniform and in company with bin Laden, but does not indicate what that testimony will be. The Defense acknowledges that certain security issues
The Defense has moved for an order compelling the production of four witnesses. Three (Nassar al-Bahri, Muhammed Ali Qassim al-Qalaa, Umat al-Subur Ali Qassim al-Qalaa) are located in Yemen and one (Abdullah Tabarak) is located in Morroco. As an alternative, the Defense seeks to have their testimony produced by live video conference. The Government has denied the request as to Nasser al Bahri and Abdullah Tabarek, but agreed to produce Muhammed Ali Qassim al-Qalaa and Umat Ali Qassim al-Qalaa via live video testimony. An accused at military commission is entitled to the production of witnesses whose testimony is both relevant and necessary. R.M.C. 703(b)(1); 10 U.S.C. 949j; see, e.g., United States v Breeding, 44 M.J. 345 (C.A.A.F. 1996). Relevant evidence is necessary when it is not cumulative and when it would contribute
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of which it is aware will prevent him from appearing to testify in person. A witness who cannot, because of security prohibitions resulting from his association with al-Qaeda, appear to testify is unavailable within the meaning of R.M.C. 703(b)(3) and M.C.R.E. 804(a). The Defense is not entitled to the production of an unavailable witness. Because the synopsis does not detail the circumstances surrounding the filming of the accused in uniform with bin Laden, it is insufficient as to that portion of his testimony. MUHAMMED ALI QASSIM AL-QALAA The Defense asserts that the Prosecution does not oppose production of the witness, who is the accuseds brother-inlaw. Mr. al-Qalaa possesses a valid passport and is apparently able to travel to the site of the trial. UMAT AL-SUBUR ALI QASSIM ALQALAA The Defense asserts that the Prosecution does not oppose production of the witness, who is the accuseds wife. Mrs. al-Qalaa possesses a valid passport and is apparently able to travel to the site of the trial. ABDALLAH TABARAK The Defense proffers that this witness was Osama bin-Ladens chief bodyguard. He will testify that Mr. Hamdan was merely a paid member of bin Ladens motor pool. Mr. Tabarak will testify that Mr. Hamdan had no knowledge of and never participated in terrorist activities. The Defense notes that this witness is
also likely ineligible for transport and clearance to Guantanamo Bay, Cuba to testify at trial, apparently as a result of his former association with al-Qaeda. If the witness is unable to travel as a result of his former association with al-Qaeda, this witness is also unavailable within the meaning of R.M.C. 703(b)(3) and M.C.R.E. 804(a). The Defense is not entitled to the production of witnesses who are unavailable The Defense admits the possibility that the two witnesses the Government has agreed to produce (al-Qalaa and alQalaa) may also be ineligible for travel to Cuba for trial, and requests a deposition of all four witnesses. The Government asserts that it cannot guarantee the presence of Muhammed Ali Qassim al-Qala or Umat al-Subur Ali Qassim al-Qala to provide testimony in person at Guantanamo Bay, and argues that security threats in Yemen are sufficient to prevent the Commission from ordering a deposition there. The Defense responds that two members of the Defense team recently returned from three weeks in Sanaa Yemen, interviewing witnesses and moving freely about the city without apparent danger. ANALYSIS AND DECISION The proffers of expected testimony of these witnesses indicate that they are relevant and necessary, and the Commission directs the taking of their testimony in the form desired by the Defense, to the extent possible. At least two, and perhaps four, of the requested witnesses may be ineligible to travel to the United States. Indeed, there are several unknowns remaining in this case.
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The Commissions decision is therefore crafted in alternatives and provisos, in light of the approaching trial date. 1. The Government is directed to formally and promptly determine which of these four witnesses are barred from travel to the trial, by consulting with the appropriate government agency, and to inform the commission of its findings at the earliest opportunity. 2. If Mr. al-Qalaa (brother-in-law) and Mrs. Al-Qalaa (wife) are eligible for travel to the trial, the Government is directed to provide them with invitational travel orders and arrange for their travel. 3. If these witnesses are ineligible for, or decline travel to the site of trial, an oral deposition of their testimony is ordered. If the parties travel to Sanaa to depose Mr. and Mrs. al Qala-a, they shall also attempt to depose Mr. al-Bahri, as the Commission determines that he has relevant testimony that may be helpful to the Defense. 4. The Government shall make efforts to locate Mr. Tabarak and determine his willingness to be deposed, and inform the Commission as soon as it determines the witnesss status. (The Government did not elaborate on its comment that the Defenses overtures to contact Tabarak have been met with nothing but resistance by his known legal representative.) A telephone call to that representative may settle that matter. If, as the Defense suspects, he is not eligible for travel to the United States for trial, but he is willing to testify from Casablanca, the Government shall determine the availability of video teleconference testimony from Casablanca. If this is avail-
able, the Commission orders his testimony taken in that manner. If he cannot travel, is willing to cooperate, but cannot do so by video teleconference, a deposition is ordered. If he is unwilling to cooperate, that is the end of the matter. 5. Finally, if the Government considers it more economical or otherwise preferable to join in the Defense request for a deposition of all, or all Yemeni, witnesses, it may do so in lieu of bringing these witnesses to the United States and Cuba for trial.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission April 30, 2008 ORDER AUTHORIZING DEPOSITION, TESTIMONY AND APPOINTMENT OF DEPOSITION OFFICER Keith J. Allred Captain, U.S. Navy Military Judge
deposition as true and accurate and as a verbatim account of the proceeding. This Order does not alter the obligations of the Government under the abovereferenced 24 April 2008 Order to determine whether Mr. al-Qalaa (brother-in-law of the accused) and Mrs. al-Qalaa (wife of the accused) are eligible for travel to the trial, and if so, provide them with invitational orders and arrange for their travel.
Pursuant to my Order dated 24 April 2008, I hereby authorize the taking of oral deposition testimony of the following persons, pursuant to Chapter 14 of the Regulation for Trial by Military Commissions: Nasser al-Bahri Umat al-Sabur Ali Qassim al-Qalaa Muhammed Ali Qassim al-Qalaa The parties shall make arrangements to take the testimony of the witnesses in Sanaa, Yemen. This Order directs that a competent individual to be appointed by the U.S. Embassy in Sanaa will take or cause to be taken the oral deposition of the abovenamed witnesses, or delegate that responsibility to other authorized personnel. The deposition officer will certify the transcript, audiotape, or sound film of the
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission May 9, 2008 RULING ON MOTION TO DISMISS (UNLAWFUL INFLUENCE) (D-026) Keith J. Allred Captain, U.S. Navy Military Judge
Guantanamo Bay, Cuba on 28-29 April 2008. FINDINGS OF FACT: In connection with this motion, I find the following facts to be true: WITH RESPECT TO COLONEL MORRIS DAVIS AND GENERAL THOMAS HARTMANN 1. Colonel Morris Davis traveled to Washington D.C. in August of 2005 to interview with DoD General Counsel Mr. Jim Haynes for the position of Chief Prosecutor, Office of Military Commissions. 2. During the interview, Colonel Davis observed that the reputation of the commissions for fair treatment might be enhanced if there were some acquittals, as there had been in Nuremberg. Mr. Haynes responded, We cant have acquittals. Weve got to have convictions. We cant hold these men for five years and then have acquittals, or words to that effect. Colonel Davis was surprised that Mr. Haynes did not appear to have considered the possibility of acquittals. Colonel Davis also opined that OMC needed to be more engaged with the media, and Mr. Haynes was happy to hear that. Notwithstanding the exchange about acquittals, or perhaps because of it, Colonel Davis was offered the job. Colonel Morris affirmatively denies that this statement had any impact on any of the decisions he made in Mr. Hamdans case. 3. Colonel Davis reported for duty as Chief Prosecutor in September of 2005. At that time Mr. Haynes was not in his supervisory chain, and so Colonel Davis
The Defense has moved the Commission to dismiss all charges and specifications with prejudice, or in the alternative, to disqualify the Convening Authority and the Legal Advisor to the Convening Authority from any further participation in the case as a result of command influence on the Chief Prosecutor and other prosecutors in the case. The Government opposes the motion, arguing that the conflict between General Thomas Hartmann (Legal Advisor to the Convening Authority) and Colonel Morris Davis (formerly the Chief Prosecutor of the Office of Military Commissions) and his staff did not amount to unlawful influence. The Commission heard the testimony of Colonel Morris Davis, USAF, former Chief Prosecutor; Major General John Altenberg, US Army (Ret) and former Appointing Authority; Major (Ret) Michael Berrigan, Deputy Senior Defense Counsel, Office of Military Commissions (OMC), and received various items of documentary evidence in open court at
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did not consider the remark about acquittals to be from someone who would have authority over him. Military Commission Instruction (MCI) #3 required Davis to report to the Legal Advisor, who reported to the Appointing Authority. MCI #3 also indicated that the chief prosecutor shall direct the overall prosecution effort. 4. Soon after reporting for duty, Colonel Davis learned about some dissension in the office prior to his arrival, as a result of the Preston Carr memo, written by an Air Force officer previously assigned there. He was eager to settle the prosecutors down and assure them of his policies, apparently in light of the disturbance Carr had occasioned. He met with them individually, and, among other things, told them that they would not be pushed to use any evidence that had been gained by the use of torture, waterboarding, or anything else they considered inappropriate. He invited his prosecutors to come and speak to him if they had any questions about their cases or their evidence. Colonel Davis got very little supervision from anyone during the first eighteen months or so of his tour as Chief Prosecutor. Indeed, he sometimes felt that nobody cared how he did his job. During this period, Colonel Davis was rated by the Appointing Authority and Mr. Haynes, both of whom described his performance in glowing terms. 5. About 28 September of 2006, he attended a meeting of the Senior Oversight Group, held in the office of Deputy Secretary of Defense Gordon England. During one of these meetings, Mr. England said, there could be strategic political value in getting some of these cases going before the [November
2006] elections. We need to think about who could be tried, or words to that effect. The Commission takes judicial notice that the Supreme Court issued Hamdan v. Rumsfeld in June 2006 and that the Military Commissions Act was not signed until late October 2006. Consequently, there was no possible way in which any military commission case could be referred, much less brought to trial, before the November 2006 elections. 6. Mr. Haynes immediately jumped into the conversation and corrected Mr. England by saying, There is only one person in this room who can make those decisions, and that is Colonel Davis. Charging decisions are his alone or words to that effect. Everyone present seemed to agree, and Colonel Davis viewed the remark as an opinion, rather than a command. Colonel Davis affirmatively denies that this statement had any effect on any decision he made with respect to Mr. Hamdans case. 7. During the same meeting, then-Under Secretary of Defense for Intelligence, Mr. Steve Cambone opined that Department of Defense (DoD) attorneys were not sufficiently experienced to handle these cases, and that they needed to get some Department of Justice (DOJ) attorneys involved. Although no DOJ attorney had made an appearance in a military commission hearing before that date, they have since been assigned to military commission trial teams. Colonel Davis affirmatively denies that this statement had any impact on any decision he made in the Hamdan case. 8. While at the time certain High-Value Detainees were in the custody of the CIA, Colonel Davis believed they would
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ultimately come into DoD hands, and that their trials would be assigned to his prosecutors. In September of 2006 the HVDs were transferred to DoD custody, and at that point many people became interested in the OMC Prosecutors and how they performed their duties. 9. On 7 September 2006, as the MCA was being drafted, Colonel Davis was invited to the office of an old Air Force friend, now Senator Lindsay Graham, to discuss the pending legislation. He met for about two hours with Senate staffers, and more briefly with Senators Graham and McCain. During this meeting, Senator McCain asked Colonel Davis what he needed to do the job right, and he replied that he needed protection for the independent exercise of judgment by both prosecutors and defense counsel. Colonel Davis had in mind, as he made this observation, the comments of Mr. Haynes and perhaps others he had heard during the course of his many meetings. He was invited to draft some language, and he proposed the language that now appears at MCA 949(a)(2)(C) No person may attempt to coerce or, by any unauthorized means, influence the exercise of professional judgment by trial counsel or defense counsel. The Military Commissions Act was passed on October 17, 2006, and signed into law soon thereafter. 10. On January 9, 2007, Mr. Haynes nomination for a seat on the Fourth Circuit Court of Appeals was withdrawn, apparently in large part because of a memo he had written regarding the use of torture on detainees. Later that day, Mr. Haynes called Colonel Davis and asked how soon charges could be prepared against David Hicks. Colonel Davis reported that there were still many steps
to be put in place before anyone could be charged. These included the issuance of the Manual for Military Commissions (MMC) and the DoD Trial Regulations, which would include the elements of the offenses, and the appointment of a Convening Authority. Mr. Haynes pressed Colonel Davis for an answer, and he finally opined that he might be able to have charges ready within two weeks after receiving the MMC. 11. Within thirty minutes of this call, Mr. DellOrto, the Principal Deputy General Counsel, called to assure Colonel Davis that Mr. Haynes had been out of line, and to disregard everything Mr. Haynes had said. 12. Two weeks after the MMC was issued, Mr. Haynes called again to inquire about charges for David Hicks, and asked if others could also be charged. Colonel Davis responded that there were others who could also be charged. These included Hamdan and Khadr. All three had previously been charged before military commissions. 13. Colonel Davis considered this insistence on speedy processing premature. There was still not a complete process for the trial of detainees, and there was still no Convening Authority in place who could refer charges even after they were prepared and sworn. 14. Mr. Hamdans case had first been referred to trial on 13 July of 2004. The Supreme Court issued its decision in Hamdan v. Rumsfeld on 29 June 2006. The Military Commissions Act was signed and became effective in October, 2006, and charges were sworn again on 2 February 2007, and referred for trial on 10
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May 2007. This Commission dismissed the charges on 4 June, and the Prosecution filed a Motion for Reconsideration on 8 June. Brigadier General Hartmann reported for duty as Legal Advisor to the Convening Authority on 2 July 2007. On 17 August 2007, this Commission agreed to reconsider the evidence of jurisdiction over Hamdan. 15. Brigadier General Hartmann first met Colonel Davis on 2 July 2007, while Colonel Davis was about to undergo surgery, followed by a months convalescent leave. During his absence, General Hartmann began visiting the Prosecutors Office, asking counsel about their cases, and requiring detailed reports regarding the evidence, witnesses, and level of counsel preparation to try the cases. In Colonel Davis opinion, General Hartmann took micro-management to the level of nano-management which amounted to cruel and unusual punishment. 16. During Colonel Davis nearly monthlong absence for convalescence, LTC Britt called him at home nearly daily to discuss office business. Either LTC Britt or Colonel Davis described General Hartmanns conduct and demands as cruelty and maltreatment. During the same period of convalescence, General Hartmann called Colonel Davis at home, questioning his leadership, his Deputys integrity, the general quality of the prosecution shops work, and giving him specific direction about needed improvements. He punctuated his demands with statements such as, Am I making myself clear, Colonel? Colonel Davis was shaken, and offered to resign the next day. General Hartmann backed off and
assured Colonel Davis that there was no need for that. 17. On 18 July General Hartmann announced that he was going to select the next cases to go forward. He wanted cases that would be sexy enough to capture the public interest, or cases in which an accused might have blood on his hands, rather than cases involving low level actors transporting documents, etc. Sexy was a term then in use in Colonel Davis office that General Hartmann had adopted. In a meeting in the prosecution war room on 19 July, General Hartmann announced to all in attendance that he wore two hats: one as Legal Advisor to the Convening Authority, and one in charge of the prosecution. 18. As a result of concerns about what was going on in his office, Colonel Davis returned to work after only 18 days of convalescent leave, a week earlier than he had intended. 19. On 15 August 2007 a meeting was held between Colonel Davis, General Hartmann, and various assistants and representatives of other agencies. Anticipating a favorable decision from the Court of Military Commission Review (CMCR) in the near future, General Hartmann directed that three cases be ready to refer the day that decision was issued. Colonel Davis objected that three cases could not be ready by that date, and thought it odd that the Legal Advisor should be directing a particular number of cases to be referred on a date certain. General Hartmann stopped the discussion by saying, I said we are going to have three cases ready on that day. Does everyone understand me?
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20. On a number of occasions between July and September of 2007 General Hartmann accentuated his position of authority over Colonel Davis by explicit reference to the difference in rank, with phrases such as, Do you understand me, Colonel? and Am I making myself clear, Colonel? On other occasions during the same period of time, the two often had productive, collegial and mutually satisfying discussions about the best way forward in trying these cases. They sometimes laughed together, enjoyed sharing personal, professional and family discussions, and seemed (to Colonel Davis) to be working well together on commissions matters. 21. General Hartmann had no active involvement in the Hamdan case because it had already been referred for trial and was in the hands of this military judge before General Hartmann reported for duty as the Legal Advisor. Sometime in August of 2007, General Hartmann received a call from Mr. Haynes, who reported that Hamdans civilian counsel was interested in a pretrial agreement. Mr. Haynes apparently directed General Hartman to personally conduct the negotiations. When Colonel Davis offered to have the Hamdan counsel brief him on the case and help prepare him for the negotiations, he declined the offer. 22. Before General Hartmann arrived, his predecessor had reached a pretrial agreement in the case of David Hicks without any consultation with or advice from Colonel Davis, who did not learn of the agreement until he arrived in Guantanamo Bay for what he expected to be an arraignment. On that occasion Colonel Davis objected publicly to having been bypassed in the negotiations, and
was later counseled privately by the Convening Authority for having done so. 23. The tensions between Colonel Davis and General Hartmann continued to increase, with General Hartmann becoming, in Colonel Davis opinion, much too deeply involved in the operations of the Chief Prosecutors Office. General Hartmann wanted a training program to enhance the prosecutors trial skills, detailed briefs on the witnesses and evidence in each case, including its weaknesses, who they were, and what they would say, and he wanted to know the details of the prosecutors closing arguments. 24. After General Hartmanns arrival, he and Colonel Davis had numerous discussions about the trial of these cases. In one discussion about the use of testimony obtained by coercive techniques, General Hartmann questioned Colonel Davis authority to make decisions about the use of such evidence. General Hartmann considered all such evidence potentially admissible, and wanted the judges to determine the matter. Colonel Davis was ethically opposed to using such evidence in nearly every case. Colonel Davis standard was reliable and in the interests of justice. 25. In August of 2007, Colonel Davis and General Hartmann traveled together, and General Hartmann expressed his disappointment with the speed at which the trials were moving. General Hartmann wanted the trials to get moving, even if it meant using closed sessions to admit classified evidence, while Colonel Davis preferred the lengthy process of classification review and inter-
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agency coordination, so that the cases could be tried using declassified evidence. 26. LCDR Stone, the assistant trial counsel in this case, was also bothered by General Hartmanns demands and specifically by his expressed intent to negotiate single-handedly with the Defense. He sought an ethics opinion from the Ethics Division of the Judge Advocate General of the Navy over this issue, and offered to meet with General Hartmann to explain how the General was causing himself an ethical conundrum. LCDR Stone also drafted a letter to the editor of the Wall Street Journal as an expression of this frustration. 27. At length, Colonel Davis responded to this pressure from General Hartmann by writing a complaint, and leaving it on the desk of Judge Crawford, the Convening Authority. She forwarded it to General Hartmanns supervisor, Mr. Haynes, and the complaint resulted in a formal investigation by a three-officer panel headed by Brigadier General Tate. 28. Between 6 and 7 September 2007, the Tate Commission interviewed a number of people with knowledge of the dispute between General Hartmann and Colonel Davis, and examined various documents and authorities. The Tate Commission concluded that General Hartmanns supervision of Colonel Davis was authorized by regulation, that the SECDEF was authorized by statute to publish that regulation, and that General Hartmanns efforts to influence Colonel Davis were therefore authorized. 29. In early October 2007, Colonel Davis was invited to Mr. Haynes office to
discuss the complaint and its resolution, and was there given an appointing letter for the first time since he had entered upon his duties. Mr. Haynes excused himself from the meeting, and Mr. DellOrto delivered the letter and the news. The appointing letter indicated that he was to work for the Legal Advisor, and that the Legal Advisor was to work for the DoD General Counsel. Mr. DellOrto informed Colonel Davis that this decision had been discussed among, and agreed to by, the Judge Advocates General of all the Services, and by Senator Graham. Because Mr. Haynes, in Colonel Davis mind at least, advocated both the use of torture and the use of evidence obtained by torture, Colonel Davis found it impossible to continue working with Mr. Haynes as a supervisor. 30. The next day, Colonel Davis resigned from his assignment as Chief Prosecutor. He later spoke to the Judge Advocate General of the Air Force and to Senator Graham, and learned that they had not concurred in the solution described above, but that they had merely been informed of the decision and offered a chance to comment. Major General Rivas had affirmatively objected to the solution and taken Colonel Davis side. 31. On September 11, 2007, Colonel Davis filed a 42 page complaint with the Department of Defense Inspector General (IG) in which he repeated many of the assertions he had previously made to the Convening Authority. The IG relayed the case to the DoD General Counsel because it dealt with legal issues. When Mr. Haynes reported to the IG that the matter had been resolved, the IGs investigation was also closed.
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32. In an article published in February of 2008, Colonel Davis wrote that he had resigned because he concluded that full, fair and open trials were not possible under the current system. This conclusion apparently referred to a system in which the Chief Prosecutor reported to and was supervised by a demanding Legal Advisor, whose own boss was a political appointee who supported torture and the use of evidence gained by torture. 33. In the months since September of 2007, both General Hartmann and Colonel Davis have written and spoken publicly about the conflict between them over the control of the prosecutors office. They have written op-ed pieces, appeared on radio talk shows and otherwise publicly aired their disagreement now raised again in the motion before the Commission. 34. The Commission takes note of the 28 February 2008 article in Harpers Magazine entitled, The Great Guantanamo Puppet Theater that alleges political influences over the trials and publicly challenges General Hartmanns ability to continue to act as the Legal Advisor to the Convening Authority. 35. General John D. Altenburg, Jr. (MG, USA, Ret.), a Government witness, served as the Appointing Authority for Military Commissions (a predecessor office to the current Convening Authority for Military Commissions) from March 2004 thru November 2006. He described the intent of the MCA drafters to have military commissions mirror the well-understood and familiar military justice model that all the players would be familiar with. He described the role of the SJA in
supervising trial counsel, setting goals, establishing standards and procedures for prosecutors, supervising and sometimes conducting pretrial negotiations in military law. At the same time he acknowledged that the SJA cannot supervise the trial counsel too actively or he will risk disqualification as the SJA. WITH RESPECT TO THE CONVENING AUTHORITY, MRS. SUSAN CRAWFORD 36. Judge Susan Crawford, formerly a Judge of the Court of Appeals for the Armed Forces, became the Convening Authority on February 4, 2007. She was appointed by the Secretary of Defense, and reports to the Deputy Secretary of Defense. She does not supervise any personnel within the OMC. Colonel Davis was already in place when she assumed duties as the CA. 37. Judge Crawford has never received input, orders, instructions or suggestions from the Secretary of Defense, his Deputy, or any other person having to do with the trial of detainees by military commissions. Her conversations with the Deputy Secretary have never addressed individual cases being tried or being considered for trial by military commission. 38. Judge Crawford became aware of Colonel Davis complaint about interference from General Hartmann sometime after July of 2007. Because General Hartmann did not work for her, she forwarded the complaint to the DoD General Counsel for his consideration. This resulted in the Tate Commission described above.
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39. Judge Crawford has had very few conversations with Mr. Haynes about the commission process and no conversations about individual cases, types of cases, charging decisions or outcomes. She has never met Stephen Cambone or had any communications with him. She has never spoken to the Vice President or anyone in his office about military commissions. THE LAW OF UNLAWFUL INFLUENCE UNDER MCA Relevant portions of the MCA include: 949a authorizes the Secretary of Defense to establish pretrial, trial and post-trial procedures for cases triable by military commission, and requires that pre-trial, trial and post-trial procedures, including elements and modes of proof To the extent the Secretary considers practicable, these procedures shall apply the principles of law and rules of evidence in trial by general court-martial. 949b, as noted above, prevents any person from coercing, or, by unauthorized means, influencing the exercise of professional judgment by the trial counsel or defense counsel. 949k(d) established the offices of Chief Prosecutor and Chief Defense Counsel and requires them to be fully-qualified military judge advocates. The Regulations for trial by Military Commissions were issued on April 27, 2007. The Regulations contain these relevant provisions: 1-4: 10 U.S.C. 949b prohibits unlawful influence in military commissions proceedings. All convening authorities,
legal advisors, trial counsel and others involved in the administration of military commissions must avoid the appearance or actuality of unlawful influence and otherwise ensure that the military commission is free of unlawful influence. 2-1: The Office of the Convening Authority for Military Commissions is established in the Office of the Secretary of Defense under the authority, direction, and control of the Secretary of Defense. The Office of the Convening Authority shall consist of the Director of the Office of the Convening Authority, the convening authority, the legal advisor to the convening authority, and such other subordinate officials and organizational elements as are within the resources of the Secretary of Defense. 8-6a: The Chief Prosecutor shall supervise all trial counsel and other personnel assigned to the Office of the Chief Prosecutor, including any special trial counsel of the Department of Justice who may be made available by the Attorney General of the United States. 8-6b: Individuals appointed, assigned, detailed, designated or employed in a capacity related to the conduct of military commission proceedings conducted in accordance to the MCA and MMC shall be subject to the relationships set forth below. Unless stated otherwise, the person to whom a person reports as set forth below, shall be deemed to be such individuals supervisor and shall, to the extent possible, fulfill all performance evaluation responsibilities normally associated with the functions of direct supervisor in accordance with the subordinates Military Service performance evaluation regulations.
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1. Chief Prosecutor: The Chief Prosecutor shall report to the legal advisor to the Convening Authority... R.M.C. 406 requires the legal advisor to the convening authority to provide consideration and advice to the convening authority before any case may be referred to trial by military commission, and specifies the contents of that advice. This section repeats nearly verbatim the corresponding section of the Manual for Courts Martial, i.e. R.C.M. 406. R.M.C. 705 authorizes the accused, defense counsel, the legal advisor, convening authority, or their duly authorized representatives to initiate pretrial agreement discussions. R.M.C. 1106 requires the legal advisor to provide a recommendation prior to action by the convening authority on a case. No one can serve as the legal advisor under this rule who has acted as a trial counsel on the case. There must be a specific recommendation by the legal advisor as to the action to be taken by the convening authority on the sentence. UNLAWFUL COMMAND INFLUENCE UNDER THE UCMJ Congress and the military courts have demonstrated concern not only with eliminating actual command influence, but also with eliminating even the appearance of unlawful command influence from courts-martial. United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979) Once unlawful command influence is raised, we believe it incumbent on the military judge to act in the spirit of the Code by avoiding even the appearance of evil in his courtroom
and by establishing the confidence of the general public in the fairness of the courtmartial proceedings. United States v. Stoneman, 57 M.J. 35, 42 (C.A.A.F. 2002). [D]isposition of an issue of unlawful command influence falls short if it fails to take into considerationthe appearance of unlawful command influence at courtsmartial. Id. Even if there is no actual command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system. Id. at 42-43. The threshold for raising the issue at trial is low, but more than mere allegation or speculation. United States v. Johnston, 39 M.J. 242, 244 (C.M.A. 1994). The issue can be raised at trial by some evidence of facts which, if true, would constitute unlawful command influence, and that the unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings. United States v. Ayala, 43 M.J. at 300 (C.A.A.F. 1995); United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991). The appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987). But proof of command influence in the air will not do. United States v. Thomas, 22 M.J. 388, 396 (C.M.A. 1986), cert. denied. 479 U.S. 1085 (1987). Once the issue is raised at the trial level, the burden shifts to the government, which may either show that there was no unlawful command influence or show that the unlawful command influence will not affect the proceedings. United
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States v. Gerlich, 45 M.J. 309, 310 (1996).

Once the issue is raised by some evidence, there is a rebuttable presumption of prejudice and a judge must be persuaded beyond a reasonable doubt that the findings and sentence have not been [or will not be] affected by the command influence. After the burden shifts to the government, the government may carry its burden (1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the military judge or the appellate court that the facts do not constitute unlawful command influence; (3) if at trial, by producing evidence proving that the unlawful command influence will not affect the proceedings; or (4), if on appeal, by persuading the appellate court that the unlawful command influence had no prejudicial impact on the court-martial. United States v. Stombaugh, 40 M.J. 208, 214 (C.M.A. 1994); United States v. Argo, 46 M.J. at 457 (C.A.A.F. 1997); United States v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F. 1999). ANALYSIS The Commission notes that decisions of military courts implementing the UCMJ are not binding on it as it interprets the Military Commissions Act (10 U.S.C. 948b(c)). But since there is no established body of case law construing the provisions of 949b(a)(2)(C), this Commission properly looks to military law for guidance. The Commission finds that Congress had the intent to protect military commission participants from unlawful influence, and specifically from political influence, and that its purpose in doing so was to protect the integrity of the proceedings and enhance their
reputation in the public view. The Commission generally accepts the military law of command influence as an appropriate model for decisions under the comparable provision of the MCA. But because Congress took special steps in the MCA to protect the prosecutors from unlawful influence, the general military model, in which the SJA properly supervises and directs the prosecution, military laws general acceptance of SJA supervision of trial counsel must be moderated somewhat to prevent that supervision from becoming not merely intrusive, but coercive or unauthorized. With these considerations in mind, the Commission concludes that: With respect to the motion to dismiss the charges and specifications: 1. The Defense has not raised the issue of unlawful influence with respect to the decision to swear and refer charges against Mr. Hamdan, who has always been among the first military commission defendants to be charged. He was originally charged in 2004, and charged again in 2007 before General Hartmann arrived for duty. This case was shielded from General Hartmanns influence because this Military Judge already had control of the case before his arrival. If an appellate court should determine that the Defense has raised the issue with respect to the referral of this case to trial, the Commission is satisfied that the Government has shown beyond a reasonable doubt that the influence has not affected these proceedings. 2. While pressure from Mr. Haynes may have resulted in the cases referral earlier than might otherwise have occurred, it did not cause to be referred for trial a case
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that would not otherwise have been referred. Hamdan was first charged in 2004, and clearly would have been charged again, with or without Mr. Hayness prodding. Colonel Davis also expressly denies that his decision to refer this case to trial was influenced by any pressure, and asserts that he was personally convinced that this case should have been referred to trial. The Commission agrees with this declaration and finds it to be true. The motion to dismiss all charges and specifications is DENIED. With respect to the motion to disqualify the Convening Authority: The Defense has not raised the issue of unlawful influence with respect to any actions of the Convening Authority. Judge Crawford was never subject to, nor did she subject any Prosecutor to, unlawful influence with respect to any decision in this case. Her decisions to deny expert assistance requested by defense reflect careful adherence to the requirements of military law, and invite resubmission and continued debate. There is no evidence that any of these decisions reflect unlawful influence by General Hartmann. The Motion to disqualify the Convening Authority is DENIED. With respect to the motion to disqualify the Legal Advisor: 1. The Defense has offered substantial evidence that the Legal Advisor to the Convening Authority was closely associated or identified with the Prosecution. General Hartmanns efforts to energize, educate, and professionalize the
prosecutors were clearly within the scope of his proper duties as Legal Advisor, as were his efforts to familiarize himself with the cases being prepared for trial. Robust sentencing and training programs in trial advocacy seem entirely appropriate for the Legal Advisor to institute and insist upon. 2. The Legal Advisor is specifically authorized to initiate pretrial agreement negotiations by R.M.C. 705(d)(1), and General Hemingways involvement in conducting negotiations personally in the Hicks cases certainly created a precedent upon which General Hartmann may have relied. But the pretrial negotiations in this case were initiated by the Defense, via a phone call to Mr. Haynes. If General Hartmann personally participated in negotiations (it is not clear whether the planned negotiations actually took place), he would have done so at the peril of compromising his continued objectivity as the Legal Advisor. 3. Although the duties of the Legal Advisor are largely comparable with those of the Staff Judge Advocate in military practice, Congress has inserted in the MCA specific provisions (1) establishing a Chief Prosecutor, and (2) protecting prosecutors against coerced or unauthorized influence in the exercise of their professional judgment. This language is not found in the UCMJ, and must be construed to reflect a Congressional determination that prosecutors in military commissions require greater protection from political pressure than trial counsel in a court-martial require. 4. The Commission is troubled by the following actions of the Legal Advisor
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that reflect too close an involvement in the prosecution of commission cases: (a) While R.M.C. 705 authorizes the Legal Advisor to initiate pretrial agreement negotiations, General Hartmann intended to personally conduct them without any consultation with or the company of the trial counsel. This worked successfully when an agreement was reached in Hicks, but may compromise the Legal Authoritys objective position under other circumstances. (b) Telling the Chief Prosecutor (and other prosecutors) that certain types of cases would be tried, and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play. (c) Appearing to direct, or attempting to direct, the Chief Prosecutor to use evidence that the Chief Prosecutor considered tainted and unreliable, or perhaps obtained as the result of torture or coercion, was clearly an effort to influence the professional judgment of the Chief Prosecutor. While it is true that the trial judge is ultimately the gatekeeper for each item of evidence, each prosecutor also has an ethical duty not to present evidence he considers unreliable. (d) Challenging the Chief Prosecutors decision to take to trial first the cases he considered most serious suggests
an improper influence on the Chief Prosecutors discretion. (e) Making public statements in which he aligned himself with the prosecution took credit for their success and indicated that he is their leader. (f) Nano-management of the prosecutors office to such an extent that it could be considered cruelty and maltreatment suggests a greater level of involvement than a Legal Advisor can properly engage in without becoming identified as part of the prosecution. (g) The Legal Advisors intimate involvement in the details of prosecutorial decision making have led one prosecutor to resign, another to seek ethical guidance from the Navy JAG ethics office, and has led both prosecutors in this case, and their former supervisor, to believe they were being nano-managed in both the performance of his duties and the exercise of their discretion. (h) Finally, the national attention focused on this dispute has seriously called into question the Legal Advisors ability to continue to perform his duties in a neutral and objective manner. While the publics view of the matter is not controlling, the fact that a national magazine should have called the publics attention to General Hartmanns actions and suggested that he can no longer perform his duties is deeply disturbing.
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DECISION AND ORDER The Commission is not persuaded, beyond a reasonable doubt, that the Legal Advisor to the Convening Authority retains the required independence from the prosecution function to provide fair and objective legal advice to the Convening Authority. These are substantial doubts about the ability based on the length and intensity of the Legal Advisors involvement with the Prosecution in general, as well as the impact his actions have had on the prosecutors in this case. To ensure that the accused receives the fair and objective advice to which he is entitled during the balance of this case, the motion to disqualify the Legal Advisor to the Convening Authority from further participation in the case of the United States vs. Hamdan is GRANTED. The following additional measures are ordered to ensure the trial is not influenced by unlawful influence and to enhance public confidence in the proceedings: 1. The General Counsel, Department of Defense, is directed to use such means as are at his disposal to ensure that no person who testified before the Tate Commission, or was involved in the litigation of this motion, suffers any adverse consequence, professional embarrassment, unfavorable performance rating, or other disadvantage as a result of such participation. LTC Britt and LCDR Stone are of particular interest to this Commission. 2. The General Counsel, Department of Defense shall appoint a substitute Legal Advisor for the case of United States v. Hamdan. The substitute shall not be a
Deputy to, or any other subordinate of, the current Legal Advisor. 3. The Commission here notes that, with the consent of both parties, it received a handwritten note at the conclusion of the litigation of this motion in Guantanamo Bay. The note requested that the transcripts of the testimony of LTC Britt and LCDR Stone be made public, because the Commission indicated in open session that it would consider their recorded testimony before the Tate Commission as if it had been given in open court. The note was signed by several members of distinguished national newspapers. To ensure that these Trial Counsel are not compromised in their ability to continue to perform their duties as trial counsel in this case, the Commission orders the transcript of their testimony redacted from public release until the trial is complete. After that point, each prosecutor may balance all the competing interests in this matter, and determine whether his testimony before the Tate Commission may or should be released to the public, in accordance with the normal procedure for the release of documents relating to military commission proceedings. 4. The Commission retains control over this matter, and will be alert for evidence of unlawful influence, including retribution of any kind, until authentication of the records of trial. Additional corrective and preventative measures remain within the Commissions discretion until that time, if necessary. So ordered.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission May 13, 2008 RULING ON MOTION IN LIMINE (TRANSPORTATION SERVICES) AND START OF HOSTILITIES (D-033, D-016) Keith J. Allred Captain, U.S. Navy Military Judge
Government asserts that it is a question of fact for the members to decide. The Commission addresses both of these related issues with this single Ruling. WITH RESPECT TO THE MOTION IN LIMINE: In pressing its argument, the Defense points to the language Congress chose to describe unlawful combatants: a person engaged in hostilities or purposefully and materially supported hostilities against the United States or its co-belligerents MCA 948a(1)(i), and to this Commissions reference to the terms direct participation in hostilities in addressing jurisdiction over the accused. The accuseds employment as bin Ladens driver between 1996 and 2001 does not, in the Defense view, amount to direct participation in hostilities, and therefore cannot support a finding that Hamdans driving for bin Laden took place in the context of or was associated with an armed conflict. The Government counters that each of the Specifications alleging material support for terrorism requires proof that the accuseds conduct took place in the context of and was associated with armed conflict. Thus, whether the accuseds conduct meets or fails to meet this test is a question of fact for the members to decide, and the Government urges the Commission not to address it. The Government asserts in its response that it will present evidence to the members that will demonstrate that a state of armed conflict between al-Qaeda and the United States existed as early as 1996. (Government Brief at 5).
The Defense has moved this Commission
in limine (D-033) to exclude all evidence

relating to transportation services the accused provided to bin Laden and others at times and in locations remote from the battlefield. The Defense position is that hostilities began no earlier than September 11, 2001, and that evidence of the accuseds support for al-Qaeda before that date is therefore unrelated to hostilities. The Government argues that hostilities against al-Qaeda encompass a broader spectrum of times and places, and began as early as 1996. Thus, the Government seeks to offer evidence of all of Hamdans activities in support of bin Laden and al-Qaeda, from 1996 until his capture in November 2001. In supplemental filings captioned D-016, both parties address a question posed from the bench pertaining to the start of hostilities. The Defense argues that the start date for hostilities is a question of law for the Commission to decide; the
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The Commission finds that whether the accuseds conduct took place in the context of and was associated with an armed conflict is an element of each of the offenses under Charge II. The Commission has earlier ruled that, for activity that occurred before September 11, 2001 to be a violation of the law of armed conflict, the Government must show that it affected or was related to a period of hostilities. Ruling on Motion to Dismiss (Res Judicata) at 5. Thus, the existence or a state of armed conflict before 2001 is clearly a question of fact for the members to decide. Evidence bearing upon the issue may be offered by either side, and the Commission will instruct the members appropriately before they retire to deliberate. The Motion in Limine is DENIED. WITH RESPECT TO THE SUPPLEMENTAL BRIEF ON THE START OF HOSTILITIES: The parties have also briefed the issue whether the start of hostilities was a question for the Judge or members. The Defense urges the Commission to decide the matter in advance of trial, and cites numerous cases in which American courts have decided that the nation was or was not at war, or observed that a state of armed conflict did or did not exist. The Defense further argues that the issue is not a political question, and that wars have traditionally existed only between states or state-like entities. Citing Pan Am
a course of hostilities engaged in by entities that have at least significant attributes of sovereignty. Finally, the Defense offers a number of statements by various national leaders suggesting that they did not consider the United States to be at war before September 11th, and did after September 11th. The Government urges the Commission to treat this as a matter for the members to decide. As it argues with respect to the motion in limine, the Government promises to prove, beyond a reasonable doubt at trial, that the United States was engaged in armed conflict with al-Qaeda prior to September 11, 2001. Indeed, whether the accuseds conduct occurred in the context of and was associated with an armed conflict is expressly or by necessary implication an element of each offense before the Commission. Thus, the Government will have to prove at trial that each of the charged offenses was substantially related to a period of armed conflict. The Defense, as part of the trial of the case, will offer its evidence that there was no period of armed conflict prior to September 11, 2001. The Commission finds that, because the Government must prove, as an element of each offense for which it seeks to find Mr. Hamdan guilty, that his actions were significantly related to a period of armed conflict, that the members should hear and decide the matter. The motion for the Commission to determine the commencement of hostilities is DENIED.
World Airways, Inc. v. Aetna Casualty & Sur. Co., 505 F.2d 989, 1012-1015 (2nd
Cir. 1974), the Defense argues that whatever action may have been taken by or against al-Qaeda in the years prior to 11 September 2001, it did not amount to
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission May 15, 2008 ORDER FOR EXAMINATION UNDER R.M.C. 706 Keith J. Allred Captain, U.S. Navy Military Judge
Regarding that meeting, she describes: My last meeting with Mr. Hamdan took place in February 2008. At that time Mr. Hamdans symptoms of post-traumatic stress disorder included nightmares and intrusive thoughts, memories and images, amnesia for details or traumatic events, lack of future orientation, anxiety, irritability, insomnia, poor concentration and memory, exaggerated startle response, and hyper-vigilance. She described symptoms of Major Depression and indicated that, for the first time he endorsed the presence of episodic suicidal ideation. He reports thinking his defense team may be interrogators, and reports difficulty remembering, understanding and processing information about his case. After hearing of his boycott of the proceedings on 28-29 April, and his instructions to his attorneys not to continue to speak for him during his absence, she opined that the symptoms she observed in February of 2008 may have worsened since that time. She was made aware of a prolonged exchange between Mr. Hamdan and the military judge on the record on 29 April, in which he was articulate, witty, thoughtful, apologetic, logical and displayed a sharp and remarkable sense of humor about the proceedings, including a well-developed understanding about the history of his case. She opined that his mental state is severely exacerbated by the conditions of his isolative confinement, and outlines her reasons for considering that Mr. Hamdan may not be competent to participate in the proceedings. The Government has submitted the affidavit of Captain (Dr.) Bruce C. Menely, MC US Navy, an Emergency
As provided in R.M.C. 706, this Commission finds reason to believe that the accused may lack capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense. The reasons for this uncertainty about the accuseds mental capacity are contained in a declaration filed by Dr. Emily Keram, a board certified forensic psychiatrist with broad experience in forensic mental health issues, who is assisting the Defense. She has spent nearly 100 hours examining and evaluating Mr. Hamdan and has submitted a Declaration explaining her reasons for believing that the accused may not be competent to participate in the trial or assist in his defense. These include a review of his history at Guantanamo Bay, a recitation of several encounters with medical and investigative personnel in 2002 and 2003, and the results of her last meeting with him in February of 2008.
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Medicine physician and the Senior Medical Officer assigned to Joint Task Force Guantanamo Bay, in which he declared, based on his examination of the accuseds medical records, that a member of the mental health staff examined the accused on 5 February 2008. He described the results in these terms: On 5 February 2008 I was informed that Detainee Hamdan may be suffering from a psychiatric condition. I was informed that a psychiatrist hired by the defense had evaluated Detainee Hamdan and felt he had signs of PTSD/depression and that he may be at risk of harming himself. Later that day, the Detainee was evaluated by our staff with an interpreter. According to the medical records, the Detainee stated he did not have any mental health conditions and was surprised that the staff had asked to evaluate him. He asked if staff had the correct detainee and staff confirmed that they had the correct ISN Number. Detainee Hamdan denied any problems with sleep, appetite or any thoughts of self-harm. He stated his mood had been pretty good but reported at times he had sadness related to being confined. He reported that he has learned to cope adequately with the stress of confinement. At this point he stated that he did not wish to speak to staff any more and asked staff to address all future questions to his attorney. Collateral information from the guards did not reveal any concerns about his mental health. They stated that
he recreates regularly, speaks frequently to other detainees near his cell, eats and sleeps well, and his affect is positive, frequently smiling, showing no signs of depression. Detainee Hamdans hygiene was good. His speech had a regular rate and rhythm and was completely coherent. He made good eye contact and was cooperative and pleasant. His mood was described as ok. His affect had a full range and appropriate to content. Thought processes were linear, logical and goal-directed. There was no evidence of paranoia, or delusions, or ruminations. He denied auditory or visual hallucinations and did not appear to be inappropriately responding to external/internal stimuli. He denied suicidal ideation, plan or intent. His memory appeared intact for remote and recent events. There were no cognitive deficits observed from the interview. The sharp contrast between these opinions, each rendered by a mental health professional on the same patient within days of each other, leave the Commission uncertain about the actual state of the accuseds mental health. ORDER IT IS HEREBY ORDERED: 1. THAT the accused be examined by a Medical Board consisting of one or more physicians or clinical psychologists, at
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least one of whom should be a psychiatrist or a clinical psychologist, as provided by Rule for Military Commission 706, Manual for Military Commissions, 2007. The Report shall be completed and forwarded to the military judge and defense counsel not later than 22 May 2008 unless the military judge grants a request for an extension based upon good cause shown. To facilitate such examination, this order includes an order that all existing medical or mental health records currently maintained by any individual or institution be released to the Medical Board for review. In addition, the Commission directs that the Board be provided with the following documents: a. Declaration of Dr. Emily Keram, dated 14 May 2008, and attached to D-041 Defense Motion for R.M.C. 909 Competency Hearing dated 14 May 2008; b. Declaration of Dr. Emily Keram, attached to D-019 Defense Motion for Relief from Punitive Conditions of Confinement, dated 1 February 2008. c. Declaration of Captain (Dr.) Bruce Menely, U.S. Navy, dated 14 May 2008 and attached to the Government Response to D-041 Motion for R.M.C. 909 Competency Hearing. 2. THAT, the report of the Board shall be prepared in two parts: a. PART ONE shall contain only the ultimate conclusions of the Board as to the following questions:
conduct or cooperate intelligently in the defense? (2) Does the accused currently have a mental or personality disorder? (3) Does the accused need any immediate psychological or medical treatment? (4) If the answer to question (1) above is no, would a change in the conditions of the accuseds confinement (including more recreation, and transfer to a less isolative facility) improve his condition such that the answer to questions (1) above would be yes?
b. PART TWO shall contain the full report of the Board.
(1) This part may be released by the Board or other medical personnel only to other medical personnel for medical purposes, unless otherwise authorized by the Military Judge, except that a copy of PART TWO of the report shall be furnished to the defense counsel and, upon request, to the Commander, Joint Task Force Guantanamo Bay. (2) Neither the contents of PART TWO nor any matter considered by the Board during its investigation shall be released by the Board or other medical personnel to any person not authorized to receive the full report, except pursuant to court order by the Military Judge.
3. THAT, the following safeguards shall be adhered to in the conduct and report of the examination:
(1) Does the accused have sufficient mental capacity to understand the nature of the proceedings and to
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a. No person, other than the defense counsel, the accused, or the military judge, shall disclose to the trial counsel the contents of PART TWO of the full Report of the Board, any statement made by the accused to the Board, or any evidence derived from that statement. b. No expert testimony as to any issue that is the subject of the examination ordered hearing may be presented by the Defense unless and until the accused has submitted to the examination ordered herein. 4. THAT, the examination ordered herein shall be conducted in an expeditious manner consistent with thoroughness, and shall include consideration of any matters raised by the evidence presented by trial counsel, defense counsel, or the accused. 5. THAT, the trial counsel shall ensure that a copy of this Order is provided to the Commander, Joint Task Force Guantanamo Bay, the Convening Authority, the detailed defense counsel, and the Board. Trial counsel shall also ensure that the three Declarations described in paragraph 1 (a-c) above are delivered promptly to the Board. So ordered this 15th day of May, 2008.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission May 16, 2008 RULING ON MOTION FOR CONTINUANCE OF HEARING AND TRIAL DATES (D-040) Keith J. Allred Captain, U.S. Navy Military Judge
absence, as they observe he may have given those instructions while under a diminished capacity; to permit the completion of discovery and examination of the pocket litter; to await the decision of the United States Supreme Court in United States v. Boumediene, which is expected before the close of the Courts term on June 30th; and to permit the Defense more time to persuade Mr. Hamdan to withdraw from his boycott and attend the trial. The Government argues that Mr. Hamdans competence can be determined under R.M.C. 706 without the need for any delay for an R.M.C. 909 hearing, or for hiring a Defense psychiatrist to conduct further examinations; that there is adequate time for the Defense to resolve ethical questions before trial once the R.M.C. 706 Board is complete; that the Government has complied with all its discovery obligations, as the material the Defense claims to be waiting for is either not discoverable or is simply unavailable or unknown to the Government; that no federal court anywhere has delayed any hearing to await the decision of the Supreme Court in Boumediene; and that R.M.C. 804 having been complied with, Mr. Hamdan may boycott the trial or not as he pleases. To the Government it is clear that Mr. Hamdan knows what he is doing and has made a knowing choice. The Government concludes with an argument that the Commission should deny the Motion because logistics and travel arrangements have already been made for twenty or more witnesses. Having read the parties brief and considered their arguments, the Commission finds:
The Defense has moved the Commission for a continuance of the scheduled motions session now set for the week of May 27th, and of the trial dates, now set for the week of June 2nd, offering several grounds. The Government opposes the continuance and rejects each of the Defenses bases for it. The Motion was submitted on May 13, the Governments opposition was filed on May 15th, and both parties submitted the matter without oral argument to permit a prompt resolution of the request. The parties are scheduled to travel to Guantanamo Bay for trial one week from tomorrow. The Defense request was to permit time for a hearing into the competency of the accused to stand trial and participate in his defense, and for the Defense expert Dr. Keram to conduct additional examinations of the accused; to permit defense counsel to consider their ethical obligations in light of Mr. Hamdans instructions that they not speak in his
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1. That the issue of the accuseds competence to participate in his own defense at trial has reasonably been raised, and that an R.M.C. 706 Board is warranted to resolve that issue. The Commission has ordered such a hearing. No delay is warranted to conduct the R.M.C. 706 Board, and the services of the Defense expert are not required. 2. The ethical issues that face the Defense team can be easily resolved once the report of the R.M.C. 706 Board is received. The Defense team has already indicated, unanimously, that they consider themselves to still be on the case, as they have not been discharged, and that the client may not direct them to present no defense when he has not discharged them. There is ample time to determine how or if that option might change if the client has diminished capacity and the Defense will know what is to be done when the R.M.C. 706 Board reports its conclusions. 3. The Commission is not inclined to grant a continuance to address the Defenses discovery objections. No mention of dissatisfaction with discovery was raised at our last session of court, when it was clear that we were making the final preparations for a trial beginning on 2 June. The Commission accepts the Governments declaration that much of what the Defense requests from 2001/2002 during an active conflict in Afghanistan is simply unavailable, and that the pocket litter, which the Defense had access to months ago, contains nothing discoverable or exculpatory other than what has already been provided. 4. The Supreme Court did hear oral arguments in the case of Boumediene v.
Bush in December of 2007, and is

expected to issue a ruling in that case not later than the end of June. That case addresses the applicability of the constitutional right to habeas corpus to detainees in Guantanamo Bay, and it is possible that the Courts decision will affect this case. The Court initially rejected a petition for certiorari, and then, sua sponte reversed itself and granted the petition. This means that five of the nine justices appear to believe that Boumediene needs to be modified or clarified. Contrary to the Governments assertion, it appears that other courts in the D.C. Circuit have indeed delayed or held cases, pending the outcome of Boumediene. For example, Kiyemba v. Bush, No. 05-359 (D.D.C. Cir. Sept. 7, 2007), and Paracha v. Bush, No. 05-5194 (D.C. Cir. Sept. 7, 2007) recalled mandates in cases the Court had previously dismissed for lack of jurisdiction; Alhami v. Bush, No. 05-359 (D.D.C. Oct. 2, 2007) granted petitioners motion for a preliminary injunction blocking transfer of detainee pending the Courts decision in Boumediene; Razatullah v. Gates, No. 06-1707 (D.D.C. Oct. 2, 2007), and AlOshan v. Bush, No. 05-0520 (D.D.C. Oct. 5, 2007) are examples of orders preserving the status quo of detainee cases. Independent of these precedents from other courts, the issue before this Commission is whether a delay of one month, to await the Supreme Courts decision regarding the applicability of the Constitution to detainees at Guantanamo Bay, should or should not be granted. The Commission finds that it should. Doing so permits all the parties to have the benefit of a decision that may well change the tenor or conduct of the trial, and avoids the potential embarrassment, waste of
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resources, and prejudice to the accused that would accompany an adverse decision midtrial, or the need to retry the case. The accused has been in confinement for six years, and another months wait will not prejudice any party to the case. The Government may easily reschedule its witnesses and their travel. DECISION AND RULING The Defense Motion for a Continuance is GRANTED. Assuming that the Supreme Court will in fact deliver its ruling before 30 June 2008, and that the ruling will be favorable to the Government, the motions session now set for the week of 27 May is continued until Monday 14 July. The Trial, now set for the week of 2 June, is set for Monday 21 July, and the two weeks following. The Commission expects the parties to continue to work toward trial on those dates. If the decision is adverse to the Government, or otherwise requires amendment of this schedule, the Commission will consult the parties and re-schedule such proceedings as may be necessary. In light of this ruling, the ORDER to conduct an R.M.C. 706 Board is modified as follows: Trial counsel shall inform the R.M.C. 706 Board that the due date for its report is now Friday 13 June 2008. Trial Counsel shall also provide to the members of the R.M.C. 706 Board a transcript of the 29 April exchange between the military judge and Mr. Hamdan in which he declared his desire to boycott the balance of the proceedings. The Clerk of Court shall
ensure that this exchange is promptly transcribed and provided to all the parties and the military judge. So ordered this 16th day of May, 2008.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission
2007 deadline for providing discovery, and further notes that a motion to dismiss for failure to state an offense may be made at any time. R.M.C. 907(b)(1)(B). The Commission rejects the Governments urging to deny the motion as untimely. THE BASIS OF THE CONFLICT
June 1, 2008 RULING ON MOTION TO DISMISS CONSPIRACY (D-022) Keith J. Allred Captain, U.S. Navy Military Judge The dispute between the parties here centers on the meaning of the word conspires in the Military Commissions Act. The Government contends that it is ambiguous, and that the Secretary of Defense has reasonably construed it therefore to mean both (1) agreement to commit an offense, with an overt act in furtherance of that agreement, and (2) joining a common criminal enterprise. (These will be referred to as the agreement and enterprise theories of criminal liability.) These constructions being reasonable, the Government continues, they are entitled to deference by this Commission under the standard announced in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). The text of the article criminalizing conspiracy provides: Any person subject to this chapter who conspires to commit one or more offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished MCA 950v(28). Congress has also authorized the Secretary of Defense to prescribe pretrial and post-trial procedures, including elements and modes of proof, for cases
The Defense has moved the Commission to dismiss Charge I, Specification 1 for failure to state an offense, arguing that Congress did not criminalize an enterprise theory of criminal liability for joining a common criminal enterprise in passing the Military Commissions Act. The Government argues that Congresss use of the word conspiracy was ambiguous, that the Secretary of Defenses interpretation of that word is reasonable and therefore entitled to deference when it includes the enterprise theory of liability. The Commission heard oral argument from the parties in Guantanamo Bay, Cuba on 28-29 April 2008. TIMELINESS OF MOTION As an initial matter, the Government urges the Commission to deny the motion as untimely, the deadline for law motions having passed on 11 March 2008. The Defense responds that the Government has also failed to meet court-imposed deadlines, specifically, the 31 December
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triable by military commission under this chapter after consultation with the Attorney General. Relying on this authority, the Secretary of Defense has defined the offense of Conspiracy in such a manner that it can be proven in two ways. The elements, as prescribed by the Secretary, are: (1) The accused entered into an agreement with one of more persons to commit one or more substantive offenses triable by military commission [the agreement approach] or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission [the enterprise approach]; (2) The accused knew the unlawful purpose of the agreement [agreement approach] or the common criminal purpose of the enterprise [enterprise approach] and joined willfully, that is with the intent to further the unlawful purpose; and (3) The accused knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise. Manual for Military Commissions, IV-20 to IV-21 (2007). THE DEFENSE ARGUMENT The Defense challenges the Secretarys insertion of the enterprise approach on
the grounds that Congress did not criminalize it in the statute, and thus the Secretarys enterprise construction is void ab initio. In arguing for the traditional agreement approach, the Defense points to the language of Article 81, UCMJ, which criminalizes conspiracy for military personnel, using nearly identical language: Any person subject to this chapter who conspires with any other person to commit an offense under this chapter, shall, if one or more of the conspirators does an act to effect the object of the conspiracy. 10 U.S.C. 831. The Defense argues that not only is the MCA conspiracy statute a nearly verbatim repetition of the UCMJ statute, Congress narrowed the circumstances under which an unlawful combatant may be tried for conspiracy to cases in which the unlawful combatant himself performs the act in furtherance of the conspiracy. Under military law, any member of the conspiracy may perform the overt act that advances the conspiracy. The Defense also argues that criminal enterprise is a concept imported from RICO jurisprudence, where Congress specifically authorized special handling for organized criminal enterprises, and statutorily defined terms such as enterprise. 18 U.S.C. 1962(a)-(d). The Defense argues that absent contrary intentions, Congress intends to adopt the common law definition of statutory terms. Whitefield v. United States, 543 U.S. 209, 214 (2005). This presumption, coupled with Congresss choice of language that has long been construed to criminalize only the agreement theory of
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conspiracy, indicates that Congress intended to criminalize only the agreement theory of conspiracy. In addition, the Defense notes that a criminal enterprise is a creature different from the conventional conspiracy; its unique nature arises from specific federal legislation independent of the common law of conspiracy, citing United States v. Manzella, 782 F. 2d 533, 537 (5th Cir. 1986), and that conspiracy and criminal enterprise are distinct concepts, citing United States v. Neapolitan, 791 F.2d 489, 499 (7th Cir. 1986). And finally, the Defense cites numerous federal and military precedents for the proposition that Chevron deference is owed to administrative agency determinations, but that courts do not owe such deference when interpreting criminal laws. Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring); Gonzales v. Oregon, 546 U.S. 243, 264 (2006); Evans v. United States Parole Commn, 78 F.3d 262, 265 (7th Cir. 1996); United States v. Czeschlin, 56 M.J. 346, 348 (C.A.A.F. 2002). The District of Columbia Circuit has written, Needless to say, in this criminal context, we owe no deference to the Governments interpretation of the statute. United States v. McGoff, 831 F.2d 1971 at 1080, n. 17 (D.C. Cir. 1987). THE GOVERNMENT ARGUMENT The Government responds that Congress has expressly delegated to the Secretary the authority to determine both elements and methods of proof, and that in adding the enterprise theory of liability to the MMC, the Secretary of Defense was exercising that delegated authority in a reasonable way. Thus, the Government argues for deference to this construction under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S.

837, 842-45 (1984), and cases following it. These cases hold that where the language of a statute is ambiguous or unclear, and Congress has expressly delegated the authority to construe that statute to a federal agency, the Courts must defer to the reasonable constructions of that federal agency. Chevron deference is appropriate, the Courts have held, even where administrative agency interpretations are internally inconsistent or conflict with previous judicial rulings.
Natl Cable & Telecomms Assn v. Brand X Internet Servs., 545 U.S. 967, 981
(2005). Thus, the Government argues that the President could reasonably interpret the UCMJ Conspiracy statute to include only the agreement approach, and the Secretary could reasonably interpret the MCA conspiracy statute to include both theories of liability, and both would be entitled to judicial deference. There is also historical precedent, the Government continues, in the law of war for an enterprise theory of liability that is neither present nor required in military law. ANALYSIS AND RULING As an initial matter, the Commission does not find the word conspires to be ambiguous or vague. The United States, in both its state, federal and military courts, has long interpreted a conspiracy to require an agreement to commit an unlawful act, followed by an overt act in furtherance of the conspiracy. In reaching this conclusion, the Commission notes the near-identity of language between the MCA and UCMJ provision criminalizing Conspiracy, and Congress expressed intention to base the procedures for military commissions on those already
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extant for courts-martial. See MCA 948b(c); 949a(a). The Commission thus attributes to Congress an intent to import the traditional definition of criminal enterprise, and did nothing to suggest that it intended to depart from the traditional construction of conspiracy in enacting the MCA. Thus, the Commission does not find deference to the Secretarys construction of the statute is warranted under Chevron and its progeny. This conclusion also flows from the Commissions understanding of the reasons for judicial deference: federal agencies are often entrusted with a special function that involves particular expertise, such as protection of the environment or the regulation of civil aviation, and for this reason, their regulations are entitled to deference. Within the text of Chevron, the Supreme Court explained that the principle of deference to administrative interpretations has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. Chevron, at 844. In consideration of this reasoning, the Commission does not find that the decision to identify the elements of Conspiracy involves reconciling conflicting policies or that a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations.
Indeed, there is ample precedent in the D.C. Circuit and elsewhere for the proposition that no deference is appropriate in criminal cases, as courts are amply capable of understanding and construing the criminal law themselves. Thus, the Commission finds that the statute is neither ambiguous nor vague, and that no deference is warranted in the interpretation of a criminal statute. The result is that the Government may not proceed to trial on its enterprise theory of criminal liability. The Government argues, however, against dismissal of Specification 1 under Charge I, as it still alleges a Conspiracy under the agreement theory of liability. THE SPECIFICATION AT ISSUE With the language charging the enterprise theory of liability removed, Specification 1 now alleges: In that Hamdan, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in Afghanistan and other countries, from in or about February 1996 to on or about November 24, 2001, conspire and agree with Usama bin Laden, Ayman al Zawahiri, Sheik Sayeed al Maari, Muhammad Atef (a/k/a Abu Hafs al Masri), Saif al Adel and various members and associates, known and unknown, of the al Qaeda organization and join an enterprise of persons known as al Qaeda, and said al Qaeda engaged in hostilities against the United States, including the 1998 attack
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against the American Embassies in Kenya and Tanzania, the 2000 attack against the USS Cole, the September 11, 2001 attack against the United States and other separate attacks, continuing to date and the aforementioned members and associates of al Qaeda shared a common criminal purpose that involved the commission or intended commission of [to commit] one or more substantive offenses subject to trial by military commission, to wit: attacking civilians, attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; and terrorism, and the said Hamdan knew the unlawful purpose of the agreement and the common criminal purpose of the enterprise and joined willingly, with the intent to further said unlawful purpose, and in order to accomplish some objective of the agreement or enterprise, Hamdan knowingly committed at least one of the following acts: a. Hamdan served as bodyguard for Usama bin Laden; b. Hamdan served as Usama bin Ladens personal driver; c. Hamdan transported and delivered weapons, ammunition or other supplies to al Qaeda members and associates; d. Hamdan drove or accompanied Usama bin Laden to various al-
Qaeda-sponsored training camps, press conferences, or lectures; e. Hamdan, on various occasions, received weapons training in Afghanistan. As indicated above, the elements of the offense of Conspiracy under the agreement theory of liability are that the accused: (1) entered into an agreement to commit one or more substantive offenses triable by military commission; (2) knew the unlawful purpose of the agreement and joined willfully, with the intent to further the unlawful purpose; (3) knowingly committed an overt act in furtherance of the agreement. The Commission finds that the Specification, after redaction of the language supporting the enterprise theory of liability, still alleges an offense under the agreement theory. Thus, the Motion to Dismiss is GRANTED to the extent of the language alleging a violation under the enterprise theory of liability, and DENIED as to the remainder of the specification. So ordered.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission June 2, 2008 RULING ON MOTION FOR ACCESS TO HVD CLIENTS BY HABEAS/DTA COUNSEL (D-023) Keith J. Allred Captain, U.S. Navy Military Judge
BACKGROUND The Commission has granted the Defense access to eight named detainees to permit the Defense to seek exculpatory evidence in preparation for trial. The access is to be accomplished by means of submitting written questions to the detainees, via a Security Officer, regarding Mr. Hamdans activities between 1996 and 2001. Some of these detainees are represented by habeas counsel who object to Mr. Hamdans counsel questioning their clients until they, the habeas counsel, have been able to discuss the questions, and the possible answers, with their clients. The Defense seeks the Commissions assistance in facilitating these meetings so the Defense counsel can approach the detainees on Mr. Hamdans behalf. Specifically, habeas counsel for Messrs. Al-Sharqawi, alNashiri, al-Libi and bin al-Shib have objected to such contact until they can meet with their clients and discuss the questions. The Government argues that habeas/DTA counsel do not represent these detainees except with respect to habeas/DTA litigation, and therefore these detainees are unrepresented in any matters that pertain to potential charges before a military commission. Indeed, the Government brief agrees that these four detainees are not presently represented in a military commission proceeding. In addition, the government notes that the United States Court of Appeals for the District of Columbia has these habeas corpus petitions before it, and that as recently as February of 2008 has granted motions and issued protective orders regarding habeas counsels access to and communications with these detainees. The Government urges the Commission not to interfere with these provisions.
The Defense has moved the Commission for an order compelling the Government to facilitate access by habeas/DTA counsel to their clients in Guantanamo Bay to advise their clients whether or not to respond to questions posed by Hamdans defense counsel. In the alternative, the Defense asks the Commission to determine that these detainees are not represented for military commission purposes, apparently so that the Defense may approach them without regard to the wishes of their habeas counsel. The Government opposes the motion, arguing that habeas corpus/DTA counsel represent these detainees on unrelated civil matters, and that the MCA contains no provision for the Commission to issue such an order facilitating access to these detainees by their habeas corpus/DTA counsel. Both parties attached evidence to their briefs, and the Government provided additional documents at the Commissions request, without objection.
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THE COMMISSIONS AUTHORITY TO ORDER RELIEF The Government argues that the MCA contains no authority upon which the Commission might rely in ordering this relief. I find that R.M.C. 701 (a)(3) and (f)(8), which authorize the military judge to specify the time, place, and manner of making discovery, and to prescribe such terms and conditions as are just, and to issue protective and other orders as necessary to ensure that discovery is completed, is ample authority upon which this Commission can grant the requested relief or any other relief it considers appropriate. ANALYSIS AND DECISION The Commission takes judicial notice that charges have been referred against Ramzi bin al-Shib, and that with respect to him, the motion is moot. Detailed counsel for Mr. bin al-Shib will be present for his arraignment in Guantanamo Bay during the first week of June, and can consult with him about the questions during that visit. Two members of the Defense team have noticed the Commission that they too will be present in Guantanamo Bay during this week, meeting with Mr. Hamdan. With respect to the other three detainees at issue, the Commission finds that each has filed a habeas corpus petition and is represented by counsel with respect to that petition; that the United States Court of Appeals for the District of Columbia has issued certain orders regarding the further proceedings of those cases, including protective orders that address communications with their clients and the protection of classified information;
that the United States Court of Appeals for the District of Columbia has issued an Order in habeas corpus proceedings before it that requires Petitioners counsel to be bound by the terms and conditions set forth in the Revised Procedures For Counsel Access To Detainee At the U.S. Naval Base In Guantanamo Bay, Cuba, attached thereto as Attachment A; that the District Courts Order specifically incorporates by reference all terms and conditions established in the procedures contained in Exhibit A to the extent they place limitations on petitioners counsel in their access to and interaction with petitioners or handling of information. Any violation of the terms and conditions of those procedures will also be deemed a violation of this Protective Order; (In re Guantanamo Detainee Cases AMENDED PROTECTIVE ORDER AND PROCEDURES FOR COUNSEL ACCESS TO DETAINEES AT THE UNITED STATES NAVAL BASE IN GUANTANAMO BAY, CUBA dated November 8, 2004); that the Commander of Joint Task Force Guantanamo Bay has already established procedures for habeas and DTA counsel to visit their clients in Guantanamo Bay. Indeed, the habeas counsel for one of the detainees the Defense sought to call as a witness (Said Boujaadia) was already in Guantanamo Bay in December of 2007 when the jurisdiction motion was being litigated. He consulted with his client and permitted the client to be called as a witness. These procedures seem adequate to permit habeas and DTA counsel to visit their clients as needed in the exercise of their representation. The parties are clearly engaged in a contest over whether habeas counsel represent detainees who may be charged with offenses under the MCA. The parties
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have not briefed this issue, the ramifications or the reasons for it, and the Commission declines the invitation to involve itself in issues regarding the bounds of representation by counsel who are not appearing before it. In ordering the Government to permit counsel for Mr. Hamdan to approach other detainees, (D-011 Ruling on Motion to Compel Access to High Value Detainees; P-004 Ruling on Motion for Reconsideration, for Stay and to Deny Access to High Value Detainees) the Commission expressly denied that it was ordering access to any detainee whose counsel objected. The Defense has not shown that habeas/DTA counsel is being obstructed in their attempts to visit their clients, that the procedures already in place for such access are inadequate, or that there is any need for the Commission to order relief. For these reasons, the Defense motion to facilitate travel to Cuba for habeas/DTA counsel is DENIED.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission June 3, 2008 RULING ON MOTION FOR BILL OF PARTICULARS (D-036) Keith J. Allred Captain, U.S. Navy Military Judge
charge, or to restrict the Governments proof at trial (R.M.C. 906, Discussion). The Government has repeatedly declared that its theory at trial will be that the armed conflict between the United States and al-Qaeda/bin Laden began not later than 1996, and that the accuseds support for and assistance to bin Laden after that date was therefore related to or connected with a period of armed conflict. The Defenses list of questions seeks to force the Government to limit its proof to the armed conflict that began on 11 September 2001, and the Government will not concede that this was the first date of the conflict. Thus it appears that the Defense motion for a Bill of Particulars seeks to restrict the Governments proof at trial. The Defense cannot complain of surprise at trial. The extensive discovery provided to date and the four years the parties have had to prepare this case obviate the need for a Bill of Particulars. The issue between the parties is whether the United States was involved in an armed conflict before the attacks of September 11, 2001. That issue, being an element of each offense, will be resolved by the members at trial. The motion for a Bill of Particulars is DENIED.
The Defense has moved for a Bill of Particulars, seeking to avoid surprise at trial and specifically seeking to have the Government specify how the accuseds activities in support of bin Laden and alQaeda between 1996 and 2001 could have been related to the period of armed conflict that began on September 11, 2001. The Government opposes the motion, arguing that a Bill of Particulars is not appropriate, and that the Defense will not be surprised at trial by its theory that the armed conflict began before September 11, 2001. R.M.C. 906(b)5 permits the Defense to move for a Bill of Particulars. The purpose of such a Bill is primarily to inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, [and] to avoid or minimize the danger of surprise at the time of trial. The Bill is not to be used to conduct discovery of the Governments theory of the case, to force detailed disclosure of acts underlying a
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission June 4, 2008 RULING ON CONTINUED ACCESS TO HIGH VALUE DETAINEES (D-011) Keith J. Allred Captain, U.S. Navy Military Judge
respond. At the last session of Court, the Commission denied a motion for defense counsel to meet personally with these HVDs to provide that assurance. Instead, the Commission ordered the Government to draft a note, with the language of its choice, to be signed by the accused. The Government objects to (1) the courts in camera consideration of the redacted portions of the HVDs reply, asserting that the MMC has specifically placed trial counsel in control of protecting classified information; (2) the Defense request for the production of Khalid Sheik Muhammad at trial based on his answers to the written questions, which have not been disclosed to them; and (3) the defense counsels proposed text of the note, intended as assurance to those pondering whether or not to respond to Defense questions. (1) THE DEFENSE SPECIAL REQUEST FOR RELIEF (IN CAMERA REVIEW) In authorizing the Defense to submit written questions to the HVDs, the Commission authorized the CSO to redact any portions of the questions or answers that he considered appropriate to redact, and indicated that if there were a dispute about redacted items, the Commission would determine the matter. We now have a redacted portion, and there is a dispute about how the Commission should determine the matter. The Defense proposes that these redacted portions be disclosed in camera to the Commission, but not to the Government, for a determination whether or not they should be disclosed to the Defense. The Government insists that the MCA and MMC clearly place the duty to protect classified information on its shoulders, it
The Parties seek the Commissions guidance regarding continued access to certain High Value Detainees (HVDs). The Commission has granted the Defense access to certain High Value Detainees (HVDs) by written questions that are delivered via a Court Security Officer, with the HVDs responses delivered to the Defense, again via the CSO. Neither the questions nor the answers were shown to the Government, and the CSO is authorized to redact both questions and answers in the interest of protecting classified information. One detainee, Khalid Sheik Mohammad (KSM), has responded to the questions, and certain portions of his response have been redacted by the Court Security Officer. The Defense asks the Commission to review those redacted portions in camera and determine whether they should be disclosed to the Defense. Certain other HVDs have requested assurance that the questions are being posed by Hamdans defense counsel, rather than by a Government interrogator, before they
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must know what the redacted portions say, and be permitted to take such action as it considers appropriate. The Government objects strongly to an in camera examination by the Commission from which it is excluded. The Commission agrees that the trial counsel are clearly appointed guardians of classified evidence by both the statute and the regulation. The motion for an in camera review of the redacted portions of KSMs answers is DENIED. If the Defense wants access to those answers, the trial counsel must first be allowed to review them, along with its security consultants, and determine which course to follow to protect the redacted material. (2) SUPPLEMENTAL REQUEST FOR PRODUCTION OF WITNESSES Based on the written answers of Khalid Sheik Muhammad, the Defense has requested his production as a witness to testify at trial. The Government objects that it has not seen the written questions and answers, and thus it challenges the adequacy of the Defense proffer. It is true that the questions and answers have bypassed the trial counsel, but this is just what would have happened had the witness not been confined. The Defense has prepared a synopsis, as required by R.M.C. 703, and asks that this witness be produced at trial. We are at precisely the same place we would be if the Defense had located this witness on its own, conducted its own interviews, and prepared a synopsis of expected testimony based on those interviews. Trial counsel has access to this witness, as the Government has openly announced that it is holding him at Naval Base
Guantanamo Bay. If the Defense had requested any other witness and the Government challenged the adequacy of the proffer, trial counsel would interview the witness and make its own determination of what the witness is expected to say. Thus, if trial counsel challenges the Defense proffer, it should conduct its own investigation by interviewing KSM or submitting its own written questions, as the witness is clearly in the Governments hands. If trial counsel requires the Commissions intervention to gain this access to the witness, it should so move. The Government demand that the Defense disclose its questions and KSMs answers is therefore DENIED. One final portion of the Governments position needs to be addressed. The Government suggests that the Defense has done more than submit questions, as the Commission authorized, but that it has provided information to the HVDs. If this is so, the information provided to the HVDs may have affected the way in which the witnesses answer the questions. The Defense is directed to promptly disclose to trial counsel the text of any introductory material it provided to the HVDs before posing its questions that might be characterized as providing information. (3) THE TEXT OF THE NOTE The parties disagree about the text of the note that will assure the HVDs that the Defenses questions are actually from Hamdans defense counsel. The Government has proposed this text: I assure you that Lieutenant Commander Brian Mizer, Charley
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Swift, Harry Schnieder, Joe McMillan and Andrea Prasow are my lawyers. The questions they submit to you are on my behalf. The Defense proposes language it considers less terse and more culturally appropriate: In the name of Allah, the Compassionate, the Merciful. May the peace and blessings of Allah rest upon you. I am Salim Hamdan, a citizen of Yemen who is about to be tried by a military commission here at Guantanamo. I write to assure you that the written questions that have been given to you are questions from my lawyers and are intended to assist in my defense. I leave it to you to decide whether you wish to answer. I apologize that my note must be so short, but I am not permitted to say more. With gratitude for any assistance you may render to help establish the truth, Salim Hamdan. The Defense prefers this language not only because it is more appropriate to a Muslim Arab, but because it does not name the attorneys the accused has directed not to speak for him in his absence. The Government objects to the cultural allusions, including praises to Allah and greetings in his name, and what may be a Muslim appeal for assistance. By separate order the Commission has approved this language, which protects the interests of both parties, and directed that it be used: I am Salim Hamdan, a citizen of Yemen who is about to be tried by a military commission here at Guantanamo. I write to assure you that the written questions that have been given to you are
questions from my lawyers. I leave it to you to decide whether you wish to answer. I apologize that my note must be so short, but I am not permitted to say more. So Ordered.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission June 6, 2008 RULING ON MOTION TO SUPPRESS STATEMENTS OF THE ACCUSED (D-030) Keith J. Allred Captain, U.S. Navy Military Judge
the UCMJ. The Commission heard oral argument from the parties on 28 and 29 April, 2008 at Guantanamo Bay, Cuba. The Defense alleges, and the Government concedes, that there are thirty six statements at issue. The Government concedes that the accused was never warned of a right to remain silent before any of these statements were taken, but denies that any such right protects the accused. The Government argues that at least the two statements taken on the battlefield and memorialized in the capture videos, and one statement the accused voluntarily prepared with the assistance of counsel, should not in any event by suppressed based on rights to remain silent. THE LAW The Uniform Code of Military Justice (UCMJ), which applies to members of the U.S. Armed Forces and to prisoners of war, contains a right against self incrimination in these terms: No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him. (Article 31(a)); No person subject to this chapter may interrogate, or request any statement from an accusedwithout first informing him of the nature of the accusation against him and advising him that he does not have to make any statement (Article 31(b)); and
The Defense has moved this Commission to suppress all statements of the accused made to authorities of the United States between his apprehension in November of 2001 and the time he was first advised of a right against self incrimination in January of 2004. Between those dates, the parties have identified thirty-six different statements taken from the accused without any rights warnings such as are common to American jurisprudence. Because the MCA, the UCMJ, and international law all guarantee a right against self incrimination, the Defense believes that the remedy for violation of the right must be suppression of statements taken without any such warnings. The Government argues that the accuseds statutory right against selfincrimination expressly applies only to statements made during the actual trial proceedings, and that Congress has expressly denied detainees both the broader right against self incrimination under Article 31(a) and (b), and the exclusionary remedy of Article 31(d) of
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No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial. Article 31(d); 10 U.S.C. 831(a), (b), (d). The Military Commissions Act of 2006 (MCA) provides a right against self incrimination in these terms: No person shall be required to testify against himself at a proceeding of a military commission under this chapter. 948r(a). Military Commissions Rule of Evidence 301(a) reiterates this provision in nearly identical language: No person shall be required to testify against himself at a proceeding of a military commission under these rules. The MCA also specifically addresses the applicability of the UCMJ to military commission trials in these terms: From 948b: (c) CONSTRUCTION OF PROVISIONSThe procedures for military commissions set forth in this chapter are based upon the procedures for trial by general court-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial
construction and application of that chapter are not binding on military commissions established under this chapter. MCA 948b(c), and (d) INAPPLICABILITY OF CERTAIN PROVISIONS(1) The following provisions of this title shall not apply to trial by military commissions under this chapter: (B) Section 831(a)(b), and (d) (articles 31 (a), (b), and (d)) of the Uniform Code of Military Justice), relating to compulsory self-incrimination. From 949a(b)(2): In establishing procedures and rules of evidence for military commission proceedings, the Secretary of Defense may prescribe the following provisions: (A) Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person; (C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.
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ANALYSIS The Defense first contends that Mr. Hamdans statements should be suppressed because the MCA includes a right against self incrimination, and that to have any value at all, this right must be construed to apply to pretrial statements. Anticipating the Governments reply, the Defense argues that a right against self incrimination that applies only during the proceeding, but that allows the government to freely interrogate the accused before the proceeding, is hardly any protection at all. The Government contends that the MCAs language is clearly limited to statements made at a proceeding of a military commission, and that this is all the protection Congress intended to give to unlawful enemy combatants. Notwithstanding the Defenses logic, other parts of the MCA support the Governments narrow construction of this language. First, the language Congress chose in enacting the MCA is clearly much less generous than the language of the UCMJ, and limits the protection against self incrimination to a proceeding of a military commission under this chapter. This narrow and restrictive choice of words suggests that Congress intended a narrower right against self incrimination than it had chosen for U.S. military personnel being tried under the UCMJ. Second, Congress expressly made Article 31s protection against unwarned and coerced statements, as well as the exclusionary rule of Article 31(d), inapplicable to military commission trials, clearly indicating that Congress intended different and less favorable treatment for unlawful enemy combatants. Third, MCA 949a(b)(2) expressly declares that a
statement taken from an accused shall not be excluded on the grounds of a violation of a right against self incrimination, so long as 948r has been complied with. This seems to mean that a statement shall not be excluded so long as the accused has not been forced to make it during trial proceedings held under the MCA. In light of these clear statutory commands, the Commission concludes that Congress did indeed intend that the MCAs protection against self incrimination should apply only at the proceeding itself, and that there should be no remedy of suppression for pre-trial statements taken without rights warnings that are common in American law. While this result is at odds with the balance of American jurisprudence, it is clearly what Congress enacted. The Defense next argues that the accuseds statement should be suppressed because the UCMJ applied to Hamdan between his apprehension in 2001 and the ultimate enactment of the Military Commissions Act. Thus, he is entitled to the protections of Article 31 of the UCMJ during the interim period before Congress passed the MCA, simply because the UCMJ was the only law in place when these statements were taken. The difficulty with this position is that the UCMJ applies only to those entitled to prisoner of war status, and the United States has consistently insisted that neither Mr. Hamdan nor any of his al-Qaeda associates or other battlefield detainees are so entitled. The Commission has determined that the accused was in fact an unlawful enemy combatant, and thus it is clear that he was never entitled to the protections of the UCMJ. Thus, while the UCMJ was in force between 2001 and
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2006, it did not apply to Mr. Hamdan and he could not claim its protections. The Defense next points to a host of international treaties for the proposition that such a right against self incrimination is one of the judicial guarantees which are recognized as indispensible by civilized peoples within the meaning of common Article 3 of the Geneva Conventions. The Government notes that these treaties are either non-selfexecuting or the United States has repeatedly refused to ratify them, and that they therefore have no binding effect. But independent of whether these treaties are applicable, Congress has addressed this contention by declaring that the system of rights it has established in the Military Commissions Act provides all of these indispensable judicial guarantees. In so doing, Congress has determined that a right against self incrimination that applies only at the proceeding itself is adequate to respect the international standard. Thus, the Commission concludes that even if these treaties do apply to detainees before military commissions, Congress has expressly determined that the MCA satisfies them. Finally, the Defense argues that permitting the narrower standard of the MCA (which protects only against self incrimination during the proceeding itself) to deprive the accused of protections that were in place when he was captured (i.e., the UCMJ provision that prevents coerced or unwarned statements taken before trial from being introduced at trial), violates the Constitutions ex post facto prohibition by exposing him to a less generous evidentiary rule than was in effect when he made his statements. There are two
answers to this contention. First, the Commission finds, under current law, that the Constitutions ex post facto provision does not protect the accused in a military commission. Even if it does, or some other ex post facto protection applies, it is not true that the accused was once entitled to a higher level of protection. The UCMJs protections under Article 31 have always been reserved for those entitled to prisoner of war status. The United States has consistently asserted that this accused was not entitled to those protections, and adamantly refused to consider any trial that would accord to members of international terrorist organizations the protections of the Third Geneva Convention. Thus, because Hamdan was never entitled to the UCMJs protections, he has not now been subjected to a less favorable evidentiary rule than was once in force. CONCLUSION AND RULING At the outset, the Commission notes that at least two of the statements made by the accused were made on the battlefield, and the Defense has not shown that these statements were taken with any law enforcement purpose in mind. The Commission is aware of a declaration of the accused, made with the consent of and in the presence of his counsel, in which he admits many of his activities prior to capture. These three statements, and perhaps others, are admissible even under the higher standard of traditional American jurisprudence. It is not clear, simply by virtue of the presence of law enforcement personnel at his interrogations, when he became the subject of a criminal investigation into his conduct. As Special Agent Crouch testified during
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the 5-6 December 2007 hearing regarding jurisdiction, criminal investigations are one of many other things that the FBI does. (Defense Motion at 10). The result in this case is at odds with what would normally obtain under our law. It is true that in any other criminal trial held in American courts, an accused who was questioned before trial, without warning regarding his right to remain silent, could not later be prejudiced by the admission of those statements against him. Congress has expressly created military commissions that apply only to unlawful combatants, and denied to those unlawful combatants this level of protection. The Commission finds that Congress intended the right against self incrimination to apply only to statements made at trial. The accused is not and never has been entitled to the protections of the UCMJ. The international law sources cited by the Defense, even assuming that they apply, do not entitle him to the relief he seeks for two reasons. First, the Defense has not shown that they expressly require that a right against self incrimination extend to pre-trial statements. A more limited right such as the one Congress has granted the accused may well satisfy the international standard. Second, and in any event, Congress has declared that the system of trials it established in passing the MCA satisfied its international obligations. Finally, and apparently as an afterthought, the Defense seeks suppression of the statements on the basis that the Government has failed to identify and produce all of the investigators or interrogators who were involved in the taking of these statements. The government has asserted on numerous occasions,
although not necessarily with respect to this issue, that it has fulfilled all its discovery obligations. The Commission denies this request that it suppress all statements on this basis. The Defense motion to suppress the statements of the accused for failure to warn him of his rights to remain silent is DENIED. So Ordered.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission June 13, 2008 RULING ON MOTION TO DENY PRODUCTION OF PROFESSOR CORN AND TO EXCLUDE HIS TESTIMONY (P-007) Keith J. Allred Captain, U.S. Navy Military Judge
The Government has moved this Commission for an order denying production of Professor Geoffrey Corn as a Defense witness, or in the alternative, excluding his testimony at trial. Based on an early Defense witness request, the Government argues that Professor Corns expected testimony will invade the province of the Judge and the panel members by telling the members what the law is. The Defense replies that it no longer intends to call Professor Corn to testify as it initially indicated, mooting much of the Prosecution motion, and urges the Commission not to exclude his testimony in its entirety as he can still properly testify on matters relevant to issues of fact before the Commission. The Defense now intends to call Professor Corn, a Professor of Law and apparent expert on the Law of Armed Conflict, to testify that a number of objective factors tend to indicate whether a state of armed conflict exists, including the scope,
intensity and duration of hostilities, whether armed groups control territory or demonstrate other aspects of sovereignty, and the state of existing Rules of Engagement. He will testify about the Rules of Engagement for U.S. Forces in existence at various times between 1996 and 2001, and indicate how those rules might be considered in determining whether the accuseds conduct took place in the context of and was associated with armed conflict. Professor Corn will not testify about whether Conspiracy or Providing Material Support for Terrorism were or are violations of the Law of Armed Conflict, as the Defense originally indicated. Because the Governments motion was filed before the Defense changed the stated purpose for which it intends to call Professor Corn, it is not clear that there is still an objection to the calling of this witness for the modified purposes the Defense described in its Opposition. LAW REGARDING THE PRODUCTION OF WITNESSES The Parties contentions regarding the applicability of R.M.C. 703(c)(2) Determining which witnesses will be produced for Defense are moot. The Defense has not requested production of Professor Corn within the meaning of this rule, as it proposes to take his testimony via video teleconference from Madrid at no expense to the Government. Thus, R.M.C. 703s requirements for a synopsis of expected testimony and a showing of relevance and necessity are not implicated. The government need only use the video teleconference equipment already installed in the Courtroom to permit the Defense to call this witness.
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The Government must prove that the accuseds actions took place in the context of and was associated with armed conflict. To do so, it intends to call its own witnesses, including expert witnesses, who will testify regarding the facts that the Government sees as indicative of a state of armed conflict as of 1996. Professor Corn will counter this evidence with his own testimony reading other factors suggestive that there was no state or armed conflict during all or part of the charged period. This seems to be relevant evidence regarding one of the key issues in the case, and appropriate under M.C.R.E. 702. DECISION The Government motion to deny production of Professor Corn is DENIED, as the Defense has not moved for his production. The Government motion to exclude his testimony is DENIED, as his proffered testimony is significantly different from the expected testimony addressed in the Governments motion. If the Government wishes to limit or challenge Professor Corns video-teleconferenced testimony before trial, it may so do by filing a motion that addresses the facts as they now stand.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission June 26, 2008 RULING ON MOTION FOR ADDITIONAL CONTINUANCE (D-042) Keith J. Allred Captain, U.S. Navy Military Judge
decision today holds only that the petitioners before us are entitled to the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA 7, 28 U.S.C.A. 2241(e) (Supp. 2007). Boumediene v. Bush, 533 U.S. __, slip op. at 66 (2008). ANALYSIS It is well settled that a military judge may grant a continuance for as long and as often as may be required in the interests of justice. In granting the Defense request for continuance from 27 May to 23 July, the Commission acknowledged that the Courts opinion might require a wholesale rescheduling of the proceedings. That possibility was envisioned should the Supreme Court issue a broad declaration that the constitution and all of its provisions did indeed apply in Guantanamo Bay. But the Courts holding was more limited and narrow, and clearly based upon the most unusual circumstances that led to it, i.e., that the petitioners had been held for up to six years without being charged, that they continued to deny that they were unlawful combatants or associated with al-Qaeda, and that the DTA procedures in place gave them no reasonable prospect of timely review of their detention. It is not clear, and the Court did not hold, that any other provision of the constitution will protect the detainees at Guantanamo Bay. The more relevant portion of the Commissions 16 May Ruling is the
The Defense has moved for an additional continuance of the scheduled trial date from 21 July to 22 September, a period of nine weeks. The rationale for the request is that the Supreme Courts recent decision in Boumediene v. Bush, 533 U.S. __, (2008) raised the prospect that the constitution may protect detainees at Guantanamo Bay more broadly than has been realized. The Defense seeks additional time to research and file new motions, and to permit the Commission to reconsider rulings that relied in whole or in part on the opinion of the D.C. Circuit Court of Appeals, Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). The Government opposes the motion, pointing to the fact that the Commission has already granted a continuance that will allow five weeks to consider the impact of the Supreme Courts new decision, and noting the Courts extremely narrow holding, which reversed the Court Appeals determination that the Suspension Clause was inapplicable. Our
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declaration that the Commission expects the parties to continue to work towards [the current trial] dates. The parties have already briefed, and the Commission has decided, a number of issues that involve the applicability of the constitution to detainees in Guantanamo Bay, and which relied on a decision that has now been overruled, at least in part. It is altogether proper that these decisions be reviewed for compliance with the Courts new guidance. It is not clear, however, that the Defense should require an additional nine weeks to brief and file motions that it should arguably have anticipated, researched and filed during the course of the past year, each of which might well have raised the issues the Defense now declares an intention to raise, and argued that the constitution should guarantee these protections. The Defense was aware on 16 May that the case had been continued precisely because the applicability of the constitution was yet at issue, and was instructed to work towards the 21 July trial date. The Commission is not inclined now to continue the case to permit additional research by the Defense. Faced with the Defenses list of intended motions, however, the Government opposes any continuance, even as it acknowledges the logistical and other burdens of orchestrating the travel of twenty two government witnesses to Cuba for trial. The Government seems confident that all the remaining matters can be resolved within the one week now set aside for motions, and that the trial may follow immediately thereafter. In opposing the continuance, the Government thus runs the risk that we will still be resolving pre-trial motions when the
members and witnesses begin to arrive in Guantanamo Bay. DECISION The Defense has had ample time to raise the issues it now seeks additional time to raise. Indeed, the deadline for the filing of law motions passed months ago. The Motion for a continuance of the trial until 22 September is DENIED. We will assemble in Guantanamo Bay on Monday, July 14th to litigate the remaining pretrial motions. Trial will follow as soon as the motions have been resolved, but not earlier than Monday the 21st of July. The Government accepts the possibility that resolution of the motions may delay the trial beyond that date. Motions for reconsiderations of rulings already issued, and new motions based on the Supreme Courts decision in Boumediene shall be filed not later than Wednesday July 2nd at close of business. Answers are due in accordance with current Rules of Court. In light of the compressed schedule, filings should be direct and to the point. The Commission is particularly interested in the parties views on what principles govern whether other constitutional provisions, such as those the Defense intends to raise, apply in Guantanamo Bay.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission July 20, 2008 RULING ON MOTION TO SUPRESS STATEMENTS BASED ON COERCIVE INTERROGATION PRACTICES (D-029) and MOTION TO SUPRESS STATEMEMENTS BASED ON FIFTH AMENDMENT (D-044) Keith J. Allred Captain, U.S. Navy Military Judge
At a hearing held on 17-18 July 2008, the Commission heard testimony from the accused, from the Defense forensic psychiatrist Dr. Emily Keram, and from Special Agents Craig W. Donnachie, Robert Fuller, Michael St. Ours, and Agent identified as Witness #1 whose actual identification is contained in the record, George Crouch, Daniel Williams, Dwight Locklear and Robert McFadden, who interviewed and took statements from the accused at various times between January of 2002 and May of 2004. One thing is consistent of each of the challenged statements: Hamdan was never advised of a right to remain silent, or warned that his statements could later be used against him in a criminal trial. FACTS For the purposes of deciding this motion, the Commission finds that the following facts are true: 1. The accused was captured on the battlefield near Takhteh Pol, Afghanistan on 24 November 2001, by a small group of U.S. forces acting in concert with several hundred anti-Taliban forces working with them (hereinafter ATF). His capture occurred when his vehicle was stopped at a roadblock, and surface to air missiles were discovered in the back of his car. 2. Two other vehicles were at the roadblock when Hamdan stopped, his car being the second in line. Arab fighters in one or both vehicles engaged the US/ATF troops at the roadblock in either a gun battle or some other type of dispute, and one or more of the Arabs from another vehicle was killed by ATF. The accused
The Defense has moved this Commission to suppress all out-of-court statements of the accused, whether made in Afghanistan or in Guantanamo, on the grounds that (1) they violate the accuseds 5th Amendment right against self incrimination, (2) they resulted from coercive interrogation techniques and are therefore inherently unreliable, and (3) in the alternative, the Defense seeks to suppress four specific statements: those made on the battlefield immediately after Mr. Hamdans capture, and the two statements made to Investigators Crouch and McFadden, taken in Guantanamo Bay in May of 2003. The Government opposes the motion.
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testified that he saw this shooting, but he told investigators in a 17 May 2003 statement described below that he had been told about the shooting by a Moroccan with whom he was housed after the capture. 3. The accused attempted to escape, but was apprehended at the scene by ATF. The ATF members beat him with their hands and weapons, and said they wanted to kill him. Major Hank Smiths American forces took custody of the accused soon thereafter to prevent his being killed by the ATF. Major Smiths forces held him for about one week before he was removed by helicopter. During this week, Major Smith checked on him about twice a day, and had medical personnel check on him regularly to ensure his safety and medical condition. The accused was interrogated at least twice by U.S. forces, and his interrogations were videotaped. These two capture videos are the first two subjects of the Defense motion to suppress. 4. During the making of the capture videos, the accused had his hands bound in front of him, was seated on the dirt floor of a crude building, and an armed figure, apparently from the U.S. forces, is visible standing behind him. 5. Hamdan was transported from Takhtah Pol to Panshir. He was interrogated there, according to his testimony in the manner of torturing. During this time, he had his feet and hands tied, had a bag over his head, was knocked down repeatedly by his captors, and was duck walked to and fro. 6. About 1 December 2001, the accused was transported by air to Bagram Air
Base. He found the conditions to be very bad, it was very cold and he was always alone. His hands and feet were restrained 24 hours a day. He was sometimes questioned with armed soldiers surrounding him, and one with a knee in his back telling him to speak. 7. On 29 December 2001, the accused made a statement to unknown U.S. investigators. The statement addressed Hamdans work as bin Ladens driver, his knowledge of bin Ladens (UBLs) whereabouts, communications practices, moving habits, locations where he might be staying, whether or not al-Qaeda possesses chemical weapons, and Taliban escape routes into Pakistan. 8. While in Bagram, Hamdan was told by another detainee that some detainee had been beaten and left on the tarmac in very cold weather to die. 9. At some point late in December 2001, Hamdan was taken to Kandahar. Twenty men were held in a tent, and it was better than Bagram. He felt that if the interrogator likes you, he will treat you well, and vice versa. 10. On 30 January, 1 and 2 February 2002 the accused was interviewed by Special Agents (SA) Arthur Williams and Pete Harrington (U.S. Army CID) and Craig W. Donnachie (FBI) at the Kandahar Military Detention Facility. The statement is nine pages long, and contains a description of Hamdans biography, how he traveled to Afghanistan, received military training, came to be associated with UBL, driving him around Afghanistan after the attacks of 9/11, identified several photos of persons from the Kandahar photo book, and how he
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attempted to escape with his wife after the fighting started. He denied any knowledge of missiles in the car he had been driving. 11. Special Agent Donnachie took this statement. He interviewed the accused in a tent with a table and chairs. Investigators sat across the table from Hamdan, and they spoke in cordial tones, took occasional breaks, using open-ended questions. Hamdan did not report any mistreatment to SA Donnachie, nor did the agent see or hear of any mistreatment in the facility. He saw nothing that could be considered abuse, mistreatment or torture. Hamdan never reported that he was being forced to talk, or that he had made up any story to please interrogators. The interrogation sessions were about four hours at a time, and Donnachie believed Hamdan was willing to talk to them. The investigators did not take away the accuseds belongings, threaten to withhold medical care, or apply any other inducements to encourage him to talk. Hamdan did not report having seen anyone beat up on the runway. Donnachie does not know anything about the accuseds treatment at any time other than when they were conducting the interview, and did not consider him a criminal suspect. 12. Hamdan claims that on one occasion, investigators placed a gun on the table and asked him if he wanted to talk to them. 13. On this date, Agents Fuller and Vincent drove around Kandahar with the accused, with Hamdan showing them three different al-Qaeda guesthouses or former residences of UBL. Hamdan drew maps demonstrating his familiarity with
the area. SA Fuller denies that any gun was shown to Hamdan or that any threats to use a gun unless he talked were ever applied. 14. Agents Vincent and Fuller also took a statement on 17 February. Hamdan gave more detailed descriptions of buildings and guesthouses around Kandahar, and described an event to which he had driven UBL within a year of the 9/11 attacks. 15. In another statement made to Agents Fuller and Vincent on 10 March, Hamdan described more details about UBL, his guesthouses in Kandahar and their occupants, the number of guards in the guesthouses, the number and types of weapons they carried, emergency plans in case of attack, communications practices between UBL and others in al-Qaeda, and UBLs health. 16. On 13 March, Hamdan accompanied Agents Vincent and Fuller on another drive around Kandahar, identifying guesthouses, and took them to Karnak Farms, where the party examined damaged facilities and looked for documents on the ground and in the rubble. He described a dinner in which UBL and Ayman Zawahiri announced a cooperative agreement between al-Qaeda and Egyptian Islamic Jihad. 17. On 5 April, Hamdan made a statement to Agents Robert Vogel and Craig McLaughlin, identifying photos of Richard Reed, and indicating that he had seen Reed in a Kandahar guesthouse. He also identified and described the guesthouse manager named Abu Annas.
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18. In May of 2002, Hamdan was moved to Guantanamo Bay, Cuba. The remaining statements he challenges were made there. On 12 May 2002, Hamdan was interviewed by NYPD Detective Thomas Fitzgerald and FBI Agent Michael St. Ours, and a representative of another government agency. In this statement he discussed and described the al-Farouq training camp, where he had trained some two and a half years before. He described the types of training accomplished at the camp, and the kinds of training he had received. He indicated that UBL had discussed a planned operation the week before 9/11, and that several guards heard him discussing it. He named some of the guards, and identified their pictures. 19. On 17 May, Agent St. Ours and others showed the accused the pictures of several people whom he attempted to identify, and gave whatever information he had about them. 20. Agent St. Ours conducted these interviews at Guantanamo Bay, in the Camp Delta interview room. This was a 10x12 room in a prefabricated trailer, with carpeted floors, table and chairs and an air conditioner. The conversation was conducted in a civil tone, and Hamdan did not report any abuse, ill treatment, or undue pressure on the accused to talk. Nor did Agent St. Ours observe or have any knowledge of such treatment. Hamdan appeared willing to talk to the investigators. St. Ours did not consider the accused a suspect in a criminal investigation, and did believe he was collecting intelligence for military use. 21. On 22 May, FBI and NCIS Agents interviewed the accused at Guantanamo Bay Camp Delta interview room. The
conditions were the same as those described by Agent St. Ours. He described the process by which weapons were requested from and delivered to the field in Afghanistan. He described and identified the location of a Taliban weapons storage depot in Kandahar, and provided a description of its manager, Abu Khalid. Neither agent witnessed nor was made aware of any abuse of any kind, and Hamdan did not report any. 22. On 28 May, FBI, NCIS and OGA agents showed Hamdan a photo lineup, and other photos, including aerial photos of Afghanistan, and asked him to identify them. He was asked whether UBL had WMD, and whether WMD training was conducted in any of the al-Qaeda training camps, whether any Taliban or al-Qaeda members had been vaccinated against biological or chemical agents, and whether there were gas masks or other protective gear in their possession. He described the manner of his capture while driving a borrowed car. 23. Witness #1, a federal agent whose identity is protected, conducted this interview. He described the same interview suite and conditions Agent St. Ours described. The tone was conversational, Hamdan seemed willing to talk, and never complained to this agent about the conditions of his treatment at Camp Delta or elsewhere, or reported that he had suffered or witnessed any other abuse at any time during his detention. This agent did not consider Hamdan a suspect, but a source of military intelligence. 24. On 10 July, FBI Agents Barghouty and Crouch interviewed Hamdan twelve or thirteen times at Camp Delta between
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June and July of 2002. On these dates, Hamdan gave a detailed description of his travel to Tajikistan to join a jihad against the Northern Alliance, and how he ultimately came to work for UBL. He described UBLs manner of travel, the number of guards and type of weapons they used, the places they frequented, names and descriptions of UBL associates and the relations between them, their procedures and patterns of their operations, and whether al-Qaeda had WMD. He identified a number of photos. And described the men and their roles within the al-Qaeda organization, described the process of selecting men for suicide missions, types of weapons and training offered at the training camps, and whether UBL had weapons of mass destruction. 25. Agent Crouch described the same interview suite and conditions noted above. Hamdan seemed willing to talk to them on each of these occasions, and they had pleasant, civil conversation each time. Hamdan did not complain of or report any abuse, either being inflicted upon him at that time or previously, although he told Agent Barghouty that he had been beaten at Bagram. The conversation was open ended, and both agents felt it was voluntary. 26. During one of these interviews, Agent Crouch learned that Hamdan had been placed in what Hamdan called solitary confinement, and became very angry about it because he had had nothing to do with it, Hamdan was disinclined to participate in the investigation because of it, and Crouch felt that it was destroying their rapport with Hamdan. Crouch left the interview room to complain loudly on Hamdans behalf, and was told that it was
part of a standard rotation. Although he was told in very clear terms that the FBI could interview detainees, but they could not control their treatment, Hamdan was released from solitary that same afternoon. Because these Agents assured Hamdan that they had nothing to do with his transfer to solitary, he agreed to talk to them. 27. On 6 August, FBI Agent Ali Souffan and another agent interviewed the accused at Camp Delta, Guantanamo Bay. He identified those he thought were responsible for the East Africa Embassy bombings and the USS Cole attack, and told investigators why he felt this to be so. He related circumstances surrounding the 9/11 attacks and UBLs comments regarding the attack, identifying photos of UBLs bodyguards, other GTMO detainees, and the photos of more than twenty people he believed were involved in the 9/11 attacks. He described his personal movements during this period, and gave information about the location of defenses around the city of Kandahar. 28. Hamdan was questioned on 26 August by a Detective from NYPD. Hamdan was uncooperative, expressed his unwillingness to speak, told the interviewer to write whatever he wanted, and terminated the interview. 29. The same NYPD Detective tried again on 27 August. This time, Hamdan identified a number of photos and told where he had seen the men depicted in them, located and described a few buildings in Kabul, described UBL body guards and how they perform their duties, and denied that he had sworn bayat to UBL.
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30. On 8 November, Hamdan was uncooperative. He said he had seen Americans working at charities in Afghanistan, and that he had not received any pictures of his new daughter. Beyond this, he refused to discuss anything with investigators and terminated the interview. 31. On 14 November, Hamdan was shown a letter believed to be from KSM to Ubayda al Hadrami, believed to be an alias for Ramzi bin al-Shibh. Hamdan denied any knowledge of the contents of the letter, or either of the men mentioned. 32. On 5 December, Hamdan was interviewed by two agents of the FBI. He was unable to identify one photo of a man, or recognize a name provided to him. He acknowledged that he was UBLs driver, but asserted that the vehicle he was driving when captured was a borrowed vehicle, and that he had no knowledge of the pocket litter taken from the car at his apprehension. 33. On 21 and 23 December, Hamdan was interviewed by two FBI agents. Hamdan identified some photos and told the agents what he knew about the men depicted in them. He was unable to identify some twenty other pictures, and was unable to provide any information about Mauritanian terrorist cells or another terrorist group. 34. On 14 January 2003, Hamdan was interviewed by an FBI Agent about the financing of the training camps in Afghanistan and how Hamdan was paid for driving. Hamdan told this investigator the question was dumb, and that just because he was UBLs driver, that didnt
mean he knew everything. He complained that he hadnt received an original photo of his new daughter, and the investigator promised to look into it. 35. On 19 January two FBI agents sought to interview the accused. He refused to answer any questions, and stuck his fingers in his ears so he could not hear the linguist. He denied recognizing two suspects arrested by INS in Santa Barbara, CA. 36. On 19 February, Hamdan refused to answer any questions regarding his case, and again stuck his fingers in his ears. He denied recognizing Sheik al-Libi and the photos of two suspects arrested by INS in Santa Barbara, CA. 37. On 26 February, Hamdan was interviewed by an FBI Agent at Camp Delta. He told the investigator he had no further information, and had provided a complete report in the past. He denied knowing Sheik al-Libi and that he had ever attended al-Farouq training camp. 38. On 19 March, Hamdan was interviewed by an FBI Agent and a Port of Seattle Investigator. Hamdan complained that he had not been given a lawyer, that the system at Camp Delta is lawless and was unwilling to let investigators build rapport with him. He was unable to identify one photo that was shown to him, and terminated the interview. 39. On 17 May, Hamdan was interviewed by FBI Agents McFadden and Souffan. They are both Arabic speakers, Mr. Souffan a native Arabic speaker. They entered the interview room and sat on the floor with Mr. Hamdan, in accordance
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with his expressed preferences and Arab tradition. The discussion was pleasant, civil, and Hamdan seemed willing to speak to them in an extended conversation. The agents spent quite some time making sure that Hamdan was comfortable, asking if he was OK physically and willing to speak to them. Hamdan was not noticeably tired. 40. McFadden met with prosecutors and a Behavioral Science Consultation Team (BSCT) in the airport and on the way to Guantanamo Bay. The BSCT was designed to advise interviewers about Arab cultural norms and expectations, and the best ways to behave with Arab interviewees to get the best interview results. The BSCT team members observed parts of the interview, but did not give any useful advice, perhaps because McFadden and Souffan were already Arabic speakers and deeply familiar with Arab customs and traditions in their own right. The prosecutors talked to McFadden on the way down about building a criminal case against the accused. 41. Hamdan did not report any mistreatment or abuse to agents McFadden or Souffan at any time during his detention, or complain of the conditions of his detention. The Agents did not use any threats or other forms of coercion, but engaged Hamdan in a conversational tone about the subjects in which they were interested. McFadden denied being aware of any maltreatment of Hamdan at any time. He would have recorded in his notes and reported to his supervisors any allegation of abuse that came to his attention. McFadden believed that he was conducting a criminal investigation and dealing with a suspect, but did not advise Hamdan of any
Miranda-type rights because a policy of not doing so had been approved at a high level for known or suspected al-Qaeda members. 42. The result of this interview is an 11 page single spaced summary of everything that Hamdan had told interviewers in bits and pieces over the previous 30 months, since his capture in 2001. It describes in detail his travels to Afghanistan, his meeting UBL and coming to work for him, the details of his driving and body guarding work, security procedures within UBLs security forces, the identities of various members of the security team, his presence at various events at which UBL spoke about jihad or other al-Qaeda business, discusses the circumstances surrounding his capture, and indentifies many photos and documents, many taken from his person or his vehicle at the time of his capture. 43. Hamdan was subjected to various types of coercive treatment, or treatment that seemed coercive to him while at Guantanamo Bay. a. On one occasion, he was touched in the crotch through his clothing by a female interrogator. It was brief, and she retreated when he asked her what she wanted. b. He has been placed in different camps and cells under different levels of security, some of which have some characteristics of solitary confinement. c. One medical record entry indicated that he once received medical care per an investigators request. Medical attention was once provided
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within minutes after an investigators intervention, when Hamdan normally had to wait for an appointment. One comment from the GITMO Gazette, by an unknown author, can be read to suggest such an association. d. He was force fed at one time to force him to end his hunger strike. After a medically appropriate tube insertion for force feeding, he was force fed again, in a non-medical setting, perhaps by non-medical personnel, and restrained in a chair until he soiled himself. 44. Hamdan was a participant in Operation Sandman from 10 June through 31 July of 2003, a period of 50 days. As indicated in (sealed) AE 286, Operation Sandman did not involve sleep deprivation, but was an appropriate effort by camp commanders to maintain discipline in the camp. 45. Dr. Emily Keram has conducted extensive interviews and testing of Hamdan. She has diagnosed PTSD, arising from seeing the Arab shot at the time of his apprehension, and complicated by the reported sexual humiliation, and various threats of death or beatings. He suffers nightmares and recurring intrusive thoughts resulting from these events. Because of his mental status, he is made more suggestible. 46. Hamdan has an anger and discipline problem that is aggravated by the conditions of his confinement. His anger leads him to frequent violation of camp rules, which results in his being disciplined.
47. Hamdan is also sometimes manipulative in an effort to get what he wants. He has tried to manipulate the behavioral health system in an effort to get to a different camp. 48. Hamdan was also examined by Dr. Cameron Ritchie, Colonel, MC, USA. She disagreed with the diagnosis of PTSD, and concurred that he is manipulative. 49. The FBI and NCIS both have significant intelligence, counter-intelligence, and counter-terrorism missions that are independent of their law enforcement missions. 50. On Sunday, 20 July between 19:45 and 22:50, the Government delivered some 600 pages of discovery to the defense, which the Defense had not been able to review before the trail began on 21 July. Some of the documents appear to relate to Hamdans treatment just before and just after the 17 May 2007 Statement given to Agents McFadden and Souffan. MR HAMDANS CLAIM TO FIFTH AMENDMENT PROTECTION The Supreme Court recently determined that the Constitutions Writ of Habeas Corpus protected Boumediene and another alien petitioner held in Guantanamo Bay. Boumediene v. Bush, 533 U.S. ___ (2008) [hereinafter Boumediene]. But in a number of ways, the Court signaled that it intended its holding to be narrow. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U.S.
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304, 320 (1936). Boumediene at 68. [O]ur opinion does not address the content of the law that governs petitioners detention. Boumediene at 69. Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute Id. at 66. Even so, its approach and analysis of extraterritorial application of the Habeas Corpus clause offers guidance for analyzing Hamdans other Constitutional claims. Although the Courts holding was limited to that writ, it offers some guidance for analyzing whether other constitutional provisions might also apply to detainees held there. The Court emphatically did not hold that every constitutional provision applies in Guantanamo, and has held in the past, The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Courts decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. United States v. VerdugoUrquidez, 494 U.S. 259 (1990). In fact, the Boumediene Court repeatedly wrote that extraterritorial application of the writ of habeas corpus depends not on the rigid application of de jure sovereignty, which belongs to Cuba, but on a host of practical obstacles inherent in resolving the petitioners entitlement to the writ. Boumediene at 37; objective factors and practical concerns; Id. at 26; practical considerations and exigent circumstances Id. at 64-65; that the determination required a functional approach; Id. at 34; and an assessment whether judicial enforcement of [a constitutional] provi-
sion would be impractical and anomalous. Id. at 30. Only after such a functional analysis can the Commission determine whether the accused may claim the protection of any other Constitutional provision. Although the Supreme Court ultimately held that the Boumediene petitioners could claim the Writ of Habeas Corpus, the Court may not have found the Privilege available had: (1) there been suitable alternative processes in place for determining the petitioners status (Here, as is true with detainees apprehended abroad, a relevant consideration in determining the courts role is whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power) Id. at 5; We hold that [the DTA] procedures are not an adequate and effective substitute for habeas corpus. Id. at 2. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ. Id. at 67. (2) the D.C. Circuit been more prompt in resolving CSRT appeals (The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued.) Id. at 66; or (3) access to the writ not been a clear necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. Id. at 69 (emphasis added). In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. Id. at 66.
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The Supreme Court has addressed the extraterritorial application of the Constitution in a number of cases before Boumediene. In Dorr v. United States, 195 U.S. 138 (1902), the Court concluded that an American citizen in the Philippine Islands, then a U.S. possession ceded by Spain, was not entitled to the Fourth Amendments guarantee of a jury trial. We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in Article IV, 3, to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by Congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated. Id. at 149. The Court reached the same conclusion, i.e., that an American citizen in Puerto Rico was not entitled to a jury trial in Balzac v. Porto Rico, 258 U.S. 298 (1922). After writing [t]hat the right to be indicted by a grand jury and be tried by a petit jury is not fundamental, that the Fifth and Sixth Amendments enforcing this right apply only in Federal courts, and that a citizen of the United States in a criminal prosecution in a state court may be deprived of his life, liberty, or property, by due process of law, without indictment by a grand jury and without unanimity in the verdict of a petit jury, is the established doctrine of this court. In Hawaii v. Mankichi, 190 U.S. 197, 198 (1903), the Supreme Court denied Mankichi a jury trial in Hawaiian territorial courts, permitting Congress a transition period during which it could
legislate for the newly acquired territory. While the Court has since decided that some of these rights are indeed fundamental, these cases illustrate that the Court has not traditionally found the Constitution applicable abroad. In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that the Fourth Amendment did not protect a Mexican citizen, being tried in the United States Courts, against an allegedly unlawful search of his residence in Mexico by U.S. Agents. The Court wrote: Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the grounds that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; the alienhas been accorded a generous and ascending scale of rights as he increases his identity with our society. Id. at 770. But their rejection of extraterritorial application of the Fifth Amendment was emphatic: Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports
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such a view. Cf. Downes v. Bidwell, 182 U.S. 244 [(1901)]. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it. Id. at 784. If such is true of the Fifth Amendment, which speaks in the relatively universal term of person, it would seem even more true with respect to the Fourth Amendment, which applies only to the people. United States v. VerdugoUrquidez, 494 U.S. 259, 269 (1990). Indeed, the Court has rarely found the Constitution to apply extraterritorially: most such cases involved U.S. Citizens. In Reid v. Covert, 354 U.S. 1 (1957), the Court determined that an American military dependent could not be deprived of Constitutional trial rights by a courtmartial abroad, and in Munaf v. Geren, 553 U.S. ___ (2008), the Court held that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command. At the outset, therefore, there is a long line of cases refusing to extend the Constitutions protections abroad, expect to protect American citizens, and the Court has expressly rejected the claim that the Fifth Amendment applies abroad to non-citizens with no voluntary association with our nation, outside the borders of our nation. Distilling from the Courts analysis in
and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; (3) whether practical considerations and exigent circumstances counsel against application of the constitutional right; (4) whether the Executive has provided the accused an adequate substitute for the Constitutional right being sought; (5) whether there is necessity for the Constitution to apply to prevent injustice, and (6) whether application of the Constitutional right would be impractical and anomalous. 1. The citizenship and status of the detainee, and the adequacy of the process through which the determination was made: Hamdan is a citizen of Yemen, and has been determined to be an alien unlawful enemy combatant. The determination was made after a public, two-day, adversarial hearing at which he was represented by counsel, called his own witnesses and cross-examined the Governments witnesses. The decision was made by a military judge, who considered not only the MCAs statutory definition of unlawful enemy combatant, but considered and evaluated his claims under the Geneva Convention in an Article 5 status hearing, held over Government objection. This factor weighs against extraterritoriality. 2. The site of his apprehension and detention: The apprehension occurred in Afghanistan, and the sites of his detention have been in Afghanistan and Guantanamo
Boumediene a set of factors to consider

when analyzing the extraterritorial application of the Constitution in Guantanamo Bay, the Commission concludes that it should consider (1) the citizenship
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Bay. The Supreme Court has held that Guantanamo Bay is under the de jure sovereignty of Cuba, and the de facto control of the United States. As the Court indicated in Boumediene, detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding that they have rights under the [Constitution]. Boumediene at 38. 3. Practical considerations and exigent circumstances: The Defense argues that there are few practical barriers to the enforcement of constitutional provisions in light of the United States complete and total control of Guantanamo Bay, citing Boumediene at 25, 41. Indeed, the United States clearly has the power and ability to guarantee all of the Constitutions rights to detainees held in its power. The Commission looks, however, to other practical considerations. A guarantee of the 5th Amendments right against selfincrimination to every detainee from the moment of his capture would entirely prevent the United States from seeking intelligence about the location, plans, capabilities and intentions of other lawful and unlawful combatants then in the field, and other attacks planned against the United States, its allies, or even unaligned nations, and would hamstring American military and intelligence officials in the performance of important national security duties. The practical effect of such a prohibition would be devastating to our ability to effectively confront and respond to international terrorism.
Are there exigent circumstances that would warrant denial of the right? Boumediene at 64, 65. The Government argues that the possibility of continued alQaeda attacks and the ongoing conflict on the battlefield are such exigent circumstances. The Commission agrees, although these exigencies may fade with time and distance from the battlefield. The need to identify the location and plans of alQaeda leaders; the location and contents of weapons caches; whether weapons of mass destruction were in the hands of the enemy, and whether they intended to use them; the location and strength of unlawful combatant forces and those with whom they fought, all while seeking to protect the coalition forces engaged in hostilities are such exigent circumstances in the immediate aftermath of a capture. Thus, although it is clearly within the power of the United States to grant 5th Amendment protections to unlawful combatants, there are also significant practical arguments and exigent circumstances weighing against it. This factor weighs against the application of the right. 4. Adequacy of the alternative right provided: The alternative right provided by Congress is a right to remain silent at the proceedings themselves. While the 5th Amendment applies in any criminal case, 18 U.S.C. 948r provides only that, No person shall be required to testify against himself at a proceeding of a military commission under this chapter. Fifth Amendment jurisprudence under the Constitution now requires someone in the custody of law enforcement officials
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to be warned of their rights to remain silent before they are interrogated, and presumes that statements made without such warnings are involuntarily made. Miranda v. Arizona, 386 U.S. 436 (1966). The prerequisites for the Miranda requirements are custodial interrogation by law enforcement officials, where interrogation is understood to mean express questioning or any other activity by law enforcement officials reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Statements obtained in violation of these rules are generally suppressed as involuntary, although exceptions have been recognized for public safety, New York v. Quarles, 467 U.S. 649, 656 (1984), and statements obtained after waiver of Miranda rights. This is a very high standard of protection for those entitled to its provisions. In a military commission trial, Congress has expressly and consciously denied unlawful enemy combatants a right to be warned that their statements may be used against them, and the right to have such unwarranted statements suppressed. MCA 948b(d). Statements made where the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted if the military judge determines, after a hearing, that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice would be best served by admission of the statement into evidence. 10 U.S.C. 948r(c), (d); M.C.R.E. 304(c).
The alternative remedy Congress has provided for application in military commission is significantly less protective of the accused than the 5th Amendment. But the same can be said of the Geneva Conventions themselves: the protections of Common Article 3 (for those not entitled to prisoner of war status), are minimal compared to the exhaustive and extensive protections and rights accorded to prisoners of war in Articles 12 through 125 of the Third Geneva Convention. The right afforded defendants before the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is a right not to be compelled to testify against himself or to confess guilt. ICTY Stat. art. 21; ICTR Stat. art. 20, Selected procedural Safeguards in Federal, Military and International Courts; CRS Report for Congress, Congressional Research Service Report (18 September 2006). These standards are comparable to the protection afforded by Congress before a military commission. This factor weighs against application of the Amendment. 5. Necessity for the 5th Amendment to prevent injustice: Congress has an express delegation of Constitutional authority to define and punish offenses against the law of nations. This power must include power to establish tribunals, modes of proof and other standards and procedures that satisfy the minimal standards established for unlawful combatants in Common Article 3. In this specialized area where Congress must weigh national interests with our obligations under the law of
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nations, the Commission cannot readily conclude that a decision Congress has made under this special mantle of authority must be overturned to prevent injustice. The right Congress has provided to unlawful combatants in the Military Commissions Act satisfies the minimal standard of a fair and regular trial required by Common Article 3 and is consistent with that provided in two other international tribunals. There is no requirement for the Fifth Amendment to apply to prevent injustice. 6. Would application of the Fifth Amendment be impractical or anomalous? The Commission has already determined that there are practical obstacles to, and national interests in opposing, the provision of Constitutional rights to unlawful combatants. What of anomaly? Applying the Fifth Amendment to unlawful enemy combatants, arguably engaged in unlawful combat against coalition forces, possibly associated with international terrorist organizations that chose civilians and civilian objects as their targets, would be anomalous. Because the accuseds status deprives him of the protections accorded to prisoners of war, giving him the protections accorded to criminal defendants in the United States courts would be anomalous. In providing the limited alternative right it chose, Congress has determined that unlawful combatants are entitled to the minimum protections of Common Article 3 in this regard. Given the longstanding practice of encouraging compliance with the law of war by according enhanced protections to those who do comply, it would be anomalous to provide Consti-
tutional protections to unlawful combatants when their only connection or association with the United States is that they are being held here for having unlawfully opposed us on the field of battle. Nicaragua v. United States, 1986 I.C.J. 14, 218, 25 I.L.M. 1023, cited at Hamdan v. Rumsfeld, 548 U.S. 557, 776 n.63 (2006). In summary, the commission finds that (1) the accused has been found to be an unlawful enemy combatant by a full, fair, open and adversarial hearing; (2) that the site of his apprehension and detention, in the Courts own words is a factor that weighs against a finding that he has rights under the [Constitution]; (3) there are substantial practical arguments against applying the 5th Amendment with full force and effect in Guantanamo Bay; (4) that the alternative remedy Congress has provided, is considerably less protective than the 5th Amendment but is consistent with the minimal protections guaranteed to unlawful combatants under Common Article 3; (5) that there is no necessity for the 5th Amendment to prevent injustice, and (6) that application of the 5th Amendment in Guantanamo Bay would be anomalous in some respects. The preponderance of these factors analyzed weighs against application of the 5th Amendment in Guantanamo Bay. The Supreme Court has expressly disclaimed extraterritorial aliens entitled to rights under the 5th Amendment as recently as 1990. The claim that extraterritorial aliens are entitled to rights under the 5th Amendment has been emphatically rejected. United States v. VerdugoUrquidez, at 268-269 (1990).
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Conclusion: The 5th Amendment of the Constitution does not apply to protect Mr. Hamdan. AVAILABILITY OF A GENERAL SUPPRESSION OF ALL STATEMENTS M.C.R.E. 304(d)(3) permits a military judge to authorize the defense to make a general motion to suppress or general objection when despite the exercise of due diligence, [the defense] has been unable to interview adequately those persons involved in the taking of a statement or otherwise to obtain information necessary to specify the grounds for a motion to suppress. The Defense here complains that it has repeatedly demanded all documents related to any interrogation of Mr. Hamdan, including investigators notes and Standard Operating Procedures, and that the Government has provided them slowly, late or not at all. The Government has indicated that it has provided everything that can be located, admits that many of the records sought by the Defense are simply not available, and has provided several hundred pages of additional discovery within the last week. This is so, the Defense argues, because of a secret manual guiding interrogators at Guantanamo, who were systematically encouraged to destroy the records and documents that could be used in subsequent proceedings. Motion at 2, citing letter from W. Kuebler to the Supreme Court of the Unites States in AlOdah, dated June 9, 2008. The Defense further alleges, without contradiction by the Government, that it has been unable, by due diligence, to learn the names or identities of the interrogators who collected these statements, and has
therefore been unable to interview them or ascertain the circumstances under which they were made. The Defenses general allegations of a coercive atmosphere and practice in the detention camp is supported by AE 285, a DOJ Inspector General Report into various coercive techniques observed or reported by FBI agents. The allegations reported there are consistent with those the accused has made. SUMMARY AND DECISION 1. The motion to suppress is DENIED as it pertains to the capture videos. The totality of the circumstances renders these statements reliable and possessing sufficient probative value. The statements were made some days after Hamdan had been rescued from his ATF captors, and while he was in the hands of American soldiers who checked on him and assured his safety several times a day. They are corroborated by other photographic and testimonial evidence that will be produced at trial. Two witnesses will be produced to testify about the circumstances surrounding the making of the statements. The interests of justice will best be served by the admission of the statements into evidence. M.C.R.E. 304(c)(1). 2. The Motion is GRANTED as to any statement for which the Government does not produce an official involved in the taking of the statement, who can authenticate the statement, describe the conditions under which it was made, and submit to cross examination. M.C.R.E. 304(d)(3). 3. The motion is granted as to statements of the accused made in Panshir and
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Bagram. The interests of justice are not served by admitting these statements because of the highly coercive environments and conditions under which they were made. M.C.R.E. 304(c)(1). 4. To the extent the motion raises issues of coercion after Hamdan arrived in Guantanamo, these are resolved against the accused. While Hamdan was exposed to a variety of coercive influences over the past seven years, some of these were rationally related to good order and discipline in the camp, some were imposed as a result of his own misconduct as disciplinary measures, and others were likely imposed to encourage his cooperation with camp rules and procedures generally. Some coercive practices and techniques were in the air, so to speak, and unrelated to any statements affected by it. United States v. Allen, 33 M.J. 209, 212 (1991), cert. denied, 503 U.S. 936, 117 L. Ed. 2d 617, 112 S. Ct. 1473 (C.A.A.F. 1992). (Command influence in the air is not enough. Impact on a particular trial must be shown). I find the apparent correlation between medical care and cooperation to be not a sinister attempt at coercion, but the natural consequence of agents seeking to help detainees in order to build rapport. This conclusion is supported by the efforts of Agents Crouch and Williams to do just this. This conclusion is also supported because on several occasions the accused refused to speak to interrogators, called them names, or negotiated with them for privileges in return for his cooperation. Each of the agents who testified at the hearing denied being aware that any coercion had been applied to Hamdan, and affirmed his willingness to talk to
them in a pleasant, conversational manner. Each of them rejected coercive techniques because they interfered with the building of a rapport with the interviewees, and opposed the use of them. Agent Crouch sought relief from solitary confinement and Agent Williams sought medical treatment on behalf of the accused. The Commission is convinced, by a preponderance of the evidence, that no coercive techniques influenced the making of any of the accuseds statements in Kandahar or Guantanamo Bay. 4. The accuseds detention is a factor that merits discussion. As the Supreme Court recognized in Hamdi v. Rumsfeld, 542 U.S. 507, 518, 588-589 (2004), detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict is a fundamental and accepted incident of war. Thus, the Commission gives little weight to the coercive effect that may have otherwise have resulted from long detention without access to friends, advisers or counselors, subjected to protracted questioning and cross questioning by men who held their lives so far as these ignorant petitioners could know in the balance. Motion at 3, 4, citing Chambers v. Florida, 309 U.S. 227, 238-41 (1940). 5. The Commission reserves ruling on admission of the 17 May 2003 statement made to Agent Robert McFadden until resolution of the issue raised by last nights delivery of approximately 600 pages of discovery to the defense, some of which documents Hamdans treatment during the period immediately surrounding that statement.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission July 20, 2008 RULING ON MOTION TO DISMISS: SPEEDY TRIAL (D-046) Keith J. Allred Captain, U.S. Navy Military Judge
could lawfully try him. Although the parties have not supplied the Commission with a detailed chronology, a few milestones are available in the public record: The President designated him for trial by military commission on July 3, 2003; Defense counsel was appointed for him on 18 December 2003; The District Court for the District of Columbia granted Hamdans request for a writ of habeas corpus, granting relief on November 8, 2004, 344 F. Supp. 2d 152 (D.C. 2004); The Court of Appeals for the District of Columbia Circuit denied his petition on 11 February 2005, and reversed the District Court on 15 July 2005, 415 F. 3d 33 (D.C. Cir. 2005); 2005 U.S. App. LEXIS 14315; The Supreme Court granted certiorari on 7 November 2005, 546 U.S. 1002 (2005), authorizing trial by military commission for unlawful enemy combatants; Charges against Mr. Hamdan in the instant case were sworn on 5 April 2007 and referred for trial on 10 May 2007. He was arraigned before this Military Commission, authorized under the Military Commissions Act of 2006, on 6 June 2007. DOES THE SIXTH AMENDMENT PROTECT THE ACCUSED? The Commission does not reach a Constitutional analysis of this motion because even assuming, arguendo, that the accused is entitled to the Constitutional right to a speedy trial, it has not
The Defense has moved this Commission to dismiss all charges and specifications with prejudice on the grounds that the accused has been denied a speedy trial guaranteed him under the Sixth Amendment to the Constitution. The Government opposes. FACTS The accused was captured on the battlefield in Afghanistan on 24 November 2001 after being stopped at a road block with surface to air missile components in his vehicle. He has been detained as an enemy combatant since that date, although it is not clear when the notion of prosecuting him for war crimes arose. From that date until June 6, 2007, the United States and the accused have been engaged in a titanic struggle over those charges, including a trip to the Supreme Court, a victory there, special Congressional action as a result, and three separate attempts on behalf of the United States to create military commissions that
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been denied him under the facts of this case. The seminal case in examining the right to a speedy trial is Barker v. Wingo, 407 U.S. 514 (1972) finding that the right to a speedy trial is a fundamental right. However, unlike other Constitutional rights, the right to a speedy trial also encompasses a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. Id. at 522. Thus, unlike the rights to counsel or the right to be free from compelled selfincrimination, deprivation of the right to speedy trial does not per se prejudice the accuseds ability to defend himself. Id. The Court indicated that identification of a finite point in time when the right inures is difficult: Finally, and perhaps most importantly, the right to a speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trialThus, as we recognized in Beavers v. Haubert [citation omitted] any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case: Id. at 521.
HAS THE ACCUSED BEEN DENIED A SPEEDY TRIAL? In addressing the Governments compliance with the Constitutional guarantee, the Commission considers the four factors identified in Barker v. Wingo, 407 U.S. 514 (1972):
Length of the Delay: This case has transpired against a backdrop of actions by all three branches of our federal government that are unprecedented in our jurisprudence. The accused has undeniably been held by the United States since his capture in November 2001, but he was not held by law enforcement authorities, but by the armed forces after having been captured in armed conflict, which detention is and has been pursuant to a fundamental and accepted incident to war. Hamdan and others captured while fighting against the United States in Afghanistan [may be detained] for the duration of that conflict as a fundamental and accepted incident to war. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). On 3 July 2003, the President of the United States announced that Mr. Hamdan, among others, would be tried by a military commission the first public indication that Hamdan was considered other than a battlefield detainee. Thus began a convoluted and lengthy path that is only ending at this juncture. Along this trail have been decisions by various federal courts to include the United States Supreme Court. The legislative branch has enacted two separate statutes with a view to establishing a constitutionally permissible system for trying stateless enemies the Detainee Treatment Act and the Military Commissions Act.
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Thus, the seven-year period of Hamdans detention is not a measure of the delay in bringing him to trial, but a recognition that the conflict with and in Afghanistan continues. The length of delay is in favor of the Government.
Reason for the Delay: Once again, the

reason for the delay is twofold: Hamdan is being detained as a battlefield detainee in an ongoing conflict, and hence he will continue to be detained whether his prosecution proceeds or not. Second, he has been the leading figure in challenging the United States ability to try unlawful enemy combatants, and an active successful litigant in our federal system as noted above. Both the President of the United States and the Secretary of Defense have troubled themselves to identify him by name as one whose case should be tried by military commission. Beyond this, the case is extraordinary in its scope and complexity. The prosecution of this case has involved a worldwide search for evidence carried on during a period of national emergency and threat, the declassification of documents, interagency cooperation with numerous other federal agencies, security clearances for the defense counsel, and a host of other administrative issues not present in any other federal or military prosecution. Thus, both sides have been actively preparing for trial since the notion of prosecuting Hamdan was first conceived. This factor weighs in favor of the Government.
bring him to trial, he made a demand for speedy trial and it was granted. The accused has made no further demands for speedy trial in the four years since that date. Between June of 2006 and May of 2007, the accused was not facing any pending charges. Since the current charges were referred on that date, the Defense has not made any demand for speedy trial, has affirmatively waived the issue of speedy trial on the record, has requested several continuances, and has had its continuances granted liberally to accommodate the schedules of members of the Defense team. His arraignment on 6 June occurred within 30 days after the charges were referred against him, satisfying the rule of R.M.C. 707. This factor weighs in favor of the Government.
Prejudice:
Demands for Speedy Trial: The accused submitted a demand for speedy trial on February 12, 2004, and he was served with charges on July 9th of that year. Thus, with respect to the first attempt to
The accused notes that prevention of oppressive pretrial incarceration, minimization of the accuseds anxiety and concern, and minimization of the possibility that a delay will hinder the defense are interests that the speedy trial right was designed to protect. These factors are helpful guides in civilian criminal cases where the accused is apprehended only after he has been accused of a crime, and only for the purpose of answering those charges, but they are not dispositive here. For one thing, many others detained with him continue to be held with no charges referred against them, and Hamdan has been held as a battlefield detainee even during long periods when he was facing no charges. Thus, the interest in preventing excessive pretrial incarceration, with its attendant anxiety and concern, does not help the accused much here. His incarceration at Guantanamo Bay is not for the sole purpose of ensuring his presence at trial.
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With respect to prejudice, the Commission accepts the declaration that his family in Yemen is destitute, that he has been held for nearly seven years, and that he suffers mental and physical effects of his incarceration. But the Defense has not shown that any of this prejudice occurred only because one of the reasons for his detention is the trial. It is widely known that many other detainees at Guantanamo Bay are held because they are believed to represent a continuing threat to the security of the United States ongoing combat operations abroad, and others are being held because their own countries have refused to accept their return. In fact, the delay in finally getting Mr. Hamdan to trial has produced at least one unlooked-for boon to his defense: the United States has located, captured, and brought to Guantanamo Bay no less than eight high ranking al-Qaeda leaders, several of whom are believed ready to provide exculpatory evidence on the accuseds behalf. This factor weighs in favor of the Government. The balance of the Barker v. Wingo factors results in all of the pertinent factors being in the favor of the Government. The Commission concludes by a preponderance of the evidence that whatever Constitutional right to a speedy trial the accused may have, it has not been violated. CONCLUSION AND RULING The accused has not been denied a speedy trial within the meaning of the Constitution, even assuming that it protects him. The Motion to Dismiss is DENIED.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission July 20, 2008 RULING ON MOTION FOR INDICTMENT AND TRIAL BY JURY (D-048) Keith J. Allred Captain, U.S. Navy Military Judge
deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U.S. 320 (1936). Boumediene at 68. [O]ur opinion does not address the content of the law that governs petitioners detention. Id. at 69. Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute Id. at 66. Even so, its approach and analysis of extraterritorial application of the habeas corpus clause offers guidance for analyzing Hamdans other Constitutional claims. The Court wrote that extraterritorial application of the Constitution depends not on the rigid application of de jure sovereignty, which belongs to Cuba, or on de facto sovereignty and control, which belongs in Guantanamo Bay to the United States, but on a host of practical obstacles inherent in resolving the petitioners entitlement to the writ, Boumediene at 37; objective factors and practical concerns, Id. at 26; practical considerations and exigent circumstances; Id. at 64-65; a functional approach, Id. at 34; whether judicial enforcement of [a constitutional] provision would be impractical and anomalous, Id. at 30; and whether access to the provision is necessary to prevent injustice. Id. at 69. Any claim of the protection of any other Constitutional provision is subject to this functional analysis. At least two other reasons for the Courts decision should be noted. First, the Court was influenced in part by the significance of habeas corpus as an essential mechanism in the separation of powers scheme, one that, except during periods of formal suspension, the Judiciary will
The Defense has moved this Commission to obtain an indictment by grand jury and a jury trial. The Defense claims that he is entitled to these protections under the Fifth and Sixth Amendments to the United States Constitution, applicable extraterritorially in light of Boumediene v. Bush, 533 U.S. __, (2008) [hereinafter Boumediene]. The Government opposes, arguing that Boumediene is a narrowly tailored decision that applies only to habeas corpus. ANALYSIS The Supreme Court recently determined that the Constitutions Writ of Habeas Corpus protected Boumediene and another alien petitioner held in Guantanamo Bay. Boumediene v. Bush, 533 U.S. __ (2008). But in a number of ways, the Court signaled that it intended its holding to be narrow. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper
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have a time-tested device, the writ, to maintain the delicate balance of government that is itself the surest safeguard of liberty. Id. at 12-13. Claims for Constitutional rights that do not implicate separation of powers or threaten the independent functioning of the judiciary are deprived of this rationale for extraterritorial application. In addition, the Court held the writ to be available in part because it determined that the alternative right provided by Congress and the Executive was simply inadequate. The Court suggests that it may not have found the Privilege available had: (1) There been suitable process in place for determining the petitioners status: Here, as is true with detainees apprehended abroad, a relevant consideration in determining the courts role is whether there are suitable alternative processes in place to protect against arbitrary exercise of governmental power. Boumediene at 5. We hold that [the DTA] procedures are not an adequate and effective substitute for habeas corpus. Id. at 2. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ. Id. at 67. (2) The D.C. Circuit been more prompt in resolving appeals: The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. Boumediene at 66. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demandsThe cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete a prompt review of their application, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. Id. at 66. (3) The Executive acted more promptly in making its determination about these petitioners states. The Executive is entitled to a reasonable period of time to determine a detainees status before a court entertains that detainees habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatants habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status. Id. at 66, 67. The Supreme Court has addressed the extraterritorial application of the Constitution in a number of cases before Boumediene. In Dorr v. United States, 195 U.S. 138 (1902), the Court concluded that an American citizen in the Philippine Islands, then a U.S. possession ceded by Spain, was not entitled to the Fourth Amendments guarantee of a jury trial. We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in Article IV, 3, to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by Congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its
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own force, carry such right to territory so situated. Id. at 149. In Balzac v. Porto Rico, 258 U.S. 298 (1922), the Court reached the same conclusion regarding an American citizen in Puerto Rico. In Hawaii v. Mankichi, 190 U.S. 197 (1903) the Supreme Court denied Mankichi a jury trial in Hawaiian territorial courts, permitting Congress a transition period during which it could legislate for the newly acquired territory. Of course, in the years since these Insular cases, the Court has changed its reasoning regarding these fundamental rights, but they are nonetheless instructive for this lesson: the Court has not been quick to find that our Constitution applies abroad. In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that the Fourth Amendment did not protect a Mexican citizen, being tried in the United States Courts, against an allegedly unlawful search of his residence in Mexico by U.S. agents. The Court also wrote there that, The claim that extraterritorial aliens are entitled to rights under the 5th Amendment has been emphatically rejected. VerdugoUrquidez, at 268-269. Johnson v. Eisentrager, 339 U.S. 763 (1950), held that German nationals, being held by the United States in Germany after conviction for war crimes, did not have recourse to the writ of habeas corpus. Thus, while the Supreme Court ultimately concluded that the Boumediene petitioners are entitled to the writ, it did so after a long history of finding other Constitutional provisions generally inapplicable extraterritorially, and only after concluding that (1) separation of powers principles were implicated that threatened the Courts ability to check the executive, and (2) the
Executives inadequate.
alternative
remedy
was
Cases in which the Court has found extraterritorial jurisdiction are fewer, and generally involved American citizens. In Reid v. Covert, 354 U.S. 1 (1957) the Court found that an American citizen being prosecuted by a military court on a military base abroad was protected by the Bill of Rights and other substantive protections of the Constitution. In Munaf v. Geren, 128 S. Ct. 2207 (2008), the Court held that habeas jurisdiction existed over American civilians who committed insurgent crimes in Iraq and were detained by military officials for those offenses because the detainees were American citizens held by American forces who answered only to an American chain of command. Id. Distilling from the Courts historic approach to extra-territoriality and its practical analysis in each case, the Commission concludes that it should consider (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made. Most extraterritorial applications of the Constitution are to protect American citizens held by American authorities; (2) the nature of the sites where apprehension and then detention took place; (3) whether practical considerations and exigent circumstances counsel against application of the constitutional right; (4) whether the Executive has provided the accused an adequate substitute for the Constitutional right being sought; (5) whether there is necessity for the Constitution to apply to prevent injustice, and (6) whether application of the Constitutional right would be impractical and anomalous.
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Items that challenge the power of the judiciary or otherwise violate a separation of powers principle are subject to special scrutiny. APPLICABILITY OF THE FIFTH AMENDMENT TO THE ACCUSED Turning to analysis of the practical factors bearing on the extraterritorial application of the Constitution, the Commission finds: 1. The citizenship and status of the detainee, and the adequacy of the process through which the determination was made: Hamdan is a citizen of Yemen who has been determined to be an unlawful enemy combatant. The determination was made after a public, two-day, adversarial hearing at which he was represented by counsel, called his own witnesses and cross-examined the governments witnesses. The decision was made by a military judge, who considered not only the MCAs statutory definition of alien unlawful enemy combatant, but considered and evaluated his claims under the Geneva Convention in an Article 5 status hearing, held over Government objection. This factor weighs against application of the Constitution. 2. The site of his apprehension and detention: Mr. Hamdan was captured during combat in Afghanistan, and the sites of his detention have been in Afghanistan and Guantanamo Bay. While Guantanamo Bay is under the constant jurisdiction of the United States, detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding that they have rights under the [Constitution]. Boumediene at 38. 3. Practical considerations and exigent circumstance The Defense argues that there are few practical barriers to the enforcement of constitutional provisions such as the Fifth and Sixth Amendments grand and petit jury provisions, in light of the United States complete jurisdiction and control of Guantanamo Bay. Boumediene at 25, 41. Indeed, the United States clearly has the power and ability to guarantee all of the Constitutions rights to detainees held in its power should it choose to do so. The Commission also looks, however, to other practical considerations. If the accused is entitled to a trial by jury, it must be an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law U.S. Const. amend VI. The Sixth Amendment thus presents immediate practical obstacles: the offenses were not committed in any state or district, and thus the location from which jurors might be drawn becomes an issue. The charged offenses were committed, if at all, in Afghanistan, and it is certainly impracticable to hope for Afghan jurors. The Defense argues that it is just as easy for civilians to be flown to Guantanamo Bay from the United States as for military personnel, but this is not so. Military personnel are subject to orders by which they can be sent to Guantanamo Bay;
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civilians not associated with the military are not. There is no system by which the names of potential civilian jurors can be collected and their availability for such duty determined; there is no law authorizing civilians to be compelled to report for jury duty in a state or district other than their own, and certainly not abroad. It appears that an entirely new scheme of compulsory travel for international jury duty would have to be enacted on order to provide a jury trial in Guantanamo Bay. There are clearly substantial practical obstacles to the relief the Defense seeks. With respect to indictment by grand jury, the Constitution itself appears to except this military commission from the requirement of a grand jury indictment, as the right applies except in cases arising in the land or naval forces U.S. Const., amend. V, and a military commission hearing war crimes arguably involve such cases. If not, the same problems arise: what grand jury, convened by what federal prosecutor, has jurisdiction over war crimes committed abroad? What civil officer has any interest in such prosecutions, such that he will expend his budget to advance the interests of the United States in an international prosecution over which he has no jurisdiction? These obstacles to grand jury indictment would also require a legislative fix. The parties have not argued the existence of exigent circumstances that would prevent application of the Fifth and Sixth Amendments jury provisions, Boumediene at 64, 65, and the Commission is aware of none. Even so, this factor weights against extraterritorial application of the Constitution because of the
significant practical barriers to providing jury trials here. 4. Adequacy of the alternative right provided: The alternative right provided by Congress is a right to be tried by a panel of active duty commissioned officers, who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament. R.M.C. 502(a)(1). Those who have prior involvement in the case are disqualified. The parties have a right to voir dire the members and exercise challenges for cause and peremptory challenges. R.M.C. 912. The panel shall consist of not less than five members, who may not find the accused guilty without the concurrence of two-thirds of the members present when the vote is taken. If fewer than two-thirds vote for a finding of guilty, the accused is found not guilty; there are no hung members panels. Voting is by secret written ballot. R.M.C. 921. With respect to the grand jury, the alternative right provided is a right, before any charge may be referred to trial by military commission to have the charges and the evidence reviewed by a Legal Officer, who must make specific findings regarding the form of the charges, whether each charge is warranted by the evidence, whether there is jurisdiction over the accused and the offense, and a recommendation for disposition. The Convening Authority then exercises her independent judgment, and may dismiss any charge or specification or refer the charges to trial. R.M.C. 406, 407. In this case, the
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Commission itself has conducted a twoday adversarial hearing that is a substantial protection for the accused against being tried on unfounded charges. In addition, the use of grand juries is not a requirement for our state criminal justice systems and many states have chosen to forego grand juries in favor of alternative methods of bringing criminal charges before their courts (see Power to Abolish Grand Jury at http://campus.udayton .edu/~grand jur/stategj/abolish.htm). The alternative remedy Congress has provided for application in military commissions may be less protective of the accused than a grand jury indictment and trial by jury, but not significantly so. Many U.S. states no longer use grand juries to investigate and bring charges to trial. The panel of officers afforded the accused has been used thousands of times each year since 1950 to try members of our own armed forces who are charged with offenses under the Uniform Code of Military Justice. It has produced fair results that have been upheld by the United States Supreme Court, see, e.g. Loving v. United States, 517 U.S. 748 (1996) (capital sentence), and recognized by our federal courts, see, e.g. Diaz v. Inch, 268 Fed. Appx. 802 (10th Cir. 2008) (unpublished opinion). In addition, the Supreme Court and appellate military courts have repeatedly upheld trial of military members without a jury. In Ex Parte Quirin, 317 U.S. 1 (1942), the Court very clearly concluded that: We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the
law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of the Articles of War punishable by death. It is equally inadmissible to construe the Amendments whose primary purpose was to continue unimpaired presentment by grand jury and trial by petit jury in all those cases in which they had been customary as either abolishing all trials by military tribunals, save those of the personnel of our own armed forces, or what in effect comes to the same thing, as imposing on all such tribunals the necessity of proceeding against unlawful enemy belligerents only on presentment and trial by jurythe Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.
See also United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004), cert. den. 543 U.S.
1188, 125 S. Ct. 1425, 161 L. Ed. 2d 191 (2005); United States ex rel. New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006), cert. den., 2007 WL 1174343 (U.S. 2007). Kahn v. Anderson, 255 U.S. 1, 8-9, 41 S. Ct. 224, 65 L. Ed. 469 (1921). If the provisions of the Military Commissions Act are less protective than a grand jury indictment and trial by jury,
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the same can be said of the Geneva Conventions themselves: the protections of Common Article 3 (for those not entitled to prisoner of war status), are minimal compared to the exhaustive and extensive protections and rights accorded to Prisoners of War in Articles 12 through 125 of the Third Geneva Convention. Thus, the international community and the United States Senate have already ratified procedures in which unlawful combatants are tried in forums less protective of their rights than the forums accorded to lawful combatants. This factor weighs against the accused. 5. Necessity for grand and petit juries to prevent injustice: The alternative procedure in place for the trial of alien unlawful enemy combatants by a panel of officer members is identical to the procedure provided to U.S. military personnel under the Uniform Code of Military Justice. The Law of Armed Conflict, as embodied by the Geneva Conventions, have long envisioned the trial of unlawful combatants in tribunals that accord them fewer protections than those accorded to prisoners of war, although they must still be fair and regular trials. See, e.g. Yoram Dinstein,
Fifth and Sixth Amendment need to apply at Guantanamo Bay to prevent injustice. This factor weighs against application of this clause at Guantanamo Bay. 6. Would application of the grand and petit jury guarantees be impractical or anomalous? We have already determined, in the first criteria above, that holding jury trials outside of the United States would be impractical for the reasons described there. With respect to this motion, the accused is entitled to the same protections he would receive were he a prisoner or war, i.e. trial by the same forum that would try members of the detaining powers armed forces. Granting him greater rights than he could claim as a prisoner of war would certainly be anomalous, and would damage the carefully crafted international scheme that has long been in place to encourage compliance with the law of armed conflict by granting greater protections and better treatment to lawful combatants than to unlawful combatants. This preferential treatment for unlawful combatants would discourage compliance with the law of war, and likely increase the harm to civilians and their property. Thus, it would seem impractical and anomalous to provide jury trial rights of the Fifth and Sixth Amendments to those whose battlefield conduct does not even entitle them to the protections accorded a prisoner of war. This factor also argues against extraterritorial application. In summary, the Commission finds (1) that the accused has been found to be an
The Conduct of Hostilities Under the Law of International Armed Conflict,

(Cambridge: Cambridge University Press 2002), 32; Fourth Geneva Convention, Article V, para. 4. Because the substitutes Congress has provided for grand and petit juries are identical to the protections to our own troops, in this respect Hamdan is getting the protection accorded to a prisoner of war. The Commission does not find that the jury trial provisions of the
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alien unlawful enemy combatant by a full, fair, open and adversarial hearing, the determination having been made by a military judge; (2) that the site of his apprehension and detention is a factor that weighs against a finding that he has rights under the Constitution; (3) that there are substantial practical arguments against providing jury trials to detainees in Guantanamo Bay; (4) that the alternative remedy Congress has provided, may be less protective than the accused would receive were the grand and petit jury protections to apply, but not significantly so, and is perfectly acceptable for the trial of U.S. military personnel; (5) that there is no necessity for jury trials or grand jury indictments to prevent injustice in the trial of detainees in Guantanamo; and (6) that application of the Fifth and Sixth Amendment guarantees of grand and petit juries in Guantanamo Bay would be anomalous and impractical. All of the six factors analyzed weigh against grand and petit juries in Guantanamo Bay. Conclusion: The Fifth and Sixth Amendments of the Constitution do not guarantee Mr. Hamdan an indictment by grand jury or trial by petit jury. The motion to obtain an indictment and a jury trial is DENIED.
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UNITED STATES OF AMERICA v. SALIM AHMED HAMDAN Military Commission October 29, 2008 RULING ON MOTION FOR RECONSIDERATION AND RESENTENCING (P-009) Keith J. Allred Captain, U.S. Navy Military Judge
sentence that was imposed more than two months ago. The Commission has read the briefs filed and cases cited by the parties, and reviewed the transcript of the sentencing proceedings. The Prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is DENIED.
The Prosecution has moved this Commission to reconsider its decision to grant credit for detention served before trial; to reassemble the members in Guantanamo Bay; to instruct the members that the accused is not entitled to credit for any time spent in detention prior to trial, and to send them back to deliberate again on the sentence. The Prosecution assures the Commission and the Defense that it will not seek a sentence longer than the 66 months already imposed by the members. The Defense opposes the motion, arguing that the Commissions decision to grant credit was not erroneous, that the Government has waived any objection to the Commissions instructions, that the members reached the sentence they reached with the full understanding that the accused would be given credit for 61 months of pre-trial detention, and that in any event, the members should not be recalled to reconsider a
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UNITED STATES v. OMAR AHMED KHADR
______________
Background Omar Khadr, a Canadian, was captured by American forces at the age of 15 following a four-hour firefight with militants in the village of Ayub Kheyl, Afghanistan. Officials contend that he has significant ties with al-Qaeda and received training at terrorist camps. Military Commissions Charges were sworn against Khadr on February 2, 2007. The Convening Authority referred charges on April 24, 2007. Charges
Murder in Violation of the Law of War (Violation of 10 U.S.C. 950v[b][15]): Intentionally killed Sergeant First Class Christopher Speer
by throwing a hand grenade.
Attempted Murder in Violation of the Law of War (Violation of 10 U.S.C. 950t): Attempted to commit murder by converting land mines
into improvised explosive devices and planting them in the ground with intent to kill U.S. or coalition forces.
Conspiracy (Violation of 10 U.S.C. 950v[b][[28]): Conspired with alQaeda to commit terrorist acts.
Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): Intentionally provided material support to al-Qaeda,
known to the accused to be a terrorist organization.
Spying (Violation of 10 U.S.C. 950v[b][27]): In June 2002 collected information by clandestine means intending to injure the United States.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission June 4, 2007 ORDER ON JURISDICTION Peter E. Brownback III Colonel, U.S. Army Military Judge
5. Further, in Section 948d(c), Congress stated that a finding by a Combatant Status Review Tribunal (CSRT) that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction by military commissions. 6. In considering 948d, it is clear that the MCA contemplates a two-part system. First, it anticipates that there shall be an administrative decision by the CSRT which will establish the status of a person for purposes of the MCA. The CSRT can find, for MCA purposes, that a person is a lawful enemy combatant or an unlawful enemy combatant. 7. Second, once the CSRT finds that a person is an unlawful enemy combatant, the provisions of the MCA come into play. Such person may have charges sworn against him, those charges may be referred to a military commission for trial, and a military commission may try him. A strict reading of the MCA would appear to require that, until such time as a CSRT (or other competent tribunal) makes a finding that a person is an unlawful enemy combatant, the provisions of the MCA do not come into play and such person may not be charged, charges may not be referred to a military commission for trial, and the military commission has no jurisdiction to try him. 8. There is, of course, the counterargument. The military commission itself is a competent tribunal (948(c)) to determine if a person brought before it is an unlawful enemy combatant. While appealing, this argument has two major flaws: A. First, in order to make the determination, the military judge
1. A military commission is a court of limited jurisdiction. The jurisdiction is set by statute the Military Commissions Act of 2006 (MCA). 2. Section 948d establishes the jurisdiction of a military commission. 948d(a) states: (a) JURISDICTION A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapterwhen committed by an alien unlawful enemy combatant. 3. Section 948d(b) specifically states that military commissions shall not have jurisdiction over lawful enemy combatants. 4. Thus, in the MCA, Congress denominates for the purpose of establishing jurisdiction two categories of enemy combatants lawful and unlawful. A military commission only has jurisdiction to try an unlawful enemy combatant.
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would have to conduct a mini-trial to decide if the person is an unlawful combatant. Or would s/he? Perhaps, since this determination might require factual determinations, the panel would have to make it. Congress provided in the MCA for many scenarios none of them anticipated that the military commission would make the lawful/unlawful enemy combatant determination for initial jurisdictional purposes. B. Second, and Im paraphrasing from Justice Stevens, A person has a right to be tried only by a court which he knows has jurisdiction over him. If the military commission were to make the determination of initial jurisdiction, a person could be facing trial for months, without knowing if the court, in fact and in law, had jurisdiction. 9. Persons familiar with the court-martial system might state that jurisdiction is always assumed by the court-martial and it is attacked only by motion. That is true, but a court-martial is a different creature than a military commission. A soldier is in court in uniform with her first sergeant and company commander (who most likely preferred the charges) sitting in the courtroom. DD Form 458, the Charge Sheet, contains the following information in Block I Personal Data: Name of accused, SSN, Grade or Rank, Pay Grade, Unit or Organization, Initial Date and Term of Current Service, Pay Per Month, Nature of Restraint of accused, and Date(s) Imposed. So when a military judge at Fort Bragg looks at the Charge Sheet and the accused (who is in uniform), she knows that Private First Class William B. Jones is a member of Bravo Company, 3rd
Battalion (Airborne), 325th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina. She knows how much he is being paid, if he has been restrained, when he came on active duty this tour, and by comparing the unit to the name of the accuser in Block III Preferral she can see if it was PFC Jones company commander who preferred the charges. 10. Contrast this with the information on MC Form 458 in this case. The military judge is told that the name of the accused is Omar Ahmed Khadr. Three aliases are given. And the last four of an unidentified acronym, the ISN, are given. There is nothing on the face of the charge sheet to establish or support jurisdiction over Mr. Khadr, except for a bare allegation in the wording of the specifications of the charges. 11. The Military Judge is not ruling that no facts could be properly established concerning Mr. Khadr which might fit the definition of an unlawful enemy combatant in 948a(a) of the MCA. The Military Judge is ruling that the military commission is not the proper authority, under the provisions of the MCA to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr. 12. The Military Judge is not ruling that Mr. Khadr may not, if his case is referred to trial after a proper determination, attack those facts in the elements of the offenses referred which might combine to show him to be an unlawful enemy combatant. Such an attack is a proper part of a military commission.
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13. The Military Judge is not ruling that the charges against Mr. Khadr must be resworn. That would seem to be the more prudent avenue to take, but that issue is not currently before this Commission. 14. If there were no two-step process required to try a person under the MCA, then a prosecutor could swear charges, the Convening Authority could refer charges, and a Military Commission could try a person who had had no determination as to his status whatsoever. That is not what Congress intended to establish in the MCA. 16. The charges are dismissed without prejudice.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission June 29, 2007 DISPOSITION OF PROSECUTION MOTION FOR RECONSIDERATION (P-001) Peter E. Brownback III Colonel, U.S. Army Military Judge
determine that an appeal can be taken from either the 4 June 2007 Ruling or from this Disposition, the Commission provides detailed rulings on the procedure and the merits herein. B. The Commission is making this disposition without any Defense response to the Prosecution Motion for Reconsideration. While the detailed defense counsel stated on 15 June 2007 that the Defense intended to submit a response, the detailed defense counsel advised the Commission on 20 June 2007 that no response would be submitted. (See AE 022.) 2. Request for relief. As a preliminary matter, the request for relief (to extend the deadline for timely filing an appeal), improperly placed in Footnote 1 of the motion (See R.C. 3.4), was disposed of on 8 June 2007, within 70 minutes of receipt of AE 017. (See AE 018.) The Military Judge has no authority to toll or delay the requirements imposed by the Military Commissions Act of 2006 (MCA) or the Manual for Military Commissions (MMC) (See Bowles v. Russell, 127 S.Ct. 2360 (2007.) The Military Judge cannot and does not decide whether or not an appellate court should rule that an appeal from either the 4 June 2007 Ruling or this Disposition is timely under the pertinent provisions of the MCA and the MMC, or the Rules established by the Court of Military Commission Review, or the Federal Rules of Appellate Procedure. 3. Procedural grounds. The Government asserts as a ground for reconsideration that it did not have a proper opportunity
1. Overview. This Disposition comments upon the Prosecution Motion for Reconsideration (Appellate Exhibit (AE) 017) of the undersigneds Ruling on 4 June 2007 (AE 015), which dismissed the charges against the accused without prejudice. A. Having reviewed and considered the Government motion, as well as the matters presented, both in writing and orally, at the 4 June 2007 session, the Commission determines that the Prosecution has produced nothing in AE 017 to show that the facts have changed or that the law has changed since the Commission made its Ruling on 4 June 2007. Consequently, the Commission declines the opportunity to reconsider its Ruling. In light of the Governments motion, the Commission elects to clarify and make clearer the rationale for its 4 June 2007 Ruling. Further, in the event that an appellate court might
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to brief the matter, argue it, and to present evidence. A. Notice and opportunity to brief.
(1) In paragraph 6a of the motion, the prosecution states that, the Military Judge decided this bedrock legal question without inviting briefing from the parties. This is a true statement, but it says nothing about the Military Judge offering or allowing the parties to brief the issue. (2) On 25 May 2007, Ms. Natalie Bley, Military Commissions Trial Judiciary, at the direction of the undersigned military judge, sent a copy of the trial script to parties for both sides. The 13th, 14th, and 15th lines of that script contain the following words for the Prosecutor to state in open court: The determination by the Combatant Status Review Tribunal (CSRT) that the accused has been determined to be an alien unlawful enemy combatant has been marked as AE ___. The Prosecution is the proponent for jurisdiction over an individual in any case. In this case, the prosecution was alerted well ahead of time that it was going to be required to state in open court that there was a CSRT determination that the accused was an alien unlawful enemy combatant. Such a determination was not presented. (3) On 3 June 2007, a Rules for Military Commissions (R.M.C.) 802 conference was held at NAS
Guantanamo Bay, Cuba (Guantanamo). The Prosecution was present. As the transcript (pp. 9-10) of the 4 June 2007 trial session shows, the Prosecution was advised during the R.M.C. 802 conference that the military judge was going to raise the issue of jurisdiction sua sponte. The military judge discussed with the parties the question of which counsel would be arguing the motion for a given party. The Prosecution did not request a continuance or any delay to brief the issue - either at the R.M.C. 802 conference or at the 4 June 2007 session. (4) The undersigned notes that a jurisdictional issue closely akin to the one in Khadr was briefed and argued in the case of United States v. Hamdan which also was heard on 4 June 2007. The Prosecution in Khadr did not request to use the Hamdan briefs in the Khadr case.
B. Opportunity to argue and present evidence. The undersigned rejects the implication that the Prosecution was not allowed to present argument or evidence on jurisdiction.
(1) A review of the transcript of the 4 June 2007 session shows that the Prosecution did present argument on the issue of jurisdiction. A review of the transcript of the 4 June 2007 session also shows that the Prosecution did not make a formal offer of proof concerning any of the evidence which it now proposes be used. (2) During the Prosecution argument on the issue of jurisdiction (transcript, pp. 10-17), the Prosecution, on page
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17, stated that the Government was prepared to prove that the accused is an unlawful enemy combatant (See page 12 of the transcript for a greater description of what evidence the Prosecution was prepared to offer). However, the Prosecution did not offer this proof that was referred to. (3) The Military Judge offered the Prosecution the opportunity to present matters and no motion was made and no offer of evidence or proof was made by the Prosecution. (See, e.g., transcript, p.16, lines 1 - 4 and p. 22, line 14.)
C. Ruling as to procedural issues. In its Motion for Reconsideration, the Government presented no new law, facts, or argument which were not presented, or fairly raised, or implied in its argument on 4 June 2007. Further, the Prosecution presented no evidence or facts which the Prosecution did not have the opportunity to present at the 4 June 07 session. The only factual issue the written CSRT finding is not disputed, as shown by AE 011. Having presented no new law and no new facts, there is no basis to reconsider and the Military Judge declines the opportunity to reconsider the 4 June 07 Ruling. 4. Ruling on the merits of the motion. Notwithstanding the ruling in paragraph 3c above, the Commission is also making a ruling on the merits of the Governments Motion for Reconsideration. It makes this ruling in the interest of conserving judicial and other resources should the Court of Military Commission Review or
the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) decide the ruling in paragraph 3c is incorrect. A. In Paragraphs 6d thru 6r of its motion, the Government appears to assert that the military judge was unaware of his authority to determine his jurisdiction in the case. In subparagraph 6i, the Government directs the military judges attention to R.M.C. 201(b)(3) A military commission always has jurisdiction to determine whether it has jurisdiction. This entire line of argument is confusing given the ruling complained about by the prosecution in this case. The military judge determined that he had jurisdiction to decide jurisdiction. He then decided that the Military Commission did not have jurisdiction. The written order is entitled Order on Jurisdiction. (AE 015). B. The law of a military commission has a hierarchy. The authority to convene a military commission, and many of the procedural aspects, are set out in the MCA. The R.M.C., as well as decisions of the Convening Authority and other rules and regulations, must be consistent with the MCA. Conflicts must be resolved in favor of the MCA. C. The MCA makes clear that only certain persons may be tried by a Military Commission, and those persons must be alien unlawful enemy combatants. This makes sense in light of certain requirements of international law lawful enemy combatants must be tried by other
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types of tribunals. The term unlawful is not excess baggage and it is not mere semantics; it is a critical predicate to jurisdiction. D. In Section 948d of the MCA, Congress provided: (c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE. A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
cannot serve to fulfill Congressional mandate.
the
(3) The Government asserts that the military judge can serve as another competent tribunal. (948d(c)). This assertion simply belies logic for the following reasons:
(a) While it would appear that the Government will have to prove beyond reasonable doubt at trial facts which could establish that the accused was an unlawful enemy combatant, the MCA requires the determination be made in advance for there to be jurisdiction to refer charges against the accused. This is what Congress directed, and the military judge lacks authority to ignore this mandate. (b) Congress knew that it was writing a statute about military commissions when the MCA was drafted and passed. No issue is more dispositive or important to any court or tribunal than whether or how that court or tribunal has jurisdiction. If Congress had wanted the military commission to be included in the category of entities authorized to make the initial determination on jurisdiction, it could easily have written that into the statute. It did not. (c) The military judge, furthermore, does not accept that the military commission is the type of competent tribunal Congress envisioned. The words another competent tribunal follow the words Combatant Status Review Tribunal meaning a tribunal like a CSRT. While a commission is a tribunal, as is a CSRT, a military
(1) In addition, Congress specifically noted, in the jurisdictional statute, that a military commission could try an unlawful enemy combatant but it could not try a lawful enemy combatant. (10 U.S.C. 948d Jurisdiction of Military Commissions) (2) While the government did have available a CSRT determination for the accused, there was no CSRT determination presented at the 4 June 07 hearing finding that the accused was an unlawful enemy combatant. This means the existing CSRT determination was deficient in that there was an incomplete determination to establish jurisdiction. A CSRT determination that does not comport with what Congress directs
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commission and a CSRT have few similarities given the difference in their purpose and procedures. An Article 5 tribunal (Geneva Convention III) would be similar to a CSRT and seems, without deciding that issue, to fall within the scope of another competent tribunal. Fundamental fairness to an accused dictates that a statute, such as the MCA, cannot be interpreted in such a manner that jurisdiction to try an accused is founded upon something beyond the express wording of the law. A military commission is a competent tribunal to do many things, but it is not the statutorilyenvisioned, competent tribunal to make the required get in the courthouse door jurisdictional determination for the following reasons: (i) First, see 4d(3)(c) above. Such an interpretation of the MCA would violate the statutory requirement. (ii) Second, such an interprettation of the MCA would require the military judge to hold a minitrial on the subject; something which judges under-standably do not favor; especially when the panel members are going to have to consider the same facts and arguments in reaching their determinations on the guilt or innocence of the accused. (iii) Third, such an interpretation of the MCA has the potential of prejudicing the panel members in this case. The publicity which would result from the evidence introduced and the military
judges rulings thereon would be extremely difficult for the panel members to ignore. (See, for instance, the prosecutors argument on p. 13 of the transcript concerning the matters which the government would wish to present on the issue.) (iv) Fourth, in order for such a determination to assist the Government, the Military Judges determination would have to be effective nunc pro tunc. (See paragraphs 4f(3) and (4) below.) (v) Fifth, such an interpretation of the MCA would be substituting a military criminal law procedure for the current administrative CSRT procedures. (vi) Sixth, the Governments proposal would have the military commission, as a 948d(c) competent tribunal, make a finding which would be dispositive. Presumably this finding would be dispositive in terms of some later challenge to jurisdiction during the military commission proceedings. That makes no sense whatsoever. Any ruling made by the military judge is dispositive during the course of the proceedings the only intelligible reading of 948d(c) is that the competent tribunal mentioned therein is that it is a tribunal (other than the CSRT) established by the President or the Secretary of Defense for the purpose of, or with an additional duty of, determining the combat-
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ant status of various parties brought before it. (d) The Commission is familiar with the D.C. Circuit Courts opinion in Hamdan v. Rumsfeld (D.C. Cir., 415 F.3d 33, 2005) and the statement [W]e believe that the military commission is such a (competent) tribunal... to determine Hamdans prisoner of war status; a determination analogous to the unlawful enemy combatant determination required for initial jurisdiction under the MCA. However, as the court went on to explain, the military commission to which it referred was one established under the Presidents Military Order of 13 November 2001. That military commission had three colonels sitting on it and none of those officers was serving as a military judge. The statement from the Hamdan decision, above, simply does not apply to a military commission convened pursuant to the MCA. E. An obvious question is why the government must initially establish jurisdiction before trial. Certainly there are thousands of cases every day in which some accused is brought before a court (or tribunal) and the judge (or other presiding official) does not require that the government show that it has jurisdiction over the accused before the court hears the case. Why are military commissions under the MCA different? Although there is no clear statutory directive in the MCA that the Government must establish initial jurisdiction before it is allowed into court, the Commission has determined that the following
factors require such initial jurisdiction before the Commission can proceed:
(1) The Supreme Court held in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), that Common Article 3 of the Geneva Conventions applies to the trial of detainees by military commissions. Common Article 3(1) (d) requires that such trials be conducted by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) While it is true that most courts do not insist upon proof of jurisdiction before starting a trial of an accused, military commissions are distinct and different from any other court in the United States. Moreover, often proof of jurisdiction is required in other courts. For example, in a felony court in any state in the Union, a judge would want to insure that the court had jurisdiction over the accused before starting proceedings if the accused was alleged to be from a different state, the crime alleged had occurred in a third state, and the police officials bringing the accused before the court were from yet another state. This is merely part of regular judicial procedure that becomes necessary and is utilized when required by events or circumstances. (3) Although there is no express statutory directive that the government must establish jurisdiction before it is allowed to proceed with a military commission, there are clear and unambiguous indicia that
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Congress intended that such initial jurisdiction be established before the mechanism set up by the MCA was used in the case of a given person;
(a) The statute clearly recognizes ( 948d) that the class of enemy combatant can be divided into two categories: lawful and unlawful. (b) The statute certainly anticipates some sort of initial challenge to jurisdiction. Otherwise, there is no reason for the insertion of 948d(c) into the MCA, that the unlawful enemy combatant status determination is dispositive. (c) The statute was obviously written with knowledge of the CSRT procedures, and the statute anticipates a prior determination by the CSRT (or other competent tribunal) that an accused would be determined to be an unlawful enemy combatant before proceedings under the MCA are initiated. Otherwise, there is no reason for the use of the word dispositive in 948d(c) in reference to all unlawful enemy combatant status determinations. (d) Section 948d(a) states that the MCA establishes procedures governing the use of military commissions to try alien unlawful enemy combatants Section 948d states the statutory requirements for jurisdiction of military commissions. Section 948q outlines the swearing of [C]harges and specifications against an accused in a military commission Section 948h authorizes certain people to convene military commissions. Thus, logic and reason
dictate that charges should not be sworn under Section 948 and charges cannot be referred to a military commission for trial under Section 948h unless there is jurisdiction under Section 948d, because Section 948a only authorizes the use of military commissions and the procedures established in the MCA when dealing with an unlawful enemy combatant. This conclusion is further buttressed by the fact that lawful enemy combatants can never be tried by a military commission, should be excluded by a proper CSRT at the front end of the process, and should never be subjected to the military commission system or process. (e) Reading the provisions of 948d of the MCA in conjunction with 1005 of the Detainee Treatment Act of 2005 (DTA) (P.L. 109-148 Dec 30, 2005 119 Stat. 2739), it is evident that Congress was well aware of the CSRT process and that Congress expected that the CSRTs would determine the status of all detainees at Guantanamo. Further, reading the two sections together, it is apparent that Congress knew what the standards were for the CSRT, expected that the CSRT would have its standards modified to meet the requirements of the MCA, and that lawful enemy combatants would not be subject to the military commission process. (f) The intent of Congress becomes even clearer when one considers the history of the CSRT process. On 29 June 2004, the Supreme Court ruled in the cases of Rasul v. Bush, 542 U.S. 466 (2004), and Hamdi v. Rumsfeld,
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542 U.S. 507 (2004). Rasul held that federal courts had jurisdiction to hear habeas claims from detainees at Guantanamo. (Rasul was an alien detainee at Guantanamo.) In Hamdi, the plurality opinion stated that some sort of military hearing on detention might give Hamdi, an American citizen, all of the necessary protections to which he was entitled and further intimated that habeas courts should give some sort of deference to a military hearing set up to determine whether detention was proper. In response, the Deputy Secretary for Defense established the CSRT process with his order of 7 July 2004 (AE 014) and the Secretary of the Navy, as the executive agent for the Department of Defense for CSRTs, published operating procedures on 29 July 2004 (AE 021). It was against this backdrop that Congress passed the DTA and required that all detainees at Guantanamo be given CSRT reviews. See DTA, 1005(a)(1) and (a)(1)(A), [T]he Secretary of Defense shall submit...the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay Then, in response to the Supreme Courts decision in Hamdan, Congress passed the MCA with its dispositive language, which expressly required the acceptance of a CSRT determination. It is clear that Congress intended that all detainees be reviewed by the CSRT process, that
the CSRT separate the unlawful enemy combatant detainees from the enemy combatant detainees, and that only those detainees designated as unlawful enemy combatants by a CSRT or other competent tribunal be handled by the Military Commission process established by the MCA.
(4) While it is true that in normal courts-martial practice the military judge does not ordinarily insist that jurisdiction be shown before the case can proceed in court, there are significant differences between the jurisdiction of a court-martial and the jurisdiction of a military commission under the MCA and there are also differences in the realities of courtroom practice. (See, e.g., paragraphs 9 and 10 of AE 015.) For example, Article 2 (10 U.S.C. 802) of the Uniform Code of Military Justice (UCMJ) lists twelve separate categories of personnel who are subject to court-martial jurisdiction while a military judge usually expects to see active duty soldiers, a military judge would not be surprised to see a reservist, for instance. In contrast, under the MCA, a military commission has jurisdiction over only one specifically defined category those persons who are alien unlawful enemy combatants. Consequently, while a military judge under the UCMJ generally has no reason to question her authority over a person brought before her, a military judge under the MCA knows that the MCA is to be used only for one category of persons and that determination should be made in conformity with the MCA and should be available to
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the Convening Authority before proceedings are initiated and to the military judge before any initial hearing. (5) Finally, the use of military courts, tribunals, and commissions to try civilians and there has certainly been no allegation that Mr. Khadr is not a civilian has faced and continues to face great disfavor in the United States. While such trials have been ratified by the federal court system on occasion, the federal courts have also been inclined to determine that military courts do not have jurisdiction or competence to try civilians. In fact, during the undersigned military judges service in the Army, the Supreme Court has even strictly limited the ability of courtsmartial to try active duty members of the United States armed forces. (See, e.g., O'Callahan v. Parker, 395 U.S. 258 (1969); Relford v. Commandant, 401 U.S. 355 (1971).) Given that the use of military courts to try civilians is not favored, Congress could not have intended the logical, if unintended, result of the Governments argument and position in this case: the military can seize whomever it wants, charge them, refer them to trial by military commission, and only then, after the commission has been called to order, will the initial question of jurisdiction in accordance with the MCA be resolved.
F. A brief summary of the pertinent substantive matters follows:
001), on its face, contained a bare allegation that Mr. Khadr was an unlawful enemy combatant. Because the CSRT finding (AE 011) was that Mr. Khadr was an enemy combatant, not an unlawful enemy combatant, the CSRT finding (AE 011) does not support trial of Mr. Khadr by a military commission. (2) The Prosecution was aware of this failure of the CSRT finding to establish jurisdiction based on the paperwork in the case. The Military Judge raised the issue of jurisdiction sua sponte and the Prosecution was given an opportunity to argue on the matter and present evidence. (3) The Prosecution presented no evidence of any prior determination of the status of the accused other than the CSRT and the Presidents memorandum of February 2002 (AE 013). (4) In the Motion for Reconsideration, the Prosecution has still not presented any evidence of any prior determination of the status of the accused other than the CSRT and the Presidents memorandum of February 2002. (5) Instead of offering a CSRT that met the jurisdictional standards required by the MCA, the Government insisted, both in argument on 4 June 2007 and in its motion, that:
(a) The CSRT and the Presidents memorandum established jurisdiction, or, alternatively;
(1) On 4 June 2007, the Military Judge was presented with two documents. The charge sheet (AE
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(b) The military judge is a competent tribunal to determine jurisdiction and should hear evidence to do so.
(9) The Military Judge adheres to and incorporates by reference his written order of 4 June 2007. (AE 015).
G. Ruling. Assuming, arguendo, that the disposition of the motion for reconsideration on procedural grounds in paragraph 3c is erroneous, the military judge denies the Motion for Reconsideration on the merits as outlined in this paragraph.
(6) The Military Judge does not find that the CSRT and the Presidents memorandum establish jurisdiction;
(a) The CSRT determination was made for purposes of determining continued detention of Mr. Khadr; not for purposes of determining jurisdiction for trial by a Military Commission. (b) The CSRT finding applied and used a different standard for enemy combatant than the MCA definition of unlawful enemy combatant. (c) The CSRT preceded the enactment of the MCA by two years and the enactment of the DTA by one year. (d) The Presidents Memorandum was not an individualized determination concerning Mr. Khadr.
(7) The Military Judge does not find that the Commission is a competent tribunal to establish initial jurisdiction. (See 4d(3) above.) (8) Having received no evidence of a prior determination that the accused is an unlawful enemy combatant, and having received evidence that a statutorily recognized tribunal found that the accused was an enemy combatant, the Commission finds that initial jurisdiction to try the accused has not been established.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 9, 2007 PROTECTIVE ORDER #001: PROTECTION OF FOR OFFICIAL USE ONLY OR LAW ENFORCEMENT SENSITIVE MARKED INFORMATION AND INFORMATION WITH CLASSIFIED MARKINGS Peter E. Brownback III Colonel, U.S. Army Military Judge
would be governed by whatever protective orders are issued by the judicial officer having cognizance over that litigation. 4. For the purpose of this Order, the term Defense team includes all counsel, cocounsel, paralegals, investigators, translators, administrative staff, and experts and consultants assisting the Defense in military commission proceedings against the accused. The term Prosecution includes all counsel, co-counsel, paralegals, investigators, translators, administrative staff, and experts and consultants who participate in the prosecution, investigation, or interrogation of the accused. 5. This Protective Order shall remain in effect until rescinded or modified by the Presiding Officer or other competent authority. This Order shall not be interpreted to suggest that information classified under the laws or regulation of the United States may be disclosed in a manner or to those persons inconsistent with those statutes or regulations. 6. Accordingly, ORDERED: IT IS HEREBY
1. This Protective Order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.), the Manual for Military Commissions (MMC), and the Regulation for Trial by Military Commission. 2. The following Order is issued to provide general guidance regarding the described documents and information. Unless otherwise noted, required, or requested, it does not preclude the use of such documents or information in open court. 3. This Order pertains to information, in any form, provided or disclosed to the Defense team in their capacity as legal representatives of the accused before a military commission. Protection of information in regards to litigation separate from this military commission
a. UNCLASSIFIED SENSITIVE MATERIALS i. That documents marked For Official Use Only (FOUO) or Law Enforcement Sensitive and the information contained therein shall be handled strictly in accordance with and disseminated only pursuant to the limitations contained in the Memorandum of the Under Secretary of Defense (Interim Information Security Guidance) dated April 18, 2004. If
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either party disagrees with the marking of a document, that party must continue to handle that document as marked unless and until proper authority removes such marking. If either party wishes to disseminate FOUO or Law Enforcement Sensitive documents to the public or the media, they must make a request to the military judge. ii. That Criminal Investigation Task Force Forms 40 and Federal Bureau of Investigation FD-302s provided to the Defense shall, unless classified (marked CONFIDENTIAL, SECRET, or TOP SECRET), be handled and disseminated as For Official Use Only and/or Law Enforcement Sensitive. b. CLASSIFIED MATERIALS i. That all parties shall become familiar with Executive Order 12958 (as amended), the Military Commission Act of 2006 (10 U.S.C. 948a et seq.), the Manual for Military Commissions, The Regulation for Trial by Military Commission, and other directives applicable to the proper handling, storage, and protection of classified information. All parties shall disseminate classified documents (those marked CONFIDENTIAL, SECRET, or TOP SECRET) and the information contained therein only to individuals who possess the requisite clearance and an official need to know the information to assist in the preparation of the case. ii. That all classified or sensitive discovery materials, and copies
thereof, given to the Defense or shared with any authorized person by the Defense must and shall be returned to the government at the conclusion of this cases review and final decision by the President or, if designated, the Secretary of Defense, and any post trial U.S. federal litigation that may occur. c. BOOKS, ARTICLES, OR SPEECHES i. Finally, that members of the Defense team nor the Prosecution shall not divulge, publish or reveal, either by word, conduct, or any other means, any documents or information protected by this Order unless specifically authorized to do so. Prior to publication, members of the Defense team or the Prosecution shall submit any book, article, speech, or other publication derived from, or based upon experience or information gained in the course of the prosecution or defense of the accused to the Department of Defense for review. This review is solely to ensure that no information is improperly disclosed that is classified, protected, or otherwise subject to a Protective Order. This restriction will remain binding after the conclusion of any proceedings that may occur against the accused. ii. The provisions in paragraph 8a apply to information learned in the course of representing the accused before this Commission, no matter how that information was obtained. For example, paragraph 8a:
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A. Does not cover press conferences given immediately after a commission hearing answering questions regarding that hearing so long as it only addresses the aspects of the hearing that were open to the public. B. Does not cover public discourses of information or experience in representing the accused before this Military Commission which is already known and available in the public forum, such as open commission hearings, and motions filed and made available to the public. C. Does cover information or knowledge obtained through any means, including experience, that is not in the public forum, and would and could only be known through such an intimate interaction in the commission process (for example, a defense counsels experience logisticcally in meeting a client).
7. Either party may file a motion for appropriate relief to obtain an exception to this Order should they consider it warranted. 8. Any breach of this Protective Order may result in disciplinary action or other sanctions.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 12, 2007 PROTECTIVE ORDER #002: PROTECTION OF IDENTITIES OF INTELLIGENCE PERSONNEL Peter E. Brownback III Colonel, U.S. Army Military Judge
a. Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused, may be disclosed to members of the Defense team, such as paralegals, investigators, and administrative staff, with an official need to know. However, such information shall not be disclosed to the accused or to anyone outside of the Defense team other than the Military Commission panel subject to the limitations below; b. Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing. Any mention of the name or other identifying information of intelligence personnel must occur in closed session and any filing to the Military Commission panel that includes such information shall be filed under seal. 3. Either party may file a motion for appropriate relief to obtain an exception to this Order should they consider it warranted. 4. Any breach of this Protective Order may result in disciplinary action or other sanctions.
1. This Protective Order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC), to include but not limited to: a. Rules for Military Commissions (R.M.C.) 701(f)(8) and (l)(2); b. R.M.C. 806; c. Military Commission Rules of Evidence (Mil. Comm. R. Evid.) 104(a); d. Mil. Comm. R. Evid. 505(e); e. Mil. Comm. R. Evid. 611(d)(2); f. Regulation for Trial by Military Commissions, 17-3. 2. Accordingly, ORDERED: IT IS HEREBY
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 15, 2007 PROTECTIVE ORDER #003: PROTECTION OF IDENTITIES OF INTELLIGENCE PERSONNEL Peter E. Brownback III Colonel, US Army Military Judge
a. Names or other identifying information of witnesses (Persons who have been placed on a witness list by the Prosecution to be called to testify before the Commission.) that have been or may, from time to time, be disseminated to or obtained by the defense counsel for the accused, may be disclosed to members of the Defense team, such as paralegals, investigators, and administrative staff, with an official need to know. b. Names or other identifying information of witnesses (Persons who have been placed on a witness list by the prosecution to be called to testify before the Commission.) that have been or may, from time to time, be disseminated to or obtained by the defense counsel for the accused, shall not be disclosed to the accused or to anyone outside of the Defense team, by the defense counsel, except as noted below. c. Names or other identifying information of other personnel who have provided witness statements, but who are not listed on a Prosecution witness list may be disseminated IAW paragraph 2a above. d. Names or other identifying information of other personnel who have provided witness statements, but who are not listed on a Prosecution witness list, are subject to the limitations in paragraph 2b above. e. NLT 21 days prior to a session in which a witness is scheduled to appear, whether before the military judge alone or before the full Commission, the Prosecution shall
1. This Protective Order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC), to include but not limited to: a. Rules for Military Commissions (R.M.C.) 701(f)(8) and (l)(2); b. R.M.C. 806; c. Military Commission Rules of Evidence (Mil. Comm. R. Evid.) 104(a); d. Mil. Comm. R. Evid. 505(e); e. Mil. Comm. R. Evid. 611(d)(2); f. Regulation for Trial by Military Commissions, 17-3. 2. Accordingly, ORDERED: IT IS HEREBY
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advise the Defense specifically as to whether the Prosecution objects to the witness name and/or photograph being given or shown to the accused. The Defense shall respond within 7 days if it objects to any such designation. f. NLT 21 days prior to a session in which a witness is scheduled to appear, whether before the military judge alone or before the full Commission, the Prosecution shall advise the Defense specifically as to whether the Prosecution objects to the witness name and/or unit designation and/or other means of identifying the witness being announced on the record in open court. The Defense shall respond within 7 days if it objects to any such designation. g. Unless disclosure has been authorized by the Military Judge, or has been agreed to by the parties IAW paragraphs 2e-f above, names or other identifying information of any person designated in paragraphs 2a thru 2d above shall not be disclosed in open court or in any unsealed filing. Any mention of the name or other identifying information of witnesses must occur in closed session and any filing to the Military Commission panel that includes such information shall be filed under seal. 3. Either party may file a motion for appropriate relief to obtain an exception to this Order should they consider it warranted.
4. Any breach of this Protective Order may result in disciplinary action or other sanctions.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission November 7, 2007 RULING ON DEFENSE MOTION FOR A FAIR STATUS DETERMINATION HEARING (D-004) Peter E. Brownback III Colonel, U.S. Army Military Judge
Commission determined that an accused has a right to know that the court trying him has jurisdiction over him before the trial proceeds. 4. In its decision, the Court of Military Commission Review (CMCR) generally stated, that the governments facial compliance with all the pre-referral criteria contained in the Rules for Military Commissions, combined with an unambiguous allegation in the (charges and specifications in this case) entitled the military commission to initially and properly exercise prima facie personal jurisdiction over the accused until such time as jurisdiction was challenged by a motion to dismiss for lack thereof, or proof of jurisdiction was lacking on the merits. Based on this determination, the CMCR ruled that the Military Judge erred in dismissing the charges in this case and returned the case to the Military Judge to conduct all proceedings necessary to determine the military commissions jurisdiction over Mr. Khadr. 5. In D-004, the Defense concedes that the CMCR ruling on 24 September 2007 establishes, for the purpose of this case, that there is prima facie jurisdiction over the accused. Consequently, the necessity for making an initial or threshold determination in order to establish for the accused that he is before a court which has jurisdiction over him is eliminated. 6. The Commission recognizes that the Defense has appealed the CMCR ruling to the D.C. Circuit and, in that appeal; the Defense is propounding the same line of reasoning which the Commission used in making its ruling on 4 June 2007. However, the Defenses concession as to the prima facie jurisdiction over the
1. The Commission has considered the Defense Motion for a Fair Status Determination Hearing (D-004) and the Government response. The Commission also considered the Government email of 11:44 AM, 7 November 2007. The Commission has also considered the various Orders directing the session on 8 November 2007 and specifically the portions of those Orders involving the extent of the threshold/initial determination of status hearing. 2. The Commission notes that it directed the parties to advise the Commission of the matters upon which each party would rely for the initial determination. Neither party gave the Commission any notice that it would rely on the testimony of a witness. 3. The Commission dismissed the charges on 4 June 2007 and confirmed that ruling on 29 June 2007 (See AE 016 and AE 024). In the course of the ruling, the
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accused is directed to the trial level, not to the appellate court. There is nothing improper in the Defense acknowledging the law of the case at the Commission level, while simultaneously attempting to change the law at the appellate level. 7. Reviewing the CMCR ruling, the Commission has determined that, in the absence of a Defense motion to dismiss for lack of jurisdiction, there is no challenge to the jurisdiction of the Commission. Consequently, there is no need for a preliminary hearing on the unlawful enemy combatant status of the accused.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission February 20, 2008 RULING ON DEFENSE MOTION TO DISMISS FOR LACK OF JURISDICTION (BILL OF ATTAINDER) (D-013) Peter E. Brownback III Colonel, U.S. Army Military Judge
5. The Defense characterization of the effect of the MCA on Mr. Khadr as legislative punishment is not supported by case law; nor by any logical interpretation of the historical reasons for the Bill of Attainder Clause. a. The cases cited by the Defense for the propositions which it asserts do not support characterization of a trial by military commission as punishment. b. Insofar as the Defense claims are based upon those portions of the MCA which regulate the access to civilian courts for purposes of habeas corpus, those portions are independent of those sections establishing the jurisdiction of and procedures for military commissions. c. Insofar as the Defense claims are based on procedures established by the MCA which differ from procedures in federal courts and military courts-martial, such variations are not grounds for determining that punishment has been legislated before a trial. The Commission notes that the Uniform Code of Military Justice has not been held to be a Bill of Attainder, even though certain provisions of military practice appear to be at variance with Constitutional requirements compare place of trial under the Uniform Code with the 6th Amendments venue rule and Clause 2 of Section III. 6. Nothing in the MCA directs that any person or any subset of persons be punished without a trial. Nothing in the trial procedures established by the MCA can be properly viewed as punishment,
1. The Commission has considered the Defense motion, the Government response, and the Defense reply. 2. The Defense requests dismissal of all charges and specifications due to lack of jurisdiction because the Military Commissions Act of 2006 (MCA) is a Bill of Attainder. 3. In United States v. Lovett, 328 U.S. 303 (1946), the Supreme Court wrote: In Cummings v. State of Missouri, 4 Wall. 277, 323, this Court said, A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Such bills and acts are prohibited by the Bill of Attainder Clause. 4. For purposes of ruling on this motion, the Commission shall not and does not address the issue of whether or not Mr. Khadr may avail himself of the protections of the United States Constitution.
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as that term is used in the cases cited by the Defense. 7. The Defense motion to dismiss for lack of jurisdiction because the MCA is a Bill of Attainder is DENIED.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission February 21, 2008 RULING ON DEFENSE MOTION FOR APPROPRIATE RELIEF (TO PRECLUDE FURTHER EX PARTE PROCEEDINGS UNDER COLOR OF M.C.R.E. 505(e)(3) (D-015) Peter E. Brownback III Colonel, U.S. Army Military Judge
(See Defense 6a(3)).
Motion,
paragraph
c. If the prosecution meets with the military judge, it is a proceeding, according to Blacks, and is, therefore, barred by 949d(b). 4. The Commission notes that 949d is titled Sessions. The Commission further notes that 949d(a) is titled Sessions Without Presence of Members, while 949d(b) is titled Proceedings in Presence of accused. The Defense motion does not address 949d(a), which would seem to be more appropriate to discussion of M.C.R.E. 505(e)(3), since the Defense does not contend that the Defense counsel and the accused were somehow excluded from a proceeding with members. 5. Section 949d(a) is generally analogous to 10 U.S.C. 839a (UCMJ Article 39a). Article 39a provides that the military judge can hold on the record proceedings without members although the accused shall be present. (Case law exceptions to that rule are omitted.) However, despite the strictures of Article 39a (and 39b), no appellate court has ever held that a conference under the provisions of Rule for Courts-Martial 802 violates an accuseds right to be present at proceedings in his case. 6. The Defense definition of proceedings is not consistent with military jurisprudence in general or, more importantly, the MCA specifically. (See, for example, 949d(f)(2)(A) and (B)). The military judge is charged, by statute, with safeguarding national security information and the MCA does not require that the accused or defense counsel be present at all times
1. The Commission has considered the Defense motion, the Government response, and the Defense reply. 2. The Defense requests that the Commission rule that Military Commission Rule of Evidence (M.C.R.E.) 505(e)(3) is inconsistent with the provisions of the Military Commissions Act of 2006 (MCA). 3. The Defense request is apparently based on a train of logic that runs as follows: a. MCA 949d(b) states that, with certain exceptions, all proceedings shall be in the presence of the accused. b. Blacks Law Dictionary defines proceedings to include all possible steps in an action from commencement to the execution of judgment.
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while the military judge is carrying out that duty. The Commission finds that M.C.R.E. 505(e)(3) is a valid exercise of the Secretarys powers to prescribe regulations as authorized by 949a(a) and 949d(f)(4). 7. The Commission declines to grant the Defense the relief requested. However, the Commission will continue to use the procedures which it established in the Governments initial request for review under the provisions of M.C.R.E. 505 (e)(3) (See pp. 13-14, Defense Motion.). The Commission notes that such procedures are specifically authorized by 949d(f)(3). If the Prosecution desires to have the Commission change such procedures, it may so request by motion.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission February 21, 2008 RULING ON DEFENSE MOTION FOR RELIEF FROM THE TERMS OF PROTECTIVE ORDER NO. 001 (D-020) Peter E. Brownback III Colonel, U.S. Army Military Judge
February 2008, 3:10 PM, Subject: Re: U.S. v. Khadr -- D-020 -- Request for ruling. e. Protective Order # 001, 9 October 2007 (AE 031). 2. Defense specifically requests that the Commission authorize the Defense to release two documents to Mr. Khadrs Canadian counsel, so that Canadian counsel may file the documents with the Registrar of the Supreme Court of Canada in the case of Minister of Justice, et al., v. Omar Ahmed Khadr, Case No. 32147. The documents were provided to the Defense by the Prosecution in fulfillment of the Prosecutions responsibilities under the Manual for Military Commissions and under the provisions of Protective Order # 001. 3. Each of the documents in question has the label FOUO/LAW ENFORCEMENT SENSITIVE. Each document is headed CRIMINAL INVESTIGATION TASK FORCE (CITF) REPORT OF INVESTIGATIVE ACTIVITY and each document has the following statement at the bottom: THIS DOCUMENT CONTAINS NEITHER RECOMMENDATIONS NOR CONCLUSIONS OF CITF. IT IS THE PROPERTY OF THE CITF AND IS LOANED TO YOUR AGENCY; THIS DOCUMENT IS NOT TO BE RELEASED OUTSIDE OF YOUR AGENCY. 4. Provision of discovery by the Government to the Defense under Rule for Military Commission 701 is designed to assist the Defense in performing its statutory and regulatory obligations under the Military Commissions Act of defending the accused before the Military Commission. Neither the Prosecution nor
1. The Commission has considered: a. The Defense special request for relief, Email, LCDR Kuebler, 16 January 2008, 08:45 AM, Subject: U.S. v. Khadr Defense Special Request for Relief from Terms of Protective Order No. 001 (with attachments), which was designated as D-020 by LTC Chappells email, 16 January 2008, 1:12 PM, Subject: FW: U.S. v. Khadr Defense Special Request for Relief from Terms of Protective Order No. 001 (D020). b. The Government response of 23 January 2008. c. The Defense request for ruling in LCDR Kueblers email, 11 February 2008, 2:43 PM, Subject: U.S. v. Khadr D-020 Request for ruling. d. The Governments response to 1c above in MAJ Groharings email, 12
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the Commission have the authority to release documents to the Defense for any purpose other than providing defense services to an accused before a military commission. 5. The documents in question were given the label FOUO/LAW ENFORCEMENT SENSITIVE by the Criminal Investigation Task Force. That agency is the one which must authorize the release of any documents outside the ambit of the military commissions. 6. The Defense request for relief is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission March 12, 2008 ORDER UNDER SEAL AUTHORIZING ALTERNATIVES TO DISCOVERY OF SPECIFIED ITEMS OF CLASSIFIED INFORMATION Peter E. Brownback III Colonel, U.S. Army Military Judge
3. (U) I find: a. (U) The Government has properly claimed the National Security Privilege under M.C.R.E. 505; that is, the claim is made by an authorized person under 10 U.S.C. 949d(f)(1)(B) and M.C.R.E. 505(c), and the specified classified material has been classified by the proper authorities in accordance with the appropriate regulations. b. (U) The Governments proposed substitutions are an adequate alternative to disclosure of the aforementioned classified information and will allow the Government to provide the Defense with additional, possibly relevant information in an unclassified format. 4. (U) Accordingly, IT IS HEREBY ORDERED: (U) The alternatives to the discovery of specified items of classified information under M.C.R.E. 505(e)(3) proposed by the Government in their 10 March 2008 Ex Parte, In Camera Motion Pursuant to M.C.R.E. 505(e)(3) are approved. I authorize the Government to substitute the approved alternatives. 5. (U) The Governments 12 March 2008
1. (U) This Order is issued pursuant to the general authorities granted me under the Military Commissions Act, 10 U.S.C. 948a, et seq., the Manual for Military Commissions, and the Regulation for Trial by Military Commission, and the particular authorities found in 10 U.S.C. 949d(f), R.M.C. 701(e) and (f), and M.C.R.E. 505(e)(3). 2. (U) I have examined the Governments 12 March 2008 motion titled Ex Parte, In Camera Motion Pursuant to M.C.R.E. 505(e)(3), including the classified information contained therein and attached thereto. I have also examined the proposed unclassified substitutions that the Government seeks to provide to the Defense in discovery as an alternative to the aforementioned classified information, pursuant to M.C.R.E. 505(e)(3).
ex parte motion and classified attachments shall remain ex parte and under seal until further Order of this court.
6. (U) This Order shall be provided to both parties and it is hereby sealed until further Order of the court.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission March 13, 2008 RULING ON DEFENSE MOTION TO COMPEL DISCOVERY OF STATEMENTS OF OMAR KHADR (D-029) Peter E. Brownback III Colonel, U.S. Army Military Judge
1. The Commission has considered the Defense motion and the Government response. 2. The Commission has further considered the non-binding Discussion to R.M.C. 701(c)(3). 3. Based on the representations of counsel on the record on 13 March 2008, the Court takes no action with regard to the first three matters noted in paragraph 2 of the Defense motion. 4. With regard to the fourth matter noted in paragraph 3 of the Defense motion, the Commission orders that the Government make available for examination by the Defense all notes taken by interrogators and other government agents during all interrogations of Mr. Khadr since 27 July 2002. Once the Defense has examined the notes, the Defense may request further relief, if required.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission March 13, 2008 RULING ON DEFENSE MOTION TO COMPEL PRODUCTION OF DOCUMENTS RELATING TO ALLEGATIONS OF INTERFERENCE WITH THE OFFICE OF CHIEF PROSECUTOR (D-030) Peter E. Brownback III Colonel, U.S. Army Military Judge
1. The Commission has considered the Defense motion and the Government response. 2. The Commission has further considered the non-binding Discussion to R.M.C. 701(c)(3). 3. The Commission orders that the Government make available for examination by the Defense the complete investigation conducted with regard to the allegations involving Colonel Davis. Once the Defense has examined the complete investigation, the Defense may request further relief, if required.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission March 13, 2008 RULING ON DEFENSE NOTICE OF MOTION TO COMPEL PRODUCTION OF IDENTITIES OF INTERROGATORS (D-035) Peter E. Brownback III Colonel, U.S. Army Military Judge
1. The Commission has considered the Defense notice of motion and the oral argument by both sides on 13 March 2008. 2. The Government will provide the Defense a list of all personnel who conducted interrogations of Mr. Khadr. The personnel will be identified, at least by a number which can be related to the date on which a specific interrogation was conducted. If the Defense wishes to interview any specific interrogator, the Government will provide a phone number and a time at which the interrogator can be interviewed. 3. If after interviewing any given interrogator the Defense believes further relief is necessary, it may so request.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission March 14, 2008 RULING ON DEFENSE MOTION TO DISMISS SPECIFICATION 2 OF CHARGE IV FOR MULTIPLICITY AND UNREASONABLE MULTIPLICATION OF CHARGE (D-016) Peter E. Brownback III Colonel, U.S. Army Military Judge
Qaeda, an international terrorist organization founded by Usama bin Laden, in or about 1989, and known by the accused to be an organization that engages in terrorism, said al Qaeda having engaged in hostilities against the United States, including attacks against the American Embassies in Kenya and Tanzania in August 1998, the attack against the USS Cole in October 2000, the attacks on the United States on September 11, 2001, and further attacks, continuing to date against the United States; said conduct taking place in the context of and associated with armed conflict. The accused provided material support or resources to al Qaeda including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named Abu Haddi, consisting of training in the use of rocket propelled grenades, rifles, pistols, hand grenades, and explosives. 2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training.
1. The Commission has considered the Defense motion and the Government response. The Defense did not submit a reply. 2. Charge IV and its Specifications are reproduced below: CHARGE IV: VIOLATION 10 U.S.C. 950v(b)(25), PROVIDING MATERIAL SUPPORT FOR TERRORISM
Specification 1: In that Omar

Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in or around Afghanistan, from at least June 2002 through on or about July 27,2002, intentionally provide material support or resources to wit: personnel, himself, to al
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4. In or about July 2002, Khadr joined a group of al Qaeda operatives and converted land mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members. 6. Khadr threw and/or fired grenades at nearby coalition forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer.
flict. The accused provided material support or resources in support of acts of terrorism including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named Abu Haddi, consisting of training in the use of rocket propelled grenades, rifles, pistols, hand grenades, and explosives. 2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training. 4. In or about July 2002, Khadr joined a group of Al Qaeda operatives and converted land mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members. 6. Khadr threw and/or fired grenades at nearby coalition
Specification 2: In that Omar

Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in Afghanistan, from at least June 2002 through on or about July 27, 2002, intentionally provide material support or resources to wit: personnel, himself, to be used in preparation for, or carrying out an act of terrorism, that the accused knew or intended that the material support or resources were to be used for those purposes, and that the conduct of the accused took place in the context of and was associated with an armed con-
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forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer. 3. The relevant provisions and discussion of Rule for Military Commission 907 are: R.M.C. 907(b)(3) (3) Permissible grounds. A specification may be dismissed upon timely motion by the accused if: (A) The specification is so defective that it substantially misled the accused, and the Military Judge finds that, in the interest of justice, trial should proceed on remaining charges and specifications without undue delay; or (B) The specification is multiplicious with another specification, is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice. Discussion A specification is multiplicious with another if it alleges the same offense, or an offense necessarily included in the other.
A specification may also be multiplicious with another if they describe substantially the same misconduct in two different ways. For example, assault and disorderly conduct may be multiplicious if the disorderly conduct consists solely of the assault. See also R.M.C. 1003 (b)(1)(C). Ordinarily, a specification should not be dismissed for multiplicity before trial unless it clearly alleges the same offense, or one necessarily included therein, as is alleged in another specification. It may be appropriate to dismiss the less serious of any multiplicious specifications after findings have been reached. Due consideration must be given, however, to possible post-trial or appellate action with regard to the remaining specification. 4. Part IV, paragraph 6(25) of the Manual for Military Commissions provides the following: Paragraph 6(25), Part IV, MMC (25) PROVIDING MATERIAL SUPPORT FOR TERRORISM. a. Text. Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organiza-
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tion engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct. b. Elements. The elements of this offense can be met either by meeting (i) all of the elements in A, or (ii) all of the elements in B, or (iii) all of the elements in both A and B: A. (1) The accused provided material support or resources to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)); (2) The accused knew or intended that the material support or resources were to be used for those purposes; and (3) The conduct took place in the context of and was associated with an armed conflict; or B. (1) The accused provided material support or resources to an international terrorist organization engaged in hostilities against the United States; (2) The accused intended to provide such material support or resources to such an international terrorist organization; (3) The accused knew that such organization has engaged or engages in terrorism; and
(4) The conduct took place in the context of and was associated with an armed conflict. c. Definition. Material support or resources means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials. d. Maximum Punishment. Confinement for life. 5. The specifications of the Charge allege violations of the Charge in two separate methods. Specification 1 alleges provision of support or resources to an international terrorist organization. Specification 2 alleges provision of support or resources to be used in carrying out an act of terrorism. Both of these specifications allege a separate offense. 6. Having reviewed the specifications and the requirements of R.M.C. 907(b)(3), the commission does not find the interests of justice require dismissal of either specification or the merger of the specifications prior to the presentation of evidence. 7. The Defense request to dismiss Specification 2 of Charge IV on grounds of multiplicity is denied. The Defense
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may have grounds to raise the issue again after evidence has been presented.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission March 14, 2008 RULING ON DEFENSE MOTION FOR APPROPRIATE RELIEF (BILL OF PARTICULARS) (D-017) Peter E. Brownback III Colonel, U.S. Army Military Judge
1. The Commission has considered the Defense motion and the Government response. The Defense did not file a reply. 2. The Defense requests that the Commission direct a Bill of Particulars with respect to Charge III basing this request on the provisions of Rule for Military Commission (R.M.C.) 906(b)(5). 3. The Specification of Charge III reads as follows: CHARGE III: VIOLATION OF 10 U.S.C. 950v(b)(28), CONSPIRACY Specification: In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in and around Afghanistan, from at least June 1, 2002 to on or about July 27, 2002, conspire and agree with Usama
bin Laden, Ayman al Zawahiri, Sheikh Sayeed al Masri, Saif al Adel, Ahmed Sa'id Khadr (a/k/a Abu Al-Rahrnan Al-Kanadi), and various other members and associates of the al Qaeda organization, known and unknown, and willfully join an enterprise of persons, to wit: al Qaeda, founded by Usama bin Laden, in or about 1989, that has engaged in hostilities against the United States, including attacks against the American Embassies in Kenya and Tanzania in August 1998, the attack against the USS COLE in October 2000, the attacks on the United States on September 11, 2001, and further attacks, continuing to date against the United States; said agreement and enterprise sharing a common criminal purpose known to the accused to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; and terrorism. In furtherance of this agreement or enterprise, Omar Khadr knowingly committed overt acts, including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named Abu Haddi, consisting of training in the use of rocket propelled
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grenades, rifles, pistols, hand grenades, and explosives. 2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training. 4. In or about July 2002, Khadr joined a group of al Qaeda operatives and converted land mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members. 6. Khadr threw and/or fired grenades at nearby coalition forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer. 4. R.M.C. 906(b)(5) reads as follows: (5) Bill of particulars. A bill of particulars may be amended at
any time, subject to such conditions as justice permits. Discussion The purposes of a bill of particulars are to inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification itself is too vague and indefinite for such purposes. A bill of particulars should not be used to conduct discovery of the Governments theory of a case, to force detailed disclosure of acts underlying a charge, or to restrict the Governments proof at trial. A bill of particulars need not be sworn because it is not part of the specification. A bill of particulars cannot be used to repair a specification which is otherwise not legally sufficient. 5. Part IV of the MMC describes the offense of Conspiracy as follows in paragraph 6a(28): (28) CONSPIRACY. a. Text. Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of
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the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. b. Elements. (1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission; (2) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined willfully, that is, with the intent to further the unlawful purpose; and (3) The accused knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise. c. Comment. (1) Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with
the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words. (2) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact triable by military commission. Although the accused must be subject to the MCA, other co-conspirators need not be. (3) The overt act must be done by the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act. (4) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. Although committing
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the intended offense may constitute the overt act, it is not essential that the object offense be committed. It is not essential that any substantive offense, including the object offense, be committed. (5) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the coconspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it. (6) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.
(7) That the object of the conspiracy was impossible to effect is not a defense to this offense. (8) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense. d. Maximum Punishment. Death, if the death of any person occurs as a result of the conspiracy 6. The Specification alleges various acts in a short (1 June 2002 - 27 July 2002) time frame although in an area defined simply as Afghanistan. On the face of the Specification, it would appear that at least one of the overt acts alleged would, if proven, constitute an overt act in furtherance of one of the criminal purposes alleged. Neither the MMC nor the MCA requires more. 7. If the Governments statement (D-017, Government Response, paragraph 6A(vi)) that the discovery provided includes all necessary information required to establish a defense is not correct, then the proper avenue for redress would be available if the Government attempts to offer evidence not provided in discovery.
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8. The Commission finds that the Specification of Charge III does not need to be supplemented by a Bill of Particulars in order to satisfy the requirements of R.M.C. 906(b)(5). The Defense request for a Bill of Particulars is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 4, 2008 RULING ON DEFENSE MOTION TO STRIKE SURPLUS LANGUAGE FROM CHARGE III (D-019) Peter E. Brownback III Colonel, U.S. Army Military Judge
1. The Commission has considered the Defense motion and the Government response. There was no oral argument on the motion. 2. Charge III and its Specification read as follows: CHARGE III: VIOLATION OF 10 U.S.C. 950v(b)(28), CONSPIRACY
members and associates of the al Qaeda organization, known and unknown, and willfully join an enterprise of persons, to wit: al Qaeda, founded by Usama bin Laden, in or about 1989, that has engaged in hostilities against the United States, including attacks against the American Embassies in Kenya and Tanzania in August 1998, the attack against the USS Cole in October 2000, the attacks on the United States on September 11, 2001, and further attacks, continuing to date against the United States; said agreement and enterprise sharing a common criminal purpose known to the accused to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; and terrorism. In furtherance of this agreement or enterprise, Omar Khadr knowingly committed overt acts, including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named Abu Haddi, consisting of training in the use of rocket propelled grenades, rifles, pistols, hand grenades, and explosives.
Specification:
In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in and around Afghanistan, from at least June 1, 2002, to on or about July 27, 2002, conspire and agree with Usama bin Laden, Ayman al Zawahiri, Sheikh Sayeed al Masri, Saif al Adel, Ahmed Sa'id Khadr (a/k/a Abu Al-Rahrnan AlKanadi), and various other
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2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training. 4. In or about July 2002, Khadr joined a group of Al Qaeda operatives and converted land mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members. 6. Khadr threw and/or fired grenades at nearby coalition forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer. 3. Paragraph 6(28), Part IV, Manual for Military Commissions, which contains both the text of 950v(b)(28) and the Secretarys implementation of the statute, reads as follows:
6(28) CONSPIRACY. a. Text. Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. b. Elements. (1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission; (2) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined willfully, that is, with the intent to further the unlawful purpose; and (3) The accused knowingly committed an overt act in order
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to accomplish some objective or purpose of the agreement or enterprise. c. Comment. (1) Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words. (2) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact triable by military commission. Although the accused must be subject to the MCA, other co-conspirators need not be. (3) The overt act must be done by the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of
the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act. (4) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. It is not essential that any substantive offense, including the object offense, be committed. (5) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the coconspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it. (6) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt
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act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members. (7) That the object of the conspiracy was impossible to effect is not a defense to this offense. (8) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense. d. Maximum Punishment. Death, if the death of any person occurs as a result of the conspiracy. 4. Congress possesses express enumerated authority under Article I, Section 8, Clause 10, of the Constitution to enact the Military Commissions Act of 2006. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the statute in question.
5. The Supreme Court has recognized that Congress could define offenses against the Law of Nations: It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns.... Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course. Ex Parte Quirin, 317 U.S. 1, 12, 63 S. Ct. 2 (1942). 6. In Section 949a of the Military Commissions Act of 2006, Congress authorized the Secretary of Defense to establish certain rules and procedures in connection with military commissions: 949a. Rules (a) PROCEDURES AND RULES OF EVIDENCE. Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense, in consultation with the Attorney General. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply
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the principles of law and the rules of evidence in trial by general courts-martial. Such procedures and rules of evidence may not be contrary to or inconsistent with this chapter. The Secretary used this authority to publish the Manual for Military Commissions. Specifically, the Secretary established the elements for the offense of conspiracy in violation of 950v(b)(28) of the Act. 7. The Defense moves to have the language of Specification of Charge III shown in bold below struck from the Specification:
September 11, 2001, and further attacks, continuing to date against the United States; said
agreement and enterprise sharing a common criminal purpose known to the accused to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; and terrorism. The commission makes no finding or ruling concerning the underlined wording shown above, since those words were not addressed by the Defense motion. 8. The commission has considered the cases and authorities cited by the Defense and Prosecution and finds: 1) There was a reasonable basis for Congress, in 2006, to determine that the offense of conspiracy to commit violations of the law of war was part of the common law of war, before, on, and after 11 September 2001; and, 2) There was a reasonable basis for Congress, in 2006, to determine that the offense of conspiracy to commit violations of the law of war was punishable by military commissions, before, on, and after 11 September 2001. 3) [T]he principles of law in trial by general courts-martial establish a clear and consistent meaning to the term and offense of conspiracy. 4) The elements propounded by the Secretary in Paragraph 6(28), Part IV,
Specification:
In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in and around Afghanistan, from at least June 1, 2002, to on or about July 27, 2002, conspire and agree with Usama bin Laden, Ayman al Zawahiri, Sheikh Sayeed al Masri, Saif al Adel, Ahmed Sa'id Khadr (a/k/a Abu Al-Rahrnan AlKanadi), and various other members and associates of the al Qaeda organization, known and unknown, and willfully join an enterprise of persons, to wit: al Qaeda, founded by Usama bin Laden, in or about 1989, that has engaged in hostilities against the United States, including attacks against the American Embassies in Kenya and Tanzania in August 1998, the attack against the USS COLE in October 2000, the attacks on the United States on
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of Manual for Military Commissions go beyond the elements for conspiracy under the principles of law in general courts-martial. 5) Since the elements propounded by the Secretary in Paragraph 6(28), Part IV, of Manual for Military Commissions go beyond the elements for conspiracy under the principles of law in general courts-martial, those elements, insofar as they refer to an enterprise of persons with a common criminal purpose, are contrary to or inconsistent with the statutory offense of conspiracy as set forth in 950v(b)(28). 9. The Defense motion to strike the language in the Specification of Charge III, as shown in bold in paragraph 7 above, is granted. The Commission will further allow the Defense to supplement its motion to address the language underlined in paragraph 7 above.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 21, 2008 RULING ON DEFENSE MOTION TO DISMISS CHARGE ONE FOR FAILURE TO STATE AN OFFENSE AND FOR LACK OF SUBJECT MATTER JURISDICTION (D-008) Peter E. Brownback III Colonel, U.S. Army Military Judge
unlawfully and intentionally murder U.S. Army Sergeant First Class Christopher Speer, in violation of the law of war, by throwing a hand grenade at U.S. forces resulting in the death of Sergeant First Class Speer. 3. Paragraph 6(15), Part IV, Manual for Military Commissions, which contains both the text of 950v(b)(15) and the Secretarys implementation of the statute, reads as follows: Paragraph 6(15) MURDER IN VIOLATION OF THE LAW OF WAR. a. Text. Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct. b. Elements. (1) One or more persons are dead; (2) The death of the persons resulted from the act or omission of the accused; (3) The killing was unlawful; (4) The accused intended to kill the person or persons; (5) The killing was in violation of the law of war; and
1. The Commission has considered the Defense motion, the Government response, and the Defense reply. Both parties presented oral argument on the matter. 2. Charge I and its Specification read as follows: CHARGE I: VIOLATION OF 10 U.S.C. 950v(b)(15), MURDER IN VIOLATION OF THE LAW OF WAR
Specification:
In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in Afghanistan, on or about July 27, 2002, while in the context of and associated with armed conflict and without enjoying combatant immunity,
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(6) The killing took place in the context of and was associated with an armed conflict. c. Comment. See comment to Intentionally Causing Serious Bodily Injury. [The comment to Paragraph 6(13), Intentionally Causing Serious Bodily Injury, reads as follows: d. Comment. For the accused to have been acting in violation of the law of war, the accused must have taken acts as a combatant without having met the requirements for lawful combatancy. It is generally accepted international practice that unlawful enemy combatants may be prosecuted for offenses associated with armed conflicts, such as murder; such unlawful enemy combatants do not enjoy combatant immunity because they have failed to meet the requirements of lawful combatancy under the law of war.] d. Maximum punishment. Death. 4. Congress possesses express enumerated authority under Article I, Section 8, Clause 10 of the Constitution to enact the Military Commissions Act of 2006. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the statute in question. 5. The Supreme Court has recognized that Congress could define offenses against the Law of Nations:
It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns....Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course. Ex Parte Quirin, 317 U.S. 1, 12, 63 S. Ct. 2 (1942). 6. As if anticipating the Defense motion in this case, the Supreme Court actually defined those who are protected by the Law of Nations and those who are not: By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines
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of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. (Ex Parte Quirin, id., at 12, emphasis added). 7. The Commission has considered the cases and authorities cited by the Defense and Prosecution and finds: 1) There was a reasonable basis for Congress, in 2006, to determine that the offense of murder in violation of the law of war was part of the common law of war, before, on, and after 11 September 2001; and, 2) There was a reasonable basis for Congress, in 2006, to determine that the offense of murder in violation of the law of war was punishable by military commissions, before, on, and after 11 September 2001. 8. The Defense asserts that the specific statutory provision in question, 10 U.S.C. 950v(b)(15), did not exist at the time of the offenses charged. Since the offenses charged allegedly occurred in 2002 and the statute in question was enacted in 2006, that assertion is beyond dispute. Assuming for the purposes of this paragraph of this motion that Mr. Khadr
is entitled to specific, partial or limited protections of the Constitution, the commission will evaluate the provision in light of ex post facto standards: a. On its face, the provision applies to Mr. Khadr. The jurisdictional provisions of the MCA ( 948d) set forth that any person who may be tried by a military commission may be tried for any offense listed in the MCA whether committed before, on, or after 11 September 2001. b. The Supreme Court has recognized Congress authority in this area (See, e.g., Ex Parte Quirin, 317 U.S. 1, 63 S. Ct. 2 (1942). It has stated that, An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. Ex Parte Quirin, id. at 10. c. The Congressional decision to enact the murder in violation of the law of war provision was not a decision to create a new crime and Congress did not create a new crime. The Supreme Court recognized that Congress has and has had the choice of allowing military commissions to determine for themselves what are violations of the law of war or of setting out specifically certain violations of the law of war. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be
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recognized and deemed applicable by the courts. Ex Parte Quirin, id., at 12. d. The Commission concludes that prosecution of Mr. Khadr for the offense of murder in violation of the law of war, as defined by the provision in question, does not violate ex post facto standards whether under the Constitution or international law. 9. The Commission has reviewed Charge I and its Specification. The Specification alleges a violation of the statute. The act alleged in the Specification, the killing of a lawful combatant by an unlawful combatant, is a violation of the law of war. 10. The Defense motion to dismiss Charge I and its Specification is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 21, 2008 RULING ON DEFENSE MOTION TO DISMISS CHARGE II FOR FAILURE TO STATE AN OFFENSE AND FOR LACK OF SUBJECT MATTER JURISDICTION (D-009) Peter E. Brownback III Colonel, U.S. Army Military Judge
armed conflict and without enjoying combatant immunity, attempt to commit murder in violation of the law of war, by converting land mines into improvised explosive devices and planting said improvised explosive devices in the ground with the intent to kill U.S. or coalition forces. 3. Paragraph 4, Part IV, Manual for Military Commissions, which contains both the text of 950t and the Secretarys implementation of the statute, reads as follows: 4. (Section 950t) Attempts a. Text. (a) IN GENERAL.Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a military commission under this chapter may direct. (b) SCOPE OF OFFENSE.An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. (c) EFFECT OF CONSUMMATION.Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.
1. The Commission has considered the Defense motion, the Government response, and the Defense reply. Both sides presented oral argument on the matter. 2. Charge II and its Specification read as follows: CHARGE II: VIOLATION OF 10 U.S.C. 950t, ATTEMPTED MURDER IN VIOLATION OF THE LAW OF WAR
Specification:
In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in and around Afghanistan, between, on or about June 1, 2002, and on or about July 27, 2002, while in the context of and associated with
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b. Elements. (1) That the accused did a certain overt act; (2) That the act was done with the specific intent to commit a certain offense under the MCA; (3) That the act amounted to more than mere preparation; and (4) That the act apparently tended to effect the commission of the intended offense. c. Maximum punishment. Any person subject to this chapter who is found guilty of an attempt under Section 950t to commit any offense punishable by this chapter shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case shall the death penalty be adjudged, nor shall any mandatory minimum punishment provisions apply; and in no case, other than attempted murder, shall confinement exceeding 20 years be adjudged. 4. Congress possesses express enumerated authority under Article I, Section 8, Clause 10 of the Constitution to enact the Military Commissions Act of 2006. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the statute in question.
5. The Supreme Court has recognized that Congress could define offenses against the Law of Nations: It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns.... Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course. Ex Parte Quirin, 317 U.S. 1, 12, 63 S. Ct. 2 (1942). 6. The Commission previously considered the Defense argument with respect to the offense of murder in violation of the law of war. The Commission ruled on that issue in its Ruling on D-008 on 21 April 2008. That Ruling is incorporated herein and adopted in its entirety for all purposes. 7. In connection with the Defense argument concerning the offense of attempt, the Commission has considered the cases and authorities cited by the Defense and Prosecution and finds: 1) There was a reasonable basis for Congress, in 2006, to determine that attempting to commit a violation of the law of war was punishable as part of the
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common law of war, before, on, and after 11 September 2001; and, 2) There was a reasonable basis for Congress, in 2006, to determine that attempting to commit a violation of the law of war was punishable by military commissions, before, on, and after 11 September 2001. 8. The Defense asserts that the specific statutory provision in question, 10 U.S.C. 950t, did not exist at the time of the offenses charged. Since the offenses charged allegedly occurred in 2002 and the statute in question was enacted in 2006, that assertion is beyond dispute. Assuming for the purposes of this paragraph of this motion that Mr. Khadr is entitled to specific, partial or limited protections of the Constitution, the Commission will evaluate the provision in light of ex post facto standards: a. On its face, the provision applies to Mr. Khadr. The jurisdictional provisions of the MCA (Section 948d) set forth that any person who may be tried by a military commission may be tried for any offense listed in the MCA whether committed before, on, or after 11 September 2001. b. The Supreme Court has recognized Congress authority in this area (See, e.g., Ex Parte Quirin, 317 U.S. 1, 63 S. Ct. 2 (1942). It has stated that An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. Ex Parte Quirin, id. at 10. c. The Congressional decision to enact the attempt provision was not a decision to create a new crime and Congress did not create a new crime. The Supreme Court recognized that Congress has and has had the choice of allowing military commissions to determine for themselves what are violations of the law of war or of setting out specifically certain violations of the law of war. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. Ex Parte Quirin, id. at 12. d. The Commission concludes that prosecution of Mr. Khadr for the offense of attempt to commit murder in violation of the law of war, as defined by the provision in question, does not violate ex post facto standards whether under the Constitution or international law. 9. The Commission has reviewed Charge II and its Specification. The Specification alleges a violation of the statute. The act alleged in the Specification, the attempt to commit murder in violation of the law of war, is a violation of the law of war. 10. The Defense motion to dismiss Charge II and its Specification is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 21, 2008 RULING ON DEFENSE MOTION TO DISMISS CHARGE III FOR LACK OF SUBJECT MATTER JURISDICTION (D-010) Peter E. Brownback III Colonel, U.S. Army Military Judge
1. The Commission has considered the Defense motion, the Government response, and the Defense reply. In this ruling, the Commission does not address those aspects of the Specification of Charge III upon which it ruled in D-019. 2. Charge III and its Specification read as follows (as alleged prior to the Commission ruling in D-019): CHARGE III: VIOLATION OF 10 U.S.C. 950v(b)(28), CONSPIRACY
Masri, Saif al Adel, Ahmed Sa'id Khadr (a/k/a Abu Al-Rahrnan AlKanadi), and various other members and associates of the al Qaeda organization, known and unknown, and willfully join an enterprise of persons, to wit: al Qaeda, founded by Usama bin Laden, in or about 1989, that has engaged in hostilities against the United States, including attacks against the American Embassies in Kenya and Tanzania in August 1998, the attack against the USS Cole in October 2000, the attacks on the United States on September 11, 2001, and further attacks, continuing to date against the United States; said agreement and enterprise sharing a common criminal purpose known to the accused to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; and terrorism. In furtherance of this agreement or enterprise, Omar Khadr knowingly committed overt acts, including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named Abu Haddi, consisting of training in the use of rocket propelled grenades, rifles, pistols, hand grenades, and explosives.
Specification:
In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in and around Afghanistan, from at least June 1, 2002, to on or about July 27, 2002, conspire and agree with Usama bin Laden, Ayman al Zawahiri, Sheikh Sayeed al
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2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training. 4. In or about July 2002, Khadr joined a group of Al Qaeda operatives and converted land mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members. 6. Khadr threw and/or fired grenades at nearby coalition forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer. 3. Paragraph 6(28), Part IV, Manual for Military Commissions, which contains both the text of 950v(b)(28) and the Secretarys implementation of the statute, reads as follows:
6(28) CONSPIRACY. a. Text. Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. b. Elements. (1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission; (2) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined willfully, that is, with the intent to further the unlawful purpose; and (3) The accused knowingly committed an overt act in order to accomplish some objective or
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purpose of the agreement or enterprise. c. Comment. (1) Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words. (2) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact triable by military commission. Although the accused must be subject to the MCA, other co-conspirators need not be. (3) The overt act must be done by the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose.
The accused need not have entered the agreement or criminal enterprise at the time of the overt act. (4) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. It is not essential that any substantive offense, including the object offense, be committed. (5) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the coconspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it. (6) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt act by one of the conspirators
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remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members. (7) That the object of the conspiracy was impossible to effect is not a defense to this offense. (8) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense. d. Maximum Punishment. Death, if the death of any person occurs as a result of the conspiracy. 4. Congress possesses express enumerated authority under Article I, Section 8, Clause 10, of the Constitution to enact the Military Commissions Act of 2006. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the statute in question.
5. The Supreme Court has recognized that Congress could define offenses against the Law of Nations: It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns.... Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course. Ex Parte Quirin, 317 U.S. 1, 12, 63 S. Ct. 2 (1942). 6. The Commission has considered the cases and authorities cited by the Defense and Prosecution and finds: 1) There was a reasonable basis for Congress, in 2006, to determine that the offense of conspiracy to commit violations of the law of war was part of the common law of war, before, on, and after 11 September 2001; and, 2) There was a reasonable basis for Congress, in 2006, to determine that the offense of conspiracy to commit violations of the law of war was punishable by military commissions, before, on, and after 11 September 2001. 7. The Defense asserts that the specific statutory provision in question, 10 U.S.C.
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950v(b)(28), did not exist at the time of the offenses charged. Since the offenses charged allegedly occurred in 2002 and the statute in question was enacted in 2006, that assertion is beyond dispute. Assuming for the purposes of this paragraph of this motion that Mr. Khadr is entitled to specific, partial or limited protections of the Constitution, the commission will evaluate the provision in light of ex post facto standards: a. On its face, the provision applies to Mr. Khadr. The jurisdictional provisions of the MCA ( 948d) set forth that any person who may be tried by a military commission may be tried for any offense listed in the MCA whether committed before, on, or after 11 September 2001. b. The Supreme Court has recognized Congress authority in this area (See, e.g., Ex Parte Quirin, 317 U.S. 1, 63 S. Ct. 2 (1942). It has stated that, An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. Ex Parte Quirin, id. at 10. c. The Congressional decision to enact the murder in violation of the law of war provision was not a decision to create a new crime and Congress did not create a new crime. The Supreme Court recognized that Congress has and has had the choice of allowing military commissions to determine for themselves what are violations of the law of war or of setting out speci-
fically certain violations of the law of war. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. Ex Parte Quirin, id. at 12. d. The Commission concludes that prosecution of Mr. Khadr for the offense of conspiracy to commit violations of the law of war, as defined by the provision in question, does not violate ex post facto standards whether under the Constitution or international law. 8. The Commission has reviewed Charge III and its Specification. The Specification alleges a violation of the statute. The offense alleged in the Specification, conspiracy to commit various violations of the law of war, is a violation of the law of war. 9. The Defense motion to dismiss Charge III and its Specification is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 21, 2008 RULING ON DEFENSE MOTION TO DISMISS CHARGE IV FOR LACK OF SUBJECT MATTER JURISDICTION (D-011) Peter E. Brownback III Colonel, U.S. Army Military Judge
organization founded by Usama bin Laden, in or about 1989, and known by the accused to be an organization that engages in terrorism, said al Qaeda having engaged in hostilities against the United States, including attacks against the American Embassies in Kenya and Tanzania in August 1998, the attack against the USS Cole in October 2000, the attacks on the United States on September 11, 2001, and further attacks, continuing to date against the United States; said conduct taking place in the context of and associated with armed conflict. The accused provided material support or resources to al Qaeda including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named Abu Haddi, consisting of training in the use of rocket propelled grenades, rifles, pistols, hand grenades, and explosives. 2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training.
1. The Commission has considered the Defense motion, the Government response, and the defense reply. Both parties presented oral argument on the matter. 2. Charge IV and its Specifications read as follows: CHARGE IV: VIOLATION 10 U.S.C. 950v(b)(25), PROVIDING MATERIAL SUPPORT FOR TERRORISM
Specification 1: In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in or around Afghanistan, from at least June 2002 through on or about July 27, 2002, intentionally provide material support or resources to wit: personnel, himself, to al Qaeda, an international terrorist
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4. In or about July 2002, Khadr joined a group of Al Qaeda operatives and converted land mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members. 6. Khadr threw and/or fired grenades at nearby coalition forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer.
context of and was associated with an armed conflict. The accused provided material support or resources in support of acts of terrorism including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named "Abu Haddi," consisting of training in the use of rocket propelled grenades, rifles, pistols, hand grenades, and explosives. 2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training. 4. In or about July 2002, Khadr joined a group of Al Qaeda operatives and converted land mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members.
Specification 2: In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in Afghanistan, from at least June 2002 through on or about July 27, 2002, intentionally provide material support or resources to wit: personnel, himself, to be used in preparation for, or carrying out an act of terrorism, that the accused knew or intended that the material support or resources were to be used for those purposes, and that the conduct of the accused took place in the
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6. Khadr threw and/or fired grenades at nearby coalition forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer. 3. Paragraph 6(25), Part IV, Manual for Military Commissions, which contains both the text of 950v(b)(25) and the Secretarys implementation of the statute, reads as follows: (25) PROVIDING MATERIAL SUPPORT FOR TERRORISM. a. Text. Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct. b. Elements. The elements of this offense can be met either by meeting (i) all of the elements in A, or (ii) all of the elements in B, or (iii) all of the elements in both A and B:
A. (1) The accused provided material support or resources to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)); (2) The accused knew or intended that the material support or resources were to be used for those purposes; and (3) The conduct took place in the context of and was associated with an armed conflict; or B. (1) The accused provided material support or resources to an international terrorist organization engaged in hostilities against the United States; (2) The accused intended to provide such material support or resources to such an international terrorist organization; (3) The accused knew that such organization has engaged or engages in terrorism; and (4) The conduct took place in the context of and was associated with an armed conflict. c. Definition. Material support or resources means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances,
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explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials. d. Maximum Punishment. Confinement for life. 4. Paragraph 6(24), Part IV, Manual for Military Commissions, which contains both the text of 950v(b)(24) and the Secretarys implementation of the statute, reads as follows: (24) TERRORISM. a. Text. Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. b. Elements. (1) The accused intentionally killed or inflicted great bodily harm on one or more protected persons or engaged in an act that
evinced a wanton disregard for human life; (2) The accused did so in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct; and (3) The killing, harm or wanton disregard for human life took place in the context of and was associated with armed conflict. c. Comment. (1) This offense includes the concept of causing death or bodily harm, even if indirectly. (2) The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing this offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties. d. Maximum Punishment. Death, if the death of any person occurs as a result of the terrorist act. Otherwise, confinement for life. 5. Congress possesses express enumerated authority under Article I, Section 8, Clause 10 of the Constitution to enact the Military Commissions Act of 2006. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the statute in question.
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6. The Supreme Court has recognized that Congress could define offenses against the Law of Nations: It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns....Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course. Ex Parte Quirin, 317 U.S. 1, 12, 63 S. Ct. 2 (1942). 7. The Commission has considered the cases and authorities cited by the Defense and Prosecution and finds: 1) There was a reasonable basis for Congress, in 2006, to determine that the offense of providing material support for terrorism was part of the common law of war, before, on, and after 11 September 2001; and, 2) There was a reasonable basis for Congress, in 2006, to determine that the offense of providing material support for terrorism was punishable by military commissions, before, on, and after 11 September 2001. 8. The Defense asserts that the specific statutory provision in question, 10 U.S.C.
950v(b)(25), did not exist at the time of the offenses charged. Since the offenses charged allegedly occurred in 2002 and the statute in question was enacted in 2006, that assertion is beyond dispute. Assuming for the purposes of this paragraph of this motion that Mr. Khadr is entitled to specific, partial or limited protections of the Constitution, the commission will evaluate the provision in light of ex post facto standards: a. On its face, the provision applies to Mr. Khadr. The jurisdictional provisions of the MCA ( 948d) set forth that any person who may be tried by a military commission may be tried for any offense listed in the MCA whether committed before, on, or after 11 September 2001. b. The Supreme Court has recognized Congress authority in this area (See, e.g., Ex Parte Quirin, 317 U.S. 1, 63 S. Ct. 2 (1942). It has stated that An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. Ex Parte Quirin at 10. c. The Congressional decision to enact the providing material support for terrorism provision was not a decision to create a new crime and Congress did not create a new crime. The Supreme Court recognized that Congress has and has had the choice of allowing military commissions to determine for themselves what are violations of the law of war or of
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setting out specifically certain violations of the law of war. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. Ex Parte Quirin at 12. d. The Commission concludes that prosecution of Mr. Khadr for the offense of providing material support for terrorism, as defined by the provision in question, does not violate ex post facto standards whether under the Constitution or international law. 9. The Commission has reviewed Charge IV and its Specifications. Each Specification alleges a violation of the statute. 10. The Defense motion to dismiss Charge IV and its Specifications is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 21, 2008 RULING ON DEFENSE MOTION FOR APPROPRIATE RELIEF (STRIKE TERRORISM FROM CHARGE III) (D-018) Peter E. Brownback III Colonel, U.S. Army Military Judge
or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. b. Elements. (1) The accused intentionally killed or inflicted great bodily harm on one or more protected persons or engaged in an act that evidenced a wanton disregard for human life; (2) The accused did so in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct; and (3) The killing, harm or wanton disregard for human life took place in the context of and was associated with armed conflict. c. Comment. (1) This offense includes the concept of causing death or bodily harm, even if indirectly.
1. The Commission has considered the Defense motion, the Government response, and the Defense reply. In this motion, the Defense moves to strike terrorism as an object of the conspiracy alleged in Charge III. 2. The Commission has determined (See Ruling - D-010, dated 21 April 2008.) that Congress properly enacted the offense of conspiracy in the Military Commissions Act of 2006. 3. Paragraph 6(24), Part IV, Manual for Military Commissions, which contains both the text of 950v(b)(24) and the Secretarys implementation of the statute, reads as follows: (24) TERRORISM. a. Text. Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one
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(2) The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing this offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties. d. Maximum Punishment. Death, if the death of any person occurs as a result of the terrorist act. Otherwise, confinement for life. 4. Congress possesses express enumerated authority under Article I, Section 8, Clause 10 of the Constitution to enact the Military Commissions Act of 2006. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the statute in question. 5. The Supreme Court has recognized that Congress could define offenses against the Law of Nations: It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns....Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it
should be recognized and deemed applicable by the courts. It chose the latter course. Ex Parte Quirin, 317 U.S. 1, 12, 63 S. Ct. 2 (1942). 6. The Commission has considered the cases and authorities cited by the Defense and Prosecution and finds: 1) There was a reasonable basis for Congress, in 2006, to determine that the offense of terrorism was part of the common law of war, before, on, and after 11 September 2001; and, 2) There was a reasonable basis for Congress, in 2006, to determine that the offense of terrorism was punishable by military commissions, before, on, and after 11 September 2001. 7. The Defense asserts that the specific statutory provision in question, 10 U.S.C. 950v(b)(24), did not exist at the time of the offenses charged. Since the offenses charged allegedly occurred in 2002 and the statute in question was enacted in 2006, that assertion is beyond dispute. Assuming for the purposes of this paragraph of this motion that Mr. Khadr is entitled to specific, partial or limited protections of the Constitution, the commission will evaluate the provision in light of ex post facto standards: a. On its face, the provision applies to Mr. Khadr. The jurisdictional provisions of the MCA ( 948d) set forth that any person who may be tried by a military commission may be tried for any offense listed in the MCA whether committed before, on, or after 11 September 2001.
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b. The Supreme Court has recognized Congress authority in this area (See, e.g., Ex Parte Quirin, 317 U.S. 1, 63 S. Ct. 2 (1942). It has stated that, An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. Ex Parte Quirin at 10. c. The Congressional decision to enact the terrorism provision was not a decision to create a new crime and Congress did not create a new crime. The Supreme Court recognized that Congress has and has had the choice of allowing military commissions to determine for themselves what are violations of the law of war or of setting out specifically certain violations of the law of war. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts Ex Parte Quirin at 12. d. The Commission concludes that prosecution of Mr. Khadr for the offense of terrorism, and therefore for the offense of conspiracy with terrorism as one of the offenses to which the accused allegedly conspired, as defined by the provision in question, does not violate ex post facto standards whether under the Constitution or international law.
8. The Commission has reviewed Charge III and its Specification. The Specification, insofar as it alleges a conspiracy to commit terrorism, alleges a violation of the statute. 9. The Defense motion to strike terrorism as an object of the conspiracy alleged by Charge III and its Specification is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 21, 2008 RULING ON DEFENSE MOTION FOR APPROPRIATE RELIEF (STRIKE MURDER IN VIOLATION OF THE LAW OF WAR FROM CHARGE III) (D-023) Peter E. Brownback III Colonel, U.S. Army Military Judge
alleged as one of the objects of the conspiracy. 5. The Defense motion for appropriate relief to strike murder in violation of the law of war as an object of the conspiracy alleged in Charge III is denied.
1. The Commission has considered the Defense motion and the Government reply. The Defense moves to strike murder in violation of the law of war as an object of the conspiracy alleged in Charge III. 2. The Commission has determined (See Ruling - D-008, dated 21 April 2008) that Congress properly enacted the offense of murder in violation of the law of war in the Military Commissions Act of 2006. 3. The Commission has determined (See Ruling - D-010, dated 21 April 2008) that Congress properly enacted the offense of conspiracy in the Military Commissions Act of 2006. 4. The commission has reviewed Charge III and its Specification. The Specification alleges an offense under the Military Commissions Act and murder is properly
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 23, 2008 RULING ON DEFENSE MOTION TO COMPEL DISCOVERY (DOCUMENTS RELATING TO CHARGE III) (D-026) Peter E. Brownback III Colonel, U.S. Army Military Judge
item is material to the preparation of the defense. While Yunis is not, as stated by the Government in oral argument on another motion, binding precedent upon this Commission, it, and the cases cited therein, are indicative of the proper standard. 4. The primary issue is relevance. Are the intelligence reports and other documents sought by the Defense in this motion relevant to the Specification of Charge III? Assuming, arguendo, that such documents proved beyond a reasonable doubt that the named individuals did not agree to various attacks alleged in language struck by the Commission in its ruling on D-019, how does that make the existence or non-existence of a fact in issue more or less likely? What connection does it have with whether or not the accused conspired, in the June through July 2002 time period, with those individuals to commit the offenses alleged in the Specification of Charge III? The Commission finds that the documents sought are not relevant. 5. Further, assuming, arguendo, that the reports and other documents were relevant, the Commission is not convinced that they are helpful to the Defense. The Defense has shown that it has possession of documents which show that two of the persons listed in the Specification of Charge III were opposed to the 9/11 attacks on the United States. (See paragraph 5, Defense motion.) The Defense has not shown that the reports listed in paragraph 5c would be helpful. 6. Having determined that the matters sought are neither relevant nor material, the Commission does not address the balancing issue.
1. The Commission has considered the Defense motion and the Government response, as well as the oral arguments. 2. The standards for discovery are laid out in Rule for Military Commission (R.M.C.) 701. R.M.C. 701(c)(1) states in pertinent part: After service of charges, upon request of the defense, the Government shall permit the defense counsel to examineany books, papers, documents, photographs which is in the custody or control of the Government and which is material to the preparation of the defense 3. The Commission has considered the proper standard for discovery and disclosure under R.M.C. 701(c). United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989), cited in the Discussion, refers to Rovario v. United States, 353 U.S. 53 (1957), in creating a standard of helpful to the defense of the accused as the proper method to determine whether an
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7. The Defense motion to compel discovery (documents relating to Charge III) is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 30, 2008 RULING ON DEFENSE MOTION FOR DISMISSAL DUE TO LACK OF JURISDICTION UNDER THE MCA IN REGARD TO JUVENILE CRIMES OF A CHILD SOLDIER (D-022) Peter E. Brownback III Colonel, U.S. Army Military Judge
national human rights law, foreign legal associations.
and
Amicus Brief filed by Marsha Levick on behalf of Juvenile Law Center These briefs will be attached to the record of trial as part of the appellate exhibit which contains this ruling. Having reviewed these briefs, the Commission: a. Decided to consider them; and, b. Decided, despite the Governments request in footnote 1 of its response, that no supplemental response from the Government was necessary. See R.C. 7.7b. 3. The Commission received a special request for relief from the Defense (8 February 2008) for the Commission to admit into evidence and consider statements allegedly made by Senator Lindsey Graham of South Carolina and reported in a story in the Wall Street Journal dated 7 February 2008. The Government opposed the request (13 February 2008) and offered a press release (13 February 2008). The Defense replied and affirmed their initial request (13 February 2008). a. The Defense request is granted in part as follows: While the Commission shall not admit as evidence any of the matters presented by either party in connection with this special request, the special request for relief (to include the Wall Street Journal article which was included in the email containing the special request), the Government response, the press release, and the Defense reply will be
1. The Commission has considered the Defense motion, the Government response, and the Defense reply. Both sides presented oral argument on the matter. 2. The Commission received three amicus briefs which, exercising the discretion granted to the Military Judge by the Rules of Court, meet the requirements of R.C. 7 for the purposes of this motion. Amicus Curiae Brief filed by McKenzie Livingston, Esq. on Behalf of Sen. Robert Badinter, et al. Amicus Brief filed by Sarah H. Paoletti on behalf of Canadian parliamentarians and law professors, international law scholars with specific expertise in the area of international humanitarian law, international criminal law and inter-
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attached to the record of trial as part of the appellate exhibit which contains this ruling. b. The Commission has considered the matters referenced in paragraph 3a in making its decision. STATUTORY JURISDICTION OVER CHILD SOLDIERS 4. The Defense motion states that Congress did not give the Commission jurisdiction over juvenile crimes by child soldiers. (Paragraph 5a(1), Defense Motion) That statement is not legally correct. Congress said nothing about jurisdiction over child soldiers. The jurisdictional portion of the Military Commissions Act of 2006 (MCA) reads: 948d. Jurisdiction of military commissions (a) JURISDICTION.A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001. There is no statutory age limitation within 948d(a). 5. Further, the definition of unlawful enemy combatant contained in 948a(1) reads: 948a. Definitions In this chapter: (1) UNLAWFUL ENEMY COMBATANT.(A) The term
unlawful means
enemy
combatant
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. There is no statutory age limitation within 948a(1). 6. Further, in 1 U.S.C. 8a(1), Congress has set forth the following rule of construction for the word person: 8. Person, human being, child, and individual as including born-alive infant, (a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interprettation of the various administrative bureaus and agencies of the United States, the words person, human being, child, and individual, shall include every infant member of the species homo sapiens who is born
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alive at any stage of development. 7. Reading the statutory provisions together, it is clear that Congress did not, either by implication or otherwise, limit the jurisdiction of a military commission so that persons of a certain age could not be tried thereby. EFFECT OF THE JUVENILE DELINQUENCY ACT 8. The Defense contends (Paragraph 5d, Defense motion) that the provisions of the Juvenile Delinquency Act (JDA), 18 U.S.C. 5031 et seq, prohibit the trial of Mr. Khadr by a military commission. The Defense notes, correctly, that Congress did not expressly abrogate the JDA in the MCA. (Paragraph 5d(6), Defense motion). 9. In pertinent part, 18 U.S.C. 5032 provides: A juvenile alleged to have committed an act of juvenile delinquency, other than a violation of law committed within the special maritime and territorial jurisdiction of the United States for which the maximum authorized term of imprisonment does not exceed six months, shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that... (emphasis added). While the term court of the United States is not defined in Chapter 403 of Title 18, it is defined in other provisions
of the Code. None of those definitions include a military commission, a military tribunal, or a court-martial. An example of such a definition is found in 28 U.S.C. 451: The term court of the United States includes the Supreme Court of the United States, courts of appeals, district courts constituted by chapter 5 of this title, including the Court of International Trade and any court created by Act of Congress the judges of which are entitled to hold office during good behavior. 10. The issue as to whether a military court-martial, commission, or tribunal is a court of the United States or is subject to rules applicable to Article III courts has been addressed in other writings and proceedings. a. Commenting on the distinction between statutes affecting jurisdiction of federal district courts and courtsmartial, Winthrop stated: None of the statutes governing the jurisdiction or procedure of the courts of the United States have any application to [a court-martial] (Winthrop, Military Law and Precedents (2d Ed. 1920), p. 49), quoted in United States v. Thieman, 1963 WL 4919, 33 C.M.R. 560.561 (A.B.R., 1963). b. This distinction would appear to hold true for military commissions as well, considering that the procedures for military commissions are based on the procedures for trial by general courts-martial (10 U.S.C. 948b(c)). In Thieman, the Army Board of
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Review noted that both a military and civilian tribunal had previously considered the question as whether the JDA, enacted solely under the Article III powers of Congress affecting the federal judiciary as opposed to the Article I powers granting Congress authority to make rules and regulations for the armed forces, created any limitation on the jurisdiction of a court-martial. The Board of Review further noted that in both instances the appellant was denied relief. 11. The Commission finds that a military commission established pursuant to the MCA is not a court of the United States as that term in used in 18 U.S.C. 5032. Two of the many indicia that a military commission is not a court of the United States are: a. Congress enacted the MCA with a background of previous dealings with commissions and courts. If Congress had intended to make a military commission a court of the United States, Congress would have done so. Instead, Congress used a term that has been in use for hundreds of years within the United States a military commission. b. Congress determined that the judges for these commissions would be military judges (18 U.S.C. 948j). Military judges are not entitled to hold office during good behavior. Having found that a military commission established pursuant to the MCA is not a court of the United States, the Commission need not go further to discuss the obvious anomalies which
could be created if the JDA were to apply to this case, such as requiring some state to take jurisdiction and responsibility for a alien captured on the battlefield in a foreign country. 12. The Commission finds that the provisions of the JDA are not applicable to a military commission established under the MCA. RECRUITMENT AND USE OF CHILD SOLDIERS 13. The Commission accepts the position of the Defense that the use and abuse of a juvenile by al-Qaeda is a violation of the law of nations... (Paragraph 5a(2) and footnote 2, defense motion). The commission further accepts the general statements contained within all of the amicus briefs which point to many ways in which various nation states and the international community are attempting to limit the recruitment and use of child soldiers. Having accepted these matters, the commission does not find them to be germane to the issue before it. AGE AS A BAR TO TRIAL FOR VIOLATIONS OF THE LAW OF NATIONS 14. Both the Defense and the Prosecution cite the Commission to various treaties and protocols and legal writings in an attempt to show that Mr. Khadrs age, at the time of the offenses alleged, does or does not prohibit his trial by military commission on criminal charges. The Defense relies, in great part, on the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Specifically, the Defense points
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to Article 7, paragraph 1 of the Optional Protocol: 1. States parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations. 15. The Government, among other matters cited, believes that the issue is settled by what it calls a relevant comment by the Committee on the Rights of the Child (page 14, Government response): 32. Rule 4 of the Beijing Rules recommends that the beginning of MACR (Minimum Age of Criminal Responsibility language added) shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by
the Committee not to be internationally acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level. 16. The Commission has reviewed the entire Optional Protocol. Nothing in the Protocol prohibits the trial of Mr. Khadr by this Commission. The Commission has also reviewed the entire General Comment No. 10: Childrens Rights in Juvenile Justice. While it does set a certain MACR, it does not address the issue of MACR for child soldiers. Both the Optional Protocol and General Comment No. 10 focus on ways in which children may, should, could, or would be treated before, during, and after criminal prosecutions. Neither of them directly addresses the issue before this Commission. 17. The Commission finds that certain segments of the international community believe in and articulate various methods and standards which could be used when a person under the age of 16 (or 18 the segments are not as one on the exact age limit to be used) is charged with a criminal offense either in violation of the law of nations or in violation of the law of a nation. While these may be interesting as a matter of policy, they are not governing on this Commission. To quote from the amicus brief filed by Sarah H. Paoletti on behalf of various persons and groups: Although international treaty law does not consistently and unequivocally preclude the exercise of criminal jurisdiction over child
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soldiers by military tribunals, customary international law clearly recognizes that absent exceptional circumstances and rehabilitative intent, such prosecutions should not occur. (Paoletti at page 11.) The MCA and the Manual for Military Commissions (MMC) give the Convening Authority the power to decide which cases should be referred to trial by military commission. The Commission presumes, without deciding, that the Convening Authority considers the circumstances of each case and each accused before referring a case to trial. Whether or not being tried for alleged crimes is rehabilitative is not a question before this Commission. 18. Having considered the motion, response, and reply, and the amicus briefs, the Commission finds that neither customary international law nor international treaties binding upon the United States prohibit the trial of a person for alleged violations of the law of nations committed when he was 15 years of age. LAST IN TIME RULE AND CUSTOMARY INTERNATIONAL LAW OR TREATY LAW 19. Assuming, arguendo, that the Commission is incorrect in its analysis of the effect of international law on the trial of a person who was 15 at the time when the acts charged allegedly occurred, the commission returns to its analysis of the statutory jurisdiction in the MCA. Congress, by passing the MCA, made the provisions of the MCA superior, under the Last in Time Rule, to prior statutes, treaties, and customary international law.
Simply put, while a federal statute and a treaty are both the supreme law of the land (Article VI, Clause 2), a federal statute, passed after the ratification of a treaty, prevails over contrary provisions in a treaty. See, e.g., The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889). MATTERS NOT ADDRESSED 20. The Commission has not and will not address that portion of the Defense motion and reply which attempts to analogize the position of Mr. Khadr with the position of various accused tried under the Uniform Code of Military Justice (Paragraph 5a(3) and 5b, defense motion; paragraph 2e, defense reply.). A brief comparison of the jurisdictional prerequisites for the UCMJ found in 18 U.S.C. 802 and 803 with the jurisdictional prerequisites for a military commission found in 948d of the MCA reveals that there is no fruitful analogy to be drawn. 21. The Commission has not and will not address that portion of the Defense (or amicus briefs) arguments concerning the unsuitability of the death penalty for acts committed at the age of 15. Mr. Khadr does not face the possibility of a death penalty at this Commission. Nor will the Commission address the issue of a fiveyear old child being tried by military commission. 22. The Commission has not and will not address that portion of the Defense (or amicus briefs) arguments concerning what is to the Defense an obvious and apparent breach of the United States duties and obligations concerning rehabilitation and reintegration of Mr.
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Khadr. Such arguments and issues should be addressed to a forum other than a military commission. CONCLUSION AND RULING 23. The Commission has considered the Defense (and amicus briefs) arguments in light of the scheme for trial established by the MCA and the MMC. a. The arguments and positions presented concerning the need to protect a child and a childs incapacity to understand her/his actions relate to issues which may be presented to the finders of fact at this Commission. R.M.C. 916, generally, and R.M.C. 916c, e, h, j, and k, specifically, authorizes the presentation of matters which would negate intent and capacity, among other issues raised by the Defense. b. The Commission makes no finding and renders no conclusion concerning the existence or non-existence of any possible defense. c. In connection with any need to present special items concerning a child to lessen (mitigate) any possible sentence, the Commission notes the broad scope of R.M.C. 1001 in general and specifically R.M.C. 1001c. d. The Commission further notes the broad scope of R.M.C. 1107 and the items which can be presented to and considered by the Convening Authority prior to action being taken on the findings and sentence. 24. The Defense Motion For Dismissal Due to Lack of Jurisdiction Under the
MCA in Regard to Juvenile Crimes of a Child Soldier is denied.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 DETERMINATION AND RULING DEFENSE MOTION TO COMPEL DISCOVERY (EYEWITNESSES) (D-025) Peter E. Brownback III Colonel, U.S. Army Military Judge
had, in good faith, complied to the best of its ability. In the Motion Status Summary, distributed to the parties on 9 May 2008, D-025 carried the notation: Action complete, If DC want more, they will make a new request. MJ will file a determination in the matter. Other than the original motion filed by the Defense, no other pleadings concerning this motion was filed by either party. 2. Documents discussed in paragraph 1 will be contained in the Appellate Exhibit which contains this motion. 3. The Commission determines that the Government has satisfied the requirements of R.M.C. 701 in connection with this motion. Any further requests by the Defense in connection with the subject of this motion will be made in the context of a new discovery request. 4. The Commission rules that action by the parties and the Commission on this motion is now FINAL.
1. The Defense filed this motion on 19 February 2008 the Commission takes note that the date on the motion of 15 January 2008 is incorrect. Intervening emails from the Prosecution, Defense, and Military Judge resulted in a telephonic R.M.C. 802 conference on 21 February 2008. The Prosecution did not file a formal response to the motion; in lieu of responding, it sent the Defense an email offering partial compliance forthcoming (28 February 2008). The motion was discussed at an R.M.C. 802 conference on 12 March, on the record on 13 March, and at an R.M.C. 802 conference on 13 March. The Government continued to provide information. The motion was discussed at an R.M.C. 802 conference on 10 April and on the record on 11 April. The government continued to attempt to comply. At an R.M.C. 802 conference on 7 May 2008, the Government detailed what it had done to comply. On the record on 8 May, the Defense indicated that it was satisfied that the Government
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 DETERMINATION AND RULING DEFENSE MOTION TO COMPEL DISCOVERY (DOCUMENTS RELATING TO INVESTIGATION AND PROSECUTION OF SGT [REDACTED] USA) (D-027) Peter E. Brownback III Colonel, U.S. Army Military Judge
complete, If DC want more, they will make a new request. MJ will file a determination in the matter. 2. Documents discussed in paragraph 1 will be contained in the Appellate Exhibit which contains this motion. 3. The Commission determines that the Government has satisfied the requirements of R.M.C. 701 in connection with this motion. Any further requests by the Defense in connection with the subject of this motion will be made in the context of a new discovery request. 4. The Commission rules that action by the parties and the commission on this motion is now FINAL.
1. The Defense filed this motion on 4 March 2008. The Government sent an email on 10 March 2008 stating that it intended to comply with the discovery request. At an R.M.C. 802 conference on 12 March, on the record on 13 March, and at an R.M.C. 802 conference on 13 March, the Government reiterated that it was in the process of complying with the discovery request. At an R.M.C. 802 conference on 10 April, the Government stated that it had furnished almost all of the discovery. On the record on 11 April, the Defense stated that it was in the process of reviewing the matters provided and would advise the Prosecution and the Commission if it was not satisfied. The matter was not raised at an R.M.C. 802 conference on 6 May or on the record on 7 May. In the Motion Status Summary, distributed to the parties on 9 May 2008, D-027 carried the notation: Action
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 DETERMINATION AND RULING DEFENSE MOTION TO COMPEL PRODUCTION OF PHYSICAL EVIDENCE (D-031) Peter E. Brownback III Colonel, U.S. Army Military Judge
the Motion Status Summary, distributed to the parties on 9 May 2008, D-031 carried the notation: Action complete, If DC want more, they will make a new request. MJ will file a determination in the matter. Other than the original motion filed by the Defense, no other pleadings concerning this motion was filed by either party. 2. Documents discussed in paragraph 1 will be contained in the Appellate Exhibit which contains this motion. 3. The Commission determines that the Government has satisfied the requirements of R.M.C. 701 in connection with this motion. Any further requests by the Defense in connection with the subject of this motion will be made in the context of a new discovery request. 4. The Commission rules that action by the parties and the Commission on this motion is now FINAL.
1. The Defense filed this notice of motion on 4 March 2008. The military judge has not at any time required that the Defense provide a motion as contemplated by the Rules of Court. The Government did not file a response. At an R.M.C. 802 conference on 12 March, on the record on 13 March, and at an R.M.C. 802 conference on 13 March, the Government stated that it was searching for physical evidence but had not yet found any. At an R.M.C. 802 conference on 10 April and on the record on 11 April, the Government stated that it had found certain physical evidence and will make the evidence available to the Defense. At an R.M.C. 802 conference on 7 May and on the record on 8 May, the Government stated that it had completed its search and that it had made all physical evidence available to the Defense. On the record on 8 May, the Defense indicated that it was satisfied that the Government had, in good faith, complied with the best of its ability. In
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 DETERMINATION AND RULING DEFENSE MOTION TO COMPEL DISCOVERY (DOCUMENTS RELATING TO INVESTIGATION AND PROSECUTION OF DETAINEE ABUSE (D-034) Peter E. Brownback III Colonel, U.S. Army Military Judge
ments of R.M.C. 701 in connection with this motion. Any further requests by the Defense in connection with the subject of this motion will be made in the context of a new discovery request. 4. The Commission rules that action by the parties and the Commission on this motion is now FINAL.
1. This motion was filed on 4 March 2008. The Government did not respond, but it did provide an email on 10 March stating that it intended to comply with the request. At an R.M.C. 802 conference on 10 April and on the record on 11 April, the parties agreed that this motion was subsumed by D-027. In the Motion Status Summary, distributed to the parties on 9 May 2008, D-034 carried the notation: Action complete, If DC want more, they will make a new request. MJ will file a determination in the matter. Other than the original motion filed by the Defense, no other pleadings concerning this motion was filed by either party. 2. Documents discussed in paragraph 1 will be contained in the Appellate Exhibit which contains this motion. 3. The Commission determines that the Government has satisfied the require-
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 DEFENSE NOTICE OF MOTION TO COMPEL PRODUCTION OF CLASSIFIED REPORT (D-038) Peter E. Brownback III Colonel, U.S. Army Military Judge
2. Documents discussed in paragraph 1 will be contained in the Appellate Exhibit which contains this motion. 3. The Commission determines that the Government has satisfied the requirements of R.M.C. 701 in connection with this motion. Any further requests by the Defense in connection with the subject of this motion will be made in the context of a new discovery request. 4. The Commission rules that action by the parties and the Commission on this motion is now FINAL.
1. The Defense filed this notice of motion on 4 March 2008. The Military Judge has not at any time required that the Defense provide a motion as contemplated by the Rules of Court. In lieu of a response, the Government sent an email on 7 March stating that it would provide an unclassified version of the report. At an R.M.C. 802 conference on 10 April and on the record on 11 April, the Defense stated that it had received the unclassified version of the report and was reviewing it to see if it met their needs. At an R.M.C. 802 conference on 7 May and on the record on 8 May, the defense said that no further action was required on this item. In the Motion Status Summary, distributed to the parties on 9 May 2008, D-038 carried the notation: Action complete. MJ will file a determination in the matter. Other than the original notice of motion filed by the Defense, no other pleadings concerning this motion were filed by either party.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 RULING ON DEFENSE MOTION TO COMPEL PRODUCTION OF DOCUMENTS (DIMS) (D-043) Peter E. Brownback III Colonel, U.S. Army Military Judge
suppress statements allegedly made by the accused while detained at Guantanamo. 3. The Commission recognizes the needs of the Joint Task ForceGuantanamo (JTF-GTMO) to protect personnel assigned thereto, both during and following such assignment. The Commission finds that the defense counsel in this case have secret or above security clearances and that their duties in connection with protected materials are governed, among many ways, by the Protective Orders issued by this Commission. 4. The Commission orders that a copy of Volume 2 of the DIMS material be provided to the Defense NLT [not later than] 1700 hours, 22 May 2008. The JTFGTMO may redact personal identifying matters from the copy furnished. If such copy is not furnished, the proceedings will abate until it is furnished. 5. The Commission does not find that JTF-GTMO has been intentionally or negligently derelict or dilatory in the furnishing of information requested by the Defense in this case. Nor does the Commission find that JTF-GTMO has been intentionally or negligently obstructive in regards to furnishing such information. The Commission recognizes that JTF-GTMO has certain procedures which must be followed in order to insure that the command is aware of what is provided to outside agencies or persons. Further, the Commission recognizes that responding to requests from the Defense and the Commission is but a very minor portion of the requirements levied upon JTF-GTMO. However, the Commission advises the Government, and is certain that the Government will relay said
1. The Defense filed this motion on 7 April 2008. The Government did not submit a response, but it provided the matters requested. On 27 April, the Defense filed, by email, a special request for relief from the conditions by which the Government was providing discovery. The Government filed, by email, its response to the special request on 30 April. Both parties made oral argument on 8 May 2008. The Commission issued a ruling on the record and supplements and confirms that ruling by this written ruling. 2. Based on the matters presented on the record and the concession by the Government, the Commission finds that Volume 2 of the DIMS material is relevant and necessary to the preparation of the Defense case in general. The Commission further finds that it is specifically relevant and necessary to the Defense preparation of any motion to
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advice to JTF-GTMO, that, if requests from the Defense are not responded to in a full and timely manner, discovery is delayed, and the trial schedule in this case may be significantly altered and delayed. 6. The Defense motion is granted.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 2008 RULING ON DEFENSE SPECIAL REQUEST FOR RELIEF IN LIGHT OF THE COMMISSIONS RULING ON D019 TO STRIKE SURPLUS LANGUAGE FROM CHARGE III (D-047) Peter E. Brownback III Colonel, U.S. Army Military Judge
Zawahiri, Sheikh Sayeed al Masri, Saif al Adel, Ahmed Said Khadr (a/k/a Abu Al-Rahrnan AlKanadi), and various other members and associates of the al Qaeda organization, known and unknown; said agreement to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; and terrorism. In furtherance of this agreement or enterprise, Omar Khadr knowingly committed overt acts, including, but not limited to, the following: 1. In or about June 2002, Khadr received approximately one month of one-on-one, private al Qaeda basic training from an al Qaeda member named Abu Haddi, consisting of training in the use of rocket propelled grenades, rifles, pistols, hand grenades, and explosives. 2. In or about June 2002, Khadr conducted surveillance and reconnaissance against the U.S. military in support of efforts to target U.S. forces in Afghanistan. 3. In or about July 2002, Khadr attended one month of land mine training. 4. In or about July 2002, Khadr joined a group of Al Qaeda operatives and converted land
1. The Defense filed this special request for relief by email on 9 April 2008. The Government responded on 22 April 2008. Neither party chose to argue the motion on the record on 8 May 2007. 2. The Commission adheres to its ruling in D-019 and the matters and analysis contained therein. The language requested to be stricken is hereby deleted. 3. The Specification of Charge III shall now read as follows: Specification: In that Omar Ahmed Khadr, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in and around Afghanistan, from at least June 1, 2002, to on or about July 27, 2002, conspire and agree with Usama bin Laden, Ayman al
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mines to improvised explosive devices and planted said improvised explosive devices in the ground where; based on previous surveillance, U.S. troops were expected to be traveling. 5. On or about July 27, 2002, Khadr engaged U.S. military and coalition personnel with small arms fire, killing two Afghan Militia Force members. 6. Khadr threw and/or fired grenades at nearby coalition forces resulting in numerous injuries. 7. When U.S. forces entered the compound upon completion of the firefight, Khadr threw a grenade, killing Sergeant First Class Christopher Speer. 4. The Defense special request for relief is granted.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 RULING ON DEFENSE NOTICE OF MOTION TO COMPEL PRODUCTION OF THE JTF GTMO SERE INTERROGATION SOP DATED 10 DECEMBER 2002 (D-048) Peter E. Brownback III Colonel, U.S. Army Military Judge
than not that personnel of JTFGTMO were aware of the documents and discussed the relevant methods contained therein. 4. The Commission finds that the Government has asserted no overwhelming interest in not producing the document. The Commission finds that the document is material to the preparation of the defense case in general, and it finds that the document is material specifically to the preparation of any Defense motion to suppress statements allegedly made by Mr. Khadr while detained by JTF-GTMO. 5. The Defense motion is granted. The government shall provide a copy of the draft JTF-GTMO SERE Interrogation SOP to the Defense.
1. The Defense filed this notice of motion on 9 April 2008. The Military Judge has not at any time required that the Defense provide a motion as contemplated by the Rules of Court. The Government filed a response on 21 April. The Defense submitted additional documents for consideration on 6 May. Both parties argued the matter on 8 May. 2. The Commission finds that JTFGTMO has never officially adopted a SERE Interrogation SOP. The Commission further finds that a draft SERE SOP of some sort was produced and that the Government has a copy thereof. 3. The Commission, based on the totality of the circumstances and taking into account its knowledge of the ways of the world in general and military units in specific, finds that even if such SOP were never issued officially, it is more likely
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 DETERMINATION AND RULING DEFENSE NOTICE OF MOTION TO COMPEL PRODUCTION OF DOCUMENTS (REPORTS RELATING TO OTHER SPECIAL OPERATIONS UNITS) (D-050) Peter E. Brownback III Colonel, U.S. Army Military Judge
this motion will be made in the context of a new discovery request. 4. The Commission rules that action by the parties and the Commission on this motion is now FINAL.
1. The Defense filed this notice of motion on 9 April 2008. The Military Judge has not at any time required that the Defense provide a motion as contemplated by the Rules of Court. The Government did not file a response. At an R.M.C. 802 conference on 10 April and on the record on 11 April, the parties agreed that this matter was subsumed by D-032. Other than the original motion filed by the Defense, no other pleadings concerning this motion was filed by either party. 2. Documents discussed in paragraph 1 will be contained in the Appellate Exhibit which contains this motion. 3. The Commission determines that the Government has satisfied the requirements of R.M.C. 701 in connection with this motion. Any further requests by the Defense in connection with the subject of
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission May 9, 2008 RULING ON DEFENSE NOTICE TO COMPEL PRODUCTION OF DOCUMENT (AGENT NOTES) (D-053) Peter E. Brownback III Colonel, U.S. Army Military Judge
Further, the Commission notes that there is no burden asserted by the Government in producing these notes. Further, the Commission finds that the notes are material in that they would be helpful to the Defense in preparing its case in general, and that they would be specifically helpful to the Defense in preparing any possible suppression motion concerning statements allegedly made by Mr. Khadr. 4. The Defense motion to compel production of the agent notes is granted.
1. The Defense filed this notice of motion on 9 April 2008. The Military Judge has not at any time required that the Defense provide a motion as contemplated by the Rules of Court. The Government responded on 21 April 2008. Both parties argued on 8 May 2008. 2. The Government, at argument, did not assert that there were no differences whatsoever between the agent notes sought by the Defense and written summary of the interview on an official form. Nor did the Government assert any reason for not producing the notes other than it felt the Defense had not met its burden under R.M.C. 701 and what the Government believes to be the proper case law. 3. The Commission notes that there have been instances brought forth in this Commission in which the agent notes contained matters not contained in the written summary of the interview.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission August 14, 2008 ORDER Patrick J. Parrish Colonel, U.S. Army Military Judge
psychologists, at least one of whom should be a psychiatrist or a clinical psychologist, as provided by Rule for Military Commissions 706, Manual for Military Commissions, 2007. The report shall be completed no later than 10 September 2008 unless the Military Judge grants a request for an extension based upon good cause shown. b. THAT all existing medical or mental health records currently maintained by any individual or institution within the control of the U.S. government be released to the Medical Board for review. c. THAT the Board shall make separate and distinct findings as to each of the following questions:
1. This Order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC), to include but not limited to: a. Rule for Military Commissions (R.M.C.) 706; b. R.M.C. 909; c. R.M.C. 916. 2. In light of the issues raised by defense counsel in D064 (see enclosure), I have determined that it is appropriate to order an inquiry into the mental capacity and mental responsibility of the accused prior to proceeding to trial. The charge sheet is enclosed. 3. Accordingly, ORDERED: IT IS HEREBY
(1) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term severe mental disease or defect does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.) (2) What is the clinical psychiatric diagnosis? (3) Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his conduct? (4) Is the accused presently suffering from a mental disease or defect
a. THAT the accused be examined by a Medical Board consisting of one or more physicians or clinical
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rendering the accused unable to understand the nature of the proceeding against the accused or to conduct or cooperate intelligently in the defense?
d. THAT upon completion of the Boards investigation, a statement consisting of only the Boards ultimate conclusions as to all questions specified in the Order shall be submitted to the Commander, Joint Task Force Guantanamo Bay, and to all counsel in the case, the Convening Authority, and to the Military Judge; and e. THAT the full report of the board may be released by the Board or the medical personnel only to other medical personnel for medical purposes, unless otherwise authorized by the Military Judge, except that a copy of the full report shall be furnished to the Defense and, upon request to the Commander, Joint Task Force Guantanamo Bay; and f. THAT neither the contents of the full report nor any matter considered by the board during its investigation shall be released by the board or other medical personnel to any person not authorized to receive the full report, except pursuant to an order by the Military Judge. 4. Any breach of this Order may result in disciplinary action of other sanctions.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission August 14, 2008 ORDER DEFENSE MOTION FOR APPROPRIATE RELIEF (RIGHT TO PUBLIC TRIAL) (D-069) Patrick J. Parrish Colonel, U.S. Army Military Judge
any manner. The Commission is not aware of any manner in which the Commission has improperly withheld any filing or ruling or failed to facilitate the release of such materials under Rule of Court 3.9a. The Commission invites the parties attention to Rule of Court 3.9d. 3. The Defenses request to be exempt from the Rules of Court is denied. So ordered this 14th day of August 2008.
1. The Defense requests that the filings of the parties and rulings of the Commission be made publicly available within a reasonable time after the filings and/or rulings are made. The Defense more specifically requests that it be allowed to communicate the substance of its filings (i.e., disseminate appropriately redacted copies) to the public at any time irrespective of the Military Commissions Trial Judiciary Rules of Court (Rules of Court). Both parties submitted this motion on the briefs without benefit of oral argument. 2. The Rule of Court 3.9 addresses when pleadings by either party may be released to the public. These reasonable rules were issued under the authority of the Chief Trial Judge, Military Commissions Trial Judiciary. These rules help to ensure the sound administration of justice for all parties. There is nothing in these rules which prejudice the accused or others in
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission August 15, 2008 RULING ON DEFENSE MOTION TO DISMISS (D-067) Patrick J. Parrish Colonel, U.S. Army Military Judge
Service Judge Advocate General makes available for serving on a commission. The Chief Trial Judge is responsible for detailing a military judge for each military commission. See R.M.C. 503(b)(1) and (2). b. Congress provides protection for the independence of military judges by precluding the Convening Authority form reprimanding or otherwise taking adverse action against a military judge with respect to the military judges performance of duties in the military commissions. See MCA 949b(a)(1). The Convening Authority is also precluded from preparing or reviewing any evaluation or fitness report on any military judge concerning his or her performance of duty as a military judge on the military commission. See MCA 948j(f). 3. The military judges in this commission were lawfully detailed by the Chief Trial Judge for the Military Commissions. It is clear that Congress made provisions for the independence of the military judges. There is no evidence before this commission which shows that either of the military judges in this case had his independence impeded in any way. It is also clear that military judges have made decisions in this case and other commission cases showing their impartiality. 4. Accordingly, the motion to dismiss all charges and specifications is denied. So ordered this 15th day of August 2008.
1. The Defense requests the Commission to dismiss all charges and specifications because this Military Commission is unlawfully constituted and lacks jurisdiction to hear this case. 2. The Military Commissions Act (MCA) in 948j provides that a military judge shall be detailed to each military commission under this chapter. The Secretary of Defense shall prescribe regulations providing for the manner in which military judges are so detailed to military commissions. Pursuant to this statutory authority the Secretary of Defense issued the Manual for Military Commissions (MMC) prescribing rules for the military commission (R.M.C.). a. The Secretary of Defense, pursuant to that authority, authorized the Convening Authority to select a Chief Trial Judge for the military commissions. The Convening Authority selects the Chief Trial Judge from the pool of military judges each
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission August 15, 2008 RULING ON DEFENSE MOTION TO DIMISS (UNLAWFUL INFLUENCE REMOVAL OF MILITARY JUDGE) (D-076) Patrick J. Parrish Colonel, U.S. Army Military Judge
COL Brownback was improperly removed from this Commission as the Military Judge. 4. Rule for Military Commissions (R.M.C.) 505(e)(1) allows the Chief Trial Judge to change the military judge without cause prior to assembly of the military commission. The Military Commission in this case has not yet been assembled. 5. Even though no cause was required, the change in the Military Judge in this case did not happen without cause. COL Brownback was no longer on active duty after 29 June 2008. Therefore, he was not going to be available to continue to serve as the Military Judge to the conclusion of this Military Commission. The decision that COL Brownback was not going to be extended in his retiree recall status was made no later than sometime in February of 2008. There is no evidence which reasonably supports a conclusion that decision was in any way related to any ruling he made in this case. There is no evidence which in any way suggests that COL Brownback returned to a full time retired status for any nefarious reason. Mere speculation, innuendo, and an implausible conspiracy theory do not, individually or collectively, support this motion. The Commission is convinced beyond a reasonable doubt that no unlawful influence on the changing of a military judge exists in this case. 6. Accordingly, the motion to dismiss all charges and specifications is denied. So ordered this 15th day of August 2008.
1. The Defense requests the Commission to dismiss all charges and specifications based on unlawful influence. 2. COL Brownback retired from active duty in 1999 after 30 years of active duty service. COL Brownback was recalled to active duty from his retirement status from 13 July 2004 for 365 days to serve as a Military Judge for the military commissions. His retirement recall orders were subsequently amended several times to extend his retirement recall until 29 June 2008. COL Brownbacks retiree recall orders were not extended beyond 29 June 2008. The Commission is not aware of any right a military retiree has to be recalled to active duty or to have his recall orders extended. 3. COL Brownback was detailed as the Military Judge in this case on 24 April 2007. The current Military Judge was detailed as the Military Judge in this case on 2 June 2008. The Defense alleges that
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 6, 2008 RULING ON DEFENSE MOTION TO DISMISS CHARGE I FOR FAILURE TO STATE AN ELEMENT OF THE OFFENSE IN VIOLATION OF DUE PROCESS (D-071) Patrick J. Parrish Colonel, U.S. Army Military Judge
f. The killing took place in the context of and was associated with an armed conflict. 3. Courts have adopted a three-part test for determining whether a specification states an offense. That test is: does the specification allege every essential element expressly or by fair implication; does that provide fair notice to the accused; and does the specification provide protection against double jeopardy. See e.g., United States. v. Crafter, 64 M.J. 209 (2006), and United States v. Dear 40 M.J. 196 (C.M.A. 1994). The specification of Charge I clearly alleges each element of the offense of murder in violation of the law of war. 4. The Defense essentially alleges that the accuseds due process rights are violated because the Government fails to allege its theory of how the accused violated the law of war in allegedly committing murder. The Defense cites no authority for the proposition that the Government must allege its theory of the case on the charge sheet for any charged offense. 5. The Defense urges the Commission to apply the full range of the due process rights found in the Fifth Amendment citing Boumediene v. Bush, 128 S. Ct. 2229 (2008) as authority for its position. The Commission need not address whether the full range of the Fifth Amendment due process rights apply to the accused in deciding this issue. Whatever extent of due process is required, the Government has met that requirement by placing the accused on fair notice in alleging his acts violated the law of war. Whether his acts violated the law of war is the subject of litigation at the trial.
1. The Defense requests the Commission to dismiss Charge I because the Government failed to allege each element of the offense. The Government opposes this motion. 2. The Government charges the accused with violating 10 U.S.C. 950v(b)(15), murder in violation of the law of war. The elements are: a. One or more persons are dead; b. The death of the persons resulted from the act or omission of the accused; c. The killing was unlawful; d. The accused intended to kill the person or persons; e. The killing was in violation of the law of war; and
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6. The Specification of Charge I and the entire record of trial are clearly sufficient for the accused to use in raising any potential future double jeopardy protection. See Dear, at 197. 7. Accordingly, the motion is DENIED. So ordered this 6th day of October 2008.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 7, 2008 RULING FOR DEFENSE MOTION FOR RECONSIDERATION OF THE COMMISSIONS RULING ON D-060 (D-079) Patrick J. Parrish Colonel, U.S. Army Military Judge
has still not sufficiently demonstrated how knowing what the interviewers or interrogators thought was important and how they may have developed strategies for future interviews or interrogations are material for the preparation of the defense. 4. The Commission adheres to its prior analysis and Ruling on this matter. Therefore, motion to compel production of the ASPs is DENIED. So ordered this 7th day of October 2008.
1. The Defense requests the Commission to reconsider its Ruling of 20 June 2008 denying the Defense motion to compel production of Analyst Support Packages (ASPs), D-060. The Government opposes this motion. 2. The Defense has provided no new information in support of this motion to reconsider a prior ruling. In spite of that, the Commission will reconsider its prior ruling. 3. The Government has provided the Defense with any statements the accused may have made during the course of interviews or interrogations of the accused. The Defense has access to those individuals who conducted the interviews or interrogations. Subsequent to the 10 September 2008 hearing on this motion, the Government disclosed 51 interrogation plans to the defense counsel on 17 September 2008 (see 17 September 2008 email from CPT Petty). The Defense
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 9, 2008 RULING ON DEFENSE MOTION FOR APPROPRIATE RELIEF: CLARIFICATION AND AMENDMENT OF THE MILITARY COMMISSIONS 8 MAY 2008 ORDER TO PRODUCE DOCUMENTS RELATING TO AHMED SAID KHADR (D-088) Patrick J. Parrish Colonel, U.S. Army Military Judge
3. In May 2008 the Commission ordered the Government to tell the State Department to make a search for documents relating to Ahmed Said Khadr for the period 1 June 2002 to 2 July 2002. The Governments response to the Defense motion, dated 9 September 2008, indicated that the State Department was conducting a search of its records (see paragraph 4e of the Governments response to the Defense motion). The Government responded by e-mail on 16 September 2008 that the State Department notified the trial counsel that no responsive documents were found. The Defense submits that the response by the State Department is implausible. (See Defense e-mail dated 22 September 2008). 4. The search for records pertaining to an alleged co-conspirator, Ahmed Said Khadr, coincides with the time period of the alleged conspiracy in Charge III. The Commission sees no need to expand the period of search beyond the original time period in light of the Commissions Ruling in D-19 and D-047 and the Ruling by the United States Court of Military Commission Review. 5. Accordingly, the motion is DENIED. So ordered this 9th day of October 2008.
1. The Defense requests the Commission to clarify and amend its 8 May 2008 Order and compel production of all documents in the Governments possession relating to Mr. Khadrs father, Ahmed Said Khadr. The Government opposes this motion. 2. The Defense filed this motion shortly after the Government filed a Notice of Appeal from the Military Judges partial denial of the Governments motion for reconsideration of the Com-missions Ruling on D-019 and D-047 which struck certain language pertaining to an enterprise from Charge III. The United States Court of Military Commission review dismissed the Government appeal on 3 October 2008 as beyond the appellate jurisdiction of the Court for being untimely.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 23, 2008 RULING ON DEFENSE MOTION FOR APPROPRIATE RELIEF: ACCESS TO INTELLIGENCE INTERROGATORS (D-092) Patrick J. Parrish Colonel, U.S. Army Military Judge
3. Clearly, the Defense did not seek access to the interviewers in a timely manner and did not provide an adequate explanation for its failure. However, in the interests of justice the Commission will grant some relief. The Government will provide the phone numbers of each of the interviewers to the Defense or arrange for the Defense counsel to meet the interviewers whichever is more convenient for the interviewers. 4. The Government will comply with this ruling no later than 14 November 2008. So ordered this 23rd day of October 2008.
1. The Defense requests the Commission order the Government to make certain intelligence interrogators available for interview by the Defense. The Government opposes this motion. 2. On 7 May 2008 the Commission ordered the Government to provide certain information concerning intelligence interviewers of the accused. The Government complied with that order on 22 May 2008. The Commission also gave the Defense a suspense date to meet if it desired to talk to any of the interviewers. The Defense asked the Government to grant it access to the interviewers several months after the Commission imposed suspense date. The Government denied the Defense access to those interviewers on the basis that they were not material or exculpatory to the Defense and because the request was untimely. The Defense subsequently filed this motion.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission October 23, 2008 RULING ON DEFENSE MOTION FOR A CONTINUANCE (D-093) Patrick J. Parrish Colonel, U.S. Army Military Judge
b. If necessary, the Defense may be required to file more specific grounds for any motion to suppress in accordance with M.C.R.E. 304(d)(3). The Commission notes that under M.C.R.E. 304(e), once the Defense files a motion to suppress, the Prosecution has the burden of establishing the admissibility of the evidence. The Commission interprets that provision to require the Government to call witnesses or present some evidence to meet its burden without the requirement of the Defense to first present matters on the admissibility of any of the accuseds statements in light of M.C.R.E. 304(f). c. Counsel will provide the Commission any proposed voir dire questions to the panel members no later than 3 weeks prior to the start of the suppression motion. d. Counsel will provide the Commission proposed findings instructions and potential sentencing instructions no later than 3 weeks prior to the start of the suppression motion. The Commission will provide counsel with a copy of the opposing counsels proposed instructions after they have been filed with the Commission. e. The Government will provide Dr. Porterfield with the correct Web site no later than 31 October 2008 in order for her to provide the appropriate information for a background check in order to obtain an appropriate security clearance. Dr. Porterfield will fill out the
1. The Defense requests the Commission to grant an indefinite continuance in these proceedings. The Government opposes this motion. 2. The Defense has not provided an adequate factual or legal basis for an indefinite continuance. The Defense has had a substantial period of time to prepare for this case. Accordingly, the Defense motion for an indefinite continuance is denied. The Commission finds and orders as follows: a. The Defense has sufficient information in order to file a motion to suppress any statements by the accused in accordance with Military Commission Rules of Evidence (M.C.R.E.) 304. The Defense will file any such motion no later than 7 November 2008. The Government will file any response no later than two weeks after the Defense brief is filed.
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appropriate web based forms no later than 7 calendar days after being provided the correct Web site. If Dr. Porterfield fails to meet this deadline, the Commission may find that the Defense has waived the opportunity for Dr. Porterfield to have access to any classified material, assuming without deciding, that such access is necessary for an adequate evaluation. f. As discussed at the hearing on 22 October 2008, the Defense has already submitted a list of witnesses to the Government which it requests the Government to produce. The Commission is not ruling on the production of any of those witnesses as that issue is not yet properly before the Commission. The Defense will provide the Government with a list of any additional witnesses it is requesting the Government to produce no later than 7 November 2008. 3. The hearing dates and trial dates are as follows: a. The suppression motion will begin on 19 January 2009. b. The trial will begin on 26 January 2009. c. Counsel for either side may request additional hearings, but must do so in a written request no later than 14 November 2008. 4. This Ruling supersedes the scheduling order dated 15 September 2008.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission January 21, 2009 ORDER GOVERNMENT REQUEST FOR A CONTINUANCE (P-011) Patrick J. Parrish Colonel, U.S. Army Military Judge
The Governments unopposed request for a continuance until 20 May 2009 is granted. So ordered this 21st day of January 2009.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 7, 2009 RULING EX PARTE REQUEST FROM THE CHIEF DEFENSE COUNSEL (D-107) Patrick J. Parrish Colonel, U.S. Army Military Judge
counsel from this case. Only the Military Judge may authorize the removal of a detailed counsel pursuant to R.M.C. 505(d)(2)(B)(ii). The Military Judge has not authorized any detailed counsel to be removed or otherwise excused in this case. 5. Prior to resuming the pending motions hearing in this case, the Commission will conduct a hearing to determine if here are appropriate grounds to remove the detailed counsel from this case pursuant to 505(d)(2)(B)(ii). So Ordered this 7th day of April 2009.
1. On 3 April 2009 detailed defense counsel filed D-107, Defense Emergency Motion for Appropriate Relief, requesting the Commission take action in regard to his anticipated removal as counsel for the accused in this case. 2. Later on 3 April 2009, the Chief Defense Counsel (CDC) filed documents with the Commission concerning his removal of the detailed defense counsel from this case. The CDC requested that the documents he filed with the Commission be considered ex parte by the Commission and sealed. 3. The Commission has reviewed the documents filed by the CDC in camera. Those documents will be sealed. The Commission orders no further action on the issues raised in the sealed documents at this time. 4. The CDC cited R.M.C. 505(d)(2)(B)(ii) as the authority for removing the detailed
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission April 28, 2009 SCHEDULING ORDER Patrick J. Parrish Colonel, U.S. Army Military Judge
1. On 21 January 2009 the Commission granted the governments unopposed request for a continuance in this case until 21 May 2009 as ordered in P-011. 2, Neither the government nor the defense has requested any further continuance. The Commission is setting 1 June 2009 as the next hearing date for these proceedings. This notice will give all parties sufficient time to prepare for future hearings. 3. On 1 June 2009 the Commission will resolve the issue raised in D-107 concerning the status of counsel who represent Mr. Khadr. Unless the Commission orders otherwise, the parties should be prepared to continue with the suppression motion raised in D-094. So ordered this 28th day of April 2009.
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UNITED STATES OF AMERICA v. OMAR AHMED KHADR Military Commission June 1, 2009 ORDER Patrick J. Parrish Colonel, U.S. Army Military Judge
c. At the request of the accused, the Commission orders the Chief Defense Counsel not to interfere with communications between LCDR Kuebler and Mr. Khadr, and orders the government to provide LCDR Kuebler with transportation to Guantanamo on scheduled flights as is reasonably appropriate to represent Mr. Khadr at least through 13 July 2009. d. The parties are ordered to file briefs with the Commission not later than 12 June 2009 regarding the issue of what conduct constitutes good cause for removal of a defense counsel without the consent of the accused, whether the Chief Defense Counsels determination of good cause is subject to judicial review, and whether or not the re-assignment or permanent change of station of military defense counsel constitutes good cause. e. A hearing is scheduled for 13 July 2009 at 0900 hours to resolve any remaining issues regarding representtation of the accused, and to hear oral argument on the governments motion for a continuance through 17 September 2009.
1. The Commission conducted a R.M.C. 803 session at Guantanamo bay, Cuba on 1 June 2009. 2. Based upon the expressed desires of the accused at that session, the Commission orders the following: a. At the request of the accused, Ms. Rebecca Synder, CDR Walter Ruiz and Michel Paradis are relieved as counsel for the accused. b. Although Mr. Khadr initially expressed a desire to discharge all of his defense counsel pursuant to R.M.C. 505(d)(2)(B)(i), he also rejected exercising his right to proceed pro se, representing himself. The Commission will not allow him to be unrepresented by counsel during this portion of the proceedings. Therefore, at the specific request of the accused, LCDR William Kuebler is ordered to remain as detailed counsel for the accused, at least though 13 July 2009.
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UNITED STATES v. KHALID SHEIK MOHAMMED, WALID MUHAMMAD SALIB MUBAREK BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI
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Background Khalid Sheikh Mohammed has confessed to being a member of al-Qaeda, and head of its propaganda operations. According to the 9/11 Commission Report, he was the principal architect of the 9/11 attacks. He has confessed to a role in many significant terrorist plots over the last twenty years, including the World Trade Center 1993 bombings, the Bali nightclub bombings, and the murder of Daniel Pearl. Pakistani authorities captured Sheikh Mohammed in Pakistan on March 1, 2003. Walid bin Attash hails from a prominent Saudi family and is alleged to have helped in the preparation of the 1998 East Africa Embassy bombings and the USS Cole bombing. He also acted as a bodyguard to Osama bin Laden. Walid bin Attash was captured in 2003 along with Ammar al Baluchi in Pakistan. Ramzi Binalshibh, a Yemeni citizen, has been identified as the 20th hijacker. He is an alleged member of al-Qaeda and helped plan the 9/11 attacks. Pakistani forces captured Binalshibh in 2002 after a gun battle in Karachi. Ali Abdul Aziz Ali (a.k.a. Ammar al-Baluchi) is a Yemeni-Balochi computer technician from Pakistan, al-Baluchi allegedly funneled most of the money that came to the hijackers. Al-Baluchi and Walid bin Attash were arrested together in Pakistan on suspicion of a plot to bomb the U.S. embassy.
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Before the 9/11 attacks, Mustafa al-Hawsawi allegedly did propaganda for al-Qaeda in Kandahar. Then, along with Ammar al-Baluchi, he assisted 9/11 planners by coordinating with Mohammed Atta to bring "muscle hijackers" into the United States. He was captured in Pakistan in 2003. Military Commissions Charges were sworn against the defendants on February 11, 2008. The Convening Authority referred charges on May 9, 2008. Charges
Conspiracy (Violation of 10 U.S.C. 950v[b][28]): Conspired with alQaeda associates to commit terrorism, resulting in the deaths of 2, 973 people.
Attacking Civilians (Violation of 10 U.S.C. 950v[b][2]): On September

11, 2001 intentionally attacked civilian populations, killing 2, 918 civilians.
Attacking Civilian Objects (Violation of 10 U.S.C. 950v[b][3]): On

September 11, 2001 intentionally attacked civilian objects.
Intentionally Causing Serious Bodily Injury (Violation of 10 U.S.C. 950v[b][13]): On September 11, 2001 intentionally caused serious bodily
injury to one or more persons.
Murder in Violation of the Law of War (Violation of 10 U.S.C. 950v[b][15]): On September 11, 2001 intentionally and unlawfully killed
2, 973 people.
Destruction of Property in Violation of Law of War (Violation of 10 U.S.C. 950v[b][16]): Intentionally destroyed property belonging to
another.
Hijacking or Hazarding a Vessel or Aircraft (Violation of 10 U.S.C. 950v[b][23]): Intentionally seized and exercised unlawful control of
aircraft that were not military objects.
Terrorism (Violation of 10 U.S.C. 950v[b][24]): Intentionally killed persons with the intent to influence the U.S. Government.
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Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): Intentionally provided material support and resources to
al-Qaeda.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission May 22, 2008 COMMISSION RULING ON MOTIONS FOR CONTINUANCE OF INITIAL SESSION/ARRAIGNMENT (D-002-006) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
defense counsel has limited their involvement in the case with regard to matters such as meeting with clients, discussing the detailed defense counsels meetings with the clients, and examining classified portions of discovery materials; (3) Due to logistic and security factors, detailed defense counsel have had to date, only a limited ability to meet with their clients; (4) Defense office spaces at GTMO and in Washington, D.C. are deemed inadequate to deal with the classified material associated with this case; (5) Discovery matters have not been completed; and
1. NATURE OF MOTION a. Detailed defense counsel for each of the five accused submitted D-002-006. Each submission seeks a continuance of the initial session previously ordered and scheduled for 5 June 2008. This Ruling addresses all five of the noted continuance requests. b. The five continuance requests express several common bases for the requested relief: (1) Although the detailed defense counsel for each accused apparently possesses the requisite security clearances for performance of her or his duties, clearance granting procedures are still underway with regard to numerous assistant defense counsel and civilian defense counsel; (2) The lack of security clearances for assistant defense counsel and civilian (6) Several counsel have personal matters planned that conflict with the previously ordered initial session date of 5 June 2008. c. The Commission finds that Counsel have adequately covered all matters of import to this issue within the confines of the motions and the response, such that a reply to the response is not necessary. 2. DISCUSSION a. Charges in this case were referred to the Commission for trial on 9 May 2008. The 5 June 2008 initial session was ordered by the military judge on 14 May 2008 after the Military Commission Trial Judiciary Staff received notice concerning the detailing of counsel as trial and defense counsel. b. Service of charges upon the accused in accordance with R.M.C. 602 was accom-
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plished on 21 May 2008, thereby initiating the speedy trial provisions of R.M.C. 707. c. The initial session is intended to: 1) satisfy the R.M.C. 707 requirement for arraignment of the accused in accordance with R.M.C. 904 within 30 days of service of the referred charges; and, 2) provide the Military Judge the opportunity to advise the accused with regard to their rights to counsel and to ascertain whether or not the accused intend to exercise their counsel rights; and 3) ascertain what counsel, if any, will be representing the accused. d. Some of the issues raised in D-002-006 are matters of consequence with regard to ensuring the Defense is provided a full opportunity to prepare for trial. None of these issues raised in D-002-006, however, provide a valid basis for delaying the initial session and arraignment in this case. As noted in the Prosecution response to D-002-006, the arraignment process does not require any decisionmaking or action of consequence by the Defense beyond the counsel right to elections noted above. In this regard, it is typical for accused in military courts of all types to defer entry of motions and pleas during an initial court session. Additionally, it is well established that elections made at initial court sessions, to include counsel selections, are routinely changed at a later stage of the proceedings. Accordingly, the fact that all defense counsel are not yet fully integrated
into the litigation process is not a valid basis in support of the continuance request. e. Several of the Defense submissions express concern that defense counsel other than the detailed counsel are not yet in a position to participate in development of possible voir dire of the Military Judge prior to the 26 May 2008 submission deadline established in the Commission Order of 14 May 2008. In this regard, the Commission notes that the 26 May 2008 voir dire submission deadline applies only in the event counsel for an accused intended to conduct voir dire of the Military Judge at the initial session. In the event that counsel for the accused elect to defer voir dire of the Military Judge until the next session of the case, a later submission deadline will be established. f. Similarly, the concerns expressed by the Defense with regard to the adequacy of their working spaces is not a matter that justifies a delay of the initial session and arraignment in this case. Based on the representation in the Prosecution response with regard to the approval of the SCIF for the ELC at GTMO, it appears that progress is being made with regard to dealing with the logistic challenges associated with this case. It is likely that the lawyers tasks in this case are going to be difficult in several regards. If the office space concerns noted in D-002-006 remain unresolved such that the inadequacy is interfering with the Defenses responsibility with regard to their clients, the Defense will be allowed to submit subsequent requests for relief concerning litigation milestones that will be established by the Military Judge.
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g. The fact that discovery in accordance with the MMC has not yet been completed is not a proper basis for continuing the initial session and arraignment in any case. Discovery milestones will be established by the Military Judge and it is likely that some measure of litigation will be required before that process will be deemed complete. h. The Commission regrets that the established litigation schedule conflicts with the personal plans of some of the counsel in this case. These personal conflicts, however, do not provide an appropriate basis for delaying the scheduled 5 June 2008 session. Starting the process and establishing a schedule will benefit all counsel with regard to avoiding future conflicts. i. The Commission finds that the interests of justice in this case will be best served by completion of the initial session and arraignment as previously ordered on 5 June 2008. The Commission recognizes that there are many logistic and legal issues that will need to be addressed in this case. It is precisely because of the anticipated complexity of this case, that it is important that the process get underway. 3. RULING: The Defense requests in D002-006 for continuance of the initial session and arraignment scheduled for 5 June 2008 are denied.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission June 4, 2008 PROTECTIVE ORDER #3: PROTECTION OF CLASSIFIED INFORMATION AT ARRAIGNMENT AND OTHER PRETRIAL PROCEEDINGS Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
mation at Arraignment and all Stages of Prosecution, dated 4 June 2008. b. Prosecution Proposed Protective Order #3, dated 4 June 2008. c. Protective Order #3, Memorandum of Understanding, dated 4 June 2008. d. Authorization to Claim National Security Privilege, The Director, Central Intelligence Agency, dated 7 November 2007. e. Classification Guidance Pertaining to Matters Which Might Be Raised In the Case of United States v. Mohammed, et. al. f. Declaration by The Director, Central Intelligence Agency, dated 30 May 2008. This order and the matters listed in (a) thru (f) above will be attached to the record of trial. The appellate exhibits containing (e) and (f) above will be sealed. 3. The Commission finds that this case is very likely to involve information that has been classified in the interests of national security as set forth by M.C.R.E. 505(b)(l) and (2) as well as by Executive Order 12958, as amended. The storage, handling, and control of this information will require special precautions mandated by statute, executive order, and regulation, and access to which requires appropriate security clearances and a need to know. 4. The purpose of this Order is to establish procedures that must be followed by all defense counsel of record, defense paralegals, defense translators and all other
1. This Protective Order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC), to include, but not limited to: a. Rules for Military Commissions (R.M.C.) 701(f)(8) and (1)(2); b. Military Commission Rule of Evidence (M.C.R.E.) 505; c. Regulation for Trial by Military Commission (DoD Trial Reg), Sec. 173. 2. The Commission has considered the following matters prior to issuing this order: a. Prosecution Motion for Protective Order - Protection of Classified Infor-
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persons assisting the Defense (hereinafter the Defense) as well as any other person who comes into possession of classified information as a result of participation in this case. 5. The procedures set forth in this Protective Order, and M.C.R.E. 505 and 506, will apply to all stages of this case, subject to modification by further Order. The Prosecution has advised that it will promptly seek further protective orders to address additional issues relating to discovery and disclosure of classified information as this case progresses. 6. As used herein, the term Classified Information shall mean: a. Any document or information which has been classified by any Executive Branch agency in the interests of national security or pursuant to Executive Order 12958, its predecessors or as amended, as CONFIDENTIAL, SECRET or TOP SECRET, or additionally controlled as SENSITIVE COMPARTMENTED INFORMATION (SCI), or any information in such document; b. Any document or information, regardless of physical form or characteristics, now or formerly in the possession of the Defense, private party or other person, which has been derived from United States government information that was classified, including any document or information that has subsequently been classified by the government pursuant to Executive Order 12958;
c. Any document or information that the Defense knows or reasonably should know, contains classified information; or d. Any document or information as to which the Defense has been notified orally or in writing that such document or information contains classified information. e. Any statements made by the accused are presumptively classified information. f. The words documents and information shall include, but are not limited to, all written or printed matter of any kind, formal or informal, including originals, conforming copies and non-conforming copies (whether different from the original by reason of notation made on such copies or otherwise), handwritten notes, or any electronic storage on any electronic storage media or device of any documents or information or information acquired orally, including but not limited to papers, correspondence, memoranda, notes, letters, reports, summaries, photographs, maps, charts, graphs, inter-office communications, notations of any sort concerning conversations, meetings or other communications, bulletins, teletypes, telegrams, and telefacsimilies, invoices, worksheets and drafts, alterations, modifycations, changes and amendments of any kind to the foregoing; g. Graphic or oral records or representations of any kind, including but not limited to photographs, charts, graphs, microfiche, microfilm,
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videotapes, sound recordings or any kind and motion pictures; h. Electronic, mechanical or electric records of any kind, including but not limited to tapes, cassettes, disks, recordings, films, typewriter ribbons, word processing or other computer tapes, disks, or thumb drives and all manner or electronic data processing storage; and i. Information acquired orally. 7. All classified documents and other matters and the classified information contained therein shall remain classified unless the documents bear a clear indication that they have been declassified by the agency or department that is the originator of the document or the information contained therein (hereinafter, the Original Classification Authority). 8. Access to Classified Information means having authorized access to, reviewing, reading, learning or otherwise coming to know in any manner classified information. 9. Secure Area means a physical facility accredited by the Department of Defense for the storage, handling, transmission and control of classified information at the appropriate level to match the level of classification of the information thus stored, handled, transmitted or controlled. 10. A Senior Security Advisor (SSA) has been appointed by the Military Judge to protect any classified information made available or created in connection with this case. The Senior Security Advisor is
authorized to appoint Alternate Security Advisors (ASAs) as necessary. All references to the SSA herein shall be deemed to also refer to any ASAs appointed to this case. The Defense shall seek guidance, as necessary, from the SSA or an ASA with regard to the appropriate storage, handling, transmittal and use of classified information. 11. I have been advised that the prosecutors assigned to this case have the requisite security clearances and a need to know to have access to classified information that relates to this case. 12. I find that to protect the classified information involved in this case, no member of the Defense, or other person shall have access to any classified information as a result of participation in this case unless that person shall first have: a. Been granted the requisite security clearance by the Department of Defense, or the Department of Justice and such clearance is verified by the SSA and; b. Signed the Memorandum of Understanding (MOU) attached to this Protective Order, agreeing to comply with the terms of this Protective Order. The substitution of, or removal for any reason from this case of any member of the Defense shall not release that person from compliance with the provisions of this Order; c. Been determined to "need to know" the classified information at issue by the Original Classification Authority.
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13. The Prosecution will promptly seek further Protective Orders clarifying the procedures governing the Defense access to classified information and use of classified information to prepare for trial. However, in the interim, to allow this matter to proceed to arraignment and to protect classified information from unnecessary disclosure, until further Order of this Commission, members of the Defense currently possessing the requisite security clearances, verified by the SSA, and having signed the MOU [memorandum of understanding] may not disclose classified information to any person except to other members of the Defense who have verified security clearances and have signed the MOU, or to the Commission, the SSA or ASA and the Prosecution identified above. Until further Order of this Commission, the Defense may not disclose classified information to the accused. 14. The Defense shall not disclose classified information or information they know or reasonably should know is classified during the arraignment in this case. This provision does not prohibit the Defense from discussing with the accused matters which the accused told the Defense. 15. The Defense shall comply with M.C.R.E. 505 prior to any disclosure of classified information at arraignment or other proceeding in this case. Specifically, written notice must be given, pursuant to M.C.R.E. 505(g) prior to any such disclosure. 16. The Office of the Chief Defense Counsel has approved Secure Areas in which the Defense can work with classi-
fied information. The Office of the Convening Authority shall establish procedures to assure that such Secure Areas be maintained and operated in a manner consistent with the protection of classified information. Documents containing classified information shall only be removed from such Secure Areas pursuant to Department of Defense regulations. As the presence of the SSA or an ASA may be necessary in such areas while the Defense is working, until further Order of the Commission, the SSA or ASA shall not reveal to any person any conversations he or she may overhear from Defense, nor reveal the nature of documents being reviewed by them or the work generated by them except as specifically directed by the Defense, for purposes of obtaining guidance from the Original Classification Authority (OCA) as to the proper handling or treatment of specific classified information. The presence of the SSA or ASA or communication by the SSA to the OCA shall not operate as a waiver of, limit, or otherwise render inapplicable, the privileges set forth in M.C.R.E. 502-504 and 513. 17. Until further Order of this Commission, any pleading or other document filed by the Defense, which the Defense knows or has reason to know contains classified information in whole or in part, believes may be classified in whole or in part, or the proper classification of which is uncertain, shall be filed UNDER SEAL with the SSA or ASA and shall indicate on the pleading that it is filed UNDER SEAL with the SSA. The time of submission to the SSA or ASA shall be considered the date and time of filing.
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The Military Commission Trial Judiciary Staff (MCTJS) is directed to enter the title of the pleading or document (unless such title is itself classified information) on the filings inventory, the date it was filed and a notation that it was filed UNDER SEAL with the SSA. The SSA or ASA shall promptly serve the pleading on the Prosecution and deliver the pleading or document to the Commission. The SSA or ASA shall also promptly review the pleading and, in consultation with the appropriate representatives of the appropriate agencies, determine whether the pleading or document contains classified information in whole or in part. If the SSA or ASA determines that the pleading contains classified information, he shall ensure that the pleading or document is appropriately marked and that the classified information in the pleading or document remains UNDER SEAL. The SSA will ensure that all pleadings or documents filed with this Commission are stored in an appropriate Secure Area consistent with the highest level of classified information contained in the document. All portions of any pleading or document which do not contain classified information shall immediately be unsealed by the SSA, and provided to the Clerk of the Commission for inclusion in the record. 18. Any pleading or document filed by the Prosecution containing classified information shall be filed UNDER SEAL with the SSA. The Prosecution shall ensure that its pleadings or documents are appropriately marked to identify the classified information contained therein. The time of submission to the SSA or ASA shall be considered the date and time of filing. The MCTJS is directed to enter the
title of the pleading or document on the filings inventory (unless such title is itself Classified Information), the date it was filed and a notation that it was filed UNDER SEAL with the SSA. The SSA or ASA shall promptly serve the pleading on the Defense and deliver the pleading or document to the Commission. All portions of any pleading or document which do not contain classified information shall immediately be unsealed by the SSA, provided to the court clerk, and placed in the public record. 19. Until further Order of this Commission, the Defense shall create, review, maintain, and store all documents, notes materials or any work product containing classified information or derived from classified information only in the Secure Area. 20. All documents prepared by the Defense (including but not limited to pleadings or other documents to be filed with the Commission) which do or may contain classified information shall be transcribed, recorded, typed, duplicated, copied or otherwise prepared only by persons who have complied with this Protective Order allowing them access to Classified Information, in the Secure Area on approved information technology systems and devices, and in accordance with Department of Defense regulations. All pleadings or documents and any associate materials, such as notes, drafts, copies, portable memory devices, photocopiers, or exhibits, containing any information reasonably believed to contain classified information shall be maintained in the Secure Area unless the SSA determines, in consultation with the Original Classification Authority, if
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necessary, that such documents are unclassified in their entirety. The SSA shall not reveal the contents of such documents to any person except the ASA. 21. No member of the Defense shall copy or reproduce any classified information, in any form, except in accordance with Department of Defense regulations governing the reproduction of classified information. 22. No member of the Defense shall communicate, discuss or disseminate classified information outside the Secure Area, or on any standard commercial telephone instrument or office communication system or internet or email system or in the presence of any person who has not been granted access by the Commission to classified information. 23. Any violation or potential violation of this Protective Order shall be immediately brought to the attention of the Commission and may result in a charge of contempt of court. Persons subject to this Order are advised that direct or indirect unauthorized disclosure, retention or negligent handling of classified information or documents could cause serious damage, and in some instances, exceptionally grave damage to the national security of the United States and may be used to the advantage of a foreign nation against the interests of the United States. PROCEDURES TO PROTECT THE UNAUTHORIZED DISCLOSURE OF CLASSIFIED INFORMATION AT ARRAIGNMENT 24. For purposes of arraignment in this matter, and until further Order of this
Commission, I find that the United States, pursuant to Executive Order and appropriate authority, has determined that the statements of the accused are to be presumptively treated as classified information, classified at the TOP SECRET //SCI level. 25. Neither the Defense, nor the accused has provided written or other notice to the Commission or to the Prosecution that they reasonably expect to disclose classified information. Accordingly, pursuant to M.C.R.E. 505 and this Protective Order, neither the Defense nor the accused may disclose classified information at the arraignment. 26. I find that the accused has been exposed to information that the U.S. Government continues to protect as properly classified. To protect against the unauthorized disclosure of classified information at arraignment in this case, it is necessary for this Commission to employ certain technical and other procedural measures designed to prevent any such unauthorized disclosure by the accused. 27. This Commission will employ a timedelay on the audio feed of the proceedings to the public in the gallery. The timedelay will be of sufficient length to guard against the unauthorized disclosure of classified information. The length of such delay shall be twenty seconds. 28. The SSA will ensure that a switch which will immediately terminate the audio feed to the public (the switch) will be functional and available to the military judge and the SSA. 29. I find that the switch may not be activated by any person other than the
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Commission for the following specific information the accused may disclose at the arraignment: affirmative or negative responses to questions by the Commission; stating their names and other identifying information about themselves; and entering a plea or making a request for counsel. With respect to these statements, the Prosecution or the SSA must alert the Commission by objection before activating the Switch. 30. In the event the accused makes any statement, because such statements are presumptively classified, any person with authorized access to the switch, and only such persons, may, if they reasonably believe classified information has been or is about to be disclosed, activate the switch to terminate the audio feed to the public. 31. In the event any person other than the accused is about to or has made a disclosure of classified information, any person with authorized access to the switch may activate the switch to terminate the audio feed to the public. 32. The SSA shall immediately advise the Commission that the switch has been activated and that the audio feed to the public has been terminated. 33. If the switch is activated, consistent with M.C.R.E. 505(f), this Commission will immediately halt the proceedings and take a brief delay to evaluate whether or not the information disclosed is classified and subject to the national security privilege. Pursuant to M.C.R.E. 505(h)(1), the Prosecution may move for an in camera presentation concerning the invocation of the national security privilege or to address the disclosure of
the classified information. Upon assertion of the privilege, this Court will take suitable action to safeguard such classified information. 34. If the national security privilege is asserted, such information may not be disclosed except as authorized by M.C.R.E. 505. 35. If classified information is found to have been disclosed, that portion of the audio feed shall not be broadcast to the public. 36. If no classified information is found to have been disclosed, the audio feed will resume unaltered. 37. If the switch is not activated, statements by the accused that were presumptively classified when made will no longer be presumptively classified once they are broadcast to the public, based on the absence of a claim of the national security privilege during the designated broadcast delay period. 38. The SSA will submit the transcript of the proceedings to the Prosecution for review, in consultation with the appropriate department or agency representtatives, to permit the redaction of classified information. The redacted transcript will be immediately provided to the clerk of commission. Unless otherwise ordered by the Commission, the Prosecution shall promptly file a motion with this Commission seeking a protective order with respect to the redaction of such transcripts. 39. The SSA shall ensure a similar system to the switch is employed with respect to any broadcast of the proceedings to any
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location in addition to the gallery of the courtroom (e.g., any CCTV [closed circuit television] broadcast of the proceedings to a remote location). 40. All persons in the courtroom will possess the requisite security clearances. The SSA shall verify the identity and clearances for each person present in the courtroom. 41. Any party may file a motion for appropriate relief with regard to this order.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission July 1, 2008 ORDER MOTIONS FOR SPECIAL RELIEF (D-010 & D-011) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
Stand-by defense counsel also indicates, however, that The Defense fully expects that Mr. al Baluchi (Mr. Ali) may seek to proceed pro se while in the courtroom and in the presence of three of the defendants. The Defense further expects that Mr. al Baluchi (Mr. Ali) will move between proceeding pro se and with representation throughout the trial. (Name of accused as reflected on the charge sheet added) a. Although Mr. Ali would clearly be permitted to withdraw from his pro se status, this matter will need to be clarified in court, and with the understanding that he will not be permitted to change back and forth between represented and pro se status. Until such time that Mr. Ali clearly withdraws from his pro se status, detailed military defense counsel will continue to operate only the status of stand-by defense counsel. b. Accordingly, since stand-by defense counsel makes no representation that this joining in the motion in D-011 is with the consent of Mr. Ali, Mr. Ali will not be viewed as being a part of the joint motion. c. While there may be little or no practical consequences to this distinction, the Commission finds the distinction worthy of note so that all parties remain clear on status of counsel. 4. On 13 June 2008, D-010, Mr. Bin al Shibh sought an enlargement of time as to the 13 June 2008 ordered deadline to file pleadings with regard to the issue raised by detailed defense counsel concerning Mr. Bin al Shibhs competence to make a
1. The Commission has considered the motion for special relief submitted by the detailed counsel for Mr. Bin al Shibh (D010), the Government response thereto and the Defense reply. 2. The Commission has also considered the joint motion for special relief (D-011) submitted at the request of Mr. Sheikh Mohammed and Mr. Bin Attash, and detailed defense counsel for Mr. Bin al Shibh and Mr. al Hawsawi, and the Government response thereto. 3. Standby defense counsel for Mr. Ali also seeks to join in the motion in D-011 on behalf of Mr. Ali. The Commission notes that in the motion and a separate email, dated 23 June 2008, stand-by defense counsel for Mr. Ali indicates that Mr. Ali has indicated his desire to withdraw his pro se representation request and proceed with representation by the detailed military defense counsel.
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pro se representation election.
In the same motion Mr. Bin al Shibh also requested a continuance of the hearing scheduled for this matter on 10 July 2008. (The motion also requests modification of all other ordered litigation milestones in this case.) In its response to D-010 the Government did not oppose a reasonable extension of time for the Defense to file a motion on the issue of the accuseds competency but did oppose a modification that would delay the 10 July 2008 hearing date with regard to this matter. 5. In D-010 the Defense proffers several different bases for the requested relief. Only one requires discussion with regard to the resolution of this issue. In support of its motion, the Defense claims that the government has not provided discovery to the defense that is germane to this issue. In its response, the Government essentially concedes the crux of the Defense claim with regard to the status of the discovery issue. As of the date of the Government response (23 June 2008), the Government states that [t]he Prosecution will soon provide the medical records of the accused to the Defense. The Government goes on to describe various efforts that are underway with regard to the discovery process and further identifies a number of areas of potential dispute between the Government and the Defense with regard to discovery. The Commission notes that an order was issued on 25 June 2008 directing the Commander, Joint Task Force-Guantanamo Bay, Cuba, to provide any and all medical recordsrelated to Mr. Bin al Shibh to the Prosecution for release to detailed defense counsel. Resolution of the discovery issues is beyond the scope of the Commissions consideration of this motion. It is clear however, that the
discovery process in this case has not matured to the point where Defense may reasonably be expected to competently litigate the issue in question with regard to Mr. Bin al Shibh. 6. While the Commission will grant a continuance of the trial schedule concerning the mental capacity motion raised by detailed defense counsel for Mr. Bin al Shibh, additional action is also required to move that issue toward resolution. R.M.C. 909 governs the issue of capacity of an accused to stand trial by Military Commission. After referral of charges, the Military Judge may conduct a hearing to determine the mental capacity of an accused, either sua sponte or upon request of either party. R.M.C. 909 contemplates that the results of an inquiry pursuant to R.M.C. 706 is reasonably a part of the hearing conducted by the Military Judge. Accordingly, based on the matters addressed in D-010, the Commission has determined that an order directing an inquiry into the mental capacity of Mr. Bin al Shibh in accordance with R.M.C. 706 is appropriate. An order to that effect will be issued concurrent with this ruling. The due date and hearing date of the Defense motion in this regard will be established in anticipation of the completion of that process. 7. With regard to the discovery matters noted by the Defense, it appears that while the Government is seeking to comply with portions of the Defense discovery request, the Government is also taking the position that the Defense request is too broad, as it pertains to this issue, and premature, because if the accused is granted pro se status Mr. Bin al Shibh might take an entirely different approach to pre-trial discovery and
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thereby presumably not request similar discovery on his own behalf. While the Commission reserves judgment on the viability of the Government suggestion, it is clear that, absent resolution of the discovery aspect of this matter between the parties, an additional hearing will be required following a proper and specific discovery motion by the Defense and a full response by the Government. Neither the Defense discovery request nor the references to discovery concerns in this motion constitute a discovery motion that places the matter properly before the Commission for resolution. 8. In D-011 the Defense requests a continuance in the form of modification of the entire litigation schedule. This request is premised on a number of bases, to include: the incomplete status of the discovery process; the volume of discovery provided thus far; the limited ability of counsel to meet with the represented accused and similarly limited ability of standby counsel and R.M.C. 506(d) personnel (non counsel advisors) to meet with the pro se accused; the logistical challenges associated with the handling of classified material; the complexity of the case; the capital nature of the case; and the pro se status of several accused. In its response, the Government agrees that some adjustment of the established litigation might be appropriate, but urges a shorter delay than requested by the Defense. 9. If operated properly, the Military Commission process should provide a workable trial system that can deal with the complex dynamics of a worldwide theater of military operations. While this process might differ in some regards from
trial procedures in other courts, its design does not contemplate a truncated process of justice. In this regard, some aspects of the litigation process might reasonably take longer than would be expected in other trial systems. In the Commissions view, the investment of a reasonable amount of additional time at this stage of the proceedings is a prudent course of action that will contribute greatly toward achievement of a just result, and not simply a conclusion of the process one way or the other. 10. While the Commission generally concurs in the appropriateness of granting the Defense requests for enlargement of time and continuance, the Government has also correctly identified a number of matters that can and should be addressed during the currently scheduled session. Accordingly, a number of modifications will be made to the previously ordered litigation schedule. 11. At the sessions, now scheduled to begin on 9 July 2008, the Commission intends to address the issue of what role, if any, perceived or actual intimidation between the several accused played or is playing in the pro se elections requested by the several accused. Concerns about this matter were expressly raised by the comments made by Major [REDACTED] during the last session of the Commission and impliedly by the email sent by LCDR [REDACTED] (via [REDACTED]) concerning Notification of Acceptance of Counsel dated Monday 6/23/2008 1:50 PM. The Commission intends to discuss this matter with each of the accused on the record and in five separate sessions where each of the accused will appear outside the presence of the other accused.
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12. In order to facilitate this process, the following schedule is provided: 1330 9 July 2008: Hearing with Mr. Al Hawsawi. 1630 9 July 2008: Hearing with Mr. Ali. 0830 10 July 2008: Hearing with Mr. Bin al Shibh. 1330 10 July 2008: Hearing with Mr. Bin Attash. 1600 10 July 2008: Hearing with Mr. Sheikh Mohammed. 0830 11 July 2008: Hearing with all accused if necessary. 13. As part of the inquiry as described in paragraph 11, the Commission also intends to discuss the provisions of R.M.C. 906(b)(7) concerning severance of charges in the event it appears that an accused or the Government is prejudiced by a joint or common trial. 14. With regard to the matter of severance, the Government is directed to prepare a brief addressing the Governments position on severance of the proceedings for one or more or all of the accused. This brief will be due to the Commission and opposing counsel and the pro se parties not later than 18 July 2008. If any accused wishes to provide a response to the Government brief, it shall be submitted not later than 25 July 2008. If any accused wishes to file a separate brief on the issue of severance which is not a response to the directed Government brief, it may do so. Such brief, if
filed, will be due not later than 25 July 2008. 15. The following revised schedule is ordered in response to the continuance requests by the Defense. Pursuant to R.M.C. 707, the Commission finds that these delays serve the interest of justice, and outweigh the interest of the public and the parties in abiding by the originally ordered litigation schedule. The Commission further finds that all delays associated with this modification is the responsibility of the Defense for the purpose of R.M.C. 707 accountability. a. 18 July 2008: Brief regarding the severance issue due from the Government. b. 25 July 2008: Due date if any accused wishes to file a separate motion on the issue of severance which is not a response to the directed Government brief. c. 30 July 2008: Production completion date for all required and agreed upon requested discovery. d. 01 August 2008: Initial R.M.C. 706 report due from the board to the Military Commissions Trial Judiciary Staff, trial counsel and the defense counsel for Mr. Bin al Shibh. e. 08 August 2008: Full R.M.C. 706 report due to the defense counsel for Mr. Bin al Shibh. f. 14 August 2008: Severance Motion hearing in GTMO if necessary.
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g. 15 August 2008: R.M.C. 909 competency hearing with regard to Mr. Bin al Shibh. h. 29 August 2008: Law motions due to the Military judge and opposing counsel and other pro se parties. In general, law motions are those which require no evidentiary hearing to determine. If any counsel/pro se party intends to submit more then ten (10) law motions, that counsel/pro se party will tell the Military Judge and opposing counsel/other pro se parties the total number of law motions which counsel intend to present NLT 1200 hours, 27 August. The Military Judge will advise counsel/other pro se parties of a revised schedule to present the motions.
j. 24 September 2008: Hearing on law and discovery motions in GTMO. k. TBD: Evidentiary Motions. Evidentiary motions due to the Military Judge and opposing counsel/ other pro se parties. In general, evidentiary motions are those which deal with the admission or exclusion of specific or general items or classes of evidence.
Note 1: See Notes 1 and 2 above. Note 2: Defense witness requests associated with any motions should be submitted to the trial counsel with R.M.C. 703 simultaneously with the filing of the motion (or Defense response in the case of a Government motion) in question. The Government response to any witness request will be due within five days of the submission of the request. Any Defense motion for production of witnesses in conjunction with a motion will be due to the court and opposing counsel within five days of receipt of a denied witness request.
l. TBD: Hearing in GTMO regarding evidentiary motions. m. TBD: Submissions of requested group voir dire questions for the Military Commission Members.
Note 1: Motions will have as their underlying legal premise no more than one legal basis. If there is more than one legal basis, then there should be more than one motion. Law motions include motions relative to sentencing. Note 2: Motions, response, and reply due dates are a No Later Than date. Counsel for both sides are advised that any motion, response, or reply which is ready for submission prior to the due date should be submitted when completed. The efficient and proper process of motion practice will NOT be enhanced by delivering multiple motions, responses, or replies to the Commission or opposing party at the last possible moment.
i. 10 September 2008: motions due. Discovery
Note: The Military Judge intends to conduct all group voir dire questioning of the members per R.M.C. 912. The Military Judges group voir dire will take counsels requested questions into account as appropriate. The Military Judge will also conduct the initial follow-up individual voir dire
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based on responses to the group questions. Counsel will be permitted to conduct additional follow-up voir dire.
n. TBD: Defense requests for Government assistance in obtaining witnesses for use on the merits. See R.M.C. 703.
mission of motions established by this order must be submitted not later than 20 days prior to the date established, except for law motions for which requests for deviations from the due date must be submitted within 7 days prior to the date established. Ordered this 1st day of July 2008.
Note: The Government response to any witness request will be due within five days of the submission of the request. Any Defense motion for production of witnesses in conjunction with a motion will be due to the court and opposing counsel within five days of receipt of a denied witness request.
o. TBD: Hearing regarding witness production motions and any unresolved matters. p. TBD: Assembly and voir dire for panel members. q. TBD: Beginning of trial on the merits. r. Counsel should direct their attention to the Rules of Court, R.C. 3, Motions Practice, and specifically Form 3-1, 3-2, and 3-3, for the procedures the Commission has established for this trial. All motions, responses and replies shall comport with the terms of R.C. 3.6 in terms of timeliness. Any request for extension of any response or reply deadline associated with this hearing will be submitted before the deadline for the reply or response. s. Requests for deviations from the timelines for hearings or for sub-
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission September 15, 2008 ORDER Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
1. This Order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC). 2. Accordingly, ORDERED: IT IS HEREBY
That the Commander, Joint Task Force Guantanamo Bay, Cuba (JTF-GTMO) shall provide to the Prosecution, for release to the standby counsel for Ali Abdul Aziz Ali, any and all medical records in the possession of JTF-GTMO related to Ali Abdul Aziz Ali, including any mental health records.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission September 16, 2008 COMMISSION RULING ON MOTION TO COMPEL DISCOVERY (IDENTITIES OF MEDICAL AND CUSTODIAL PERSONNEL) (D-023) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
a R.M.C. 706 inquiry be conducted in order to facilitate appropriate consideration of the issue at a hearing in accordance with R.M.C. 909. b. In the course of the litigation pertaining to this mater, the Prosecution has provided discovery to the Defense that includes numerous documents. Some of these documents contain the names of personnel involved in the detention and/or medical treatment of the accused. The names have been redacted in the discovery provided to the Defense. c. R.M.C. 701(j) provides that [e]ach party shall have adequate opportunity to prepare its case and no party may unreasonably impede the access of another party to a witness or evidence. d. The Prosecution resists production of names and contact information based on a lack of specificity in the Defense request and an argument that such information is not relevant or material to the current inquiry. e. Per R.M.C. 909(b), a person is presumed to have the capacity to stand trial unless the contrary is established. Following the pending R.M.C. 909 hearing, the Military Judge will determine whether a preponderance of the evidence establishes that the accused is presently suffering from a mental disease or defect rendering him incompetent to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case. f. The relevant determination concerns the present mental capacity of the accused. That being said, past experiences of the accused and past observations of
1. NATURE OF MOTION a. Detailed defense counsel for Mr. Bin Al Shibh (the accused) submitted D-023. The motion seeks discovery of the names of medical or detention personnel mentioned in any medial or detention records the Government has produced and may produce in connection with the accuseds pending competency hearing. b. The Commission has also considered the Prosecutions response to D-023. 2. DISCUSSION a. At the initial hearing in this case, detailed defense counsel raised the issue of the accuseds mental capacity to make counsel election. The Military Judge directed that the matter be raised in proper motion format, deferred procedures concerning counsel election in the case of the accused, and directed that
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the accused may reasonably play a part in an analysis of his current mental capacity. In this regard, the Defense is entitled to reasonable access to potential witnesses concerning these matters. The Commission also recognizes that the Prosecution may have valid security concerns that drove the redaction of identities in the discovery materials in the first instance. 3. RULING: The following action is directed: (1) Not later than 19 September 2008, the Defense will provide the Prosecution with a specific list of the persons it wishes to interview with regard to the pending R.M.C. 909 hearing. These persons should be identified by specific reference to the portions of the discovery material where the redacted references are made; (2) Not later than 26 September 2008, the Prosecution will either provide contact information regarding these persons to the Defense or provide a response to the Defense citing a specific basis for such refusal. The Prosecutions consideration of the requests should be informed by the Commissions determination herein that past experiences of the accused and past observations of the accused may reasonably play a part in an analysis of his current mental capacity. If security concerns impact the Prosecutions consideration of the request, the Prosecution should also consider whether such concerns can be addressed by seeking a protective order regarding the identity of the person in question, or whether an interview of the person could be arranged without revealing their identity.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission October 1, 2008
c. The Commission has also conducted an in camera review of the 36 pages of material that are the subject of this motion. The pages were provided to the Commission by the Prosecution, pursuant to the in-court direction of the military judge, following the session conducted on 24 September 2008. 2. DISCUSSION
COMMISSION RULING ON MOTION TO COMPEL DISCOVERY (RELATED TO UNLAWFUL COMMAND INFLUENCE) (D-032) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
a. The Prosecution claims that these documents are not subject to disclosure because these communications between the prosecutors and Legal Advisor regarding this case amount to attorney work product. The Prosecution asserts that these matters are privileged from disclosure under M.C.R.E. 502. b. The Defense claims that:
1. NATURE OF MOTION a. This joint motion seeks to compel production of discovery sought by the defense in its 20 May 2008 Joint Defense Request for Discovery Related to Unlawful Influence[.] During oral argument, all parties agreed that the motion was properly limited at this point to consideration of approximately 35 pages of material that may be responsive to the Defense request for contents of all communications between the Legal Advisor, BG Hartmann and the present and former Chief Prosecutor and their subordinates relating to the charging and referral process of the September 11, 2002 accused. b. The Commission has also considered the Prosecutions response to D-032 and the oral argument regarding this motion. (i) The Legal Advisor is not a part of the prosecution office and that the communications are actually communications between the prosecution office and the Office of the Convening Authority. The Defense argues that when viewed in this light, the documents are not privileged from discovery; and/or (ii) Even if the documents are privileged under M.C.R.E. 502 in the first instance, the crime or fraud exception to the rule set forth in M.C.R.E. 502(d) may apply with regard to the Defense claim of unlawful influence as discussed in D001. c. The role and responsibilities of the Legal Advisor to the Convening Authority are not addressed by the MCA. MCA 949a(a), however, provides that, pretrial,
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trial, and post-trial procedures may be prescribed by the Secretary of Defense[.] Such procedures shall so far as the Secretary considers practicable or consistent with military or intelligence activities, apply principles of law and the rules of evidence in trial by general courts-martial. Such procedures and rules of evidence may not be contrary to or inconsistent with [the MCA]. d. The Regulation for Trial For Military Commissions [R.T.M.C.], 8-6 provides that: Individuals appointed, assigned, detailed, or designated or employed in a capacity related to the conduct of military commission proceedings con-ducted in accordance to the MCA and MMC shall be subject to the relationships set forth below. Unless stated otherwise, the person to whom an individual reports as set forth below, shall be deemed to be such individuals supervisor and shall, to the extent possible fulfill all performance evaluation responsibilities normally associated with the function of direct supervisor in accordance with the subordinates Military Service performance evaluation regulations. 1. Chief Prosecutor: The Chief Prosecutor shall report to the legal advisor to the convening authority. e. The Defense argues that the communications between the Prosecutors and the Legal Advisor are outside the
scope of M.C.R.E. 502 privilege because the Legal Advisor is not internal to the prosecution office. The controlling regulation, however, establishes a working relationship between the Legal Advisor and the Chief Prosecutor akin to that in many military justice offices wherein a staff judge advocate serves both as a legal advisor to one or more commanders as well as the reporting senior for the head of the local military justice or prosecution office. As the reporting senior of the Chief Prosecutor, it stands to reason that the Legal Advisor would exercise some measure of oversight with regard to the prosecution office and that there would be communication between the Chief Prosecutor (and possibly his subordinates) and the Legal Advisor regarding this and other cases. It also stands to reason that the communications might include discussion of the charges and specifications prior to the forwarding of the charges to the Convening Authority via the Legal Advisor in accordance with R.M.C. 406 and R.T.M.C., Section 3-3. f. With regard to the materials contained in the 36 pages that are the subject of this motion, the Commission finds that they are reasonably within the scope of communications between the Legal Advisor and the Prosecution Office conducted in furtherance of the Legal Advisors responsibility as the reporting senior of the Chief Prosecutor. Accordingly, the Commission finds that that the materials are protected from disclosure by the provisions of M.C.R.E. 502. g. M.C.R.E. 502(d) provides that there is no privilege under M.C.R.E. 502 if, inter alia, an otherwise privileged communication clearly contemplated the future
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commission of a fraud or crime[.] In this case, the Defense suggests that the 36 pages may contain some evidence of acts by the Legal Advisor that would support the Defense claim of unlawful influence as set forth in D-001. The Commission has reviewed the material in question and has determined that no such evidence is contained therein. 3. RULING: The remaining portion of the motion with regard to production of the 36 pages of material is denied. The materials reviewed in camera by the Military Judge in connection with this motion will be attached to the record of trial as a sealed exhibit.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission October 2, 2008 COMMISSION RULING ON MOTION TO COMPEL PRODUCTION OF TRANSCRIPTS IN ARABIC (D-033) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
keep a separate, written verbatim, record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. MCA 949o(c) provides that: A copy of the record of the proceedings of the military commission [shall] be given the accused as soon as it is authenticated. b. Beyond the controlling statute, the rules governing preparation and authentication of the transcript of the proceedings are contained in R.M.C. 1103-104 and RC 6-10. c. R.M.C. 1103(e) provides that: Except when unreasonable delay will result, subject to the review of that determination by the military judge, prior to authentication, the trial counsel shall permit the defense counsel to examine the record before authentication. d. R.C. 6-10 provides: Transcript of the Proceedings. In accordance with R.M.C. 1103, during the course of a trial, the transcript of the proceedings of any session will be provided to the military judge who presided over the session in question before it is given to any other person or to the parties. In accordance with R.M.C. 1103 and R.M.C. 1104, prior to authentication of the record of trial, only the military judge can authorize the release of the unauthenticated transcript or any portion thereof. At the direction of the military judge, the court reporter will provide the transcript or portions thereof to
1. NATURE OF MOTION a. This joint motion seeks to compel production of draft copies of all pretrial motion sessions as they are prepared, a written Arabic translation of the transcripts, and the opportunity to object to and submit corrections to the transcripts. b. The Commission has also considered the Prosecutions response to D-033, the oral argument regarding this motion and the supplement submitted by the Defense on 24 September 2008. 2. DISCUSSION a. MCA 9481 provides that: The transcript of a military commission [shall] be under the control of the convening authority of the commission, who shall also be responsible for preparing the record of trial. MCA 949o(a) provides that: Each military commission [shall]
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counsel for errata purposes prior to authentication. e. Under these rules, an accuseds first entitlement to review the transcript of the proceedings arises in conjunction with the authentication process wherein the Defense shall be permitted to examine the record of trial, identify perceived errors and offer proposed corrections. f. Prior to review in conjunction with the authentication process, counsel (or pro se accused) for either side may request production of unauthenticated portions of the transcript for use during subsequent portions of the trial. While R.C. 6-10 does not create any entitlement to provision of the unauthenticated portions of the record during the course of a trial, thus far, the Military Judge has granted such requests, subject to an appropriate order concerning limited use, when the requested portions of the transcript have been available. The transcripts are produced in the English language and are not translated into Arabic in the normal course of the proceedings. g. The Defense argues that production of Arabic translations of the transcripts should be compelled to assist the accused in understanding the proceedings and to assist the accused in preparing their motions in the course of the on-going litigation. In support of this argument, the Defense cites numerous cases in which production of transcripts from prior completed trails was ordered in conjuncttion with an appeal or habeas petition concerning the prior trial. None of the cited cases suggests that there is an entitlement to on-going receipt of a trial transcript during the course of a criminal prosecution. Additionally, the cited cases
clearly contemplate provision of existing transcripts, thus imposing a requirement on the Government to produce translated versions of the record that is not contemplated in existing rules of procedure. It is also worthy of note that the United States Court of Appeals for the Second Circuit has ruled against claims of a translation requirement on at least two occasions. See Zapata v. Mukasey, 2008 U.S. App. LEXIS 8390; United States v. Wattanasiri, 1998 U.S. App. LEXIS 4432). h. The Defense also argues that translated transcript production is required to ensure the accuseds understanding of the proceedings. MCA 9481 makes the following provision regarding translation of military commission proceedings: Under such regulations as the Secretary of Defense may prescribe, the convening authority [may] detail to or employ for the military commission interpreters who shall interpret for the commission and, as necessary for trial counsel and defense counsel and for the accused. R.M.C. 502(e) and the Regulation for Trial by Military Commission, 7-3 provide for provision of interpreters for the defense as necessary. The Commission would expect the Defense to pursue provision of interpreter services for the Defense teams to the extent necessary under these provisions. i. D-018 is a joint motion by the Defense concerning alleged inadequacies of the incourt translations by the Commission Translators. This matter will be addressed separately. 3. RULING a. That portion of the Defense motion pertaining to compelling production of
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draft copies of all pretrial motion sessions as they are prepared is denied. Requests for production of unauthenticated portions of the transcript of the proceedings will be addressed in accordance with R.C. 6-10. b. That portion of the Defense motion pertaining to compelling production of an Arabic translation of the transcript is denied. c. That portion of the Defense motion pertaining to providing the defense the opportunity to object to an submit corrections to the transcripts is granted insofar as the opportunity will be provided in due course in accordance with R.M.C. 1103(e) prior to authentication of the record of trial.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission October 6, 2008 COMMISSION RULING ON MOTION TO ALLOW EX PARTE APPLICATIONS (D-020) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
witnesses at government expense. R.M.C. 703(d) is a virtual mirror of R.C.M. 703(d), Manual for Courts-Martial, United States (2008). In military practice, requests for expert assistance are also addressed within the context of R.C.M. 703. See generally United States v. Bresnahan, 62 M.J. 137 (2005); United States v. Warner, 62 M.J. 114 (2005). c. Both sides agree that the rules governing this issue do not preclude an accused from seeking ex parte consideration of an expert witness/ assistance request by the military judge if the circumstances are unusual. United States v. Kaspers, 47 M.J. 176, 180 (1997) quoting United States v. Garries 22 M.J. 288, 291 (1986). The Defense, however, essentially asks the Commission to invalidate the R.M.C. 706(d) such that all requests for expert witnesses/assistance would be addressed by the military judge on an ex parte basis. The Commission does not find any appropriate basis to take such action in this case. d. Within the Defense argument, however, the Commission recognizes that there may be some situations in this case where, based on a specific set of facts, unusual circumstances could exist such that the reliability of the proceedings could be enhanced by the funding of an expert witness/assistant without initial notice to the Prosecution or other governmental agencies. Unusual circumstances would not include situations where compliance with R.M.C. 703(d) might merely provide a window into some aspect of a possible Defense trial strategy. See Kaspers at 180. e. It is also worthy of note that in the event the Commission were to direct
1. NATURE OF MOTION a. This joint motion seeks to allow ex parte consideration of their petitions for expert assistance and other resources. b. The Commission has also considered the Prosecutions response to D-020, the Defense reply, the oral argument regarding this motion and the supplement filed by the Prosecution on 30 September 2008. 2. DISCUSSION a. MCA 949j(a) provides that: Defense counsel in a military commission [shall] have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense. MCA 949j is consistent with Article 46, UCMJ. b. R.M.C. 703(d) sets forth the rules established by the Secretary of Defense pertaining to employment of expert
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employment of an expert witness/assistant on an ex parte basis, administration of the resource would still be funded and managed by the Office of Military Commissions in compliance with and the Regulation for Military Commissions, 13-7. In legal proceedings under the MCA or UCMJ, the military judge has no authority to authorize the expenditure of Federal funds. His or her authority is limited to requiring the Convening Authority to provide an ordered expert witness/assistant or to abate the proceeding. In any event, the expenditure of federal funds requires justification and production of an audit trail. Additionally, the rules concerning expert witnesses/ assistants contemplate consideration of the use of exiting government personnel resources as adequate substitutes for specifically requested civilian experts when appropriate. The Military Commissions Trial Judiciary is not organized or intended to carry out the administrative aspects of these functions. This organizational aspect of the military commissions militates against the use of ex parte proceedings absent unusual circumstances. f. Any ex parte application to the military judge for employment of an expert witness/assistant consistent with this opinion should contain all of the information called for within the provisions of R.M.C. 703(d). Additionally, the request should contain a detailed explanation (supported as possible by relevant attachments) of what unusual circumstances exist such that ex parte relief is necessary. In the event the Military Judge determines that the request fails to make an adequate showing of unusual circumstances so as to justify ex parte consideration, the Defense will
be advised accordingly such that they can decide whether to proceed through the standard procedure established in R.M.C. 703(d). In any event, the ex parte application will be attached to the record as a sealed exhibit. 3. RULING a. That portion of the Defense motion seeking to invalidate the provisions of R.M.C. 703(d) is denied. b. Any accused may, based on unusual circumstances, seek ex parte relief from the Military Judge consistent with the discussion above.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission October 6, 2008 COMMISSION RULING ON MOTION FOR RESOURCES NECESSARY TO REALIZE SIXTH AMENDMENT RIGHT TO SELF-REPRESENTATION (D-035) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
b. The Commission understands that the Government has already agreed to make the following materials available to the pro se accused: (1) Writing materials that comport with detention facility security standards; (2) A laptop style computer loaded with discovery materials (with review software) and word processing software; and (3) Copies of MCA, MMC, MCTJ, RCs, and the Regulation for Trial by Military Commissions. c. The accused were fully advised by the Military Judge that one of the many problems associated with an election to waive the right to counsel and proceed pro se is that as incarcerated persons they would necessarily not be in as good a position to prepare a defense as a professional attorney. This is not to say that the pro se accused are in any way being sanctioned by the Commission for their pro se election. Instead, the simple reality of the situation is that there are limits on what the Government must provide to the accused under an umbrella of reasonable access to materials for the preparation of the defense. Reasonable access does not equate to a right or an entitlement to be placed on the same footing as a technologically state of the art law office. d. The case law setting forth guidelines for provision of materials necessary for preparation of a defense to incarcerated accused speaks most directly to pro se accused, vice those represented by counsel. Arguably, a pro se accused has a
1. NATURE OF MOTION a. This joint motion seeks to compel provision of a list of resources to the accused for their use in conjunction with their pro se representation (Sheikh Mohammed, Bin Attash Ali) or in order to participate with counsel in the preparation of their defense (Bin al Shibh, Al Hawsawi). b. The Commission has also considered the Prosecutions response to D-035, the supplement submitted by the Defense on 29 August 2008, the oral argument regarding this motion, and the supplement filed by the Prosecution on 30 September 2008. 2. DISCUSSION: a. The accuseds counsel and pro se rights in this case are set forth in MCA 949a(b)(C-D).
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stronger basis for provision of such materials since he or she has waived the right to counsel and is fully responsible for his own defense. It is worthy of note, however that this case is proceeding as a joint trial and involves voluminous discovery materials. In this regard, the Commission concurs with the Defense position that the accused in this case that are represented by counsel should not be placed in a position inferior to the pro se accused in terms of being able to review discovery materials and cooperate intelligently in the preparation and presentation of the their defense. e. Given the fact that the Government has already agreed to make computer resources available to the pro se accused in this case, the Commission finds that it is also reasonable that some additional materials be provided for use on those computers. These materials will include: (1) Electronic versions of the MCA, MMC, MCTJ, RCs, and the Regulation for Trial by Military Commissions; (2) A copy of the U.S. Constitution, the Detainee Treatment Act, and the Geneva Conventions; and (3) A legal dictionary. f. D-035 also seeks provision of pleadings and rulings from several other cases and access to a broad range of news and internet search sources applicable to the Defense in this case. While the Commission will not direct the Government to secure or prepare matters of this nature, should the accused choose to coordinate with their stand-by counsel to have such matters loaded onto electronic storage devises, the Government should
facilitate timely provision of the loaded materials to the accused in conjunction with appropriate security measures. Only materials redacted for operational and privacy concerns, akin to those provided as R.C. 3.9 releases will be provided. g. With regard to the translation issues associated with D-035, MCA 948l makes the following provision: Under such regulations as the Secretary of Defense may prescribe, the convening authority [may] detail or employ for the military commission interpreters who shall interpret for the commission and, as necessary for trial counsel and defense counsel and for the accused. R.M.C. 502(e) and the Regulation for Trial by Military Commission, 7-3 provide for provision of interpreters for the defense as necessary. The Commission would expect the Defense to pursue provision of interpreter services for the defense teams to the extent necessary under these provisions. In the event that the Defense determines that that translation software is reasonably available, they may renew their request for provision of that item. h. The Government has represented that current provisions provide for the accused to have access to materials associated with their defense for eight hours a day. Given the volume of the discovery materials and the legal issues associated with this case, the Commission finds that this is an inadequate period of time for the accused to have an opportunity to work on their cases. At the same time, the Commission understands that operational and security concerns in the detention facility may make unlimited access an unreasonable situation. Accordingly, the Commission directs that procedures in the detention facility be adjusted appropriately in order
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to facilitate access to materials associated with the defense for no less than twelve hours a day. [Battery resources for the computers should also be sufficient to provide for use of the computers during this twelve hour period.] i. The Commission has determined that reasonable access to materials necessary for the preparation of the defense does not extend to extend to: (1) Internet access; (2) Powerpoint software; (3) a DVD writer; (4) Printers and scanners; (5) Special provisions regarding telephone contact with family members; or (6) Special provisions regarding contact with stand-by counsel or civilian consultants. [Note: This matter will be addressed separately in conjunction with D-036.] 3. RULING: The Defense motion is granted in part and denied in part. The Government shall provide both the pro se accused and the accused represented by counsel in this case access to materials necessary for the preparation of the defense consistent with the discussion above.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al Military Commission October 26, 2008 COMMISSION RULING ON MOTION FOR APPOINTMENT OF DEFENSE EXPERT CONSULTANT (DR. XAVIER F. AMADOR) (D-017) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
detailed defense counsel and addressed, if necessary, by a mental capacity inquiry per R.M.C. 706 and a mental capacity determination hearing per R.M.C. 909. b. On 1 July 2008, the Commission ordered an inquiry into the mental capacity of the accused per R.M.C. 706. The report of that inquiry was completed on 16 October 2008. Significantly, [REDACTED]. Notwithstanding, [REDACTED], the Board determined, inter alia, that [REDACTED]. Additionally, the Board determined that the accuseds current condition [REDACTED] c. [REDACTED] a mental capacity determination hearing per R.M.C. 909 is warranted with regard to the accused. d. The parties correctly identify the three part test set forth in United States v. Freeman, 65 M.J. 451 (C.A.A.F. 2007) as the appropriate standard for analyzing requests for expert assistance. To justify a request for government funding of expert assistance, the accused must show: (1) why the expert assistance is needed; (2) what the expert assistance would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would develop. Id. at 458 quoting United States v. Bresnahan 62 M.J. 137, 143 (C.A.A.F. 2005). The Defense has met the established standard with regard to its request for expert assistance in D-017. e. The Commissions review of the discovery material associated with issue of the accuseds mental capacity and the report of the Board conducted per R.M.C. 706 demonstrate that the mental capacity determination in this case will involve
1. NATURE OF MOTION a. This motion seeks to compel appointment and funding for Dr. Xavier F. Amador to serve as an expert consultant for Mr. Bin al Shibh (the accused) in the field of clinical and forensic psychology. b. The Commission has also considered the Prosecutions response to D-017 and the report of the Board that conducted an inquiry into the mental capacity of the accused in accordance with the Commissions Order dated 1 July 2008. 2. DISCUSSION: a. Questions concerning the mental capacity of the accused were raised prior to the arraignment in this case. For this reason, counsel election by the accused was postponed until such time as the matter could be investigated by his
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analysis of an unusual and relatively complex set of factual circumstances and medical factors. The Commission finds that the provision of an appropriate measure of expert assistance would provide detailed defense counsel with a clear benefit in terms of analyzing the factual and medical evidence and developing possible lines of questioning for possible witnesses on the motion and potential arguments by the Defense with regard to the accuseds capacity to stand trial. Defense counsel are typically expected to develop their own knowledge on a wide range of matters that may arise in the course of the litigation of a case. The Commission finds, however, that the circumstances surrounding the mental capacity determination of this accused auger in favor of augmenting the efforts and abilities of the detailed defense counsel with professional assistance in the area of clinical and forensic psychology. f. Despite several entreaties by the Commission to do so, the Government has not proffered any adequate substitute options with regard to the specific request for Dr. Amador in D-017. g. The Defense has requested authorization for up to $21,000 in fees for Dr. Amador based on a fee rate of $350/hour and 60 hours of consultation. Additionally, the Defense seeks provision of additional funding in conjunction with desired meetings between Dr. Amador and the accused and travel and preparation for possible testimony by Dr. Amador. h. Per 13-7 of the Regulation for Trial by Military Commissions, only the Convening Authority may authorize the employment of expert witnesses at gov-
ernment expense. The Commission finds that this rule also governs the funding of expert assistance. The rule also dictates that the compensation rates for expert assistance be based on the normal compensation paid by United States Attorneys for such services. The Commission will not dictate any set rate of compensation for Dr. Amador, but rather will defer, at least in the first instance, to Office of the Convening Authority for appropriate management of the payment. i. The Commission will direct however, that the Convening Authority provide authorization for employment of Dr. Amador as an expert assistant at least to the extent of 40 hours of employment for review of evidence and consultation with the detailed defense counsel. Funding should also be provided to facilitate Dr. Amadors travel to Washington, D.C. for review of related classified material. j. Funding should also be provided for travel by Dr. Amador to Guantanamo Bay to provide assistance to detailed defense counsel at the R.M.C. 909 hearing concerning this matter. The employment of Dr. Amador to be present at the R.M.C. 909 hearing should be in addition to the 40 hours directed above. k. The ordered employment does not extend to an order or authorization for Dr. Amador to meet with the accused in this case or conduct his own evaluation of the accuseds mental capacity. 3. RULING: The Defense motion is granted in part and denied in part. The Government shall provide the Defense with expert assistance in the field of clinical and forensic psychology consistent with the discussion above.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission October 26, 2008 COMMISSION RULING ON MOTION FOR APPROPRIATE RELIEF (ACCESS TO VIEW AND INSPECT THE CONDITIONS OF CONFINEMENT IN GTMO) (D-041) Ralph H. Kohlmann Colonel, U.S. Marine Corps Military Judge
detailed defense counsel and addressed, if necessary by a mental capacity inquiry per R.M.C. 706 and a mental capacity determination hearing per R.M.C. 909. b. On 1 July 2008, the Commission ordered an inquiry into the mental capacity of the accused per R.M.C. 706. The report of that inquiry was completed on 16 October 2008. Significantly, [REDACTED]. Notwithstanding, [REDACTED], the Board determined, inter alia, that [REDACTED]. Additionally, the Board determined that the accuseds current condition [REDACTED]. c. [REDACTED] a mental capacity determination hearing per R.M.C. 909 is warranted with regard to the accused. d. In preparation for the R.M.C. 909 hearing, detailed defense counsel submitted a request to JTF-GTMO to be granted access to view and inspect the accuseds detention cell. The initial request regarding this matter was refused by the Government. The Government continues to oppose the request, but proffers provision of pictures of the accuseds cell, two adjacent cells, the recreation room, the medical room and the media room. e. MCA 949j provides that defense counsel in a military commission shall have a reasonable opportunity to obtain witnesses and other evidence. R.M.C. 701(c) provides that the Government shall permit the defense counsel to examine, inter alia, buildings or places which are within the control of the Government which are material to the preparation of the defense. f. There are numerous aspects of the pending analysis of the accuseds mental
1. NATURE OF MOTION a. This motion seeks an order allowing the Defense to view and inspect the conditions under which Mr. Bin Al Shibh (the accused) has been and continues to be confined during his incarceration at Guantanamo Bay, Cuba (GTMO). b. The Commission has also considered the Prosecutions response and supplemental response to D-041, the Defense reply thereto, and the oral argument presented concerning this motion. 2. DISCUSSION a. Questions concerning the mental capacity of the accused were raised prior to the arraignment in this case. For this reason, counsel election by the accused was postponed until such time as the matter could be investigated by his
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capacity. The Defense position is that the conditions of the accuseds confinement have had an effect on his current mental capacity. While this may or may not be true, the evidence [REDACTED] suggests that detailed defense counsels pursuit of this line of investigation is appropriate. Information gleaned from such investigation may reasonably be material to the Defense presentation with regard to the accuseds mental capacity. g. The Governments opposition to the request apparently stems from the classified nature of the location of the accuseds place of incarceration at Camp 7 and a JTF-GTMO policy that no visitors are allowed on the detention block at Camp 7 other than required personnel. h. It is the understanding of the Commission that both the detailed defense counsel and the assistant detailed defense counsel possess the requisite security clearances to be provided access to Camp 7. (It is also worthy of note that both the detailed defense counsel and the assistant detailed defense counsel have agreed to proceed to the facility in a blindfolded fashion or in a visually closed vehicle as necessary such that the location of the camp need not be revealed in the course of their visit). It is the finding of the Commission that the discharge of their duties with regard to representing their client in conjunction with the pending R.M.C. 909 hearing also establishes the need to know that would make their site visit to the accuseds place of detention appropriate.
i. The Commissions review of the discovery material associated with issue of the accused mental capacity and the report of the Board conducted per R.M.C. 706 demonstrate that the mental capacity determination in this case will involve analysis of an unusual and relatively complex set of factual circumstances and medical factors. The Commission finds that the provision of an opportunity to view the accuseds place of confinement at GTMO is appropriate under the MCA 949j and R.M.C. 701(c). Additionally, the Commission directs that the detailed defense counsel for the accused be provided with the proffered pictures of the accuseds cell, two adjacent cells, the recreation room, the medical room and the media room. j. The Commission does not, however, find that similar access need be provided to persons other than the detailed defense counsel and the assistant detailed defense counsel. k. This grant of relief does not extend to an order that the Defense be permitted to conduct an inspection or evaluation of the accuseds detention facility, its operations, or its procedures. The granted relief is limited to provision of an opportunity to visit and fully view the accuseds cell, the two adjacent cells, the recreation room, the medical room and the media room. 3. RULING: The Defense motion is granted in part and denied in part. The Government shall provide the Defense with an opportunity to visit and view the accuseds place of confinement at Camp 7 consistent with the discussion above.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission December 18, 2008 PROTECTIVE ORDER #7: PROTECTION OF CLASSIFIED INFORMATION THROUGHOUT ALL STAGES OF PROCEEDINGS Stephen R. Henley Colonel, U.S. Army Military Judge
b. Prosecution Proposed Protective Order #, dated 18 Dec. 2008. c. Declaration by the Director, Central Intelligence Agency, dated 30 May 2008. d. Declaration by Deputy Director, National Clandestine Service, Central Intelligence Agency, dated 11 Aug. 2008. e. Declarations by Associate Information Review Officer, National Clandestine Service, Central Intelligence Agency, dated 21 Jul. 2008 and 10 Nov. 2008. This order will be attached to the record at trial. The appellate exhibits referenced above will be sealed. 3. The Commission finds that this case involves information that has been classified in the interests of national security as set forth by M.C.R.E. 505(b)(1) and (2) as well as by Executive Order 12958, as amended. The storage, handling, and control of this information will require special precautions mandated by statute, executive order, and regulation, and access to which requires appropriate security clearances and a need to know. The Commission further finds that this case involves protected information that is unclassified but which remains sensitive and should be protected from dissemination outside the defense. 4. The purpose of this Order is to establish procedures that must be followed by all defense counsel of record, defense paralegals, defense translators and all other persons assisting the Defense (hereinafter the Defense) as well as any other person who comes into possession of classified
1. This Protective Order is issued pursuant to the authority under the Military Commissions Act (MCA) (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC), to include, but not limited to: a. Rules for Military Commissions (R.M.C.) 70l(f)(8) and (1)(2); b. Military Commission Rule of Evidence (M.C.R.E.) 505; c. Regulation for Trial by Military Commission (DoD Trial Reg), Sec. 1703. 2. The Commission has considered the following matters prior to issuing this order: a. Prosecution Motion for Omnibus Protective Order, dated 23 Oct. 2008.
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information and protected information as a result of their participation in this case. 5. The procedures set forth in this Protective Order, and M.C.R.E. 505 and 506, will apply to all stages in this case, including discovery and disclosure of classified information subject to modification by further Order. This Order does not abrogate Protective Order #3 Protection of Classified Information at Arraignment and Other Pretrial Proceedings, nor revises any protections contained within any previous Protective Order issued in this case. 6. As used herein, the term Classified Information shall mean: a. Any document or information which has been classified by any Executive Branch agency in the interests of national security or pursuant to Executive Order 12958, its predecessors or as amended, as CONFIDENTIAL, SECRET or TOP SECRET, or additionally controlled as SENSITIVE COMPARTMENTED INFORMATION (SCI), or any information in such document; b. Any document or information which has been classified as SECRET Releasable to Sheikh Mohammed, Bin Attash, bin al shibh, Aziz Ali, Hawsawi. c. Any document or information, regardless of physical form or characteristics, now or formerly in the possession of the Defense, private party or other person, which has been derived from
United States government information that was classified, including any document or information that has subsequently been classified by the government pursuant to Executive Order 12958; d. Any document or information that the Defense knows or reasonably should know, contains classified information; or e. Any document or information as to which the Defense has been notified orally, or in writing, that such document or information contains classified information, or protected information, or implicates sources, methods or activities of the United States to acquire such information if those sources, methods and activities remain classified. f. Presumptively classified information, including any statements made by the accused, and any verbal classified information known to the accused or Defense. g. Any document or information, regardless of place of origin, and including documents classified by a foreign government, that could reasonably be believed to contain classified information, or that refers to or relates to national security or intelligence matters. Any document or information including but not limited to any subject referring to the Central Intelligence Agency, National Security Agency, Defense Intelligence Agency, Department of State, National Security Council, Federal Bureau of Investigation, or intelligence agencies of any foreign government, or similar entity, or
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information in the possession of such agency, shall be presumed to fall within the meaning of classified national security information or document unless and until the SSA [Senior Security Advisor] or Prosecution advises otherwise in writing. h. This provision shall not apply to documents or information which the Defense obtains from other than classified materials, or documents provided by the Prosecution with a marking to indicate that the document has been declassified. While information in the public domain is ordinarily not classified, such information may be considered classified, and therefore subject to the provisions of M.C.R.E. 505 and this Order, if it is confirmed or denied by any person who has, or has had, access to classified information and that confirmation or denial tends to corroborate or tends to refute the information in question. Any attempt by the Defense to have such information confirmed or denied at trial or in any public proceeding in this case shall be governed by M.C.R.E. 505 and all provisions of this Order. i. The words documents and information shall include, but are not limited to, all written or printed matter of any kind, formal or informal, including originals, conforming copies and non-conforming copies (whether different from the original by reason of notation made on such copies or otherwise), handwritten notes, or any electronic storage on any electronic
storage media or device of any documents or information or information acquired orally, including but not limited to papers, correspondence, memoranda, notes, letters, reports, summaries, photographs, maps, charts, graphs, inter-office communications, notations of any sort concerning conversations, meetings or other communications, bulletins, teletypes, telegrams, and telefacsimiles, invoices, worksheets and drafts, alterations, modifications, changes and amendments of any kind to the foregoing; graphic or oral records or representations of any kind, including but not limited to photographs, charts, graphs, microfiche, microfilm, video-tapes, sound recordings of any kind and motion pictures; electronic, mechanical or electric records of any kind, including but not limited to tapes, cassettes, disks, recordings, films, typewriter ribbons, word processing or other computer tapes, disks, or thumb drives and all manner or electronic data processing storage; and classified information acquired orally. 7. All classified documents and other matters and the classified information contained therein shall remain classified unless the documents bear a clear indication that they have been declassified by the agency or department that is the originator of the document or the information contained therein (hereinafter, the Original Classification Authority). 8. As used herein, the term Protected Information shall mean: a. Protected information that is unclassified but otherwise privileged, such as Law Enforcement Sensitive
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(LES) information or information For Official Use Only (FOUO), which does not warrant a national security classification but nonetheless requires limitation in dissemination and/or disclosure. 9. The Prosecution will provide the classified discovery for each of the accused to the Senior Security Advisor (SSA) on compact disks (CDs) that are properly marked with the security classification level. The SSA will ensure that the material is delivered to each of the accuseds respective Defense teams together with a copy of this Order and will verify that the person receiving the materials has the appropriate security clearances and has otherwise complied with this Order and Protective Order #3. The person receiving the materials on behalf of each Defense team will be responsible for ensuring that access to and storage of the CDs is in accordance with this Order and Protective Order #3. Pending the establishment of storage facilities and procedures for the materials at the accuseds detention facility, Defense counsel are responsible for the appropriate handling and storage of the classified material. 10. Any and all discovery materials are to be provided to the Defense, and used by the Defense, solely for the purpose of allowing the accused to prepare their defenses and that none of the discovery materials produced by the Prosecution to the Defense shall be disseminated to, or discussed with the media or any other individual or entity outside the Defense team. This provision does not prohibit the media from obtaining copies of any items that become
declassified public exhibits at any hearing, trial or other proceeding. 11. The Defense is prohibited from disclosing classified information or information they know or reasonably should know is classified to the accused absent a specific Order from this Commission. 12. Persons subject to this Order are advised that all information to which they obtain access by this Order, or any previous protective order issued by the Commission, is now and will forever remain the property of the United States Government. The Defense shall return all materials that may have come into their possession for which they are responsible because of such access upon demand by the Prosecution or SSA. 13. The Defense shall comply with M.C.R.E. 505(g) prior to any disclosure of classified information during any proceeding in this case. The Defense is required to notify the Prosecution in writing of any intention to disclose, or cause the disclosure of, classified information in any manner at any stage of the proceedings. The Defense notice must be particularized and set forth the specific classified information sought to be disclosed. The Defense notice must be provided to the Prosecution with sufficient time for the Prosecution to respond and seek relief under M.C.R.E. 505(h) prior to the proceeding in which the disclosure is expected to occur. 14. Any pleading or other document filed or transmitted by the Defense, which the Defense knows or has reason to know contains classified information in whole or in part, believes may be classified in whole or in part, or implicates information, sources, methods or activities of the United
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States Government which the Defense knows or has reason to know contains classified information, or which concern or relate to national security or intelligence matters (as defined in paragraph 6 above), shall be filed UNDER SEAL with the SSA in the case of a filing and shall be transmitted in an appropriate manner, commensurate with its classification status. 15. Any breach of this Protective Order may result in disciplinary action or other sanctions. 16. Persons subject to this Order are further admonished that they are obligated by law and regulation not to disclose any national security classified information in an unauthorized fashion and that any breach of this Order may result in the termination of their access to classified information. In addition, they are admonished that any unauthorized disclosure of classified information may constitute violations of the United States criminal laws, including without limitation, the provisions of 18 U.S.C. 371, 641, 1001, 793, 794, 798, 952, and 1503; 50 U.S.C. 421 (the Intelligence Identities Protection Act) and 783; and that a violation of this Order or any portion hereof may be chargeable as a contempt of this Commission. 17. Either party may file a motion for appropriate relief to obtain an exception to this Order should they consider it warranted.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission January 21, 2009 COMMISSION RULING REGARDING GOVERNMENT MOTION FOR 120DAY CONTINUANCE (P-009) Stephen R. Henley Colonel, U.S. Army Military Judge
1. This matter having come before the Commission upon Government motion to grant a 120-day continuance in the case until 20 May 2009; and the Commission having heard oral argument; and having considered the parties written submissions; and for good cause shown; the Commission finds that the interests of justice served by continuing the proceedings to allow the new administration sufficient time to review the Military Commissions process and decide the proper forum to prosecute the accused or to make appropriate changes to the current Commission rules and procedures and avoid unnecessary duplication of effort outweigh the best interests of the accused and public in a prompt trial. 2. The Governments motion to continue all military commission sessions to 20 May 2009 is therefore GRANTED.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission March 9, 2009 COMMISSION ORDER REGARDING PRO SE FILING: THE ISLAMIC RESPONSE TO THE GOVERNMENTS NINE ACCUSATIONS (D-101) Stephen R. Henley Colonel, U.S. Army Military Judge
1. On 5 March 2009, the Commission received and reviewed in chambers D101, an unclassified document titled The Islamic Response to the Governments Nine Accusations, filed pro se by the above named accused. 2. The Commission directs that copies of this pleading be served upon the prosecution and defense counsel of record, to include stand-by counsel. The Commission further directs the pleading be provided to the Clerk of Court for immediate public release. 3. As this pleading seeks no specific relief, no responses are required by either the Prosecution or Defense. 4. The Clerk of Court is directed to have this order translated into Arabic and served upon each of the accused.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission March 18, 2009 ORDER: DEFENSE MOTION FOR SPECIAL RELIEF OBJECTION TO PUBLIC RELEASE OF STATEMENT FILED WITH MILITARY COMMISSION ON 1 MARCH 2009 BY PRO SE ACCUSED (D-101) Stephen R. Henley Colonel, U.S. Army Military Judge
2. On 10 March 2009, detailed military defense counsel for Mr bin al Shibh and Mr al Hawsawi submitted a special request for relief objecting to release of the filing and asks the order be rescinded, submitting they had not seen the document and that it is highly irregular for the Military Judge to accept pleadings from represented accused that are not filed with the Commission by the counsel themselves. Counsel for Mr bin al Shibh and Mr Al Hawsawi further suggest that release of the filing violates the Presidents Executive Order halting all military commission cases. The prosecution opposes the requested relief. VIOLATION OF EXECUTIVE ORDER 3. At the Presidents direction, 2 the Secretary of Defense ordered the Chief Prosecutor-Office of Military Commissions to request the Military Judge grant a fourmonth continuance in any case already referred to trial in order to allow the Administration time to evaluate which forum, if any, best suits any future prosecution. 3 Upon Prosecution motion, 4
1. On 5 March 2009, the Military Commission received an unsolicited filing titled The Islamic Response to the Governments Nine Accusations, submitted by the above named accused, three of whom represent themselves pro se. 1 On 9 March 2009, the Military Commission directed that copies of the document be provided to the prosecution and defense counsel of record, to include stand-by counsel, and further directed the filing be provided to the Clerk of Court for release to the general public. As the filing sought no specific relief, the Commission did not require a response.
2 The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted. Presidential Executive Order Review and
Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities.
3 While directing the Secretary of Defense to take certain actions in relation to Guantanamo Bay litigation, the President has, understandably, neither ordered nor compelled any military judge to suspend or delay a particular military commission. See 120 Stat. 2609, 10 U.S.C. 949b(a)(2)(A) (2006). 4 The Rules for Military Commission authorize the military judge of a military commission to grant a continuance of the proceedings in a pending case if the
1 Pro se legal representation refers to the circumstance of a person representing himself or herself without a lawyer in a court proceeding. Pro se is a Latin phrase meaning "for oneself".
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the Military Commission subsequently granted a 120-day continuance for all sessions in this case until 20 May 2009. The Prosecution did not seek, nor did the Commission order, a halt to any and all actions related to this case, but merely on the record hearings with counsel, the accused and the Military Judge. 5 Since recessing on 21 January 2009, the Military Judge has not called the Military Commission into session. PUBLIC RELEASE OF MILITARY COMMISSION FINDINGS 4. The public has a qualified right to attend public trials. See In Re Times Publ. Co, 1997 U.S. Dist. Lexis 11139 (M.D. Fla.). This right of access to judicial proceedings applies to written documents submitted in connection with those proceedings that themselves implicate the right to access, to include motions, filings, pleadings, orders and like military commission documents. See, e.g., United States v. Valenti, 987 F.2d 708 (11th Cir. 1993). Once a document is submitted to the Commission for consideration by counsel representing an accused or an unrepresented accused proceeding pro se, the public should generally be able to determine for itself the correctness of a judicial decision in determining a partys substantive rights, absent some evidence release that could reasonably affect the outcome of the trial, or that the document is otherwise privileged.
5. There was, and this Commission continues to find, no basis to sustain defense counsels objection to public release of a filing submitted by a pro se accused. 6 Pursuant to Rule 3.9.c., Military Commissions Trial Judiciary Rules of Court, dated 2 November 2007, The Islamic
Response to the Governments Nine Accusations may be released to the general

public. 7 6. The defense special request for relief submitted by counsel for Mr Al Hawsawi and Mr bin al Shibh is hereby DENIED. So Ordered this 18th Day of March 2009.

interests of justice are served by such action and outweigh the best interests of both the public and the accused in a prompt trial of the accused. See R.M.C. 707(b)(4)(E)(i). 5 See P-009 Commission Ruling Regarding Government Motion for 120-Day Continuance.
6 That said, the record will reflect that counsel for Mr Al Hawsawi and Mr bin al Shibh did not join in the filing. 7 By authorizing release of The Islamic Response to the Governments Nine Accusations, the Military Commission has not ruled on admissibility of the filing as substantive evidence at any future proceeding.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al.
munication with a represented party in violation of Rule 2.9, ABA Model Code of Judicial Conduct. The prosecution opposes the requested relief. VIOLATION OF EXECUTIVE ORDER
Military Commission March 18, 2009 ORDER: DEFENSE MOTION FOR SPECIAL RELIEF: MILITARY COMMISSION MUST DECLINE RECEIPT OF UNSOLICITED COMMUNICATION SUBMITTED TO THE MILITARY JUDGE ON 13 MARCH 2009 BY MR BIN AL SHIBH (D-102) Stephen R. Henley Colonel, U.S. Army Military Judge 2. At the Presidents direction, 1 the Secretary of Defense ordered the Chief Prosecutor-Office of Military Commissions, in part, to seek from the Military Judge a four-month continuance in all commission cases already referred to trial in order to allow the Administration time to evaluate which forum, if any, best suits any future prosecution. 2 Upon prosecution motion, 3 the Military Commission subsequently granted a 120-day continuance for all sessions in this case until 20 May 2009. The Prosecution did not seek, nor did the Commission order, a halt to any and all actions related to this case, but merely on the record hearings with counsel, the
1. On 13 March 2009, the Clerk of Court notified the Office of Military Commissions-Trial Judiciary Staff that Mr. bin al Shibh had presented a sealed document to the Commission addressed as follows: To: COL Henley Commissions Legal Mail Privileged/Confidential Detailed defense counsel for Mr. bin al Shibh was unaware of the document and, on 16 March 2009, submitted a special request for relief asking the Military Judge to decline receipt of the filing, asserting: (1) it is improper to engage in actions which contravene the Presidents direct order to halt all Military Commissions; and (2) it constitutes an improper ex parte com-
1 The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted. Presidential Executive Order Review and
Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities.
While directing the Secretary of Defense to take certain actions in relation to Guantanamo Bay litigation, the President has, understandably, neither ordered nor compelled any military judge to suspend or delay a particular military commission. See 120 Stat. 2609, 10 U.S.C. 949b(a)(2)(A) (2006). 3 The Rules for Military Commission authorize the military judge of a military commission to grant a continuance of the proceedings in a pending case if the interests of justice are served by such action and outweigh the best interests of both the public and the accused in a prompt trial of the accused. See R.M.C. 707(b)(4)(E)(i).
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accused and the Military Judge. 4 Since recessing on 21 January 2009, the Military Judge has not called the Military Commission into session. EX PARTE COMMUNICATION 3. Unlike a filing submitted by an unrepresented or pro se 5 accused, if a military judge receives an unsolicited and unauthorized document from an accused represented by counsel, the military judge should endeavor not to learn the substance of the information and, instead, promptly notify defense counsel regarding the communication. 6 Such is the case here. Mr. bin al Shibhs detailed defense counsel was immediately notified of her clients unsolicited communication to the Commission and informed that the Commission will not read the filing. 4. The filing submitted by Mr. bin al Shibh alone on or about 13 March 2009 will be returned to him forthwith with the instruction that all future communications to the Military Commission by a represented accused must be submitted through detailed defense counsel. 5. The Defense special request for relief submitted by counsel for Mr. bin al Shibh is hereby GRANTED.
6. The Commission directs that a copy of this order be served upon the prosecution and all defense counsel of record, and that it be provided to the Clerk of Court for public release. The Commission further directs the Clerk of Court to have this order translated into Arabic and served upon each of the accused. So Ordered this 18th Day of March 2009.
4 See P-009 Commission Ruling Regarding Government Motion for 120-Day Continuance. 5 Pro se legal representation refers to the circumstance of a person representing himself or herself without a lawyer in a court proceeding. Pro se is a Latin phrase meaning "for oneself". 6
See Rule 2.9, Army Code of Judicial Conduct for Trial and Appellate Judges (16 May 2008).
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission March 20, 2009 ORDER: DEFENSE MOTION FOR RECONSIDERATION OF MILITARY COMMISSION ORDER D-102, AUTHORIZING PUBLIC RELEASE OF MILITARY COMMISSION ORDER D102 (D-104) Stephen R. Henley Colonel, U.S. Army Military Judge
instruction that all future communications to the Military Commission by a represented accused must be submitted through detailed defense counsel. 1 The Commission further directed the written order be provided to the Clerk of Court for public release. On 19 March 2009, Mr. bin al Shibhs detailed defense counsel submitted a motion seeking, in substance, reconsideration of that part of the Commissions order directing public release, submitting that the order references protected communications from a represented accused. 2. The public has a qualified right to attend public trials. See In Re Times Publ. Co, 1997 U.S. Dist. Lexis 11139 (M.D. Fla.). This right of access to judicial proceedings applies to written documents submitted in connection with those proceedings that themselves implicate the right to access, to include motions, filings, pleadings, orders and like military commission documents. See, e.g., United States v. Valenti, 987 F.2d 708 (11th Cir. 1993). Once a matter has been provided to the Commission, be it from an unrepresented accused proceeding pro se 2 or an accused represented by counsel, the public should generally be able to determine for itself the correctness of a judicial decision in determining a partys substantive rights, absent some evidence release that could reasonably affect the outcome of the trial, or that the document is otherwise privileged.
1. On 13 March 2009, the Clerk of Court notified the Office of Military Commissions-Trial Judiciary Staff that Mr. bin al Shibh had presented a sealed document to the Commission addressed as follows: To: COL Henley Commissions Legal Mail Privileged/Confidential Detailed defense counsel for Mr. bin al Shibh was unaware of the document or its contents and, on 16 March 2009, submitted a special request for relief asking the Military Judge to decline receipt of the filing. On 18 March 2009, over Prosecution objection, the Commission granted the defense counsels requested relief, declining to accept the filing and ordering the document returned to Mr. bin al Shibh with an
See D-102, Ruling on Defense Motion for Special Relief: Military Commission Must Decline Receipt of Unsolicited Communication Submitted to the Military Judge on 13 March 2009 by Mr. bin al Shibh, dated 18 March 2009. 2 Pro se legal representation refers to the circumstance of a person representing himself or herself without a lawyer in a court proceeding. Pro se is a Latin phrase meaning "for oneself".
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In this case, that Mr. bin al Shibh endeavored to communicate directly to the Military Judge without the knowledge of counsel is not a protected communication from a represented accused and defense counsel has provided no persuasive authority warranting withholding of the Commissions D-102 order, dated 18 March 2009, from the general public. 3. The Defense motion for reconsideration is hereby DENIED. 4. The Commission directs that a copy of this order be served upon the prosecution and all defense counsel of record, and that it be provided to the Clerk of Court for public release. The underlying defense motion will also be provided to the Clerk of Court for public release, after appropriate redactions for privacy and security considerations. The Commissions D-102 order, dated 18 March 2009, will be released to the public without redaction. The Commission further directs the Clerk of Court to have this order translated into Arabic and served upon each of the above named accused. So Ordered this 20th Day of March 2009.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission April 13, 2009 ORDER: DEFENSE SPECIAL REQUEST FOR RELIEF FROM PROTECTIVE ORDERS (D-106) Stephen R. Henley Colonel, U.S. Army Military Judge
provided to the Clerk of Court for public release. The underlying defense request for special relief will also be provided to the Clerk of Court for public release, after appropriate redactions for privacy and security considerations. The Commission further directs the Clerk of Court to have this order translated into Arabic and served upon each of the above named accused. So Ordered this 13th day of April 2009.
1. On 9 April 2009, defense counsel for Mr. bin al Shibh requested relief from Protective Order #7, and other applicable Protective Orders issued in this case, for the limited purpose of allowing detailed defense counsel to submit classified information to the Guantanamo Review Task Force ("Task Force") for its consideration in determining the appropriate disposition of this case. The Government does not object to the release. 2. The special request for relief, in so far as it applies to Mr. bin al Shibh, is hereby GRANTED. 1 The Commission directs that a copy of this order be served upon the prosecution and all defense counsel of record, and that it be
1 The Commission notes that it does not have declassification or proprietary authority over much of the classified information pertaining to this case and counsel are cautioned to adhere to restrictions and requirements of the originating agencies.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission April 13, 2009 ORDER: DEFENSE SPECIAL REQUEST FOR RELIEF FROM PROTECTIVE ORDER #7 (D-107) Stephen R. Henley Colonel, U.S. Army Military Judge
further dissemination of the report shall fully comply with all protective orders issued by Judge Sullivan in the U.S. District Court. 3. The Commission directs that a copy of this order be served upon the prosecution and all defense counsel of record, and that it be provided to the Clerk of Court for public release. The underlying defense request for special relief will also be provided to the Clerk of Court for public release, after appropriate redactions for privacy and security considerations. The Commission further directs the Clerk of Court to have this order translated into Arabic and served upon each of the above named accused. So Ordered this 13th day of April, 2009:
1. On 10 April 2009, the detailed defense counsel for Mr. bin al Shibh filed a special request for relief from Protective Order # 7 for the limited purpose of allowing defense consultant Xavier Amador to use observations and conversations with the accused and coaccused acquired pursuant to Military Commission proceedings to prepare a mental health evaluation for the habeas corpus petition currently pending in the United States District Court for the District of Columbia, case number 2006-CV-01725. The government does not object. 2. The special request for relief is hereby GRANTED. Any information contained in any such report shall be safeguarded in accordance with all applicable laws and regulations concerning classified information, 1 and
The Commission notes that it does not have declassification or proprietary authority over much of the classified information pertaining to
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this case and counsel are cautioned to adhere to restrictions and requirements of the originating agencies.
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UNITED STATES OF AMERICA v. KHALID SHEIK MOHAMMED, et al. Military Commission April 26, 2009 RULING ON PROSECUTION SPECIAL REQUEST FOR RELIEF (EXTENSION OF TIME TO FILE A RESPONSE TO D-108: A DEFENSE MOTION TO PRESERVE CIA BLACK SITES) (D-108) Stephen R. Henley Colonel, U.S. Army Military Judge
special request for relief seeking an extension of time to file its response to 26 May 2009. Given the sensitive nature of the defense request, the Commission agrees an extension is necessary in order for the prosecution to coordinate a response with multiple government agencies with an interest in the subject matter of the motion. 2. The special request for relief is hereby GRANTED, in part. The Government response to D-108, Defense Motion to Request a Court Order Directing the Government to Preserve Central Intelligence Agency (CIA) Detention Facilities Used to Detain High-Value Detainees, is due 20 May 2009. The Government will preserve the status quo with respect to these facilities until the Military Commission rules on the defense motion. 3. The Commission directs that a copy of this order be served upon the Prosecution and all defense counsel of record, and that it be provided to the Clerk of Court for public release. D-108, the underlying defense motion, along with the government special request for relief, will be provided to the Clerk of Court for public release, after appropriate redactions for privacy and security considerations. The Commission further directs the Clerk of Court to have this order translated into Arabic and served upon each of the above named accused. So Ordered this 26th day of April, 2009.
1. On 20 April 2009, the detailed defense counsel for Mr. bin al Shibh filed a motion seeking a Military Commission order directing the Government to preserve Central Intelligence Agency (CIA) Detention Facilities Used to Detain High-Value Detainees. In the alternative, the detailed defense counsel for Mr. bin al Shibh moves for an order directing the U.S. Government to videotape, photograph, diagram, inventory, and otherwise record said facilities prior to their dispositions. The Rules of Court require that, unless the Military Judge provides otherwise, the Governments response is due on 27 April 2009. 1 On 23 April 2009, the Prosecution filed a
1 Rule 3.6.b(1) of the Military Commissions Trial Judiciary Rules of Court provides that unless the military judge provides otherwise, a response to a motion is due within 7 days after a motion is received.
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UNITED STATES v. MOHAMMED KAMIN
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Background Mohammed Kamin is a citizen of Afghanistan and allegedly trained with al-Qaeda in the use of land mines. He was captured in Afghanistan in 2003. Military Commissions Charges were sworn against Kamin on March 12, 2008. The Convening Authority referred charges on May 23, 2008. Charges
Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): Provided material support for terrorism in Afghanistan and
Pakistan by receiving military training at terrorist training camps and conducting various hostile activities.
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UNITED STATES OF AMERICA v. MOHAMMED KAMIN Military Commission June 4, 2008 RULING ON DEFENSE REQUEST FOR EXTENSIONS AND REVISED TRIAL SCHEDULE (D-002) W. Thomas Cumbie Colonel, U.S. Air Force Military Judge
may discuss the issues described herein. 2. On 28 May 2008, the Government responded and asked that the Defense request for special relief be granted in part. Specifically, the Government does not oppose the Defense request for a written transcript of the arraignment nor to providing discovery at the earliest possible day. The Government requests that the court deny the Defense requested order for the Government to provide a written brief on the ethical issue of whether Lt Federico may represent a client who has refused his representation. The Government proposes that law motions be due on 7 July 2008 responses due on 14 July 2008, and a hearing to be held on 15 July. 3. On 4 June 2008, Protective Order #1 was distributed to counsel and other interested parties. 4. The court rules as follows: a. The Defense request that deadlines and dates established on the trial schedule be stayed until further notice is denied. b. The Defense request to be provided with a written transcript of the arraignment hearing, NLT 1200 on 6 June 2008 is granted. If this deadline is not possible, the Government will inform the court NLT 1200 on 6 June 2008 and provide an estimated time for completion and delivery of the transcript.
1. On 23 May 2008, the Defense requested the following special relief: a. All deadlines and dates established on the trial scheduled be stayed until further notice, pending resolution of the issues described herein; b. The Court order that the Defense be provided with a written transcript of the arraignment hearing, NLT 1200 on 6 June 2008; c. The Court order the Government to provide discovery to the defense at the earliest possible date; d. The Court order the Government to provide a written brief on the ethical issues re: representation, to be filed NLT 1630, 18 June 2008; and e. The Court schedule a hearing for the week of 14-18 July 2008 (exact date/time TBD) wherein the parties
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c. The Government will provide discovery to the Defense NLT 1200 on 6 June 2008. d. The court has reconsidered its prior ruling that the Government provide a written brief on the ethical issue of whether Lt Federico may represent a client who has refused his representation. Ethical issues inherent in Lt Federicos representation of Mr. Kamin are issues for him, his client, the Navy rules of professional responsibility and his state bar. The Defense request is denied. 5. The revised trial schedule is as follows: a. 14 July 2008: Law motions due to the Military Judge and opposing counsel. b. 21 July 2008: Responses to law motions due to Military Judge and opposing counsel.
e. 25 August 2008: Responses to evidentiary motions due to Military Judge and opposing counsel.
NOTE: In addition, IAW R.M.C 703, any Defense witness requests associated with any motions should be submitted to trial counsel simultaneously with the filing of the motion in question. The Government response to any witness request will be due within five days of the submission of the request. Any Defense motion for production of witnesses in conjunction with a motion will be due to the court and opposing counsel within five days of receipt of a denied witness request.
f. 8 12 September 2008 (Date to be Determined): Hearing at GTMO regarding any evidentiary motions. g. 12 September 2008: Submission of proposed members voir dire questions to the Military Judge. h. 24 September 2008: Assembly, voir dire or member and trial on the merits. 6. All motions, responses and replies shall abide by the terms of Military Commissions Rules of Court 3.6 in terms and timeliness. Any requests for extension must be submitted before the deadline for the reply or response. Requests for deviations or delays from the timelines for hearings or for submission of motions established by this order must be submitted not later than 20 days prior to the date established. 7. Pursuant to R.M.C. 707, the court finds that the interests of justice served by
NOTE: Motions will have as their underlying legal premise no more than one legal basis. Any motion, response, or reply which is ready for submissions prior to the due date, should be submitted when completed.
c. 28 July 1 August 2008 (Date to be Determined): Hearing at GTMO regarding law motions. d. 18 August 2008: Evidentiary motions due to Military Judge and opposing counsel; that is those which deal with the admission or exclusion of specific or general items or classes of evidence.
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granting the defense requests for extensions outweigh the best interests of both the public and the accused. The Defense is hereby held responsible for these delays.
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UNITED STATES OF AMERICA v. MOHAMMED KAMIN Military Commission July 21, 2008 ORDER W. Thomas Cumbie Colonel, U.S. Air Force Military Judge
1. This order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC). 2. Accordingly, IT IS HEREBY ORDERED that the Commander, Joint Task Forge-Guantanamo Bay, Cuba (JFTGTMO) shall provide to the Prosecution, within three days of the issuance of this order, for release to the detailed defense Counsel for Mohammed Kamin, any and all medical records in the possession of JTF-GTMO related to Mohammed Kamin, including any mental health records.
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UNITED STATES OF AMERICA v. MOHAMMED KAMIN Military Commission February 9, 2009 COMMISSION RULING ON GOVERNMENT MOTION FOR 120DAY CONTINUANCE W. Thomas Cumbie Colonel, U.S. Air Force Military Judge
Chief Prosecutor of the Office of Military Commissions to seek a 120-day continuance in all cases, including United States v. Kamin, that had been referred to military commissions, in order to provide the administration sufficient time to conduct a review of all detainees currently held at Guantanamo Bay, and to determine the proper forum for future prosecution of any detainees. c. For good cause shown, the Commission finds that the interests of justice are served by continuing the proceedings until 20 May 2009, and that the interests of justice outweigh the interests of the public and the accused in a prompt trial. 4. The Governments motion to continue the military commission sessions to 20 May 2009 is therefore GRANTED. During the pendency of this continuance, discovery may continue. So ordered on this 9th day of February 2009.
1. On 23 January 2009, the Government moved for a continuance until 20 May 2009 of further proceedings in this military commission. 2. On 30 January 2009, the Defense responded to the Governments motion, opposing the request for continuance and requesting dismissal of the charges. 3. After reviewing the briefs of the parties, the Commission finds: a. Following his inauguration, President Obama immediately ordered a comprehensive interagency review of all individuals detained at Guantanamo Bay to determine whether any will be held for trial by military commission or process, and whether there should be changes to the military commission process. b. Upon the Presidents order, the Secretary of Defense directed the
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UNITED STATES v. MOHAMMED JAWAD
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Background Mohammed Jawad lived in an Afghan refugee camp in Miran Shah, Pakistan. He was captured in Afghanistan after allegedly throwing a grenade at a passing American convoy. Jawad insists that he had been hired to help remove landmines from the region, and that someone else threw the grenade. Military Commissions Charges were sworn against Jawad on October 11, 2007. The Convening Authority referred charges on January 30, 2008. Charges
Attempted Murder in Violation of Law of War (Violation of 10 U.S.C. 50v[b][15]): Threw a hand grenade in the passenger compartment of a
vehicle transporting U.S. and coalition forces with intent to kill Sergeants First Class Michael Lyons, Christopher Martin, and their interpreter.
Intentionally Causing Serious Bodily Injury (Violation of 10 U.S.C. 950v[b][13]): Intentionally caused serious bodily injury by throwing a
hand grenade into the passenger compartment of a vehicle transporting U.S. forces including Sergeants First Class Michael Lyons, Christopher Martin, and their interpreter.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission June 20, 2008 ORDER Stephen R. Henley Colonel, U.S. Army Military Judge
3. The Board in its evaluation shall make separate and distinct findings as to each of the following questions: (A) Is the accused presently suffering from a mental disease or defect? If so, what is the clinical psychiatric diagnosis? (B) Does the accused have sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding and does he have a rational as well as a factual understanding of the proceedings against him. If so, does the accused have sufficient mental capacity to understand the nature of the proceedings against him (trial by commission) and to conduct or cooperate intelligently in the defense? (C) If the answer to 3(A) is yes and 3(B) is no, what, if any, changes to the conditions of the accuseds detention does the board recommend in order to improve his condition such that the answer to 3(B) would be yes. (D) Does the accused require immediate psychological or medical treatment? 4. The basis for ordering this inquiry is as indicated in the attached Defense request, and other allied documents as may be provided by trial and defense counsel. Examinations and tests may be conducted, if appropriate, to answer the questions set forth in paragraph 3 above. 5. Compliance with this order shall be as expeditiously as possible consistent
1. The Defense has requested, the Government does not oppose, and the Military Judge orders, that an inquiry into the mental capacity of the accused be conducted in accordance with Rules for Military Commission 706 and 909. 2. The Board shall consist of two or more persons who are physicians or clinical psychologists. At least one member of the Board shall be either a psychiatrist or a clinical psychologist. If a Pashto speaking physician or clinical psychologist is reasonably available so that the schedule set forth in paragraph 5 below may be met, he or she will be appointed to the Board. Unless a Pashto-speaking physician or clinical psychologist is appointed, a Pashtospeaking interpreter will be designated by the Government to assist the Board in its inquiry. Unless ordered by this Commission, this interpreter may not disclose anything learned during the inquiry, except to defense counsel. The Defense may choose to have its assigned interpreter present when the accused is examined.
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with a medically competent and thorough examination to answer the specified questions. a. Not later than 1 August 2008, the Board shall prepare a summarized report consisting of only the Boards ultimate conclusions as to all questions specified in paragraph 3. This report will be prepared in two copies. The trial counsel and the defense counsel will be telephonically notified when this report is ready for pick-up. At the option of the officer responsible for the summarized report, it may be faxed or e-mailed to the trial counsel and the defense counsel. b. Not later than 8 August 2008, the Board shall prepare its full report. This report shall be placed into a sealed envelope and provided to MAJ David Frakt, Office of Chief Defense Counsel, Office of Military Commissions, [REDACTED]. The full report will NOT be faxed or emailed unless specifically requested by MAJ Frakt. 6. Under no circumstances will the full report, matters considered by the Board during its inquiry, or any statements made by the accused to the Board (or evidence derived there from) be disclosed to anyone other than MAJ Frakt, without express, written authorization from the Military Judge or the defense counsel. 7. Telephone numbers: [REDACTED]. Ordered this 20th day of June 2008.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission August 14, 2008 RULING ON MOTION TO DISMISS UNLAWFUL INFLUENCE (D-004) Stephen R. Henley Colonel, U.S. Army Military Judge
1. The accused moves this Commission to dismiss the remaining Charge and Specifications alleging the Legal Advisor to the Convening Authority unlawfully influenced the prosecutors exercise of professional judgment in the execution of his duties in this case. The Government opposes the motion arguing, in part, that the Legal Advisors conduct in relation to the Chief Prosecutor and his staff did not amount to unlawful influence but was instead consistent with his dual, and complimentary, roles as supervisor of the Office of Military CommissionsProsecution and Legal Advisor to the Convening Authority, Department of Defense, Office of Military Commissions. While the Commission ultimately concludes the accused is entitled to relief, dismissal of the charges is not the appropriate remedy. ESSENTIAL FACTS 2. COL Morris Davis assumed duties as Chief Prosecutor for the Office of
Military Commissions around September 2005. BG Thomas Hartmann was assigned as Legal Advisor to the Convening Authority on or about 2 July 2007. At the time of BG Hartmanns assignment, there was no written job description detailing the relationship between the Legal Advisor to the Convening Authority and the Chief Prosecutor, Office of Military Commissions (OMC-P). BG Hartmann viewed the Legal Advisor as serving two separate and distinct functions: (1) supervising the Chief Prosecutor and prosecution staff, to include setting goals and milestones and developing an advocacy training program for the prosecution office; and (2) providing counsel to the Convening Authority, including informed advice on referral decisions and post trial recommenddations regarding action on completed cases. BG Hartmann understood case selection and whether and when to swear charges in given cases was within the Chief Prosecutors discretion. 3. Soon after assuming his duties as Legal Advisor, BG Hartmann became frustrated with what he perceived was a lack of urgency exhibited by the Chief Prosecutor and his staff and disappointed with the pace at which cases were being processed. BG Hartmann let the Chief Prosecutor and members of the prosecution staff know about his dissatisfaction and personally tried to light a fire under what he perceived was a moribund, stagnant, and ineffective prosecution office that has not tried a contested case since its inception. His efforts in doing so have been characterized by some in the prosecution office and the Commissions Support Group as nano-managment and cruel and unusual punishment.
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4. On at least one occasion, BG Hartmann suggested to OMC-P that they should have three cases ready to go and recommended they select cases that would capture the imagination of the American people. To BG Hartmann, this meant case materiality. The Chief Prosecutor understood this direction to refer to cases where the accused had blood on his hands. BG Hartmann did not mention specific cases or the name of a particular accused. 5. During a prosecution office vetting session for this case on 2 October 2007, all attendees, to include COL Davis and LTC William Britt, agreed that charges in United States v. Mohammed Jawad were ready to be sworn. BG Hartmann was not present and unaware of this decision. On 3 October 2007, the Deputy Secretary of Defense issued an appointing letter establishing a chain of command for the Office of Military Commissions-Prosecution. The Chief Prosecutor would now work for the Legal Advisor to the Convening Authority and the Legal Advisor would now report to the DoD General Counsel. COL Davis learned of this rating scheme on 4 October 2007 and immediately offered his resignation, which was accepted on Friday 5 October 2007. LTC Britt assumed duties as acting Chief Prosecutor. Monday 8 October 2007 was a federal holiday. On Tuesday 9 October 2007, LTC Britt approved the swearing and transmittal of charges against the accused. LTC Britt was not rushed; in fact he thought charges were long overdue. While United States v. Mohammed Jawad was not the highest priority for OMC-P, LTC Britt thought the case was ready to
go to trial and, unlike others, had been cleared by the Office of Director of National Intelligence. 6. While BG Hartmann created and updated a timeline on the processing of various commission cases and required briefings by the prosecutors on their status, to include United States v. Jawad, he did not order the swearing of charges in this case. The decision to approve the swearing of charges was an independent decision by LTC Britt as acting Chief Prosecutor and he was not coerced or influenced by BG Hartmann to do so. LTC Britt continued serving as acting chief until on or about 7 November 2007 when COL Lawrence Morris arrived in the office. 7. No political appointee of the U.S. Government discussed this case with BG Hartmann prior to 9 October 2007. 8. On or about 21 January 2008, the accuseds original defense counsel submitted a memorandum to the Legal Advisor detailing various extenuation and mitigation matters and requested it be provided to the Convening Authority contemporaneous with her referral decision. The Legal Advisor declined to append the memo to his 28 January 2008 pretrial advice and did not summarize the points requested. The pretrial advice ultimately recommended a noncapital referral, though a capital sentence is not authorized for the offenses charged in this case. The Convening Authority approved the Legal Advisors recommendations on 30 January 2008 and referred the charges to trial before a military commission. 9. From at least February 2008 through early April 2008, BG Hartmann
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scheduled and moderated several secure video teleconferences (SVTC) for senior Joint Task Force-Guantanamo Bay personnel and himself regarding the status of and support to commission cases. To at least one attendee, BG Hartmann appeared to be running the prosecution and ordered all ICRC, medical and intelligence records be sent to him. While BG Hartmann discussed the prosecution plan for particular cases, to include United States v. Jawad, he did not tell the other SVTC attendees that he had ordered charges be sworn against this accused. CONCLUSIONS OF LAW Pretrial Influence 10. The accused asserts that BG Hartmann violated 10 U.S.C. 949b(a)(2)(C) and R.M.C. 104(A)(2) by attempting to coerce or, by unauthorized means, influence the prosecutors exercise of professional judgment and submits the appropriate remedy is dismissal of the charges. The Commission disagrees. 11. Similar in nature to that given by a Staff Judge Advocate, the Legal Advisor to the Convening Authority provides legal advice and recommendations at two distinct stages, pretrial and post trial. See R.M.C. 103(a)(15). The responsibility of a Legal Advisor at the pretrial stage is clearly distinct from his post trial review functions. This Commission is under no illusion that BG Hartmann in preparing the R.M.C. 406 pretrial advice as Legal Advisor to the Convening Authority was completely disinterested in the successful prosecution of United States v.
Mohammed Jawad. See United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993).
In fact, strict impartiality of a judicial nature at this stage would be entirely inconsistent with the regulatory requirement that the Legal Advisor provide a personal and independent recommendation to the Convening Authority on the disposition of the case. See generally R.M.C. 406. In order to make an informed appraisal of the charges, there is nothing inherently wrong about a Legal Advisor asking questions about a case to determine its relative strengths and weaknesses, especially in complex, high profile trials. United States v. Hardin, 7 M.J. 399 (C.M.A. 1979). Further, it is not unreasonable for the Legal Advisor to want to increase the chances of a successful prosecution by establishing an advocacy training program for the prosecutors. In other words, a superior can demonstrate an interest in the successful prosecution of a case without exerting improper influence over it. 12. The evidence establishes that BG Hartmanns pretrial conduct in this case does not constitute unlawful influence over the exercise of the trial counsels professional judgment. Rather, the Commission finds it is consistent with his supervisory responsibilities as the Legal Advisor to the Convening Authority and the Chief Prosecutors direct supervisor. While the evidence unequivocally demonstrates BG Hartmanns desire to control the entire military commissions operation, and some have questioned the methods and leadership style used to do so, there is no evidence that BG Hartmann induced or swayed the otherwise independent and uncoerced decisions of LTC Britt to
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approve the swearing of charges against the accused or Judge Crawford to refer them to trial before a military commission. The evidence establishes, and the Commission finds, nothing BG Hartmann has done can reasonably be construed as improper influence of the trial counsels professional judgment in swearing charges against this accused. The requested remedy of dismissal of charges is DENIED. Post Trial Responsibilities 13. While that part of the accuseds motion to dismiss the charges is denied, the Commissions analysis does not end. The Commission acknowledges that, as in the case here, a Legal Advisors pretrial duties may on occasion necessitate close association with the prosecution team. This affiliation does not necessarily mean the Legal Advisor is disqualified from fulfilling his pretrial duties. However, a Legal Advisors post trial responsibilities necessitate he act in a quasi-judicial role; one where he must remain neutral and unbiased. The Commission finds the current Legal Advisors editorial writings and interviews defending the military commissions system combined with his active and vocal support of and desire to manage the military commissions process and public statements appearing to directly align himself with the prosecution team have compromised the objectivity necessary to dispassionately and fairly evaluate the evidence and prepare the post trial recommendation 1. While the Commission finds the
Legal Advisors pretrial conduct does not merit dismissal of the charges, it has impacted his ability to impartially execute his post trial responsibilities and warrants disqualification from preparing any post trial review of the case. See Discussion to R.M.C. 1106. Therefore, the interests of justice suggest, and the Commission orders, that the Convening Authority seek a post trial recommendation from a different Legal Advisor, should one be necessary in this case. See United States v. Lynch, 39 M.L. 223 (C.M.A. 1994). Pretrial Advice 14. As to the pretrial advice, it should generally include a brief summary of the evidence and discussion of significant aggravating, extenuating and mitigating circumstances. See Discussion to R.M.C. 406. The original defense counsel in this case submitted a memorandum to the Legal Advisor detailing a number of extenuating and mitigating circumstances and requested it be forwarded to the Convening Authority. It was not provided. No explanation was given and the Legal Advisor did not summarize the information. While failure to include such discretionary matters in a pretrial advice is not jurisdictional error and does not invalidate the Convening Authoritys original referral decision, 2

contested matter and there exists a material factual dispute regarding his actions relating to the referral of charges in this case, which will likely be one of many errors alleged by the Defense and addressed in a post trial recommendation. See R.M.C. 1106 (Discussion). 2 United States v. Concoran, 40 M.J. 478 (C.M.A. 1994)
1 In this regard, the Commission notes that the Legal Advisor testified in a previous session as to a
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the issues raised by the original defense counsel warranted consideration. In addition, the Commission notes the Legal Advisor recommended the charges be referred noncapital although death is not an authorized punishment for attempted murder. 15. To correct this error and afford the accused full opportunity to present relevant extenuating and mitigating factors, the Commission orders that any defense matters will be forwarded to the Convening Authority for consideration not later than 15 September 2008. The Legal Advisor will not supplement his original pretrial advice. The Convening Authority should ratify her original decision as to disposition of the charges or take other action as deemed appropriate not later than 26 September 2008. So ordered this 14th day of August 2008.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission September 9, 2008 RULING ON DEFENSE MOTION TO DISMISS LACK OF PERSONAL JURISDICTION (D-002) Stephen R. Henley Colonel, U.S. Army Military Judge
against the accused. 2 The Convening Authority referred the Charge and Specifications to trial by military commission on January 30, 2008. To date, no CSRT or other tribunal has found the accused to be an alien unlawful enemy combatant (AUEC). 3. Rule 202 of the Manual for Military Commissions provides that military commissions only have personal jurisdiction over alien unlawful enemy combatants. See also 10 U.S.C. 948c. An individual is deemed an unlawful enemy combatant for purposes of personal jurisdiction of a military commission if the individual has been determined to be an AUEC by a CSRT 3 or other competent tribunal before trial for the offense. See Discussion to R.M.C. 202. In other words, the MCA does not require that an individual receive an AUEC status determination prior to the swearing of the charges. 4 If, however, the accused has not received such a determination, he may challenge the personal jurisdiction of the Military Commission through a motion to
1. The Defense asserts the Commission lacks in personam jurisdiction over the accused as the Government failed to obtain a determination of unlawful enemy combatancy status prior to swearing of the Charge and moves for dismissal of the Charge and Specifications. R.M.C. 907(b)(1). The Government opposes the motion arguing, in part, the military judge may determine the accuseds status prior to trial. 2. On October 14, 2004, a Combatant Status Review Tribunal (CSRT) determined the accused to be an unlawful combatant. On October 9, 2007, three specifications of attempted murder in violation of 10 U.S.C. 950t and 950v(b)(15) of the Military Commissions Act (MCA) 1 were sworn
2 Each specification alleges, in pertinent part, in that, Mohammed Jawad, a person subject to trial by military commission as an alien unlawful enemy combatant, didwhile in the context of, and associated with an armed conflict, attempt to commit murder in violation of the law of war 3 At the time of the enactment of the MCA, CSRT regulations provided that an individual should be deemed to be an enemy combatant if he was part or supporting al-Qaeda or the Taliban, or associated forces engaged in armed conflict against the United States or its coalition partners. 4 This procedure is consistent with courts-martial practice which does not require a specific finding that the service member fits one of several Article 2, UCMJ, categories of persons with military status before charges can be preferred.
Military Commissions Act of 2006, 120 Stat. 2600-2637 (Oct. 17, 2006), codified at 10 U.S.C. 948a et seq.
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dismiss 5 and the Military Judge has the power and authority under subsection (i) of 948a(1)(A) of the MCA to hear evidence concerning, and to ultimately decide, [the accuseds] unlawful enemy combatant status. See United States v. Khadr, C.M.C.R. 07-001 at 25 (Sept. 24, 2007 appeal dismissed, Khadr v. United States, 529, F.3d 1112 (D.C. Cir. 2008). 6 4. Prima facie jurisdiction exists where the charge sheet exhibits facial compliance with all pre-referral criteria contained in the Rules for Military Commissions. Khadr, supra, at 21. Such is the case here where each specification alleges the accused is subject to trial by military commission as an AUEC and an individual subject to the Uniform Code of Military Justice avers under oath the charges are true in fact. R.M.C. 202(c) and 307(b). 7
5. The Defense motion to dismiss for lack of personal jurisdiction because the Government did not obtain a status determination prior to swearing of the charges is DENIED. This Military Commission may properly continue to exercise prima facie jurisdiction over the accused until assembly at which point, unless the Military Judge has determined by a preponderance of the evidence the accused is an alien unlawful combatant, the Charge will be dismissed. 8 So ordered this 9th day of September 2008.
5 The determination of an individuals combatant status for purposes of establishing a commissions jurisdiction does not preclude him from raising any affirmative defenses, nor does it obviate the governments obligation to prove beyond a reasonable doubt the elements of each substantive offense. In other words, a pretrial finding by the military judge by a preponderance of the evidence that the accused is an AUEC does not eliminate the requirement for the court members to find beyond reasonable doubt the accuseds status as an element of the offense. 6 A trial court is bound to follow decisions on the law articulated by superior court precedent. El-
Shifa Pharmaceutical Industries Company v. United States, 55 Fed Cl. 751 (2003). The Court of
Military Commission Review is the initial review authority for military commission cases and is empowered to provide relief, as appropriate, when an error of law prejudices a substantial right of the accused. See R.M.C. 1201 (c); 10 U.S.C. 950c-950d. 7 While acknowledging that distinguished legal scholars disagree with the Court of Military Commission Reviews analysis, the Military Judge is nonetheless compelled to follow its precedent. It is not the right of a trial court to overcome

precedent established by superior courts. United Building & Loan Association v. Garrett, 64 F. Supp 460 (D.C.Ark. 1946). 8 The Military Commission ordered a pretrial evidentiary hearing for December 8-19, 2008, when the government is expected to present evidence establishing the accuseds status as an AUEC.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission September 2008 RULING ON DEFENSE MOTION TO DISMISS-VIOLATION OF R.M.C. 703 AND 707 (D-017) Stephen R. Henley Colonel, U.S. Army Military Judge
objection, the Commission scheduled the next pretrial session for 24-27 September 2008. 3. While assembly of the Commission has not occurred within 120 days of service of the Charges, the continuances granted by the Commission have allowed both parties time to research and brief complex motions regarding allegations of torture, lack of subject matter and personal jurisdiction and the impact of unlawful influence on the proceedings. The Commission finds these reasonable delays outweigh the best interests of both the public and the accused in a prompt trial. The Defense motion to dismiss for a lack of a speedy trial is DENIED, without prejudice. However, the Government delay in responding to the Defense discovery requests does warrant relief. 4. Not later than 15 September 2008, the trial counsel will provide the Defense with copies of all statements, in any form, from any persons who interrogated, questioned or interviewed the accused while in U.S. or Afghan custody, and copies of all statements, photographs, medical records, reports of investigation, and records pertaining to all other persons suspected in relation to, or witnessed, the grenade attack on SFC Michael Lyons, SFC Christopher Martin and Assadullah Khan Omerk on or about 17 December 2002 in and around Kabul, Afghanistan in the possession or control of any government agency. 5. Absent extraordinary circumstances, or as otherwise prescribed herein, any evidence or witnesses that have not been provided by the trial counsel to defense counsel by 1200 hours EDT 2
1. The Defense asserts the Governments failure to comply with their R.M.C. 703 and M.C.R.E. 304(d) discovery obligations has deprived the accused of his right to a speedy trial and requests the Commission dismiss the Charges. In the alternative, the Defense requests a continuance and a Commission Order limiting the Governments use at all subsequent Commission proceedings to evidence and witnesses provided to the Defense as of 27 August 2008 and an extension of the filing deadline for motions to suppress statements of the accused. 2. The accused was served a copy of the referred charges on 31 January 2008 and arraigned on 15 March 2008. The current lead defense counsel was detailed on 29 April 2008. At an R.M.C. 802 conference on or about 8 May 2008, the Defense proposed a 10 September 2008 trial date. The Commission held additional pretrial sessions on 19 June 2008 and 13-14 August 2008. Without
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September 2008 cannot be used or called by the Government in any Commission session, to include any pretrial session to litigate the issue of whether the accused is an alien unlawful enemy combatant. 6. Notice of intent to introduce evidence does not satisfy the Governments discovery obligations. The Government must provide a copy of any original document or an accurate description of any physical evidence. Any witness list must include accurate contact information and a synopsis of expected testimony. 7. Any Defense motion to suppress statements of the accused is due by 1200 hours EDT 18 September 2008. Government responses are due by 1200 hours EDT 22 September. 8. The Defense motion for a continuance is DENIED. The 25-27 September 2008 pretrial sessions remain scheduled at which time the Commission will receive evidence regarding the accuseds status as an alien unlawful enemy combatant and testimony relevant to any motion to exclude statements of the accused. A tentative trial date is scheduled for 8-19 December 2008, which, depending on the outcome of the 25-27 September 2008 sessions, may be converted to a pretrial hearing.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission September 24, 2008 RULING ON DEFENSE MOTION TO DISMISS LACK OF SUBJECT MATTER JURISDICTION (D-007) Stephen R. Henley Colonel, U.S. Army Military Judge
of attempted murder 2 and a Charge and three Specifications of intentional infliction of serious bodily injury in violation of 10 U.S.C. 950t and 950v(b)(15) and (b)(13) of the Military Commissions Act (MCA) 3 were sworn against the accused. The Convening Authority referred the Charges and Specifications to trial by military commission on January 30, 2008. 4 2. The Defense asserts the Military Commission lacks subject matter jurisdiction over the offenses as the conduct allegedly committed by the accused does not violate the law of war and moves to dismiss the Charge. The Government opposes the motion. 3. 10 U.S.C. 950v(b)(15) states that: Any person subject to this chapter who
1. On or about December 17, 2002, in Kabul, Afghanistan, the accused allegedly threw a hand grenade into a vehicle in which two American service members and their Afghan interpreter were riding. All suffered serious injuries. The accused was immediately apprehended, taken into U.S. custody, and subsequently transferred to Guantanamo Bay, Cuba on or about February 6, 2003. On October 14, 2004, a Combatant Status Review Tribunal (CSRT) determined the accused to be an unlawful combatant. 1 On October 9, 2007, a Charge and three Specifications
2 Each specification alleges, in pertinent part, in that, Mohammed Jawad, a person subject to trial
by military commission as an alien unlawful enemy combatant, didwhile in the context of,
and associated with an armed conflict, attempt to commit murder in violation of the law of war, by throwing a hand grenade into the passenger compartment of a vehicle transporting U.S. or Coalition Forces [Emphasis added]. 3 Military Commissions Act of 2006, 120 Stat. 2600-2637 (Oct. 17, 2006), codified at 10 U.S.C. 948a et seq. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the MCA. See U.S. Const. art. 1, 8, Cl. 10. 4 On June 24, 2008, the Military Commission dismissed the Charge and three Specifications alleging the intentional infliction of serious bodily injury in violation of the law of war as lesser included offenses of the three Specifications alleging attempted murder in violation of the law of war. On September 23, 2008, the Convening Authority ratified her decision to refer the Charge and specifications to trial by military commission. See D-004 Ruling on Defense Motion to Dismiss for Unlawful Influence.
1 Rule 202 of the Manual for Military Commissions provides that military commissions have personal jurisdiction over alien unlawful enemy combatants (AUEC). See also 10 U.S.C. 948c. To date, no CSRT or other competent tribunal has found the Accused to be an AUEC. This lack of status determination is the subject of a separate defense motion. See D-002 Ruling on Defense Motion to Dismiss for Lack of Personal Jurisdiction.
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intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct (emphasis added). Thus, there is a dual requirement for the Government to prove beyond reasonable doubt (1) that the [attempted] killings in this case were committed by an unlawful enemy combatant AND (2) that the method, manner or circumstances used violated the law of war. Regarding the former, not only must the government prove by a preponderance of the evidence the accuseds unlawful enemy combatant status to establish personal jurisdiction, 5 unlawful enemy combatant status is also a substantive component of the offenses and must be proven to the higher standard of beyond reasonable doubt. 6 As to the latter, the statute also requires proof as a separate element of the offense that the murder was committed in violation of the law of war. Congress must have intended each provision to have independent meaning. To accept otherwise would render that part of the statute requiring the murder be in violation of the law of war meaningless. If Congress intended to make any murder committed by an unlawful enemy combatant a law of war violation, they could have said so. They did not and for this Military Commission to do so now would
contradict the canons of statutory construction which dictate that a court must construe the language of a statute so as to avoid rendering any words superfluous. 7 4. Proof the accused is an unlawful enemy combatant, by itself, is insufficient to establish that the attempted murders in this case were in violation of the law of war. 8 The government has not cited any persuasive authority for the proposition that acting as an unlawful enemy combatant, by itself, is a violation of the laws of war in the context of non-international armed conflict. In other words, that the accused might fail to qualify as a lawful combatant does not automatically lead to the conclusion that his conduct violated the law of war and the propriety of the charges in this case must be based on the nature of the act, not simply on the status of the accused. 9 At trial, the Government cannot rely solely on the accuseds status as an alien unlawful enemy combatant to establish beyond reasonable doubt that the attempted murders, under all the circumstances, violated the law of war. That said, whether there is sufficient
7 See, e.g., United States v. Gomez-Gomez, 493 F.3d 562, 570 (5th Cir. 2007). 8 The accused may be subject to prosecution in United States Federal District Court for violations of 18 U.S.C. 2332(b) (attempted homicide of a U.S. National outside the United States) or 18 U.S.C. 1114 (attempting to kill an officer or employee of the United States). See, e.g., United States v. Benitez, 741 F.2d 1312, 1316-7 (11th Cir. 1094); United States v. Bin Laden, 92 F. Supp. 2d 189, 202-03 (S.D.N.Y. 2000). Neither statute requires a showing the accused is an alien unlawful enemy combatant or that the conduct alleged was in violation of the law of war. 9 Ex Parte Quirin, 317 U.S. 1, 31 (1942).
5 6
See 10 U.S.C. 948c.
By including the language a person subject to trial by military commission as an alien unlawful enemy combatant in the charging instrument (supra note 2), the Government itself invokes the issue of subject matter jurisdiction and makes the accuseds status as an AUEC an element of the offense.
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evidence to support a finding at trial that the government has proven this element beyond reasonable doubt cannot be resolved in this case by a pretrial motion to dismiss but instead is a fact for the members to decide as part of general findings or the Military Judge in ruling on a R.M.C. 917 motion. 10 5. Accordingly, the Defense motion to dismiss for lack of subject matter jurisdiction is DENIED. So ordered this 24th day of September 2008.
R.M.C. 917 provides, in pertinent part, that the military judge, on motion by the Accused or sua sponte, shall enter a finding of not guilty on one or more offenses charged after the evidence on either side is closed and before findings on the general issue of guilt are announced if the evidence is insufficient to sustain a conviction of the offense affected.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission September 24, 2008 RULING ON DEFENSE MOTION TO DISMISS TORTURE OF THE DETAINEE (D-008) Stephen R. Henley Colonel, U.S. Army Military Judge
allegedly threw a hand grenade into a vehicle in which two American service members and their Afghan interpreter were riding. All suffered serious injuries. The accused was immediately apprehended by Afghan police and transferred to U.S. custody the next day. He remained in continuous U.S. custody until his transfer to Guantanamo Bay, Cuba on or about February 6, 2003. 3. On December 25, 2003, the accused attempted suicide. 4. As early as November 2003, Joint Task Force-Guantanamo Bay personnel (JTF-GTMO) used a sleep deprivation measure to disorient selected detainees thought to have important intelligence data, disrupt their sleep cycles and biorhythms, make them more compliant and break down their resistance to interrogation. Pursuant to this technique, euphemistically referred to as the frequent flyer program, a detainee would be repeatedly moved from one detention cell to another in quick intervals, usually at night. 5. Shortly after assuming command of JTF-GTMO in March 2004, Major General (MG) Jay Hood ordered the frequent flyer program discontinued. Apparently unknown to MG Hood, the accused was subjected to the frequent flyer program and moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours. The accused was shackled and unshackled as he was moved from cell to cell. The accused was not interrogated and the scheme was calculated to profoundly disrupt his mental senses.
1. The Defense asserts the accused was subjected to an intentional sleep deprivation program and other abusive treatment while detained in U.S. custody which constitutes torture in violation of the law of war, U.S. law and DoD regulations and policy 1 and moves to dismiss the Charge and Specifications with prejudice. The Government opposes the motion, submitting that, even if the allegations are true, dismissal of charges is not the appropriate remedy, if one exists at all. 2. On or about December 17, 2002, in Kabul, Afghanistan, the accused
1 The President directed in Military Order 1, dated November 13, 2001, that detainees would be treated humanely. A February 7, 2002 White House memo reaffirmed this order and stated further they would be treated, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
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6. While the frequent flyer program was intended to create a feeling of hopelessness and despair in the detainee and set the stage for successful interrogations, by March 2004 the accused was of no intelligence value to any government agency. The infliction of the frequent flyer technique upon the accused thus had no legitimate interrogation purpose. 7. On or about June 2, 2008, the accused was beaten, kicked, and pepper sprayed for not complying with a guards instructions. He suffered, among other injuries, a broken nose. 8. The conditions experienced by the accused while confined at Guantanamo Bay included excessive heat, constant lighting, loud noise, linguistic isolation (separating the accused from other Pashto 2 speakers), and, on at least two separate occasions, 30 days of physical isolation. 9. The accused has not apparently suffered any permanent physical injuries as a result of his detention in U.S. custody. While the long term psychological impact of the accuseds detention is unclear, the Rule for Military Commission (R.M.C.) 706 Board concluded the accused is not currently suffering from a mental disease or defect, does have sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding and does have sufficient mental capacity to understand the nature of the proceedings against him and cooperate intelligently in his
defense. 3 Additionally, the accused does not require immediate medical or psychological treatment. See Appellate Exhibit 72. 10. The Military Commissions Act prohibits both the torture 4 and cruel
3 After referral of charges, an inquiry into the mental capacity of the accused may be ordered by the military judge. When a mental examination is ordered, the matter shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist. See R.M.C. 706. 4 Torture under 18 U.S.C. 2441(d)(1)(A) means an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, or punishment, intimidation, coercion, or any reason based on discrimination of any kind. [S]evere mental pain or suffering means the prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality. See 18 U.S.C. 2340(2) (internal marks omitted).
Article I of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is
2 Pashto is one of two national languages of Afghanistan.
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and inhuman treatment 5 of detainees. Any degrading treatment carries a presumption it was imposed as a punitive not preventative measure. 11. The Defense asserts that the Governments conduct amounts to torture and violates the principles of due process of such a magnitude that dismissal of the charges is the only acceptable remedy. 6 12. This Commission finds that, under the circumstances, subjecting this accused to the frequent flyer program from May 7-20, 2004 constitutes abusive conduct and cruel and inhuman treatment. Further, it came at least two months after the JTF-GTMO commander had ordered the program stopped. Its continuation was not simple negligence but flagrant misbehavior. Those responsible should face
appropriate disciplinary action, warranted under the circumstances.
if
13. That being said, the narrow issue before this Military Commission is whether dismissal of the charges against this accused is appropriate for the conduct of an apparent few government agents. Answering this question does not require the Military Commission to decide as fact that this accused was tortured. Assuming, but not deciding, that the Governments actions against this accused produced the pain and suffering of the requisite physical and/or mental intensity and of such duration to rise to the level of torture, this Military Commission finds that the remedy sought by the Defense is not warranted under the circumstances. 14. It is beyond peradventure that a military commission may dismiss charges because of abusive treatment of the accused. 7 However, when other remedies are available to adequately address the wrong, dismissal should be the last of an escalating list of options. Here, the Commission finds other remedies are available to adequately address the wrong inflicted upon the accused, including, but not limited to,

suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
See United Nations General Assembly Resolution

39/46 of 10 December 1984. 5 Cruel or inhuman treatment under 18 U.S.C. 2441(d)(1)(B) means an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions), including serious physical abuse upon another within his custody or control. 6 United States v. Barrero-Moreno, 951 F2d 1089, 1092 (9th Cir. 1991) (dismissal appropriate when prosecutorial process violated a constitutional or statutory right and no lesser remedial action available).
See, e.g., United States v. Fulton, 55 M.J. 88 (2001) (analyzing Rule for Courts-Martial (R.C.M.) 907 and finding list of grounds for dismissal at R.C.M. 907(b) non-exclusive). As R.M.C. 103(26) states that the definitions in 10 U.S.C. 101 shall apply, and 10 U.S.C. 101(13) states that includes means includes but is not limited to, the Fulton courts analysis applies to R.M.C. 907(b) as well. While 10 U.S.C. 948(c) provides that case interpreting the UCMJ are not binding on military commissions, they can nevertheless be persuasive authority in appropriate circumstances.
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sentence credit towards any approved period of confinement, excluding statements and any evidence derived from the abusive treatment, and prohibiting persons who may have been involved in any improper actions against the accused from testifying at trial. The Military Commission will rule upon the appropriate application of these, and other proposed remedies, as dictated by developments in this case. 15. Accordingly, the Defense motion to dismiss based on torture of the accused is DENIED. So ordered this 24th day of September 2008.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission September 24, 2008 RULING ON DEFENSE MOTION TO DISMISS LACK OF PERSONAL JURISDICTION: CHILD SOLDIER (D-012) Stephen R. Henley Colonel, U.S. Army Military Judge
apprehended, taken into U.S. custody, and subsequently transferred to Guantanamo Bay, Cuba on or about February 6, 2003. On October 14, 2004, a Combatant Status Review Tribunal (CSRT) determined the accused to be an unlawful combatant. 2 On October 9, 2007, three specifications of attempted murder and three specifications of intentional infliction of serious bodily injury in violation of 10 U.S.C. 950t and 950v(b)(15) and (b)(13) of the Military Commissions Act (MCA) 3 were sworn against the accused. 4 The Convening Authority referred the

the accused was approximately 17 years old as of the date of the charged offense. See Attachment A to the Government response. The Defense has not rebutted or questioned the Governments statement that the accused claimed to be 19 years old before the bone scan was conducted. See Government response, at 3; Defense reply, at 1-2. If true, the accuseds claim would render this motion moot as the claim would indicate that the accused was over 18 on December 17, 2002. The accuseds claim is, however, controverted by the evidence summarized above. 2 To date, no CSRT or other competent tribunal has found the accused to be an alien unlawful enemy combatant (AUEC). This lack of status determination is the subject of a separate Defense motion. See D-002 - Motion to Dismiss for Lack of Personal Jurisdiction. 3 Military Commissions Act of 2006, 120 Stat. 2600-2637 (Oct. 17, 2006), codified at 10 U.S.C. 948a et seq. The plenary power given to Congress to define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations establishes the prima facie validity of the MCA. See U.S. Const. art. 1, 8, Cl. 10. 4 Each specification alleges, in pertinent part, in that, Mohammed Jawad, a person subject to trial by military commission as an alien unlawful enemy combatant, didwhile in the context of, and associated with an armed conflict, attempt to commit murder in violation of the law of war, by throwing a hand grenade into the passenger compartment of a vehicle transporting U.S. or Coalition Forces
1. On or about December 17, 2002, in Kabul, Afghanistan, the accused allegedly threw a hand grenade into a vehicle in which two American service members and their Afghan interpreter were riding. All suffered serious injuries. The accused, at the time under the age of 18 years, 1 was immediately
The government has implicitly conceded that, at the time of the charged offenses, the accused was less than 18 years old. Specifically, the United States has stated: At Guantanamo, the United States is detaining Omar Khadr and Mohammed Jawad, the only two individuals captured when they were under the age of 18, whom the United States Government has chosen to prosecute under the Military Commissions Act of 2006. See United States Written Response to Questions Asked by the Committee on the Rights of the Child, 13 May 2008, available at: http://www. state.gov/g/drl/rls/105437.htm (last visited 16 September 2008) (also submitted as Attachment 1 to the Defense motion). The results of a bone scan analysis submitted by the trial counsel are consistent with this statement, as the 85analysis indicated that the accused was approximately 18 years old as of October 26, 2003. This would mean
1
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Charges and Specifications to trial by Military Commission on January 30, 2008. 5 2. The Defense asserts that this Military Commission is prohibited from exercising personal jurisdiction over the accused as the MCA fails to explicitly recognize jurisdiction over crimes committed by juveniles and moves the Military Commission to dismiss the Charge and its specifications. The Government opposes the motion. 3. A Military Commission is not the proper forum to determine whether a person less than 18 years of age at the time of alleged violations of the law of war should be prosecuted. In this case, that question was resolved when the Convening Authority referred the Charges and Specifications to trial by Military Commission. 6 Rather, the judiciable question before the Military Commission is whether domestic or international law compels dismissal of the remaining Charge and Specifications. 4. The Defense has not cited, nor has the Military Commission found, any such legal authority. Specifically:
a. Domestic law does not require dismissal of the Charge and Specifications. The MCA establishes jurisdiction over persons less than 18 years of age at the time of the offenses, and the Federal Juvenile Delinquency Act (JDA) 7 has no bearing on this matter. The MCA does not contain any age limitation, even though Congress was aware of how to state exceptions to application of the MCA. See 10 U.S.C. 948a(2)(A), 948b(d), and 948d(b). Nor is there any evidence that Congress intended an age limitation. 8 Where Congress expli-
7 18 U.S.C. 5031-5042 (1974). In the United States, juvenile matters are handled by state authorities whenever possible. In limited circumstances, and generally as a matter of last resort, federal law permits prosecution of juveniles as adults in United States Federal District Court. For example, the accused may be subject to prosecution in federal court for violations of 18 U.S.C. 2332(b) (attempted homicide of a U.S. National outside the United States) or 18 U.S.C. 1114 (attempting to kill an officer or employee of the United States). See, e.g., United States v. Benitez, 741 F.2d 1312, 1316-7 (11th Cir. 1094); United States v. Bin Laden, 92 F.Supp. 2d 189, 202-03 (S.D.N.Y. 2000). Neither statute requires a showing the accused is an alien unlawful enemy combatant nor that the conduct alleged was in violation of the law of war. 8 In fact, the evidence appears to prove otherwise. Mohammed Jawad is one of two detainees at Guantanamo Bay charged with acts allegedly committed as a juvenile. The other, Omar Khadr, is accused of killing a U.S. soldier with a hand grenade during combat with U.S. forces in July 2002, planting mines to target U.S. convoys, and gathering surveillance at an airport in Afghanistan. He was 15 years old at the time of the offenses. As both Mohammed Jawad and Omar Khadr have been in U.S. custody at Guantanamo Bay since 2002, a fact Congress is aware of, Congress could have provided for an age requirement when enacting the Military Commission Act in 2006; it chose not to.
On June 24, 2008, the Military Commission dismissed the three specifications alleging the intentional infliction of serious bodily injury in violation of the law of war as lesser included offenses of the three specifications alleging attempted murder in violation of the law of war. If convicted of all remaining offenses, the maximum punishment the Military Commission may adjudge is confinement for life. 6 On September 23, 2008, the Convening Authority ratified her decision to refer the Charge and specifications to trial by Military Commission. See D-004 Ruling on Defense Motion to Dismiss for Unlawful Influence.
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citly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent. Andrus v. Glover Const. Co., 446 U.S. 608, 616-17 (1980) (citation omitted). The MCA thus cannot be read to include an additional exception as to age. Moreover, 10 U.S.C. 948b(c) states that [t]he procedures for military commissions are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice) [UCMJ]. It is undisputed that the JDA does not apply to proceedings under the UCMJ. See United States v. Baker, 34 C.M.R. 91, 93 (C.M.A. 1963) (accused 17 at time of offenses). Similarly, the JDA does not apply to proceedings under the MCA. 9 b. International law does not require dismissal of the Charge and
its Specifications. 10 Indeed, the United States has recently stated that, under international law, persons under 18 years of age can be prosecuted for law of war violations. 11 Whether they should be is beyond the scope of the Military Commissions proper consideration of this issue. 12
10 Provided the procedures are fair and take into account the particular needs of child defendants, Article 40 of the Convention on the Rights of the Child does contemplate the prosecution of children less than 18 years of age. See United Nations General Assembly Resolution 44/25 of 20 November 1989. 11 See United States Written Response to Questions Asked by the Committee on the Rights of the Child, 13 May 2008, available at: http://www.state.gov/g/drl/rls/105437.htm (last visited 16 September 2008) (also attached as Attachment 1 to the defense motion): It is not unprecedented for juveniles to face the possibility of a war crimes trial. In fact, the Geneva Conventions and their Protocols contemplate the prosecution of those under the age of 18 for violations of the laws of armed conflict. Article 6(4) of Additional Protocol II prohibits the application of the death penalty to those under 18 at the time the offense was committed, thereby suggesting that prosecutions not resulting in the imposition of death are not prohibited. This is also true of the International Tribunals from Rwanda, the Former Yugoslavia and Sierra Leone. A juveniles age and upbringing may be considered by a Military Commission, the Convening Authority, and the Court of Military Commission Review the latter two of which will review the findings and the sentence. 12 Though the Military Commission notes that, provided it takes place with appropriate fair trial standards and without the possibility of the death penalty or life in prison without the possibility of release, even Amnesty International has supported the prosecution of children between ages 15 and 18 responsible for war crimes when those persons have acted voluntarily and in control of their actions. While Amnesty International believes a trial should be a last resort, it reasonably observes that immunity from prosecution might actually encourage rather than deter children to commit atrocities. See Child Soldiers
While 10 U.S.C. 948b(c) provides that cases interpreting the UCMJ are not binding on military commissions, they can nevertheless be persuasive authority in appropriate circumstances. Such is the case here. In addition to Baker, several reported cases have affirmed UCMJ convictions where the Accused was less than 18 years of age at the time of the charged offenses. See, e.g., United States v. Girardin, 43 C.M.R. 895 (C.G.C.M.R. 1971) (under age 18); United States v. Fant, 25 C.M.R. 643 (A.B.R. 1958) (17 and 4 months); United States v. Harrison, 5 M.J. 476 (C.M.A. 1978) (17 and 7 months); United States v. Bean, 32 C.M.R. 203 (C.M.A. 1962) (17 and 9 months); United States v. Scott, 29 C.M.R. 471 (C.M.A. 1960) (17 and 6 months); United States v. Alston, 48 C.M.R. 733 (A.F.C.M.R. 1974) (17 and 3 months); and United States v. Wood, 24 C.M.R. 611 (A.F.B.R. 1957) (17).
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5. Accordingly, the Defense motion to dismiss for lack of personal jurisdiction based on the age of the accused is DENIED. 13 So ordered this 24th day of September 2008.

Criminal or Victims, December 2000, available at
http://www.amnesty.org/en/library/ asset/IOR50/002/2000/en/dom-OR500022000en .html 13 Nothing precludes the Defense from requesting relief from the Military Commission for housing the accused while a juvenile with adult detainees, providing inadequate physical and psychological resources to a confined juvenile and any other actions that may constitute unlawful pretrial punishment of the accused. Such relief may include, but is not limited to, specific sentence credit towards any approved period of confinement.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission September 30, 2008 RULING ON DEFENSE REQUEST FOR EMPLOYMENT OF DEFENSE EXPERT AT GOVERNMENT EXPENSE (D-020) Stephen R. Henley Colonel, U.S. Army Military Judge
Convening Authority pay expert witness fees to Professor Morris. The Military Commission denied the motion, directing the Defense to resubmit the request to the Convening Authority. On September 3, 2008, the Defense submitted a second request for reconsideration to the Convening Authority. The Convening Authority denied the request on September 11, 2008, relying in part on the fact that the Military Commission had not ruled that Professor Morris should receive expert compensation. On September 15, 2008, the Defense filed a motion seeking an order from the Military Commission compelling the Convening Authority to pay Professor Morris for services rendered as an expert witness. The Government opposes the motion. 2. R.M.C. 703(d) states that, in the absence of advance authorization, an expert witness may not be paid fees other than those to which entitled to as an ordinary witness. R.M.C. 703(d) also provides that a request denied by the Convening Authority may be renewed before the military judge who shall determine whether expert testimony is relevant and necessary. In this case, while the Military Commission had not determined Professor Morris to be relevant and necessary prior to her travel to Guantanamo Bay, Cuba, the Commission subsequently did so when it allowed her to testify as an expert witness regarding the law of armed conflict relating to child soldiers and the jurisdiction of war crimes tribunals. While the Military Commission ultimately did not adopt Professor Morriss positions, it did find her testimony relevant and helpful in trying to resolve complex matters of subject matter and personal jurisdiction over
1. On July 29, 2008, the Convening Authority denied a Defense request to authorize the employment of Professor Madeline Morris as an expert witness in United States v. Mohammed Jawad. On August 6, 2008, the Convening Authority denied a Defense request for reconsideration. On or about August 13, 2008, Professor Morris traveled to Guantanamo Bay, Cuba on valid Invitational Travel Orders issued by the Office of Military Commissions. She was not subpoenaed and the Military Commission had not ordered her production. On August 13, 2008, over Government objection, the Military Commission recognized Professor Morris as an expert in the law of war 1 and permitted her to testify at a pretrial session in the above captioned case. The Defense then renewed its request that the Military Commission order the
See M.C.R.E. 702.
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unlawful combatants and questions surrounding the prosecution of child soldiers at military tribunals. As such, while the decision may have come after her travel to Cuba, the Military Commission did ultimately determine Professor Morriss testimony to be relevant and necessary. 3. The Military Commission is unaware of any specific authority authorizing it to order the payment of expert witness fees for testimony already provided. The decision to approve funding appears to remain within the discretion of the Convening Authority. In other words, while the Military Commission can abate the proceedings if a witness is not produced, it has no apparent authority to order the actual disbursement of expert witness fees after the witness has already testified. 4. While the Military Commission rules that Professor Morris should be paid reasonable expert witness fees for her August 13, 2008 testimony in this case, the Defense motion to compel payment is DENIED and the Military Commission orders this matter returned to the Convening Authority for her consideration and action as she deems appropriate. So ordered this 30th day of September 2008.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission September 30, 2008 RULING ON DEFENSE REQUEST FOR EXPERT CONSULTANTS (D-023) Stephen R. Henley Colonel, U.S. Army Military Judge
3. The Defense request for expert assistance in clinical psychology is GRANTED. If the Government does not intend to provide Dr. Porterfield, an adequate substitute must be identified not later than 1700 hours October 6, 2008. The scheduled December 8-19, 2008 pretrial session and trial dates of January 5-16, 2009 remain. 4. As the Defense has not shown the necessity for such assistance, the requests for Dr. Keller and Mr. Fechheimer are DENIED. So ordered this 30th day of September 2008.
1. On August 5, 2008, the Defense requested the Convening Authority appoint Dr. Katherine Porterfield to the Defense team as an expert consultant in clinical psychology. On August 18, 2008, the Defense requested the Convening Authority appoint Dr. Alvin Keller to the Defense team as an expert consultant to conduct a forensic/ medical evaluation of the accused. The Convening Authority denied the request for Dr. Porterfield on August 20, 2008 and Dr. Keller on September 2, 2008. The Convening Authority denied requests for reconsideration for both Dr. Porterfield and Dr. Keller on September 3 and 9, 2008, respectively. 2. On August 27, 2008, the Defense requested the Convening Authority appoint Mr. David Fechheimer to the Defense team as an expert investigator. The Convening Authority denied the request on September 17, 2008.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission October 28, 2008 RULING ON DEFENSE MOTION TO SUPPRESS OUT-OF-COURT STATEMENTS OF THE ACCUSED TO AFGHAN AUTHORITIES (D-022) Stephen R. Henley Colonel, U.S. Army Military Judge
1. On or about December 17, 2002, in Kabul, Afghanistan, the accused allegedly threw a hand grenade into a vehicle in which two American service members and their Afghan interpreter were riding. All suffered serious injuries. The accused, at the time under the age of 18 years, 1 was subsequently
apprehended by Afghan police and transported to an Afghan police station for interrogation. The accused appeared to be under the influence of drugs. Present at the police station were several high-ranking Afghan government officials, including [REDACTED], [REDACTED], and the [REDACTED]. Most, if not all, present were carrying firearms, which were visible to the accused. During the interrogation, someone told the accused, You will be killed if you do not confess to the grenade attack, and, We will arrest your family and kill them if you do not confess, or words to that effect. 2 The speaker meant what he said; it was a credible threat. The accused subsequently admitted to throwing a grenade into the vehicle, he was happy if it caused the Americans to die and he would do it again. Several hours later, the accused was turned over to U.S. military custody 3 and eventually transferred to Guantanamo Bay, Cuba, on or about February 6, 2003. 2. The accused now moves this Military Commission to suppress all statements he made to Afghan government authorities on December 17, 2002 because they were obtained by the use of torture, as that term is defined in the
1 The Government has implicitly conceded that, at the time of the charged offenses, the accused was less than 18 years old. Specifically, the United States has stated: At Guantanamo, the United States is detaining Omar Khadr and Mohammed Jawad, the only two individuals captured when they were under the age of 18, whom the United States Government has chosen to prosecute under the Military Commissions Act of 2006. See United States Written Response to Questions Asked by the Committee on the Rights of the Child, 13 May 2008, available at: http://www. state.gov/g/drl/rls/ 105437.htm (last visited 16 September 2008). The results of a bone scan analysis submitted by the trial counsel are consistent with this statement, as the analysis indicated that the accused was approximately 18 years old as of October 26, 2003. This would mean

the accused was approximately 17 years old as of the date of the charged offenses. 2 These findings of fact come primarily from the accuseds September 26, 2008 declaration which the Military Commission admitted into evidence as a remedy for the Governments inability to provide timely discovery to the Defense. 3 The accused also made several incriminating statements to U.S. interrogators, which are the subject of an additional Defense motion to suppress, See D-023, Defense Motion to Suppress Out-of-Court Statements by the Accused Made While in U.S. Custody.
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Military Commission Rules of Evidence (M.C.R.E.). 3. A statement obtained by the use of torture 4 shall not be admitted into evidence. See M.C.R.E. 304(3). Torture includes statements obtained by use of death threats to the speaker or his family; the actual infliction of physical or mental injury is not required. Instead, the relevant inquiry is whether the threat was specifically intended to inflict severe physical or mental pain or suffering upon another person within the interrogators custody or control. In this case, the Afghan government and police authorities told the accused he and his family would be killed if he did not confess to throwing the grenade. The interrogators were armed. There is no evidence the threats were made in jest or intended as a joke. Given the accuseds age and the then reputation of the Afghan police as corrupt and violent, the Commission specifically finds these threats credible. Evidence that someone died or suffered severe injury is not required for the Commission to determine that the threat to kill the accused and his family was intended to inflict severe physical or mental pain or suffering. On this point, the Commission can not envision a situation where a credible threat to kill someone unless they confess would not satisfy the act specifically intended to
inflict severe physical or mental pain or suffering requirement in the M.C.R.E. definition of torture. 4. While the torture threshold is admittedly high, it is met in this case. The Military Commission concludes that the accuseds statements to the Afghan authorities were obtained by physical intimidation and threats of death which, under the circumstances, constitute torture within the meaning of M.C.R.E. 304. Consequently, the Government cannot use any statements made by the accused to Afghan authorities on or about December 17, 2002 to secure a conviction. 5. The Defense motion to suppress all oral and written statements of the accused made to any Afghan police and government authority on December 17, 2002 is GRANTED. So ordered at 1000 hours this 28th day of October 2008.
Torture is defined as an act specifically intended to inflict severe physical or mental pain or suffering upon another person within the actors custody or physical control. M.C.R.E. 304(3). Severe mental pain or suffering includes mental harm caused by or resulting from the threat of imminent death. M.C.R.E. 304(3)(C).
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission October 29, 2008 RULING ON GOVERNMENT MOTION FOR RECONSIDERATION (D-007) Stephen R. Henley Colonel, U.S. Army Military Judge 1. On September 24, 2008, the Military Commission denied D-007 a Defense Motion to Dismiss for Lack of Subject Matter Jurisdiction. On September 28, 2008, the Government submitted a document to the Military Commission Trial Judiciary styled Notice of Intent to File Motion for Reconsideration of Commissions Ruling. 1 On October 9, 2008, the Government filed the actual motion requesting reconsideration of that part of the Military Commissions D-007 holding that unlawful enemy combatant status isa substantive component of the offense and must be provenbeyond reasonable doubt at trial, and proof the accused is an
unlawful enemy combatant by itself is insufficient to establish that the attempted murders in this case were in violation of the law of war. The Defense filed a response in opposition to the Government motion for reconsideration on October 16, 2008. 2. The Governments additional legal precedent and argument submitted in support of its request for reconsideration is unpersuasive and does not rise to the extraordinary circumstances, manifest injustice or clear error required to warrant modifying or changing the Military Commissions original Ruling. 2 3. Congress did not intend to make every murder committed by an alien unlawful enemy combatant or every murder of a lawful combatant by an unlawful combatant a law of war violation. As the Military Commission held in its September 24, 2008 ruling, there is a dual requirement for the Government to provide beyond reasonable doubt (1) that the [attempted] killings in this case were committed by an alien unlawful enemy combatant AND (2) that the method, manner or circumstances used violated the law of war. The propriety of the charges in
2 A motion for reconsideration is appropriate where the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court. Shrader v. CSX Trans. Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration may also be granted to correct a clear error or prevent manifest injustice. In Re Terrorist Attacks on September 11, 2001, 2006 U.S. Dist Lexis 11741 (S.D.N.Y. Mar. 20, 2006) (quoting Doe v. New York City Dept of Soc. Svcs, 709 F.2d 782, 789 (2d Cir. 1983)).
1 A notice of intent to file a motion is not the same as actually filing the motion. See generally, Bowling v. Parker, 344 F.3d 487 (6th Cir. 2003).
See also Williams v. Fresenius Medical Care of North America, 2004 U.S. Dist. Lexis 29757
(N.D.W.V.) (notice of intent to file a document within the time set by state law did not satisfy the state laws requirement to file the document itself within that time limit).
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this case must be based on the nature of the act and not merely on the status of the accused at the time of the alleged offenses. In other words, proof that the accused is an alien unlawful enemy combatant alone will be insufficient at trial to find the alleged acts of attempted murder in this case were in violation of the law of war. The Military Commissions position is consistent with case precedent, international law and Congressional intent. 4. Accordingly, the Governments request for oral argument and motion for reconsideration are therefore DENIED.
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UNITED STATES OF AMERICA v. MOHAMMED JAWAD Military Commission November 19, 2008 RULING ON DEFENSE MOTION TO SUPPRESS OUT-OF-COURT STATEMENTS BY THE ACCUSED MADE WHILE IN U.S. CUSTODY (D-021) Stephen R. Henley Colonel, US Army Military Judge
1. On or about December 17, 2002, in Kabul, Afghanistan, the accused allegedly threw a hand grenade into a vehicle in which two American service members and their Afghan interpreter were riding. All suffered serious injuries. The accused, at the time under the age of 18 years, 1 was
1 The Government has implicitly conceded that, at the time of the charged offenses, the accused was less than 18 years old. Specifically, the United States has stated: At Guantanamo, the United States is detaining Omar Khadr and Mohammed Jawad, the only two individuals captured when they were under the age of 18, whom the United States Government has chosen to prosecute under the Military Commissions Act of 2006. See United States Written Response to Questions Asked by the Committee on the Rights of the Child, 13 May 2008, available at: http://www.state.gov/g/drl/rls/105437.htm (last visited 16 September 2008). The results of a bone scan analysis submitted by the trial counsel are consistent with this statement, as the analysis indicated that the accused was approximately 18 years old as of October 26, 2003. This would
subsequently apprehended by Afghan police and transported to the 2nd District Police Station for interrogation around 1530 hours. At this point, the accused presented no threat to the public and appeared to be under the influence of drugs. Present at the police station were several highranking Afghan government officials. Most, if not all, present were carrying firearms, which were visible to the accused. The accused initially denied throwing the grenade. The Afghan interrogators did not believe him. Someone then told the accused, You will be killed if you do not confess to the grenade attack, and, We will arrest your family and kill them if you do not confess, or words to that effect. 2 The speaker meant what he said; it was a credible threat. The accused then admitted to throwing a grenade into the vehicle, and stated that he was happy if it caused the Americans to die and he would do it again. The accused was not released. Afghan government officials then informed U.S. military authorities, who had previously requested the Afghans turn over the perpetrators of the attacks for questioning, that the accused had confessed. 2. Armed U.S. government personnel took control of the accused around 2200 hours on December 17, 2002. He was handcuffed, hooded and transported to Forward Operating Base (FOB) 195 at the Kabul Military Training Center.

mean the accused was approximately 17 years old as of the date of the charged offenses. 2 These findings of fact come primarily from the accuseds September 26, 2008 declaration which the Military Commission admitted into evidence as a remedy for the Governments inability to provide timely discovery to the Defense.
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Upon arrival at FOB 195, the accused was strip-searched and photographed. He was subsequently questioned by a U.S. interrogator for several hours. The accused still appeared to be under the influence of drugs. He was not provided Afghan or American legal counsel or told that his statements to the Afghan police could not be used against him. The accused initially denied any complicity in the attack but subsequently admitted to rolling a grenade under the Americans vehicle and walking away as it exploded, or words to that effect. The interrogation at FOB 195 ended in the early morning hours of December 18, 2002. However, the accused remained in U.S. custody until he was transferred to Guantanamo Bay, Cuba, on or about February 6, 2003. 3. On October 28, 2008, the Military Commission granted a Defense motion to suppress the accuseds statements to the Afghan government authorities because they were obtained by use of torture, as that term is defined in the Military Commission Rules of Evidence (M.C.R.E.). 3 The accused now moves this Military Commission to suppress any statements he made to U.S. government authorities on December 17 and 18, 2002, because (1) they were tainted by his prior statements to Afghan government personnel; and (2)
even if not tainted, they were coerced and unreliable. 4 4. Where a confession is obtained after an earlier interrogation in which a confession was acquired due to actual coercion or duress, the subsequent confession is presumptively tainted as a product of the earlier one. 5 To overcome this presumption, the Government must demonstrate by a preponderance of the evidence intervening circumstances which indicate the coercion surrounding the first confession had sufficiently dissipated to insulate the [subsequent] statement from the effect of all that went before. 6 5. The Military Commission concludes that the accuseds statements to the U.S. authorities were tainted by his earlier confession to the Afghan police, which had been achieved under threats of death to the accused and his family.
4 A statement alleged to be the product of coercion may only be admitted if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would be served by admission of the statement into evidence. M.C.R.E. 304(a)(2) and (c)(1). 5 See Oregon v. Elstad, 470 U.S. 298 (1985) (distinguishing between two classes of involuntary statements for guidance on evaluating the admissibility of a confession obtained after one deemed to have been illegally obtained). The Supreme Courts opinion in Elstad was based, in part, on the Fifth Amendment self-incrimination and warning requirements that were put in place in Miranda v. Arizona, 451 U.S. 471 (1966) as a practical reinforcement of those rights. While, in the case at bar, the accuseds self-incrimination protections are set forth in M.C.R.E. 301 and M.C.R.E. 304, a reasonably similar Elstad analysis is appropriate with regard to the admissibility of confessions allegedly the product of coercion. 6 Clewis v. Texas, 386 U.S. 707, 710 (1967).
Torture is defined as an act specifically intended to inflict severe physical or mental pain or suffering upon another person within the actors custody or physical control. M.C.R.E. 304(b)(3). Severe mental pain or suffering includes mental harm caused by or resulting from the threat of imminent death. M.C.R.E. 304(b)(3)(C).
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Therefore, the Government must demonstrate that the second confession was not itself directly produced by the existence of the earlier unlawful confession. In determining whether the coercion actually carried over to the second confession, the Military Commission considered the following non-exclusive factors: (1) the accuseds age and education; (2) that he was under the influence of drugs and deprived of sleep; (3) the repeated and prolonged nature of the questioning; (4) the temporal proximity between the arrest, the first confession and the second; (5) that the accused remained in custody the entire time and was hooded and handcuffed while transferred to FOB 195 in other words, there was no break in the stream of events from the accuseds initial apprehension and interrogation by the Afghan police to the second confession; 7 (6) that, after arriving at FOB 195, the U.S. interrogator used techniques to maintain the shock and fearful state associated with the accuseds initial apprehension by the Afghan police, to include blindfolding and placing a hood over his head; (7) the absence of a cleansing statement; (8) that, while the actual U.S. interrogator may have been unaware of the accuseds exact statements to the Afghan police, agents of the U.S. government were aware that the accused had confessed to throwing the grenade before arriving at FOB 195; and (9) the change in locations of the
interrogations and the identities of the interrogators. 8 6. Under the totality of the circumstances, the Military Commission concludes the effect of the death threats which produced the accuseds first confession to the Afghan police had not dissipated by the second confession to the U.S. government interrogator. In other words, the subsequent confession was itself the product of the preceding death threats. Consequently, as the Government has failed to carry its burden, it cannot use any statements made by the accused to U.S authorities on or about December 17, 2002 to secure a conviction. 7. As the Military Commission finds the accuseds confession to the U.S. interrogator is tainted by the first confession to the Afghan police, it need not decide now whether, even assuming the second confession is not tainted, it should still be excluded because the totality of the circumstances does not render the statement reliable and the interests of justice would not be served by admission of the statement into evidence. See M.C.R.E. 304(c)(1). 8. The Defense motion to suppress all oral statements of the accused made while in custody of U.S. forces on December 17 and 18, 2002 is GRANTED. So ordered at 1300 hours this 19th day of November 2008.
United States v. Lopez, 437 F.3d 1059 (10th Cir.
2006).
See, e.g., United States v. Cuento, 60 M.J. 106 (2004); United States v. Brisbane, 63 M.J. 106 (2006).
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UNITED STATES v. AHMED MOHAMMED AHMED HAZA AL-DARBI
______________
Background Almed al-Darbi is a citizen of Saudi Arabia with alleged ties to al-Qaeda. He was supposedly captured in Azerbaijan and rendered to Afghanistan. Military Commissions Charges were sworn against al-Darbi on December 20, 2007. Convening Authority referred charges on March 3, 3008. Charges The
Conspiracy (Violation of 10 U.S.C. 950v[b][28]): Conspired with Osama

bin Laden and joined al-Qaeda, with the intent to commit terrorism.
Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): Provided material support by providing property and other
means to commit terrorism.
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UNITED STATES OF AMERICA v. AHMED MOHAMMED AHMED HAZA AL DARBI Military Commission October 2, 2008 RULING ON DEFENSE MOTION TO DISMISS FOR UNLAWFUL INFLUENCE (D-011) James L. Pohl Colonel, U.S. Army Military Judge
Brig Gen Hartmann was assigned Legal Advisor to the Convening Authority on or about 2 July 2007. At the time of Brig Gen Hartmanns assignment, there was no written job description detailing the relationship between the Legal Advisor to the Convening Authority and the Chief Prosecutor, Office of Military Commissions (OMC-P). 3. Brig Gen Hartmann viewed the Legal Advisor serving two separate and distinct functions: (1) supervising the chief prosecutor and prosecution staff, to include setting goals and milestones and developing an advocacy training program for the prosecution office; and (2) providing counsel to the Convening Authority, including informed advice on referral decisions and post trial recommendations regarding action on completed cases. Brig Gen Hartmann understood case selection and whether and when to swear charges in given cases was within the Chief Prosecutors sole discretion. 4. Soon after assuming his duties as Legal Advisor, Brig Gen Hartmann became concerned with what he perceived as a lack of urgency by the Chief Prosecutor. He was disappointed with the pace at which cases were being processed by OMC-P. He asked for the status of each pending case. He has an intense management style and attempted to energize an office which he felt was not executing its mission. He became much more involved with OMC-P then his predecessor, Brig Gen Thomas Hemingway. 5. Brig Gen Hartmann and COL Davis had a strained working relationship from the beginning. COL Davis viewed his role was to be the final decision maker in picking
1. Defense moves to dismiss the charges and specifications based on alleged unlawful influence by the Convening Authoritys Legal Advisor, Brigadier General Thomas Hartmann. In the alternative, the Defense moves to disqualify Brig Gen Hartmann from further participation in the case. 2. After considering the submissions by both parties and for the reasons discussed below, the Defense motion is denied. FACTS 1. The Military Commissions Act of 2006 (MCA) was enacted into law on 17 October 2006. The Manual for Military Commissions (MMC) was approved by the Secretary of Defense on 18 January 2007. 2. COL Morris Davis assumed duties as Chief Prosecutor for the Officer of Military Commissions in September 2005.
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cases to go forward and what evidence to use. As stated earlier, Brig Gen Hartmann had a different view of his role. 6. On 3 October 2007, the Deputy Secretary of Defense issued an appointing letter establishing a chain of command for the Office of Military CommissionsProsecution. The Chief Prosecutor would now work for the Legal Advisor and the Legal Advisor would now report to the DoD General Counsel. COL Davis learned of this rating scheme on 4 October 2007 and offered his resignation, which was accepted on Friday 5 October 2007. 7. On 12 December 2007, charges in this case were sworn by LTC Joseph V. Treanor. Brig Gen Hartmann did not order the swearing of charges in this or any other case. The decision to swear the charges was an independent decision by LTC Treanor and he was not coerced or influenced by Brig Gen Hartmann to do so. 8. On 29 February 2008, charges were referred. There is no allegation or evidence that the Legal Advisors advice to the Convening Authority pursuant to Rule for Military Commissions (R.M.C.) 406 was in any way improper or misleading. 9. On 19 September 2008, Brig Gen Hartmann was removed as the Legal Advisor to the Convening Authority. DISCUSSION 1. The position of Legal Advisor to the Convening Authority is not mentioned in the MCA. At 10 U.S.C. 949a, Congress permitted the Secretary of Defense to prescribe pretrial, trial and post-trial
procedures. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply the principles of law and the rules of evidence in trial by general courts-martial. Pursuant to this authority, the Secretary created the position of Legal Advisor to the Convening Authority (R.M.C. 103(a)(15)). 2. The creation of the Legal Advisor by the Secretary was consistent with and permitted by specific statutory authority. Accordingly, the defense argument that the action of the Secretary in creating the position of Legal Advisor to the Convening Authority was ultra vires is rejected by the Commission. 3. The accused asserts that Brig Gen Hartmann violated 10 U.S.C. 949b(a)(2)(B) and R.M.C. 104(a)(2) by attempting to coerce or unlawfully influence the prosecutors exercise of professional judgment. The Commission disagrees. 4. The Legal Advisors role is analogous to that of a Staff Judge Advocate (R.M.C. 103(a)(15). As such, he provides legal advice and recommendations to the Convening Authority, similar in nature to that provided by a Staff Judge Advocate, at two distinct stages, pretrial and post trial. See R.M.C. 103(a)(15). 5. The responsibility of a Legal Advisor at the pretrial stage is clearly distinct from his post-trial review functions. Brig Gen Hartmann, in preparing the R.M.C. 406 pretrial advice as Legal Advisor to the Convening Authority, had a professional interest in the successful prosecution of
United States v. Ahmed Mohammed Ahmed Haza al Darbi. See United States
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v. Caritativo, 37 M.J. 175 (C.M.A. 1993).

Strict impartiality of a judicial nature at this stage would be entirely inconsistent with the regulatory requirement that the Legal Advisor provide a personal and independent recommendation to the convening authority on the disposition of the case. R.M.C. 406(b). In order to make an informed appraisal of the charges, it is both appropriate and expected that the Legal Advisor would ask questions about the case to determine its relative strengths and weaknesses, especially in complex, high profile trials. Similarly, there is nothing untoward with a prosecutors supervisor wanting to increase the chances of a successful prosecution by establishing an advocacy training program. United States v. Hardin, 7 M.J. 399 (C.M.A. 1979). In other words, a superior can demonstrate an interest in the successful prosecution of a case without exerting improper influence over it. 6. The evidence establishes that Brig Gen Hartmanns pretrial conduct in this case does not constitute unlawful influence over the exercise of the trial counsels professional judgment. Rather, the Commission finds it is consistent with his supervisory responsibilities as the Legal Advisor to the Convening Authority and the Chief Prosecutors direct supervisor. Brig Gen Hartmann did not induce or sway the otherwise independent and uncoerced decisions of LTC Treanor and Judge Crawford to swear charges against this accused and refer them to trial. The evidence establishes, and the Commission finds, nothing Brig Gen Hartmann has done can reasonably be construed as improper influence of the trial counsels professional judgment.
7. Since Brig Gen Hartmann is no longer the Legal Advisor, the issue as to possible post-trial disqualification is now moot. However, the Commission would add its concern that Brig Gen Hartmanns op-ed pieces and press interviews defending the military commissions system combined with his advice and vocal support of the military commissions process and public statements appearing to align himself with the prosecution team could have compromised the objectivity necessary to dispassionately and fairly evaluate the evidence and prepare the post-trial recommendation. Public confidence in the process is not enhanced by such activities on the part of this, or any other, Legal Advisor. So ordered this 2nd day of October, 2008.
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shall be implemented consistent with applicable law. 3. CHRONOLOGY
AHMED MOHAMMED AHMED HAZA AL DARBI Military Commission February 13, 2009 RULING ON GOVERNMENT MOTION FOR A CONTINUANCE (P-012) James L. Pohl Colonel, U.S. Army Military Judge
a. Referred charges were served on the accused on 3 March 2008. The accused was arraigned on 13 March 2008. Since then, there have been a number of pretrial hearings. A final pretrial motion session is currently scheduled for 2 March 2009 with trial on the merits to begin shortly thereafter unless the results of the motion hearing moot further proceedings. b. The accused has been represented by counsel at each hearing. The accused has excused one military counsel. The accused is currently represented by one military and one civilian lawyer. The accused has stated on the record that he wishes to be represented by both of them. c. As indicated in paragraph 1b, above, the accuseds current counsel have provided a response to the government motion for continuance. d. UP R.M.C. 707(a)(1), the accused was arraigned within thirty (30) days of service of the referred charges. 4. DISCUSSION. a. IAW R.M.C. 707(b)(4)(E)(ii) (A), a continuance should be granted only if Military Judge specifically finds that the interests of justice are served by granting a continuance and those interests outweigh the best interests of the public and the accused in a prompt trial. b. The Government requests the continuance pursuant to the direction
1. I have reviewed and considered: a. The Government motion, with attachments, for a continuance until 20 May 2009, dated 23 January 2009. b. The Defense response, dated 30 January 2009. c. The Government reply, dated 6 February 2009. 2. LAW Once the Convening Authority has referred a case to trial by Military Commission, Congress and the Secretary of Defense have invested in the Military Judge the sole authority to grant continuances. (Military Commission Act, 10 U.S.C. 949e; Rule for Military Commission (R.M.C.) 706(b)(4)(E)(i)). In Section 8b of the executive order (Attachment A to the Government motion), the President directed the order
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of the Secretary of Defense implementing the Presidents Executive Order to seek time to review current procedures in addressing detainees currently held at Guantanamo Bay, Cuba. The review will also address the proper prosecutorial forum, if any, for detainees, including this accused. c. The Defense requests that the Commission dismiss the charges rather than granting the continuance. The Commission does not believe dismissal is appropriate under these circumstances. If the case is withdrawn by the Convening Authority during the continuance, then the accused receives his requested relief. Conversely, if the case is not withdrawn by the Convening Authority during the continuance, then the accused would be afforded a quicker resolution of his case than he would if it had to start with a new referral. 5. I FIND: a. The requested delay in the next hearing is until 20 May 2009. b. On its face, the request to delay the next hearing is reasonable. c. The public interest in a speedy trial will be not harmed by the delay of the next hearing. d. Granting the continuance will serve the interests of justice. e. The Government is responsible for the delay from 2 March 2009 until 20 May 2009.
6. The Government request for a continuance in the next hearing until 20 May 2009 is GRANTED. The next hearing will be held at 0900 hours on 21 May 2009. Both parties should be prepared to litigate all outstanding issues at that time. 7. The Commission authorizes the public release of this order and supporting pleadings. So ordered this 13th day of February, 2009.
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UNITED STATES OF AMERICA v. AHMED MOHAMMED AHMED HAZA AL DARBI Military Commission May 7, 2009 RULING ON DEFENSE MOTION FOR A CONTINUANCE (D-023) James L. Pohl Colonel, U.S. Army Military Judge
2. The Defense avers that the delay request was not made with the intent of unnecessarily delaying this proceeding and that the Government does not object to the request consistent with applicable law. 3. CHRONOLOGY a. The last hearing in this case was held on 15 December 2008. At that time, a motion hearing was scheduled for early March, 2009. The motion hearing was anticipated to last approximately three weeks. Assuming the motions were not case dispositive, the trial would commence immediately following the motion hearing. The Government had stated it needs two/three months lead time before the hearing to coordinate witness production. b. Subsequently, on 23 January 2009, the government requested a delay to permit the new Administration to review the Commission procedures. In its response on 30 January 2009, the Defense did not oppose the delay if the Commission was not going to dismiss the charges. c. On 13 February 2009, the Commission granted the delay request to 20 May with the next hearing set for 21 May 2009 at GITMO. In its order the Commission stated, The next hearing will be held at 0900 hours on 21 May 2009. Both parties should be prepared to litigate all outstanding issues at that time. d. On 27 April 2009, the Commission issued an order to hold the next hearing on 27 May 2009. The hearing
1. On 5 May 2009, via email, the Defense requested special relief in the form of a delay from the presently scheduled hearing date of 27 May 09 to 8 Jul 09 for the following reasons: a. Mr. Kassem, Lead Counsel, will be out of the country on previously arranged trips on the scheduled date and through the first part of June. In addition, Mr. Kassem has a trial scheduled for 30 Jun and this is the only time he is available in June. The difficulty in scheduling matters at GITMO revolves around the fact that attending any hearing requires at least 3 business days, effectively requiring an entire business week to be specially scheduled. b. Lt Col Pyle, Associate Counsel, is also unavailable on the 27 May date due to a previously scheduled TDY and leave for which expenses have already been incurred.
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would address a number of issues including updating the trial schedule. The 27 May hearing will last no more than one day and would not address the substance of the pending motions. 4. DISCUSSION a. The Defense was on notice since 13 February that a hearing in this case was scheduled for 21 May. At the time, the hearing was anticipated to last at least three weeks as noted in the order that (b)oth parties should be prepared to litigate all outstanding issues at that time. b. The hearing was adjusted to last one day, 27 May, which is well within the three week window the Defense was on notice they needed to be at GITMO. c. The Defense in this case has made the trip to GITMO on more than one occasion. It has always taken three business days to travel to and from GITMO. There is no additional travel time for the 27 May hearing than there would have been for any other hearing in Cuba. d. Since 13 February, the Defense apparently scheduled other activities in lieu of appearing in this case in late May. The Commission fails to understand why it should grant a delay in a previously scheduled hearing because counsel chose to create scheduling conflicts after being on notice of the hearing date. e. In addition, delaying a relatively straight forward hearing for six weeks, as requested by the defense,
would necessitate an additional two/three month delay after 8 July for the witness coordination necessary for the motions hearing. The Commission understands that the witness coordination delay is inevitable but believes it should be addressed sooner, i.e., 27 May, rather than later, i.e., 8 July. 5. Based on the proffered rationale and the more than three months notice that a hearing would be held in late May 2009, the Defense request for delay is hereby DENIED. 6. The Commission authorizes the public release of this order. So ordered this 7th day of May, 2009.
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UNITED STATES OF AMERICA v. AHMED MOHAMMED AHMED HAZA AL DARBI Military Commission May 19, 2009 RULING ON GOVERNMENT MOTION FOR A CONTINUANCE (P-014) James L. Pohl Colonel, U.S. Army Military Judge
3. DISCUSSION a. IAW R.M.C. 707(b)(4)(E)(ii)(A), a continuance should be granted only if the Military Judge specifically finds that the interests of justice are served by granting a continuance and those outweigh the best interests of the public and the accused in a prompt trial. b. On 13 February 2009, the Commission granted the Government a continuance until 20 May 2009 to permit the new Administration to review the Military Commissions and the disposition of individual detainees. As a result of that review, the Administration has proposed a number of changes in the Military Commissions to take effect on 14 July 2009. The Administration is also considering other potential reforms and anticipates completing the Detention Policy Review by 21 July 2009. c. The Government has requested a second 120-day continuance to complete its review and implement changes. The Defense has not filed a response, but the Governments motion states that the Defense does not oppose this continuance. d. In its order setting 27 May 2009 fort he next session, the Commission stated, In setting this date, the Commission is not trying to influence the Administrations review. If there are changes between now and 27 May 2009, the Commission will consider adjusting/cancelling the hearing. There are now proposed changes which would significantly
1. I have reviewed and considered: a. The Government motion, with attachments, for a continuance, dated 15 May 2009. b. The Commissions previous continuance order, dated 13 February 2009. c. The Commissions docketing order, dated 27 April 2009. 2. LAW Once the Convening Authority has referred a case to trial by the Military Commission, Congress and the Secretary of Defense have invested in the Military Judge the sole authority to grant continuances. (Military Commission Act, 10 U.S.C. 949e; Rule for Military Commission (R.M.C.) 706(b)(4)(E)(i)).
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impact further proceedings. As such, good cause exists to postpone the next session in this case. 4. I FIND: a. The requested delay in the next hearing is until 24 September 2009. b. On its face, the request to delay the next hearing is reasonable. c. Granting the continuance will serve the interests of justice because it will permit the Administration time to implement changes, complete the Detention Policy Review, and finish its review of individual cases. A continuance until 24 September 2009 is a reasonable time to accomplish these actions. d. The best interests of both the public and of the accused in a prompt trial will not be harmed by the requested delay of the next hearing, and are outweighed by the reasons for granting the requested continuance. e. For purposes of R.M.C. 707(b)(4)(E) (ii)(B), the Government is responsible for the delay from 20 May 2009 until 24 September 2009. 5. The Government request for a continuance in the next hearing until 24 September 2009 is GRANTED. 6. The next hearing will be held at 0900 hours on 25 September 2009. Parties will be prepared to litigate all outstanding issues at that time. The Commission reserves the right to issue interlocutory
orders and conduct pretrial proceedings, if necessary, during the continuance period. The Commission is concerned that the granting of this second long continuance will result in the parties having done nothing to prepare this case for trial for eight months. The Commission expects that once this continuance expires, both sides will be fully prepared to expeditiously litigate this case, and both sides will have fully complied with their discovery obligations during the period of the continuance. The Commission recognizes the logistical challenges of conducting hearings in this case. As such both sides should ensure not to schedule any conflicts with the hearing date. 7. The Commission authorizes the public release of this order and supporting pleadings. So ordered this 19th day of May, 2009.
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UNITED STATES v. ABDAL-RAHIM HUSSEIN MOHAMMED ABDU AL-NASHIRI
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Background Born in Saudi Arabia, al-Nashiri travelled to Afghanistan to participate in attacks against the Russians in the region. In 1996 he travelled to Tajikistan and then Jalalabad, where he first met Osama bin Laden. In 1998, al-Nashiri joined al-Qaeda, reporting directly to bin Laden. In November 2002, al-Nashiri was captured in the United Arab Emirates. He allegedly masterminded the bombing of the USS Cole and headed alQaeda operations in the Persian Gulf. Military Commissions Charges were sworn against al-Nashiri on June 30, 2008. The Convening Authority referred charges on December 19, 2008. Charges were withdrawn on February 5, 2009. Charges

bin Laden and others to commit the various offenses.
Murder in Violation of the Law of War (Violation of 10 U.S.C. 950v[b][15]): For the intentional bombing of the USS Cole. Using Treachery or Perfidy (Violation of 10 U.S.C. 950v[b][17]): Using combatants dressed as civilians to get close enough to bomb the USS Cole.
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Destruction of Property in Violation of the Law of War (Violation of 10 U.S.C. 950v[b][16]): Intentionally detonated a bomb alongside the USS Cole. Intentionally Causing Serious Bodily Injury (Violation of 10 U.S.C. 950v[b][13]): Killed seventeen members of the United States Armed
Forces.
Terrorism (Violation of 10 U.S.C. 950v[b][24]): Intended to influence the US Government by detonating a bomb alongside the USS Cole. Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): Provided material support for terrorism from 1996 2000. Attempt to Commit Murder in Violation of the Law of War (Violation of 10 U.S.C. 950t): On January 3, 2000, in Yemen, attempted to commit
murder in violation of the law of war by planning to bomb the USS
Sullivans.
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UNITED STATES OF AMERICA v. ABD AL-RAHIM HUSSEIN MOHAMMED ABDU AL-NASHIRI Military Commission January 29, 2009 RULING ON GOVERNMENT MOTION TO CONTINUE ARRAIGNMENT (P-002) James L. Pohl Colonel, U.S. Army Military Judge
A to the Government motion), the President directed the order shall be implemented consistent with applicable law. 3. CHRONOLOGY. a. As reflected on the charge sheet (M.C. Form 458), the last of the alleged offenses in this case occurred NLT 2002. Charges were sworn on 12 December 2008. The Convening Authority referred the case to trial by military commission on 19 December 2008. The Convening Authority referred the case capital. The accused was served with the Charges on 24 December 2008. b. UP R.M.C. 707(a)(1), the accused must be arraigned within thirty (30) days of service of the referred charges. Accordingly, the Commission set the arraignment for 14 January 2009. Pursuant to a Defense delay request to coordinate defense counsel schedules, the Commission granted a continuance in the arraignment until 9 February 2009. In granting the delay, the Commission found the delay to be reasonable and in the interests of justice. 4. DISCUSSION.
1. I have reviewed and considered: a. The Government motion, with attachments, for a 120 day continuance in the arraignment, dated 23 January 2009. b. The Defense response thereto, undated (filed with the Commission on 23 January 2009). c. The Government reply, dated 28 January 2009. 2. LAW. Once the Convening Authority has referred a case to trial by military commission, Congress and the Secretary of Defense have invested in the Military Judge the sole authority to grant continuances. (Military Commission Act, 10 U.S.C. 949e; Rule for Military Commission (R.M.C.) 706(b)(4)(E)(i)). In 8b of the executive order (Attachment
a. At the arraignment, the accused is formally advised of the charges and called upon to enter plea (R.M.C. 904). No additional charges may referred to the trial after arraignment (R.M.C. 601(e)(2)). At the arraignment, the accused is informed of his right to counsel. He selects his counsel, who then enters a formal appearance on behalf of the accused.
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From this point forward, defense counsel cannot be released absent consent of the accused and/or approval of the Military Judge (R.M.C. 506(b)). b. IAW R.M.C. 707(b)(4)(E)(ii) (A), a continuance should be granted only if Military Judge specifically finds that the interests of justice are served by granting a continuance and those interests outweigh the best interests of the public and the accused in a prompt trial. c. In its motion, the Government avers that delaying the arraignment would serve the interests of justice since the Administrations review could result in changes that would:
effect. The Commission is bound by the law as it currently exists not as it may change in the future. f. With regards to the authority of the Military Judge, as the District Court stated in a different Commission case (Hamdan v. Gates), Article III judges do not have a monopoly on justice, or on constitutional learning. A real judge is presiding over the pretrial proceedings in Hamdans case and will preside over the trial. He will have difficult decisions to make, as judges do in nearly all trials. So it is in this case. 5. I FIND: a. The requested delay in the arraignment is for a total of 102 days. b. There have been no previous requests for delay from the Government in this proceeding. c. On its face, the request to delay the arraignment is not reasonable. d. The public interest in a speedy trial will be harmed by the delay in the arraignment. e. Granting the continuance do not serve the interests of justice. 6. The Government request for a continuance in the arraignment until after 22 May 2009 is DENIED. 7. At the arraignment, the Commission will address the remaining portion of the Government motion requesting a continuance of all other sessions of the Commission.
(1) Render moot any proceedings conducted during the review; (2) Necessitate re-litigation of issues; or, (3) Produce legal consequences affecting options available to the Administration after completion of the review.
d. The Commission finds all these reasons to be an unpersuasive basis to delay the arraignment. No substantive legal issues will be litigated at the arraignment so nothing will be mooted or necessary for re-litigation. The Commission is unaware of how conducting an arraignment would preclude any option by the Administration. e. Congress passed the Military Commission Act which remains in
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UNITED STATES OF AMERICA v. ABD AL-RAHIM HUSSEIN MOHAMMED ABDU AL-NASHIRI Military Commission February 5, 2009 RULING ON DEFENSE MOTION TO DISCONTINUE [REDACTED] (D-002) James L. Pohl Colonel, U.S. Army Military Judge
Neither individual has personally examined the accused. 3. The Defense requests a hearing on this issue before the arraignment without the presence of the accused since transporting him to the arraignment would necessarily exacerbate the very harm they are seeking to avoid. 4. The Government opposes the motion contending the Commission has no authority to rule on the conditions of the accuseds custody. In the alternative, the Government alleges the policy is necessary for the safety of the guards and others and is within the operational discretion of the commander. 5. As the Government states in its brief, the decision [REDACTED] detainees should not be disturbed absent a compelling interest. 6. Until the accused is arraigned, the Commission does not have his counsel elections on the record. The personal appearance of the accused is required at the arraignment. Accordingly, the Commission rejects the Defense proposal to conduct a pre-arraignment hearing on this issue without the presence of the accused. 7. The Commission recognizes the concerns of the Government and does not intend to usurp the operational decisionmaking rightly invested in the command in charge of detainee operations. 8. Contrary to the implication of the Government motion, the Commission does have authority to address detainee security issues if they impact on the accuseds ability to prepare his defense.
1. I have reviewed and considered: a. The Defense motion, with attachments, dated 9 January 2009. b. The Government response, with attachment, dated 29 January 2009. c. The Defense reply, with attachment, dated 3 February 2009. 2. The Defense requests the Commission to order the Government to cease the practice of [REDACTED] whenever the accused is transported from his cell. The Defense alleges that this practice causes psychological harm to the accused since [REDACTED] by the accused while in custody. The Defense further alleges the result of this practice unduly burdens the attorney-client relationship. In support of its motion, the Defense submitted affidavits from a medical doctor and a psychologist opining about potential harm to the accused caused by this practice.
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9. The alleged harm to the accused is, at this point, speculative. The Commission holds that an evidentiary hearing will be necessary to resolve this issue. The Defense will have the opportunity to present evidence at an evidentiary hearing which can be conducted immediately after the arraignment. 10. As discussed in paragraph 2, above, the Commission recognizes that transport to the arraignment may cause some harm to the accused. If, after arrival at the courthouse on 9 February 2009, the Defense believes that the transportation of the accused has impaired his ability to participate in the proceedings, the Commission will consider delaying the start of the proceedings on that day. So ordered this 5th day of February 2009.
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UNITED STATES v. AHMED KHALFAN GHAILANI
______________
Background Ghailani was born in Tanzania with alleged ties to al-Qaeda. He was indicted in the United States as a participant in the 1998 U.S. embassy bombings. He was on the FBI Most Wanted Terrorists list from its inception in October of 2001. In 2004, he was captured and detained by Pakistani forces in a joint operation with the United States. Military Commissions Charges were sworn against Ghailani on March 31, 2008. The Convening Authority referred charges on October 3, 2008. Charges were withdrawn on May 20, 2009. Ghailanis case has been transferred to the Federal District Courts of New York. Charges

bin Laden to commit acts of terrorism.
Murder of Protected Persons (Violation of 10 U.S.C. 950v[1]):

Unlawfully and intentionally killed eleven persons by bombing the U.S. Embassy in Tanzania.
Murder in Violation of the Law of War (Violation of 10 U.S.C. 950v[15]): Unlawfully and intentionally killed eleven persons by
bombing the U.S. Embassy in Tanzania.
Attacking Civilians (Violation of 10 U.S.C. 950v[2]): Intended to harm

the civilian population located in and around the U.S. Embassy in Tanzania.
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Attacking Civilian Objects (Violation of 10 U.S.C. 950v[3]):

Intentionally attacked a civilian object, namely the U.S. Embassy in Tanzania.
Intentionally Causing Serious Bodily Injury (Violation of 10 U.S.C. 950v[13]): Caused serious bodily injury by bombing the U.S. Embassy in
Tanzania.
Destruction of Property in Violation of Law of War (Violation of 10 U.S.C. 950v[16]): Intentionally destroyed property belonging to the
U.S. Government.
Terrorism (Violation of 10 U.S.C. 950v[24]): Engaged in hostile activity

calculated to influence the conduct of the U.S. Government.
Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): Intentionally provided material support for the preparation
of the bombing of U.S. Embassy in Tanzania and to al-Qaeda generally.
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UNITED STATES OF AMERICA v. AHMED KHALFAN GHAILANI Military Commission February 13, 2009 RULING ON GOVERNMENT MOTION FOR CONTINUANCE (P-001) Bruce W. MacKenzie Captain, U.S. Navy Military Judge
motion (Motion to Dismiss). By default, the Defense's Motion to Dismiss is denied by the present ruling. RULING The Government has met their burden to convince this Commission that a continuance, for good cause demonstrated or inferred, is in the overall and general interests of justice. This Ruling is based exclusively upon this Commission's belief that no prejudice will inure to the detriment of the accused based upon the current trial schedule and the continued progression of pre-trial discovery. This order, is emphatically not based on any perceived interjection by the Secretary of Defense or President of the United States into the smooth administration of justice of this Military Commission specifically or the military commission process in general. However, this Commission considers delays during the pendency of this continuance for the administration and pre-trial processing of this case not to be in the interests of justice. Accordingly, it is ordered and directed that: Pre-trial discovery will proceed with all due dispatch in accordance with the Rules of Court. An updated Schedule for Trial will be negotiated and subsequently ordered based upon this Ruling. While filing of motions will be expected and accepted by the Commission, no R.M.C. 803 sessions will be directed until the expiration of this continuance. The Defense Motion to Compel Discovery (D002) is held in abeyance pending resolution of an undated Schedule of Trial.
On 23 January 2009, the Government moved this Commission to issue a continuance until 22 May 2009. The relief requested was based generically upon the interests of justice, as well as, inter alia, direction from the Secretary of Defense and Executive Order of the President of 'the United States. The Defense countered the Government request citing varying levels of prejudice to the accused, the indefinite nature and scope of the review process cited by Executive Order relied upon in part by the Government, as well as, some assertions of unlawful command influence. The Schedule of Trial presently ordered is incorporated by reference to the decision made herein. Oral argument was not requested by the Government unless required by the Commission. The Defense did not request oral argument unless the Commission denied their responsive filing to this
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With the caveats expressed, the Government's motion for a continuance until 22 May 2009 is GRANTED. So ordered this 13th day of February, 2009.
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UNITED STATES OF AMERICA v. AHMED KHALFAN GHAILANI Military Commission
of corrective measures to PO1. The Government, in response, essentially objected to the majority of the Defenses assertions as well as the Defenses proposed fixes for perceived overreaching by the Government. DISCUSSION
March 4, 2009 RULING ON D-001, DEFENSE MOTION FOR APPROPRIATE RELIEF, MODIFICATION OF PROTECTIVE ORDER # 1 Bruce W. MacKenzie Captain, U.S. Navy Military Judge 3. It is beyond cavil that the Commission process as well as the application of Commissions per se must not only be fair and impartial but also must have the appearance and perception of fairness. Balanced against this undercurrent of justice lies the Government duty to not only provide discovery in the course of this criminal trial, they must also protect those sources, methods or activities which remain classified. There is no argument between counsel as to whether PO1 accomplishes this monumental task as it relates specifically to material that has been classified. 1 The primary question which remains is whether PO1, as currently constructed and written, is too expansive and encompasses other nonclassified evidence/discovery under a restrictive and protective national security umbrella. It is irrefutable that a criminal defendant appearing before a military commission enjoys the right to a fair trail. 2 This Commission does not know the precise extent of discovery between the parties at this juncture. Further, this Commission is not wholly cognizant of the breadth and width of discoverable materials or the varying states of classifications of
PROCEDURAL HISTORY 1. On 17 November 2008, the Defense moved this Commission to issue a Modification to Protective Order (#1) [hereafter PO1], previously issued by this Commission on 21 October 2008. The Government responded to the Defenses motion on 24 November 2008. Thereafter, the Defense filed additional pleadings with the Commission on 26 November 2008 and 16 January 2009. Neither party requested oral argument. ISSUE 2. The Defense asserts the restrictions on all forms of evidence, discovery or conversation by and with the accused envisioned specifically or inferred by PO1 represents an overbroad and unnecessary impingement on the due process rights of the accused and his defense team. To correct this perceived set of unwarranted restrictions, the Defense proposed a series
1 This motion was not directed toward any specific classification review issue on any particular item of evidence or discovery. 2 See generally, 10 U.S.C. 948a, et seq. (Military Commissions Act of 2006).
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evidence or information remaining to be released (or contested). The Commission does not appreciate the complexities of release, storage and inventory of classified material as well as the need to protect certain materials from improper disclosure in the interest of national security. This Commission is fully cognizant and recognizes that any court rulings and protective orders should be construed and constructed in such a manner to balance the understood national security dictates of any commission against the fundamental fairness which due process affords to any criminal defendant. [see United States v. Demeisis, 424 F.3d 556 (7th Cir. 2005), cert. denied 547 U.S. 1023, 126 S.Ct. 1570 (2006)]. It appears that the Defense and the Government fully understand their roles and limitations as well as the inherent authority of this Commission to set the limits of discovery. [see United States v. Aref, 207 US Dist Lexis 12220 (N.D.N.Y. 2007 and United States v. Musa, 833 F. Supp. 752 (E.D. Mo. 1993)]. 3 The Defense offers compelling argument that PO1, in its precise state, affords prophylactic and unwarranted protections far exceeding that necessary to guard against unauthorized disclosure of classified material. In short, they argue that due process dictates, at best, that PO1 should represent nothing more than a focused yet restrictive protective order to protect the Governments national security dictates relative to classified material. I note that a prior ruling by this Commission declined to expand this
Commissions protections via court order to open source material. 4 RULING: The Defense motion is granted in part and denied in part. The specifics of this ruling are provided below in accordance with the specific paragraph as it appears in PO1. If a particular Defense motion was granted, this Commission determined that the Defense had met their burden of production and persuasion. This Commission fully recognizes and appreciates that additional in camera reviews may result from this ruling. Protective Order #4, which incorporates these changes, is issues in a separate Order which vacates Protective Oder #1 and replaces it in this case. Protective Order #5, covering protected but unclassified information, is also issued. PARAGRAPH 6.b. Defense motion granted and this paragraph is void. Should the Government uncover any specific items of discovery/evidence of whatever nature or origin described in this paragraph which they deem should be accorded specialized treatment or consideration pursuant to M.C.R.E. 505(b)(1), further considerations of specific items of discovery/evidence may be requested pursuant standards set forth in M.C.R.E. 505(b)(3). PARAGRAPH 6.h. Defense motion granted and the second sentence, in its entirety, of this paragraph is void. Should the Government uncover any specific items of discovery/evidence of whatever nature or origin described in the second sentence of this paragraph which they deem should be accorded specialized
All cited cases actually involved interpretation of the Classified Information Protection Act (CIPA).
3
4 See Commission Ruling dated 4 December 2008 regarding Government motion for Protective Order #3.
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treatment or consideration pursuant to M.C.R.E. 505(b)(1), further considerations of specific items of discovery/evidence may be requested pursuant to standards set forth in M.C.R.E. 505(b)(3). PARAGRAPHS 6.1, j, k, l & m. Defense motion is not opposed by the Government. Accordingly, these five subparagraphs are renumbered for convenience to Paragraph 8 of Protective Order # 4. PARAGRAPHS 8 and 9. For convenience, these paragraphs are renumbered as paragraphs 7d and 7c, respectively, in Protective Order #4. PARAGRAPH 13. Defense motion is granted in part and denied in part. The following words are added to the second (final) sentence to the paragraph following the word, Accused: except as specifically enumerated in Paragraph 6.d above. Notwithstanding Paragraph 6(f) above, dialogue between the Accused and his Counsel is not limited by this provision. The Defense may not disclose Classified Information as defined by this Protective Order to the Accused unless it falls under the exception enumerated in Paragraph 6(b) above; but the Defense may discuss with the Accused, and disclose to other members of the Defense, possessing the requisite security clearances and having signed the MOU, any matters raised by the Accused in their meeting with him. The Commission notes that Government counsel concedes that dialogue by and with the accused and Counsel is not intended to be limited by this provision. What is intended and interpreted by this Commission is that classified information as defined by properly issued protective orders, statutory or regulatory dictates or Rules of
Court gleaned from whatever source may not be discussed by and with the accused unless specifically enumerated in Paragraph 6.c of Protective Order #1. The Commission believes the Defense has sought clarification in the abundance of caution as well as to avoid any confusion as to the extent of their communications with their client. It is this Commissions interpretation that, by default, all information, discovery or evidence, not falling specifically within what is described as classified information or specifically subject to properly issued protective orders, may be properly discussed between defense counsel and their client. PARAGRAPH 14. The words arraignment or other proceeding or in any other manner or setting in connection with shall be replaced by the words, any proceeding in. PARAGRAPH 16. The first word of the Paragraph Under shall by replaced with the word, Until. PARAGRAPH 22. Defense motion granted. Paragraph 22 is deleted in its entirety and is void as it pertains to PO1. Should the Government perceive additional protections are necessary to preclude improper dissemination of information/discovery/evidence, relief may be requested and will be considered. R.M.C. 806(d) is germane. I also note JAGINST 5803.1C, in particular Rule 3.6 is also germane 5 to the issues highlighted by
5 JAGINST 5803.1C dated 9 Nov 04 represents Professional Rules of Conduct for Judge Advocates under supervision of the Judge Advocate of the Navy. Other services have also promulgated similar professional rules of conduct. Moreover, each attorney operates under the professional conduct
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both parties. Release of classified information is adequately addressed in the balance of PO1, applicable orders, statues and Court Rules. PARAGRAPH 24. Defense motion is denied. If the Defense seeks specific relief from any particular demand for return of discovery, evidence, information (including classified information), an appropriate motion may be files with the Commission for resolution of the matter. PARAGRAPH 25. Defense motion is denied. The Defense has failed to convince this Court that arguably repetitive prohibitions are detrimental to effective representation or violates notion of due process. PARAGRAPH 26 (and 6.g). Defense motion is denied. It appears that where presumptive conflicts exist in the Defenses opinion, clarification may be obtained via the SSA/ASA, Government Counsel or specific relief from this Court. Accordingly, the Defense has failed in their burden on this specific issue. 6 PARAGRAPH 29. Defense motion is denied. While the Commission agrees that affording Government Counsel the opportunity to terminate audio feeds to the public may be redundant, the Defense has failed in their burden to convince this Commission that such permissive language violates due process or the accuseds right to a public trial.
PARAGRAPH 38. This paragraph of PO1 is replaced by the following: The Clerk of the Commissions will ensure that transcripts of all proceedings are reviewed by the SSA prior to authentication or certification by the Military Judge, to ensure that no Classified Information is contained therein. The Clerk of the Commissions will ensure that transcripts of any classified proceedings are properly segregated from the unclassified portion of the transcripts, properly marked with the appropriate security markings, stored in a Secure Area, and released only as a classified document when necessary and appropriate and / or in the due course of law.
rules of their respective state bar or professional supervisory organization. 6 Note: This ruling is narrow as to the scope presented by the parties. Questions as to whether the application or authority of presumptive classifications in general or as applied in the case at bar was not briefed or considered by the Commission.
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UNITED STATES OF AMERICA v. AHMED KHALFAN GHAILANI Military Commission March 4, 2009 PROTECTIVE ORDER #4 PROTECTION OF CLASSIFIED INFORMATION THROUGHOUT ALL STAGES OF PROCEEDINGS Bruce W. MacKenzie Captain, U.S. Navy Military Judge
3. The Commission finds that this case involves information that is currently and properly classified pursuant to Executive Order 12958, as amended. See also M.C.R.E. 505(B)(1) and (2). The storage, handling, and control of this information require appropriate security clearances and a need-to-know determination by the Original Classification Authority (hereafter OCA) over the information. 4. The purpose of this Order is to establish procedures that must be followed by all defense counsel of record, defense paralegals, defense translators and all other person who comes into possession of classified information as a result of their participation in the case. 5. The procedures set forth in this Protective Order, and M.C.R.E. 505 and 506 will apply to all pre-trial, trial, posttrial, and appellate stages in this case, including discovery and may be subject to modification by further Order. The Prosecution has advised that it will promptly seek further protective orders to address additional issues relating to discovery and disclosure of classified information as this case progresses. DEFINITIONS 6. As used herein, the term classified information shall mean: a. Any document or information which has been classified by any Executive Branch agency in the interests of national security or pursuant to Executive Order 12958, its predecessors or as amended, as CONFIDENTIAL, SECRET, TOP SECRET, or additionally controlled as SENSITIVE COMPARTMENTED INFO-
1. This Protective Order supersedes Protective Order #1 in this case, dated 21 October 2008, which is vacated. The Protective Order is issued pursuant to the Military Commissions Act of 2006 (10 U.S.C. 948A, et.seq.) (hereafter MCA), and the Manual for Military Commissions (hereafter MMC), including Rules for Military Commissions (hereafter R.M.C.) 701(f)(8); Military Commission Rules of Evidence (hereafter M.C.R.E.) 505; and Regulation for Trial by Military Commission, 1703. 2. The Commission has considered all matters previously listed in paragraph 2 of Protective Order #1, as well as the pleadings filed by the defense on 17 and 26 November 2008 and 16 January 2009, and the Government response filed on 24 November 2008. The reasons for amending Protective Order #1 are contained in this Commissions Order Granting in Part and Denying in Part Defense Motion D001, dated 4 March 2009.
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RMATION (SCI), or any information in such document; b. Any document or information that is currently and properly classified as set forth in section (a) and which has been approved for release to the accused in this case. All classified information that is approved for release to the accused will contain an appropriate classification marking and will be marked Releasable to Ghailani; c. Any document or information, regardless of physical form or characteristics, now or formerly in the possession of the Defense, private party or other person, which has been derived from United States government information that was classified, including any document or information that has subsequently been classified by the Government pursuant to Executive Order 12958; d. Any document or information that the Defense knows or reasonably should know contains classified information, including information acquired or conveyed orally; e. Any document or information as to which the Defense has been notified orally, or in writing, that such document or information contains classified information or implicates classified sources, methods or activities used by the United States in acquiring such information; f. Statements made by the accused, which are presumptively classified at the TOP SECRET//SCI level until such statements are reviewed by representatives from the agency holding original classification authority over the information; or;
g. Any document or information, regardless of place of origin, including documents classified by a foreign government, that could reasonably be believed to contain classified information, or that refers to or relates to national security or intelligence matters. 7. As used in this protective order: a. The words documents and information shall include, but are not limited to, all written or printed matter of any kind, formal or informal, including originals, conforming copies and nonconforming copies (whether different from the original by reason of notation made on such copies or otherwise), handwritten notes, or any electronic storage on any electronic storage media or device of any documents or information or information acquired orally, including but not limited to papers, correspondence, memoranda, notes, letters, reports, summaries, photographs, maps, charts, graphs, inter-office communications, notations of any sort concerning conversations, meetings or other communications, bulletins, teletypes, telegrams, and telefacsimiles, invoices, worksheets and drafts, alterations, modifications, changes and amendments of any kind to the foregoing; graphic or oral records or representations of any kind, including but not limited to photographs, charts, graphs, microfiche, microfilm, video tapes, sound recordings of any kind and motion pictures; electronic, mechanical or electric records of any kind, including but not limited to tapes, cassettes, disks, recordings, films, typewriter ribbons, word processing or other computer tapes, disks, or thumb drives and all manner or electronic data
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processing storage, and classified information acquired orally; b. The term Access to Classified Information means having authorized access to reviewing, reading, learning or otherwise coming to know in any manner Classified Information; c. The term Secure Area means a physical facility accredited by the Department of Defense for the storage, handling, transmission and control of classified information at the appropriate level to match the level of classification of the information thus scored, handled, transmitted or controlled. PROTECTION OF CLASSIFIED INFORMATION 8. With regard to classified information: a. The Defense may not disclose or cause to be disclosed in connection with this case any information known or believed to be classified except as otherwise provided herein. b. The Defense may not disclose classified information to the accused unless the same information has been previously provided to the Defense by the accused. The Defense may not confirm or deny to the accused the assertions made by the accused based on knowledge counsel may have obtained from classified documents, except where those classified documents have been provided to the accused. c. The Defense shall not disclose the contents of any classified documents or information to any person, except those authorized pursuant to the Protective Order, the Commission, and the Prosecu-
tion who hold the appropriate clearances and have been determined to have a need to know that information. d. In the event that classified information enters the public domain, counsel are not precluded from making private or public statements about the information already on the public domain, subject to the following limitation: Counsel may not make any public or private statements revealing personal knowledge from nonpublic resources regarding the classified status of the information, confirming, contradicting, or otherwise relating to the information already in the public domain. In an abundance of caution and to help ensure clarity on this matter, the Commission emphasizes that counsel shall not be the source of any classified information entering the public domain. e. The foregoing shall not prohibit counsel for the accused from citing or repeating information in the public domain that counsel does not know or have reason to believe to be classified information or a classified document, or derived from classified information or a classified document. 9. All classified documents and other materials and the classified information contained therein shall remain classified unless the documents bear a clear indication that they have been declassified by the agency or department that is the originator of the document or the information contained therein (the OCA). 10. Mr. James Powell has been appointed by the Commission as the Senior Advisor (hereafter SSA) to protect any classified information made available or created in
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connection with this case. The SSA is authorized to appoint Alternate Security Advisors (hereafter ASA) as necessary. The Defense shall seek guidance, as necessary, from the SSA or an ASA with regard to the appropriate storage, handling, transmittal and use of classified information, and the SSA or ASA shall consult with the owner of the information regarding classification decisions. 11. I have been advised that the Prosecutors assigned to this case have the requisite security clearances and need-toknow access to classified information that relates to this case. 12. I find that to protect the classified information involved in this case, no member of the Defense or other person shall have access to any classified information as a result of participation in this case unless that person shall first have: a. Been granted the requisite security clearance by the Department of Defense or the Department of Justice and such clearance is verified by the SSA; and b. Signed the Memorandum of Understanding (MOU) attached to Protective Order 1, agreeing to comply with the terms of this Protective Order; and c. Been determined to have the requisite need-to-know the classified information at issue by the Original Classification Authority over the information. 13. Members of the Defense currently possessing the requisite security clearances, verified by the SSA, who have signed the MOU may not disclose classified information to any person except to other members of the Defense
who have verified security clearances and have signed the MOU, or to the Commission (including the Trial Judiciary Staff), the SSA or ASA, and the Prosecutors assigned to this case. Until further order of this Commission, the Defense may not disclose classified information to the accused except as specifically enumerated in Paragraph 6(b) above. Notwithstanding Paragraph 6(f) above, dialogue between the accused and his counsel is not limited by this provision. The Defense may not disclose classified information as defined by the Protective Order to the accused unless it falls under the exception enumerated in Paragraph 6(b) above; but the Defense may discuss with the accused, and disclose to other members of the Defense possessing the requisite security clearances and having signed the MOU, any matters raised by the accused in their meetings with him. 14. The Defense shall comply with M.C.R.E. 505 prior to any disclosure of classified information at any proceedings in this case. Specifically, written notice must be given, pursuant to M.C.R.E. 505(g), prior to any such disclosure and the Government must be given an opportunity to respond to such notice prior to any disclosure. 15. The Office of the Chief Defense Counsel has approved Secure Areas in which the Defense can work with classified information. The Office of the Convening Authority shall establish procedures to assure that such Secure Areas be maintained and operated in a manner consistent with the protection of classified information. Documents containing classified information shall only be removed from such Secure Areas
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pursuant to Department of Defense regulations. As the presence of the SSA or an ASA may be necessary in such areas while the Defense is working, until further order of the Commission, the SSA and ASAs shall not reveal to any person any conversations he or she may overhear from Defense team members, nor reveal the nature of documents being reviewed by them or the work generated by them except as specifically directed by the Defense, for purposes of obtaining guidance from the OCA as to the proper handling or treatment of specific classified information. The presence of the SSA or ASA or communication by the SSA to the OCA shall not waive, limit, or otherwise render inapplicable the privileges set forth in M.C.R.E. 502-504 and 513. 16. Until further order of this Commission, any pleadings or other document filed by the Defense, which the Defense knows or has reason to know contains classified information in whole or in part, believes may be classified in whole or in part, or the proper classification of which is uncertain, shall be filed UNDER SEAL with the SSA. The time of submission to the SSA or ASA shall be considered the date and time of filing. The Military Commissions Trial Judiciary Staff is directed to enter a nonclassified title of the pleading or document on the filings inventory, the date it was filed and a notation that it was filed UNDER SEAL. The SSA or ASA shall promptly review the pleading and, in consultation with representatives of the appropriate agencies, determine whether the document contains classified information in whole or in part. If the SSA or ASA determines that the document contains classified information, he or she shall ensure that the document is
appropriately marked and that the classified information in the document remains under seal. The SSA will ensure that all classified documents filed with this Commission are stored in an appropriate Secure Area consistent with the highest level of classified information contained in the document. All portions of any document which do not contain classified information shall immediately be unsealed by the SSA and provided to the Clerk of the Commission for inclusion in the record. 17. Any pleading or document filed by the Prosecution containing classified information shall be filed UNDER SEAL with the SSA or ASA. The Prosecution shall ensure that its pleadings or documents are appropriately marked to identify the classified information contained therein. The time of submission to the SSA or ASA shall be considered the date and time of filing. The Military Commissions Trial Judiciary Staff is directed to enter a non-classified title of the pleading or document on the filings inventory, the date it was filed and a notation that it was filed UNDER SEAL. The SSA or ASA shall promptly serve the pleading on the Defense and deliver it to the Commission. All portions of any document which do not contain classified information shall immediately be unsealed by the SSA, and provided to the Clerk of the Commission for inclusion in the record. 18. Until further Order of this Commission, the Defense shall create, review, maintain and store all documents, notes, materials or any work product containing classified information or
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derived from classified information only in a Secure Area. 19. All documents prepared by the Defense (including but not limited to pleadings or other documents to be filed with the Commission) which do or may contain classified information shall be transcribed, recorded, typed, duplicated, copied or otherwise prepared only by persons who have complied with this Protective Order allowing them access to classified information, in a Secure Area on approved information technology systems and devices, and in accordance with Department of Defense regulations. All pleadings or documents and any associated materials, such as notes, drafts, copies, portable memory devices, photocopies, or exhibits, containing any information reasonably believed to contain classified information shall be maintained in a Secure Area unless the SSA determines, in consultation with the OCA, if necessary, that such documents are unclassified in their entirety. The SSA shall not reveal the contents of such documents to any person except, as necessary, an ASA. 20. No member of the Defense shall copy or reproduce any classified information, in any form, except in accordance with Department of Defense regulations governing the reproduction of classified information. 21. No member of the Defense shall communicate, discuss or disseminate classified information outside the Secure Area, or on any standard commercial telephone instrument or office communication system or internet or email system or in the presence of any person
who has not been granted access by the Commission to classified information. 22. Any violation or potential violation of this Protective Order shall be immediately brought to the attention if the Commission and may result in a charge of contempt pursuant to 10 U.S.C. 950w and R.M.C. 809. Persons subject to this Order are advised that direct or indirect unauthorized disclosure, retention or negligent handling of classified information or documents could cause serious damage, and in some instances, exceptionally grave damage to the national security of the United States and may be used to the advantage of a foreign power against the interests of the United States. 23. Persons subject to this Order are advised that all information to which they obtain access by this Order, or any other Orders issued by the Commission, is now and will remain the property of the United States Government. The Defense shall return all materials that may have come into their possession for which they are responsible because of such access upon demand by the Prosecution or the SSA. 24. The Defense shall comply with M.C.R.E. 505(g) prior to any disclosure of classified information at any time during this case. The Defense is required to notify the Prosecution in writing of any intention to disclose, or cause the disclosure of, classified information in any manner at any stage of the proceedings in this case. The Defense notice must be particularized and set forth the specific classified information sought to be disclosed. The Defense notice must be provided to the Prosecution with sufficient time for the Prosecution to
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respond and seek relief under M.C.R.E. 505(h) prior to the proceeding or presentation in which the disclosure is expected to occur. PROCEDURES TO PROTECT THE UNAUTHORIZED DISCLOSURE OF CLASSIFIED INFORMATION DURING OPEN SESSIONS OF COURT 25. I find that the United States, pursuant to Executive Order and appropriate authority, has determined that the statements of the accused are to be presumptively treated as classified information, classified at the TOP SECRET// SCO level. 26. I find that the accused has been exposed to information that the U.S. Government continues to protect as properly classified. To protect against the unauthorized disclosure of classified information during any proceedings in this case, it is necessary for this Commission to employ certain technical and other procedural measures designed to prevent any such unauthorized disclosure by the accused. 27. This Commission will employ a timedelay on the audio feed of the proceedings to the public in the gallery. The timedelay will be of sufficient length to guard against the unauthorized disclosure of classified information. The length of such delay shall be forty (40) seconds. 28. The SSA will ensure that a switch which will immediately terminate the audio feed to the public (hereafter the switch) will be functional and available to the Military Judge, the SSA and Trial Counsel.
29. In the event the accused makes any statement, because such statements are presumptively classified, any person with authorized access to the switch, and only such persons, may, if they reasonably believe classified information has been or is about to be disclosed, activate the switch to terminate the audio feed to the public. 30. In the event any person other than the accused is about to or has made a disclosure of classified information, any person with authorized access to the switch may activate the switch to terminate the audio feed to the public. 31. The SSA shall immediately advise the Commission that the switch has been activated and that the audio feed to the public has been terminated. 32. If the switch is activated, consistent with M.C.R.E. 505(f), the Military Judge will immediately halt the proceedings and take a brief delay to evaluate whether or not the information disclosed is classified and subject to the national security privilege. Pursuant to M.C.R.E. 505(h)(1), the Prosecution may move for an in camera presentation concerning the invocation of the national security privilege or to address the disclosure of the classified information. 33. If the national security privilege is asserted, such information may not be disclosed except as authorized by M.C.R.E. 505. 34. If classified information is found to have been disclosed, that portion of the audio feed shall not be broadcast to the public.
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35. If no classified information is found to have been disclosed, the audio feed will resume unaltered. 36. If the switch is not activated, statements by the accused that were presumptively classified when made will no longer be presumptively classified once they are broadcast to the public, based on the absence of a claim of the national security privilege during the designated broadcast delay period. 37. The Clerk of the Commissions will ensure that transcripts of all proceedings are reviewed by the SSA prior to authentication or certification by the Military Judge, to ensure that no classified information is contained therein. The Clerk of the Commissions will ensure that transcripts of any classified proceedings are properly segregated from the unclassified portion of the transcripts, properly marked with the appropriate security markings, stored in a Secure Area, and released only as a classified document when necessary and appropriate and/or in the due course of law. 38. The SSA shall ensure a similar system to the switch is employed with respect to any broadcast of the proceedings to any location in addition to the gallery of the courtroom (e.g., any closed circuit TV broadcast of the proceedings to remote locations). 39. All persons in the Courtroom will possess the requisite security clearances. The SSA shall verify the identity and clearances for each person present in the courtroom.
40. Any breach of this Protective Order may result in disciplinary action or other sanctions. 41. Persons subject to the Order are further admonished that they are obligated by law and regulation not to disclose any national security classified information in an unauthorized fashion and that any breach of this Order may result in the termination of their access to classified information. In addition, they are admonished that any unauthorized disclosure of classified information may constitute violations of United States criminal laws, including, without limitation, the provisions of 18 U.S.C. 371, 641, 1001, 793, 794, 798, 952, AND 1503; 50 U.S.C. 421 (the Intelligence Identities Protection Act) and 783; and that a violation of this Order or any portion hereof may be punishable as a contempt of this Commission. 42. Either party may file a motion for appropriate relief to obtain an exception to this Order should they consider it warranted.
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UNITED STATES OF AMERICA v. AHMED KHALFAN GHAILANI Military Commission March 4, 2009 PROTECTIVE ORDER # 5 PROTECTION OF PROTECTED BUT UNCLASSIFIED INFORMATION THROUGHOUT ALL STAGES OF PROCEEDINGS Bruce W. MacKenzie Captain, U.S. Navy Military Judge
ed information in connection with this case. For purposes of this Order the term Defense includes all defense counsel of record, defense paralegals, defense translators, and all other persons assisting the Defense. 4. This Order pertains to protected but unclassified information, in any form, provided or disclosed to the Defense in their capacity as legal representatives of the accused before this military commission. Protected information provided pursuant to the terms of this Order may be used for purposes of Military Commissions only and may not be shared or otherwise utilized outside the Military Commissions process. 5. IT IS HEREBY ORDERED:
1. This protective order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.), the Manual for Military Commissions (MMC), and the Regulation for Trial by Military Commission. 2. I find that this case will involve protected information that is unclassified but which remains sensitive and should be protected from dissemination outside the Defense. Unless otherwise directed, this Order does not preclude the use of such documents or information during open sessions of this Military Commission. 3. This Order establishes procedures that must be followed by all counsel, the accused, all interpreters and all other persons who assist Counsel in this case, any commission personnel, and all other individuals who receive access to protect-
a. That the documents marked For Official Use Only (FOUO) or Law Enforcement Sensitive (LES) and the information contained therein shall be handled strictly in accordance with and disseminated only pursuant to the limitations contained in Appendix 3 of the Memorandum of the Under Secretary of Defense (Interim Information Security Guidance) dated April 16, 2004. If either party disagrees with the marking of a document, that party must continue to handle that document as marked unless and until proper authority removes such marking. b. That Criminal Investigation Task Force Forms 40 and Federal Bureau of Investigation FD-302s provided to the Defense shall, unless classified (marked CONFIDENTIAL, SECRET, OR TOP SECRET) be handled and disseminated as For Official Use Only and/or Law Enforcement Sensitive.
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6. Either party may file a motion for appropriate relief to obtain an exception to this Order should they consider it warranted. 7. Any breach of this Protective Order may result in disciplinary action or other sanctions.
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UNITED STATES OF AMERICA v. AHMED KHALFAN GHAILANI Military Commission March 4, 2009 SCHEDULE FOR TRIAL: AMENDMENT ONE Bruce W. MacKenzie Captain, U.S. Navy Military Judge
intend to submit more than ten (10) law motions, counsel shall inform the Military Judge and opposing counsel of the total number of law motions which counsel intend to present NLT 1200 hours, 13 July 2009. The Military Judge will advise counsel of a revised schedule to present motions.
Note 1: Motions will have as their underlying legal premise no more than one legal basis. If there is more than one legal basis, then there should be more than one motion. Law motions include motions relative to sentencing. Note 2: Motions, response, and reply due dates are a No Later Than date. Counsel for both sides are advised that any motion, response, or reply which is ready for submission prior to the due date should be submitted when completed. The efficient and proper process of motion practice will NOT be enhanced by delivering multiple motions, responses, or replies to the Commission or opposing party at the last possible moment.
e. Week of 3 August 2009: Hearing in GTMO regarding law motions and witness production issues or any unresolved matters. f. 10 August 2009: Defense requests for government assistance in obtaining witnesses for use on the merits. See R.M.C. 703.
1. The following trial schedule is ordered. Times when listed are local Eastern United States. a. 1 June 2009: Discovery completed. b. 15 June 2009: Discovery motions due to the Military Judge and opposing counsel. If counsel intend to submit more than ten (10) discovery motions, counsel shall inform the Military Judge and opposing counsel of the total number of law motions which counsel intend to present NLT 1200 hours, 8 June 2009. If appropriate, the Military Judge will advise counsel of a revised schedule to present motions. c. Week of 6 July 2009: hearing in GTMO regarding discovery motions. d. 20 July 2009: Law motions due to the Military Judge and opposing counsel. In general, law motions are those which require no evidentiary hearing to determine. If counsel
Note: The Government response to any witness request will be due within five business days of the submission of the request. Any Defense motion for production of
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witnesses in conjunction with a motion will be due to the court and opposing counsel within five days of receipt of a denied witness request.
g. Week of 24 August 2009: Hearing regarding unresolved witness production motions and/or any unresolved matters. h. 31 August 2009: Evidentiary motions due. Evidentiary motions due to the Military Judge and opposing counsel. In general, evidentiary motions are those which deal with the admission or exclusion of specific or general items or classes of evidence. If counsel intend to submit more than ten (1) evidentiary motions, counsel shall inform the Military Judge and opposing counsel of the total number of evidentiary motions NLT 1200 hours, 24 August 2009.
i. Week of 14 September 2009: Hearing in GTMO regarding evidentiary motions. j. 23 September 2009: Requested group voir dire questions for the Military Commission members due.
Note: The Military Judge intends to conduct all group voir dire questioning of the members per R.M.C. 912. The Military Judges group voir dire will take counsels requested questions into account as appropriate. The Military Judge will also conduct the initial follow-up individual voir dire based on responses to group questions. Counsel will be permitted to conduct additional follow-up voir dire.
k. 24 September 2009: Proposed members instructions due. l. 5 October 2009: Assembly and voir dire for panel members. m. 9 October 2009: Beginning of trial on the merits lasting potentially as late as 13 November 2009. 2. Counsel should direct their attention to the Rules of Court, R.C. 3, Motions Practice, and specifically Form 3-1, 3-2, and 3-3, for the procedures I have established for this trial. All motions, responses, and replies shall comport with the terms of R.C. 3.6 in terms of timeliness. Any request for extension of any response or reply deadline associated with this hearing will be submitted before the deadline for the reply or response. 3. Requests for deviations from the timelines for hearings or for submission of
Note 1: Generally, see paragraph d, notes 1 and 2 above. Note 2: Defense witness requests associated with any motions should be submitted to the trial counsel in accordance with R.M.C. 703 simultaneously with the filing of the motion (or Defense response in the case of a Government motion) in question. The Government response to any witness request will be due within five days of the submission of the request. Any Defense motion for production of witnesses in conjunction with a motion will be due to the court and opposing counsel within five days of receipt of a denied witness request.
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motions established by this order must be submitted not later than 20 days prior to the date established, except for law motions for which requests for deviations from the due date must be submitted within 7 days prior to the date established. 4. Monthly status conferences will be scheduled throughout the pendency of this action or as needed under the circumstances. Counsel should anticipate the fluidity of the process of this action and be vigilant to alterations. Counsel requiring hearings or conferences not specifically anticipated herein should make a written request as soon as practicable in order to maintain the efficient and fair administration of justice. Court hearings designated as during the week is for planning purposes and actual hearing dates are commensurate with logistical, courtroom accessibility, and transportation availability.
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UNITED STATES OF AMERICA v. AHMED KHALFAN GHAILANI Military Commission April 16, 2009 RULING ON D-006: DEFENSE MOTION TO COMPEL DISCOVERY Bruce W. MacKenzie Captain, U.S. Navy Military Judge
3. Facts. a. As part of pre-trial discovery, the Government provided a binder containing information relative to the referral process in the subject case. Included within the referral binder were the statements recorded in 1998 of at least eleven witnesses. b. On 20 March 2009, the Defense requested, via electronic mail, contact information for witnesses whose statements were disclosed in the referral binder. The Government declined to provide contact information as requested. Thereafter, on 25 March 2009, the Defense provided, via electronic means, a list outlining specific names in concert with their prior request for contact information. The Government declined to provide contact information for the thirteen (13) named witnesses. c. On 17 April 2009, a Defense team will travel to Kenya and Tanzania for pre-trial preparation over a two-week period. d. The statements of the various persons interviewed by the United States and local police officials provide either telephone numbers, home addresses, business names and addresses, local police officials who participated in the interview process, the name of the police station where the interviews took place, identity and address of relative or telephone contacts of neighbors, post office boxes, neighborhoods/districts of residence and in some cases, directions to homes or businesses. Some statements provide more identifying information
1. Procedural History. On 27 March 2009, the Defense moved this Commission to issue an Order compelling discovery of certain matters from the government. The Government responded in a timely manner to the Defenses motion on 8 April 2009. Thereafter, the Defense filed supplemental pleadings with the Commission on 13 April 2009. An R.M.C. 802 session was conducted on 13 April where this motion was further discussed. Neither party requested oral argument. 2. Issue. The Defense seeks an order from this Commission compelling the Government to produce current contact/address information in their possession for certain named witnesses. The Government has declined to provide this information. In the alternative, the Defense seeks dismissal of all charges and specifications now pending against the accused.
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than others. The new report extract provides little amplifying information. e. All statements considered under this motion were taken in 1998, in Tanzania. 4. Discussion. a. Commissions in general are sui generis both in their form, procedure and substance. While it is accurate that Commissions have adopted many principles common to trials by courts-martial, the overall charter of Military Commissions is one calculated and designed to provide the greatest degree of due process and justice consistent with supervening national security concerns, when applicable. Accordingly, Commissions must not only be fair and just, the Commission process must be perceived as such by all participants and those who view the application of justice via the Commission process. Accordingly, within this framework, precedent of military and federal circuits must be considered on the merits of the issues then presented. Oft times, these considerations mandate a melding of military and federal law. b. In federal practice, discovery in criminal litigation is, in many respects, vastly different from that experienced in a military court. The Government correctly reveals the determination of the Supreme Court from Weatherford v. Bursey that there is no general constitutional right to discovery in a criminal case,
and Brady did not create one. See also, Pennsylvania v. Ritchie, 480 U.S. 39; 107 S. Ct. 989; 94 L. Ed. 2d 40 (1987). However, as it applies to discovery in a military jurisdiction, the superior military court in United States v. Killebrew, 9 M.J. 154, 159 (C.M.A. 1980) stated: Military law has long been more liberal than its civilian counterpart in disclosing the governments case to the accused and in granting discovery rights. For example, the names of prospective witnesses are listed on a charge sheet, which is served on the accused; in civil courts, the names of prosecution witnesses often remain undisclosed. c. The model for R.M.C. 701 extends from its military counterpart, R.C.M. 701 and its statutory basis, Article 46 of the Uniform Code of Military Justice. The analysis of R.C.M. 701 provides additional guidance and illustration of the discovery rights which should be afforded in a military criminal court context. In this Commissions opinion, this analysis from the Manual for CourtsMartial is persuasive authority. The rational expressed therein demonstrates that the discovery rights in military trials should be interpreted more liberally than its federal counterpart (found in Federal Rules of Criminal Procedure 16). 1 It is not unreasonable to conclude that a hybrid between federal practice and military criminal practice has been created. Accordingly, an accused
I note that many portions of R.C.M. 701 are taken directly from Fed. R. Crim. Proc. 16.
1
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enjoys greater and more liberal discovery rights at Military Commissions than a defendant indicted in a federal district court. d. However, the analysis of the particular question presented here cannot conclude on this note. The question begged by the current controversy is whether the government should be compelled to provide discovery in the form of updated contact information for certain persons interviewed in a foreign country over a decade ago. Moreover, the question is formed has the Defense demonstrated by a preponderance that they are entitled to the relief requested? In brief, the answer to the latter question is in the negative. e. The Defense has not demonstrated that they have been denied access or unreasonably impeded by the Governments failure or denial to provide current contact information of certain individuals who were interviewed by police officials over a decade ago. 2 The Defense has offered no evidence that the statements in their present form will prevent them from contacting and interviewing any person on their requested list. Additionally, there is no assertion that the Government has taken any action calculated to prevent the
defense from successfully conducting their own investigation. In fact, it appears that the Convening Authority has approved $60,000 for the defense to conduct investigations in East Africa. f. However, while the Defense has failed to carry their burden on this specific point at this time, future motions of the same nature may have different results. In addition to fundamental notions of justice, the economy, efficiency, effectiveness, and productivity of the judicial process are at stake. While this Commission is sensitive to proceeding with all due dispatch with discovery and other pre-trial requirements, the Governments failure to provide even basic discovery will compound and exacerbate the smooth and forthright administration of this Commission. 3 5. Ruling. The Defense motion to compel discovery in the form of updated contact information of various witnesses is DENIED.
The Government has neither confirmed nor denied that they possess this information. One may infer from electronic communications between the Government and Defense that they do indeed hold current contact information of the potential witnesses. The language is quoted from R.M.C. 701(j).
2
3 In rendering this decision, there has been no assertion that witnesses are under any protective regime for their personal safety by any police or political entity.
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UNITED STATES v. NOOR UTHMAN MUHAMMED
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Background Noor Uthman Muhammed is a citizen of Sudan and has been described by JTF-GTMO counterterrorism analysts as being a senior leader of the al-Qaeda and providing weapons training to al-Qaeda recruits and operatives in the Khaldan terrorist training camp. He was captured in a 2002 raid on an al-Qaeda safehouse in Faisalabad, Pakistan. Mohammed has denied ties to al-Qaeda, and the charges originally filed against him were withdrawn and re-filed seven months later following accusations that his detention had been pursuant to information acquired through the use of waterboarding. Military Commissions Charges were sworn against Uthman Muhammed on December 5, 2008. The Convening Authority referred charges on December 22, 2008. Charges
Providing Material Support for Terrorism (Violation of 10 U.S.C. 950v[b][25]): As deputy emir for the Khaldan terrorist training camp in
Afghanistan, instructed al-Qaeda trainees on various subjects, including the use of small arms and artillery between 1996 and 2000
Conspiracy (Violation of 10 U.S.C. 950v[b][28]): Attended various

meetings of al-Qaeda leaders and recommended the training of various al-Qaeda recruits in additional weapons training and poison manufacturing.
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UNITED STATES OF AMERICA v. NOOR UTHMAN MUHAMMED Military Commission May 26, 2009 ORDER REGARDING DEFENSE MOTION TO COMPEL DISCOVERY (D-003) Moira D. Modzelewski Captain, U.S. Navy Military Judge
arraigned on 14 January 2009. On 19 February 2009, the Defense submitted a written discovery request to the prosecution along with a request for protective orders. Protective Orders #1 and #2 were issued on 6 March 2009, and Protective Order #3 was issued on 13 March 2009. As of this date, the Defense has not received any of the discovery requested from the Government. 4. The Government delay in responding to the Defense discovery requests warrants immediate relief. Under R.M.C. 701, the Government is required to permit the Defense to examine, inter alia, papers and documents which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial. Accordingly, at a minimum the trial counsel will provide the Defense with all items requested by the Defense and set forth in R.M.C. 701(b)(1) no later than 25 June 2009. Further, any evidence for which the Government claims the national security privilege pursuant to R.M.C. 701(f) must also be determined by this date and for any such information, the Government must set forth in writing with specificity its claim of such privilege and its proposed alternative means of discovery. 5. All counsel will meet with the Military Judge for an R.M.C. 802 session on 26 June 2009 at 1100 in the offices of the Trial Judiciary to ensure and document compliance with this order and discuss any additional discovery issues that may arise in this case.
1. The Defense moved the Commission to compel the Government to provide the Defense with discovery, to include at a minimum the matters set forth in R.M.C. 701(b)(1). Further, the Defense moved for a deadline to be set for the Prosecution to provide the Commission and counsel with a written determination regarding its intention to assert the national security privilege. 2. The Defense alleges that as a result of the Governments failure to timely provide the discovery required under R.M.C. 701, the accused has been denied the opportunity to properly prepare his defense, including the ability to conduct an adequate investigation as potential witnesses memories become unreliable or the witness themselves become unavailable. 3. The current charges were sworn on 5 December 2008. The Convening Authority referred these charges to trial on 22 December 2008, and the accused was
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Accordingly, the Defense motion to compel production of the requested discovery is GRANTED. So ORDERED.
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UNITED STATES OF AMERICA v. NOOR UTHMAN MUHAMMED Military Commission May 28, 2009 ORDER REGARDING GOVERNMENT MOTION FOR A SECOND 120-DAY CONTINUANCE (P-002) Moira D. Modzelewski Captain, U.S. Navy Military Judge
Protective Order #3 was issued on 13 March 2009. As of this date, the Defense has not received any discovery whatsoever from the Government. 3. R.M.C. 701(b) requires trial counsel, [a]s soon as practicable after service of charges to provide the Defense with any paper which accompanied the charges, the convening order, and any sworn or signed statement relating to an offense charged in the case which is in the possession of the trial counsel. R.M.C. 701(c) requires the Government, upon request of the Defense, to provide discovery of the things listed in that rule, including all relevant statements made or adopted by the accused, all tangible objects material to the preparation of the defense or intended by trial counsel for use as evidence at trial, and the results of any physical or mental examinations or tests in the possession of the Government. These items were requested by the defense on 19 February 2009. The Government has thus far refused to provide any discovery to the Defense. 4. Concurrent with this Order, the Commission has granted the Defense motion to compel the discovery required by R.M.C. 701(b), and established a deadline of 25 June 2009 for this information to be provided to the defense. 5. The Government, in its motion, seeks to preserve the status quo as it existed on 22 January 2009. What the Government fails to acknowledge is that on 22 January 2009 the trial counsel was already delinquent in failing to provide the discovery required by R.M.C. 701(b) to the Defense. The Commission finds it is not in the interests of justice to allow the Government to preserve non-compliance
1. The charges in this case were sworn on 5 December 2008. The Convening Authority referred these charges to trial on 22 December 2008, and the accused was served with the referred charges in 10 January 2009. The accused was arraigned on 14 January 2009. On 23 January 2009 the Government requested, and was granted, a 120-day continuance to allow the new Presidential Administration the opportunity to evaluate this case and the Commissions process. That continuance expires on 20 May 2009. On 15 May 2009, the Government requested a second 120-day continuance which is the subject of this ruling. On 19 May 2009, the Defense filed a response, and on 20 May 2009 the Government filed a reply to that response. 2. On 19 February 2009, the Defense submitted a written discovery request to the Prosecution along with a request for protective orders. Protective Orders #1 and #2 were issued on 6 March 2009, and
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with the obligations mandated by the Rules for Military Commissions while this case is continued. 6. The Government motion for a second 120-day continuance is GRANTED IN PART. This case will be continued until 1 July 2009. Any further extensions of this continuance will be conditioned upon Government compliance with providing the discovery required by R.M.C. 701(b) ordered in D-003. All counsel will meet with the Military Judge for an R.M.C. 802 session on 26 June 2009 at 1100 in the offices of the Trial Judiciary to discuss compliance with D-003, to discuss further extension of the continuance, and to discuss any additional discovery issues that may arise in this case. The remainder of the requested continuance remains under advisement by the Commission until that time. 7. The Commission further finds that the partial granting of this continuance until 1 July 2009 will serve the interests of justice because it will permit the Administration time to implement changes, continue the Detention Policy Review, and its review of individual cases. A continuance until 1 July 2009 is a reasonable time to accomplish these actions. The best interests of both the public and of the accused in a prompt trial will not be harmed by the requested delay of the next hearing, and are outweighed by the reasons for granting the requested continuance. For purposes of R.M.C. 701 (b)(4)(E)(ii)(B), the Government is responsible for the delay from 20 May 2009 until 1 July 2009. 8. The Commission further notes that the proposed rule changes articulated by the
Government do not in any way impact its discovery obligations, required by R.M.C. 701(c), which the Defense has properly requested. The Commission strongly recommends that the Government reconsider its posture, apparently adopted during the first continuance period, and implicitly articulated in paragraph 7 of the second continuance motion, that it need not comply with discovery during these continuances that have been requested by the Government. The interests of justice, which may well be served by the granting of further extensions of this continuance, also demand that the Government provide this basic level of discovery to the Defense so that they are able to investigate their case during the period of continuance. So ORDERED.
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UNITED STATES OF AMERICA v. NOOR UTHMAN MUHAMMED Military Commission May 29, 2009 ORDER (D-004) Moira D. Modzelewski Captain, U.S. Navy Military Judge
1. This order is issued pursuant to the authority under the Military Commissions Act (MCA) of 2006 (10 U.S.C. 948a, et seq.) and the Manual for Military Commissions (MMC). 2. Accordingly, it is hereby ORDERED that the Commander, Joint Task ForceGuantanamo Bay, Cuba (JTF-GTMO) shall provide to counsel for Noor Uthman Muhammed any and all medical records in the possession of JTF-GTMO. This Order includes any historical medical records that document Noors medical condition prior to his arrival at Guantanamo Bay. medical records for purposes of this Order should be broadly interpreted to include medical, dental, mental health and records of prescription administration. Further, medical records include diagnosis and treatment provided by doctors, physicians assistants, nurses, medics, corpsmen, and guards. ORDERED this 29th day of May, 2009.
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UNITED STATES COURT OF MILITARY COMMISSION REVIEW
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UNITED STATES COURT OF MILITARY COMMISSION REVIEW
PANEL ONE
Chief Judge Frank J. Williams

Colonel David R. Francis, USAF Captain Daniel E. OToole, USN
PANEL TWO
Honorable Edward G. Biester

Colonel Annamary Sullivan, USA Captain Eric E. Geiser, USN
PANEL THREE
Honorable William T. Coleman, Jr.

Colonel John F. Feltman, USMC Captain Eric. E. Geiser, USN
PANEL FOUR (Classified Information Cases)
Colonel David R. Francis, USAF

Colonel Paul P. Holden, Jr., USA Captain Daniel E. OToole, USN
*Italicized names indicate Presiding Judge
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UNITED STATES COURT OF MILITARY COMMISSION REVIEW 10 April 2008 Administrative Order No. 08-02 By direction of the Chief Judge, after consultation with the other judges of the Court, the revised Rules of Practice for the United States Court of Military Commission Rules of Practice are promulgated. The revised rules will take effect immediately as interim rules under CMCR Rule 25 and shall apply to all matters and cases that may come before the Court after this date. This revision includes the amendments of the Rules approved by the Chief Judge and published by Administrative Order No. 08-01 on 3 January 2008; and the amendments of the Rules approved by the Chief Judge on 10 April 2008. The revised Rules are attached to this order, with the amendments of 10 April 2008 highlighted. FOR THE COURT:
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DEPARTMENT OF DEFENSE COURT OF MILITARY COMMISSION REVIEW RULES OF PRACTICE REVISED EFFECTIVE DATE: 10 APRIL 2008
Court of Military Commission Review Rules of Practice TABLE OF CONTENTS COURT OF MILITARY COMMISSION REVIEW RULES OF PRACTICE RULE 1. TITLE; SCOPE OF RULES (a) Title (b) Scope of rules (c) Suspension of rules JURISDICTION (a) References (b) Post-trial review SCOPE OF POST-TRIAL REVIEW DECISION PANELS AND QUORUM PLACE FOR FILING PAPERS SIGNING OF PAPERS COMPUTATION OF TIME QUALIFICATION OF COUNSEL (a) All counsel (b) Military counsel (c) Admission (d) Automatic admission (e) Admission by Motion (f) Foreign attorneys CONDUCT OF COUNSEL
RULE 2.
RULE 3. RULE 4. RULE 5. RULE 6. RULE 7. RULE 8.
RULE 9.
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RULE 10.
ASSIGNMENT OF DETAILED COUNSEL AND EMPLOYMENT OF CIVILIAN DEFENSE COUNSEL RETENTION OF CIVILIAN COUNSEL NOTICE OF APPEARANCE AND WITHDRAWAL OF COUNSEL WAIVER OR WITHDRAWAL OF APPELLATE REVIEW ASSIGNMENTS OF ERROR AND BRIEFS (a) General provisions (b) Specified issues (c) Time for filing and number of briefs (d) Appendix to a brief (e) Format for briefs (f) Page limitations of brief (g) Type-volume limitations of briefs (h) Certificate of Compliance (i) Form of Certificate of Compliance (j) Service on opposing party (k) Supplemental briefs ISSUES PERSONALLY RAISED BY AN APPELLANT
RULE 11. RULE 12.
RULE 13. RULE 14.
RULE 15. RULE 16. RULE 17. RULE 18. RULE 19. RULE 20.
AMICUS CURIAE BRIEFS

ORAL ARGUMENTS DISTRIBUTION OF ORDERS AND DECISIONS RECONSIDERATION MOTIONS (a) Content (b) Motions to attach documents (c) Opposition (d) Leave to file (e) Oral argument (f) Decisions on motions (g) Service on other parties; Action Block; Come back Copies (h) Readability of accompanying documents CONTINUANCES AND INTERLOCUTORY MATTERS
RULE 21.
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RULE 22. RULE 23. RULE 24.
INTERLOCUTORY APPEALS BY THE UNITED STATES PETITIONS FOR NEW TRIAL RECUSAL OR DISQUALIFICATION OF JUDGES (a) Grounds (b) Procedure INTERNAL RULES RECORDING PHOTOGRAPHING, BROADCASTING, OR TELECASTING OF HEARINGS CLERK OF COURT, COURT OF MILITARY COMMISSION REVIEW RECORDS OF TRIAL (a) Custody of records (b) Altering records (c) Number of copies provided to the CMCR (d) Erroneous or incomplete records CASES INVOLVING CLASSIFIED AND PROTECTED INFORMATION PUBLIC RELEASE OF CMCR FILINGS AND DECISIONS FORMAT FOR BRIEF FORMAT FOR APPLICATION FOR ADMISSION
RULE 25. RULE 26.
RULE 27. RULE 28.
RULE 29.
RULE 30. APPENDIX 1. APPENDIX 2.
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RULE 1. TITLE; SCOPE OF RULES 1 (a) Title. These rules are to be known as the Court of Military Commission Review Rules of Practice. (b) Scope of rules. These rules govern practice before the Court of Military Commission Review (CMCR). In case of any conflict between these rules and the Military Commissions Act of 2006 or the Manual for Military Commissions, United States, 2007, the latter two will control. (c) Suspension of rules. 2 On its own or a party's motion, the CMCR may to expedite its decision or for other good cause - suspend any provision of these rules in a particular case and order proceedings as it directs. RULE 2. JURISDICTION (a) References. The jurisdiction of the CMCR is based on the following references: (1) Military Commissions Act of 2006 (M.C.A.), 10 U.S.C. 948a, et seq. (2) Manual for Military Commissions, United States, 2007 (Manual), including the Rules for Military Commissions (R.M.C.) promulgated in Part II of the Manual. (3) Department of Defense Regulation for Trial by Military Commission (Regulation). (b) Post-trial review. The record of trial of all military commission cases with a finding of guilty as to any offense shall be referred to the CMCR after the Convening Authoritys action in accordance with M.C.A. 950b and 950c and R.M.C. 1111. RULE 3. SCOPE OF POST-TRIAL REVIEW (a) The CMCR shall decide all cases and matters referred to it under R.M.C. 908, 1111, and 1210. (b) The CMCR shall consider timely filed written briefs and other pertinent materials submitted by the parties, and in its discretion may permit oral arguments and submissions by amicus curiae. RULE 4. DECISION PANELS AND QUORUM 3 (a) The CMCR Chief Judge will establish one or more three-member decision panels, designate the presiding judge for each panel, and establish a procedure for assignment of cases to three-member panels.
1 2
CMCR Rule 1 is from Fifth Circuit Federal Rule of Appellate Procedure (FRAP) Rule 1. CMCR Rule 1(c) is from Fifth Circuit FRAP 1(c), except Fifth Circuit FRAP 1(c) has an exception for Fifth Circuit FRAP 26(b), which states the court may not extend the time to file a notice of appeal. Because the CMCR is required to review every case that meets certain criteria, this exception is unnecessary. CMCR Rule 1(c) is also very similar to Army Court of Criminal Appeals (ACCA) Rule 25 (Suspension of Rules) and Rhode Island Supreme Court Rule 2. This rule does not create any authority for the Court to suspend legal requirements not contained in these Rules of Practice. 3 The rule is from ACCA Rule 4 (Quorum).
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(b) Upon motion by a party or one of the judges on the panel to which the case was assigned, the CMCR may, in its discretion, consider a case en banc, if two-thirds of the judges appointed to the CMCR vote to grant the motion for en banc consideration. (c) The determination of any matter referred to a panel, except a motion for en banc consideration, shall be according to the opinion of two of the three judges on the panel. However, any judge present for duty and assigned to the panel to which the case was assigned may issue all necessary orders concerning any proceedings pending to that panel, and any judge present for duty, or the Clerk of Court, if the Chief Judge has delegated such authority, may act on uncontested motions, provided such action does not finally dispose of an appeal, or case. (d) For military officers serving on the CMCR as appellate military judges, duty on the CMCR will take precedence over all other military duties. RULE 5. PLACE FOR FILING PAPERS 4 (a) When the filing of a notice of appearance, brief, or other paper for consideration of the CMCR is required by these rules, such papers shall be filed at the following mailing address: Clerk of Court, Court of Military Commission Review One Liberty Center 875 N. Randolph Street Suite 8000 Arlington, VA 22203 Should facsimile filing be utilized, such filings may be sent to: Facsimile: 703-696-1831 Voice telephone number: 703-696-6640 (b) Should electronic filing be utilized, the Clerk of Court will provide and publish an e-mail address. Adobe Acrobat PDF format is the preferred standard. The electronic image of the document constitutes the original document for all CMCR purposes. Filing is complete when the document is received by the Clerk of Court. The provisions in these rules requiring copies are not applicable. The Clerk of Court is authorized to serve all papers, including opinions, electronically. (c) Any paper not exceeding fifty pages in length in its entirety may be filed by facsimile transmission. The burden is on the sender to ensure receipt, completeness, and legibility. The paper must comply with the typographical requirements of Rule 14(e), (f), and (g), and must show the senders facsimile and voice telephone numbers. Except as indicated below, if the facsimile shows the signature required by Rule 6 and the certificate of service on opposing counsel required by Rule 14(j), a signed original copy need not be sent unless so ordered by the CMCR. (d) Copies of papers should also be filed with the opposing parties.
4 The rule is from ACCA Rule 5 (Place for Filing Papers). The portion pertaining to electronic filing is from Fifth Circuit FRAP 25.2 and Fifth Circuit FRAP 25.3.
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RULE 6. SIGNING OF PAPERS 5 (a) All formal papers shall be signed and shall show, typewritten or printed, the signers name, address, military grade (if any), and the capacity in which the paper is signed. Such signature constitutes a certification that the statements made therein are true and correct to the best of the knowledge, information, and belief of the persons signing the paper and that the paper is filed in good faith and not for purposes of unnecessary delay. Each pleading or other paper will be signed by an attorney of record. This applies to original or facsimile filings. Electronic signatures are authorized. Requirements for admission to the Bar of the CMCR are set forth in Rule 8, and notice of appearance requirements are set forth in Rule 12. A paralegal or legal intern who assists in preparing a pleading or other paper may not sign the paper, but the assistance may be recognized in a footnote. (b) One attorney of record may sign FOR another attorney of record whose signature block appears on the same pleading or other paper if authorized by that attorney to do so, in which event the CMCR will regard the latter as having personally signed the document. RULE 7. COMPUTATION OF TIME 6 In computing any period of time prescribed or allowed by these rules, by order of the CMCR, or by any applicable order, instruction, regulation or statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, or, when the act to be done is the filing of a paper in the CMCR, a day on which the Office of the Clerk of Court is closed due to weather or other conditions or by order of the Chief Judge of the CMCR, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday. A facsimile or electronic filing shall be deemed filed when it is transmitted. A document or pleading filed after 5:00 p.m., Eastern Standard Time or Eastern Daylight Saving Time, whichever is in effect at the time of filing, shall be deemed filed on the following day. RULE 8. QUALIFICATION OF COUNSEL 7 (a) All counsel. Counsel in any case before the CMCR shall be a member in good standing of the bar of the highest court of a state, territory, commonwealth, or possession of the United States, bar of the District of Columbia, or bar of a federal court. No attorney may practice before this CMCR unless admitted to the Bar of the CMCR or appearing by leave of the CMCR pro hac vice (Rules 8(c) and 12(e)) or as an amicus curiae (Rule 16). Additionally, military counsel must be qualified and detailed in accordance with 10 U.S.C. 949c and 950h as well as Regulation 9-1 and 9-5. The classified information requirements of Chapter 18 of the Regulation apply during the appellate process. See Rules 27-29. No counsel may appear in any proceeding before the CMCR while suspended from practice by the Judge Advocate General of any service.
This rule is from ACCA Rule 6 (Signing of Papers). This rule is from ACCA Rule 7 (Computation of Time). 7 This rule is from ACCA Rule 8 (Qualification of Counsel). Supreme Court Rules 5 (Admission to the Bar), 6 (Argument Pro Hac Vice), 7 (Disbarment and Disciplinary Action) and 9 (Appearance of Counsel), all pertaining to the when and how counsel are permitted before the Supreme Court.
6 5
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(b) Military counsel. Detailed appellate defense and appellate government counsel shall, in addition to requirements in Rule 8(a), be qualified in accordance with Articles 27(b)(1), Uniform Code of Military Justice [hereinafter U.C.M.J.], 10 U.S.C. 827(b)(1); M.C.A. 948k and 950h, as well as Regulation 9-1 and 9-5. (c) Admission. Upon entering an appearance, counsel shall be deemed admitted pro hac vice, subject to filing an application setting forth required qualifications if directed by the CMCR. The applicant must file with the Clerk of Court, CMCR, an application for admission on the form prescribed by the CMCR, together with a certificate from the presiding judge, clerk, or other appropriate officer of a court specified in Rule 8(a), showing that the applicant is a member of the bar in good standing. The certificate must be an original and dated within one year of the actual date of admission to the Bar of the CMCR. Applicants currently certified by a Judge Advocate General pursuant to Article 26(b) or 27(b)(1), U.C.M.J., 10 U.S.C. 826(b) or 827(b)(1) may be admitted without a certificate of good standing; however, the CMCR may require evidence of certification. If such evidence of certification is required, the Clerk of Court will so inform the applicant. An application form for admission is at Appendix 2. Each applicant admitted to practice in the United States shall sign the following oath or affirmation: I,[full name], do solemnly swear (or affirm) that I will support the Constitution of the United States, and that I will conduct myself uprightly and according to law as an attorney and counselor of the Court of Military Commission Review. The reference to the Constitution of the United States may be omitted by foreign applicants. If the documents submitted demonstrate that the applicant possesses the necessary qualifications, and if the applicant has signed the oath or affirmation fee, the Clerk of Court will notify the applicant of acceptance as a member of the Bar. 8 (d) Automatic admission. Admission is automatic without the need for an application or motion for counsel detailed by the Chief Prosecutor or Chief Defense Counsel in accordance with Regulation 244 and Rule 8(a) and (b). The oath taken before the military commission is sufficient. If no oath was taken before the military commission, then the oath must be given in the manner specified in Rule 8(e). 9 (e) Admission by Motion. An applicant who so wishes may be admitted on oral motion by a member of the Bar of the CMCR, provided that all other requirements for admission have been satisfied. The motion and oath shall be substantially in the following form:
MOTION
May it please the Court, I move the admission of [full name], a member of the Bar of [qualifying jurisdiction]. I have examined [his/her] credentials on file in the Office of the Clerk of Court and I am satisfied that [he/she] possesses the necessary qualifications for membership in the Bar of this honorable Court.
OATH
I, [full name], do solemnly [swear/affirm] that I will support the Constitution of the United States, and that I will conduct myself as an attorney and counselor of this Court uprightly and according to law. [So help me God.]
This rule is based on Supreme Court Rule 5. This rule is similar to Supreme Court Rule 9, which does not require admission for counsel appointed under applicable federal statute.
9 8
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The form of the motion may be tailored for admission of more than one attorney. Also, the oath may be administered in interrogatory form (Do you, [Full Name], solemnly swear . . . Do you and each of you solemnly swear . . .). (f) Foreign attorneys. 10 An attorney qualified to practice in the courts of a foreign state may be permitted to argue pro hac vice. Counsel of record for the party on whose behalf leave is requested to argue pro hac vice must file a motion seeking permission of the CMCR. The motion must identify the courts to which the pro hac vice counsel is admitted to practice and must indicate whether any disciplinary proceedings are pending against that counsel. Counsel of record may, by motion, ask the CMCR to waive specific requirements in Rule 8(a) for a foreign attorney lacking a security clearance, or being otherwise unqualified. Such waiver will not authorize access to classified information. 11 RULE 9. CONDUCT OF COUNSEL 12 (a) The conduct of counsel appearing before the CMCR shall be in accordance with rules of conduct prescribed pursuant to Rule for Courts-Martial 109 by the Judge Advocate General of the service concerned for military counsel and the rules of conduct of the jurisdictions where they are admitted to practice for civilian counsel. However, the CMCR may exercise its inherent power to regulate counsel appearing before it, including the power to remove counsel from a particular case for misconduct in relation to that case. Conduct deemed by the CMCR to warrant consideration of suspension from practice or other professional discipline shall be reported by the CMCR to the Convening Authority. (b) Reporting Requirement. Any member of the Bar of this CMCR who is subjected to discipline that results in disbarment, suspension, or other loss of good standing in the bar of any court of the United States or the District of Columbia, or by a court of any State, Territory, Commonwealth, or Possession of the United States, must promptly so notify the Clerk of Court at the address shown in Rule 5. Likewise, any member of the Bar who is suspended from practice in courts-martial or the Court of Criminal Appeals of any military service, or whose certification pursuant to Article 26(b) or 27(b)(1), U.C.M.J., is withdrawn for cause, shall promptly so notify the Clerk of Court. Counsel also shall promptly notify the Clerk of Court of any issue which may cause substantial doubt about that counsels qualifications for practice before the CMCR. Foreign lawyers admitted pro hac vice will notify the Clerk of Court if they are subjected to professional discipline by their licensing jurisdiction, or if an issue arises which may cause substantial doubt about their qualifications for practice before the CMCR. RULE 10. ASSIGNMENT OF DETAILED COUNSEL AND EMPLOYMENT OF CIVILIAN DEFENSE COUNSEL 13 The Chief Defense Counsel is required to appoint counsel to represent the appellant by M.C.A. 950h(a) and the Regulation 9-1 and 24-4a. An appellant may also be represented before the CMCR by civilian counsel provided by the appellant, or both provided such counsel meets all requirements, including being eligible for the requisite security clearance to review the record of trial. Detailed
10 11
This rule is from Supreme Court Rule 6. This section does not imply any right to obtain a security clearance that might be necessary to review a record of trial or other document that contains classified information. Foreign attorneys lacking a security clearance are limited to reviewing the unclassified portions of the record of trial. 12 This rule is from ACCA Rule 9 (Conduct of Counsel). 13 This rule is from ACCA Rule 10 (Request for Appellate Defense Counsel) and Rule 11 (Assignment of Counsel).
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counsel shall, within five days after service of an authenticated copy of the record of trial, forward to the Clerk of Court, Court of Military Commission Review: (a) Notice of the name, address, telephone number, telefax number, and e-mail address of detailed counsel, and (b) Notice that civilian counsel has been retained or that action has been taken to retain civilian counsel (must include name, address, phone number, telefax number, and e-mail address of civilian counsel), or (c) Notice that the appellant will be represented by detailed counsel without civilian counsel and the name, address, telephone number, telefax number, and e-mail address of detailed counsel. RULE 11. RETENTION OF CIVILIAN COUNSEL 14 (a) When civilian counsel represents an appellant before the CMCR, the CMCR will notify detailed defense counsel, who will notify the civilian counsel when the record of trial is received. If both civilian and detailed military defense counsel represent the appellant, the CMCR will regard the detailed defense counsel as primary counsel unless notified otherwise. Ordinarily, detailed military counsel will provide the copy of the record of trial received during the authentication process to civilian counsel, if such civilian counsel holds the requisite security clearance for all of the information in the record of trial. (b) Retention of Civilian Counsel. If the appellant at any point in the post-trial process retains civilian counsel, detailed military counsel will ensure immediate notification of the Clerk of Court. RULE 12. NOTICE OF APPEARANCE AND WITHDRAWAL OF COUNSEL 15 (a) Military and civilian appellate counsel shall file a written notice of appearance with the CMCR. The filing of any pleading relative to a case which contains the signature of counsel constitutes notice of appearance of such counsel. (b) Notices of Appearance are to be filed with the Clerk of Court. Signing a motion, as distinguished from a pleading, does not constitute notice of appearance. Civilian counsel shall file a written notice of appearance as soon as he or she is retained. (c) Counsel may withdraw only by leave of the CMCR. A Motion to Withdraw as Counsel should state the reason for withdrawal and, if by an appellants counsel, must indicate whether the appellant has been informed, whether the appellant consents to withdrawal, and what provisions have been made for continued representation. (d) In noncapital cases and cases not scheduled for hearing, assigned military counsel need not move to withdraw when the withdrawal is due to counsels reassignment and the representation will be continued by other assigned military counsel.
14 15
This rule is from ACCA Rule 12 (Retention of Civilian Counsel). This rule is from ACCA Rule 13 (Notice of Appearance of Counsel).
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(e) If an attorney named on a pleading has not been admitted to the Bar of the CMCR, and automatic admission is not involved, the pleading shall be accompanied by an application for admission to the Bar (Rule 8) or a Motion for Leave of the CMCR to Appear Pro Hac Vice (Rule 8(f)) in the case in question. The motion must identify the courts to which the movant is admitted to practice and must indicate whether any disciplinary proceedings are pending against the movant. RULE 13. WAIVER OR WITHDRAWAL OF APPELLATE REVIEW 16 Withdrawals from appellate review, and waivers of appellate review will be processed in accordance with M.C.A. 950c and Regulation 25-7. RULE 14. ASSIGNMENTS OF ERROR AND BRIEFS 17 (a) General provisions. Appellate counsel for the appellant may file assignments of error if any are to be alleged, setting forth separately each error asserted. The assignments of error should be included in a brief for the appellant in the format set forth in Appendix 1. An original of all assignments of error and briefs, and four additional copies shall be submitted. Briefs and assignments of error shall be typed or printed, double-spaced on white paper, and securely fastened at the top. All references to matters contained in the record shall show record page numbers and any exhibit designations. A brief on behalf of the government shall be of like character as that prescribed for the appellant. (b) Specified issues. The CMCR may, in its discretion and at any time while an appeal is pending, specify and grant review of any plain errors not assigned by appellant. 1818 (c) Time for filing and number of briefs. (1) Appeals by the United States under R.M.C. 908. Appeals under RCM 908(d) will comply with the time limits and procedural requirements of that rule. In all other appeals under R.M.C. 908, unless the CMCR directs otherwise, a government notice of appeal will be filed with the Clerk of Court and served on the accused military defense counsel within five days of the order or ruling being appealed. The form and content of the notice of appeal will be the same as the notice of appeal provided to the military judge under R.M.C. 908(b)(7). Filing the notice of appeal will satisfy Regulation 25-5f. The government brief must be filed within ten days of filing the notice of appeal. The defense must file any answer within ten days of receiving the government brief. Any amicus curiae brief must be filed no later than the due date for the defense brief. Any government reply brief must be accompanied by a motion for leave to file under Rule 14(k) and filed within five days after receiving the defense brief. All briefs will comply with the format, page and word limitations, and content requirements of Rule 14(d)-(k). Oral argument, if any, will be scheduled in accordance with Rule 17. (2) Cases referred under R.M.C. 1111. Unless the CMCR directs otherwise, any defense brief shall be filed with the Clerk of Court and served on government counsel within 30 days after the detailed military defense counsel has received the authenticated record of trial. If a defense brief is filed, the government must file any answer within 30 days after receiving the defense brief. If the
16 17
This rule is from ACCA Rule 14 (Waiver or Withdrawal of Appellate Review). This rule is from ACCA Rule 15 (Assignments of Error and Briefs). 18 This rule is from Court of Appeals for the Armed Forces Rule 21(d).
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defense desires to file a reply brief, a motion for leave to file must be submitted in accordance with Rule 14(k) within five days after receiving the government brief. Amicus curiae shall submit any brief no later than the due date for the government brief. (d) Appendix to a brief. The brief of either party may include an appendix. If an unpublished opinion or not readily available reference is cited in the brief, a copy shall be attached in an appendix. The appendix may also include extracts of statutes, rules, or regulations, but a motion must be filed under Rule 20(b), infra, to attach any other matter. (e) Format for briefs. Any pleading or other paper filed with the CMCR must be submitted in original, signed copy, except those filed by facsimile as permitted by Rule 5(c). The original copy must be typed double-spaced in Times New Roman, 12 point, so as to produce a clear black image on a single side of white 8.5-inch by 11-inch, 20-pound paper. Except for electronic and facsimile submissions, all papers shall be pre-punched for a two-and-three-fourths-inch-wide prong fastener at the top center for insertion into a record of trial. Additional copies required by the CMCR may be reproduced by any means producing a clear black image on white paper. (1) Citations. Citations must conform to the style prescribed by the current edition of The Bluebook: A Uniform System of Citation published and distributed by the Harvard Law Review Association, unless otherwise directed by the CMCR. The CMCR, in its discretion, may adopt and publish its own rules of citation. (2) The Brief on Behalf of Appellant, Brief on Behalf of Appellee, and Reply Brief on Behalf of Appellant must conform to the format and requirements set forth in Appendix 1 to these rules. (f) Page limitations of briefs. Unless otherwise authorized by order of the CMCR or by motion of a party granted by the CMCR, the page limitations for briefs filed with the CMCR, not including appendices, shall be as follows: (1) Briefs of the appellants shall not exceed 30 pages; (2) Answers of the appellees shall not exceed 30 pages; (3) Replies of the appellants shall not exceed 15 pages. (g) Type-volume limitations of briefs. A brief of the appellants and an answer of the appellees is acceptable if: (1) it contains no more than 14,000 words; or (2) contains no more than 1,300 lines of monospaced text. (3) A reply or amicus curiae brief is acceptable if it contains no more than half of the type-volume specified in Rule 14(g)(1) or (g)(2). (4) Headings, footnotes, and quotations count toward the word and line limitations. The index, table of cases, statutes, and other authorities, the appendix and any certificates of counsel do not count toward the limitation.
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(h) Certificate of Compliance. A brief submitted under Rule 14 must include a certificate stating that the brief complies with the format limitations in Rule 14(f) and the type-volume limitation in Rule 14(g). The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the brief. The certificate must state either: (i) the number of words in the brief; or (ii) the number of lines of monospaced type in the brief. (i) Form of Certificate of Compliance. 19
CERTIFICATE OF COMPLIANCE WITH RULE 14(i)

1. This brief complies with the type-volume limitation of Rule 14(i) because:
[principal brief may not exceed 14,000 words or 1,300 lines; reply or amicus brief may not exceed 7,000 words or 650 lines; line count can be used only with monospaced type] This brief contains ____________ [state the number of] words, or This brief contains ____________ [state the number of] lines of text.
2. This brief complies with the typeface and type style requirements of Rule 14(e) because:
[12-point font must be used with monospaced typeface, such as Times New Roman or Courier New]
This brief has been prepared in a monospaced typeface using ______________ __________________ [state name and version of word processing program, e.g., Microsoft Word Version 2000] with __________________________ [state number of characters per inch and name of type style]. /s/____________________________________ Attorney for ______________________________________ Dated: __________________ 20 (j) Service on opposing party. Copies of pleadings and other papers filed with the CMCR must be served on the counsel of record for the opposing party, including any civilian counsel. Proof of service shall be by Certificate of Service in the following form:
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was (mailed) (delivered) (sent via _______________) to _______________________________________ at____________________________ on the ___ day of ___________ 20____. When service is upon civilian counsel, an additional certificate should be added to reflect service on associated military counsel, if any. The Certificate(s) of Service shall be signed by counsel of record or by a person supervised by that counsel. (k) Supplemental briefs. Any Supplemental Brief on Behalf of Appellant must be submitted by Motion for Leave to File showing good cause for the delayed filing. If the motion is granted, the appellee must
The length limitations and Certificate are from Court of Appeals for the Armed Forces Rule 24. The length limitations are the same as for Fifth Circuit FRAP 32(a)(7).
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file a response within five days. But, when appellees initial Brief on Behalf of Appellee has not previously been filed, the period for filing that brief is automatically extended to coincide with the time for filing a response to the Supplemental Brief on Behalf of Appellant. RULE 15. ISSUES PERSONALLY RAISED BY AN APPELLANT (a) The appellant, without conceding the legality of the findings of guilty or the sentence, may file a pleading that does not assign error, does not raise an error personally asserted by the appellant, and does not request specific relief. In such cases, the Convening Authority will promptly deliver the record to the CMCR unless notified within five calendar days that either side intends to file a brief pursuant to Rule 14. (b) Unless otherwise briefed or argued by appellate defense counsel, issues personally raised by an appellant shall be brought to the CMCRs attention by footnote or in an Appendix to the Brief on Behalf of Appellant. To support the appellants contentions, counsel may submit, by motion, written communications from the appellant. The appellants submissions will not be considered unless they are signed. Appellate defense counsel is responsible for providing a typed transcript in English of any handwritten submissions or in a language other than English. See Rule 20(b). (c) The CMCR may require that any issue personally asserted by the appellant be briefed or argued. RULE 16.
AMICUS CURIAE BRIEFS 20

(a) A brief of an amicus curiae may be filed by invitation of the CMCR, or with the written consent of all parties, or by motion for leave to file. (1) An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored. (2) No motion for leave to file an amicus curiae brief is necessary if presented on behalf of any agency of the United States by the agencys authorized legal representative, or when submitted by the authorized legal representative of a country where the accused claims citizenship. (b) Ordinarily, neither the hearing nor the disposition of a case will be delayed pending action on a motion for leave to file an amicus curiae brief or a motion of an amicus curiae to participate in a hearing, or in order to await the filing of a brief of an amicus curiae. (c) A brief of an amicus curiae is subject to the same format requirement as a brief for the appellant or appellee. The length of an amicus curiae brief is set forth in Rule 14(g)(3).
20
This rule is from ACCA Rule 15.4 (Amicus Curiae Briefs), Court of Appeals for the Armed Forces Rule 26, and Supreme Court Rule 37.
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RULE 17. ORAL ARGUMENTS 21 (a) Oral arguments may be heard in the discretion of the CMCR upon motion by either party or when otherwise ordered by the CMCR. If not filed contemporaneously with a brief, the motion of a party for oral argument shall be made no later than five days after the filing of an answer to an appellants brief. Such motion shall identify the issue(s) upon which counsel seek argument. The CMCR may, on its own motion, identify the issue(s) upon which it wishes argument. (1) Standards. Oral argument will be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. (2) Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities. (3) Cross-Appeals and Separate Appeals. If there is a cross-appeal, the party who files a notice of appeal first is the appellant for purposes of oral argument. These designations may be modified by the parties agreement or by court order. Unless the Court directs otherwise, a cross-appeal or separate appeal will be argued when the initial appeal is argued. (b) A Motion for Oral Argument may be filed contemporaneously with the filing of a brief. The CMCR will issue a Notice of Hearing within five calendar days after receipt of the record and briefs, and at least 10 calendar days before the scheduled date for oral argument, unless oral argument is determined to be unnecessary. The Notice of Hearing will specify the issues to be addressed during oral argument. Oral argument may be postponed for no more than five calendar days upon a showing of good cause. (c) The CMCRs hearing calendar is established by Notice of Hearing issued by the cognizant panel in each case. The CMCR does not necessarily consult counsel in setting the calendar, but may take into account a preference expressed by either party. If the CMCRs calendar conflicts with that of another court before which counsel is scheduled to appear, counsel shall so notify the CMCR, orally or in writing, within three days after the CMCRs Notice of Hearing is issued. Otherwise, a party desiring rescheduling shall file a Motion to (Postpone)(Advance) Oral Argument. (d) Unless the CMCR specifies otherwise, each side will be allotted 30 minutes to present oral argument. Counsel desiring additional time shall show good cause by Motion for Leave to Exceed Time Limit for Oral Argument. Counsel representing the appellant or petitioner (or the moving party when the subject of the hearing is a motion) shall argue first, but may reserve any portion of the time for rebuttal. Surrebuttal ordinarily is not permitted.
21
The standards, order and contents of argument and provisions for cross-appeals and separate appeals are derived from Federal Rule of Appellate Procedure (FRAP) 34. The designation of the appellant when there is a cross-appeal is based on FRAP 28.1.
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(e) Only one counsel may present oral argument for each party. Any party wishing to deviate from this rule must obtain leave of the CMCR by motion. Any counsel who has entered an appearance in the case may be seated at the counsel table. Absent leave of CMCR, only members of the Bar or counsel appearing pro hac vice or as amicus curiae may be seated. (f) Military counsel shall appear in the class A uniform or its equivalent. Civilian counsel shall wear similarly dignified business attire. (g) Smoking, eating, and chewing are not permitted in the courtroom. Cellular telephones, pagers, watch alarms, and similar devices, will be turned off. Counsel may provide drinking water for personal convenience, but shall remove it when the hearing is adjourned. (h) Supplemental citations of authority may be submitted by Motion for Leave to File no later than two days prior to oral argument. Within five days following oral argument, counsel may submit a Motion for Leave to File a Memorandum of Argument or for Leave to File a Supplemental Citation of Authority for any argument or citation made during the hearing that was not set forth in the brief filed prior to argument. (i) Argument by amicus curiae. Argument by counsel of an amicus curiae may be allowed on motion filed under Rule 20. (j) Oral arguments shall be open unless the presiding judge of the decision panel or other competent authority orders the hearing closed in accordance with the criteria and procedures set out for military commissions in R.M.C. 806, Mil. Comm. R. Evid. 505, and Regulation 18-3. (k) Failure to Appear. The Court may regard the failure to appear at the time and place set for oral argument as a waiver of oral argument. The Court may proceed without oral argument or continue the case until a later date. The Court may require a written explanation for the failure to appear. RULE 18. DISTRIBUTION OF ORDERS AND DECISIONS 22 Immediately upon issuance of a an order, decision or notice of the CMCR, the Clerk of Court shall give notice of the CMCRs orders or decisions by immediately signing, dating and serving them on detailed appellate defense counsel, including civilian counsel, if any, government counsel, the Convening Authority (or designee) and the DoD General Counsel (or designee). RULE 19. RECONSIDERATION 23 (a) The CMCR may, in its discretion and on its own motion, or on motion by one of the parties, enter an order announcing its intent to reconsider its decision in any case not later than fifteen days after
22
This rule is from ACCA Rule 18 (Orders and Decisions of the Court), and Court of Appeals for the Armed Forces Rule 43 (Entry of Judgment). 23 This rule is from ACCA Rule 19 (Reconsideration), and Court of Appeals for the Armed Forces Rule 43A (Issuance of Mandate). Under ACCA Rule 19, once a higher court has acted on a case, reconsideration can no longer be granted. Reconsideration is useful because sometimes there are mistakes in opinions that can be readily corrected. Assuming a party requests reconsideration 5 days after receipt of the decision, the other party files a rebuttal 5 days later, and the CMCR chooses not to reconsider, the CMCRs decision would be automatically final five days later. The CMCR could also issue an order immediately after receiving the partys request for reconsideration, granting or denying it.
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service of such decision on the detailed appellate defense counsel, and on the government appellate counsel, whichever is later. No briefs or arguments shall be received unless the order so directs. (b) The CMCR may, in its discretion, reconsider its decision in any case upon motion filed either: (1) By detailed appellate defense counsel within five days after receipt by counsel of a decision or order, or (2) By detailed appellate government counsel within five days after the decision or order is received by counsel. (c) A motion for reconsideration shall briefly and directly state the grounds for reconsideration, including a statement of facts. A reply to the motion for reconsideration will be received by the CMCR only if filed within five days of receipt of a copy of the motion. Oral arguments shall not be heard on a motion for reconsideration unless ordered by the CMCR. The original of the motion filed with the CMCR shall indicate them date of receipt of a copy of the same by opposing counsel. (d) The time limitations prescribed by this rule shall not be extended under the authority of Rule 21, except that the time for filing briefs by either party may be extended for good cause. (e) A party may seek reconsideration of a decision by filing a Motion for Reconsideration, and include a copy of the decision or order as to which reconsideration is sought. Any motion for reconsideration must be delivered to the Office of the Clerk of Court, Court of Military Commission Review. (f) Ordinarily, reconsideration will not be granted without a showing that one of the following grounds exists: (1) A material legal or factual matter was overlooked or misapplied in the decision; (2) A change in the law occurred after the case was submitted and was overlooked or misapplied by the CMCR; or (3) The decision conflicts with a decision of the Supreme Court of the United States, or Article III Federal Court, another decision of the CMCR, a decision of any other court of the United States, or an executive order, directive, or regulation promulgated by the President of the United States or the Secretary of Defense. (g) The timely filing of a request for reconsideration does not stay the decision of the CMCR. (h) Unless otherwise announced in an order granting reconsideration, the order granting reconsideration vacates the decision being reconsidered. (i) Reconsideration en banc of a panel decision is not authorized.
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RULE 20. MOTIONS 24 (a) Content. All motions, unless made during the course of a hearing, shall concisely state with particularity the relief sought and the grounds therefore. Motions, pleadings, and other papers desired to be filed with the CMCR may be combined in the same document, with the heading indicating, for example MOTION TO FILE (SUPPLEMENTAL ASSIGNMENTS OF ERROR) (CERTIFICATE OF CORRECTION) (SUPPLEMENTAL PLEADING), or ASSIGNMENTS OF ERROR AND MOTION TO FILE ATTACHED REPORT OF SANITY EVALUATION. (b) Motions to attach documents. If a party desires to attach a statement of a person to the record for consideration by the CMCR on any matter under Rule 14(d), such statement shall be made either as an affidavit or as an unsworn declaration under penalty of perjury pursuant to 28 U.S.C. 1746. All documents containing language other than English shall have, attached, a certified English translation. (c) Opposition. Any opposition to a motion shall be filed within five days after receipt by the opposing party of service of the motion. (d) Leave to file. Any pleading not required by these rules shall be accompanied by a motion for leave to file such pleading. (e) Oral argument. Oral argument shall not normally be permitted on motions. (f) Decisions on motions. In appropriate cases, the CMCR may act immediately on any motion without awaiting an answer from the other party. Any party adversely affected by the CMCRs action may request reconsideration, vacation, or modification of such action. A single judge of the particular panel to which the case is assigned may act on any motion, but may not dismiss or otherwise determine an appeal. The two judges of the particular panel to which the case is assigned may overrule any motion decided by a single judge. (g) Service on other parties. Each motion must include the certificate of service prescribed by Rule 14(j). (h) Readability of accompanying documents. Motions to file or judicially notice documents, except documents on file in the Office of the Clerk of Court, Court of Military Commission Review, must be accompanied by a legible copy of the document, including a certified translation of any foreign language material and a typed copy of any hand-written material in English, if required for legibility. RULE 21. CONTINUANCES AND INTERLOCUTORY MATTERS 25 (a) Except as otherwise provided in Rule 19(d), the M.C.A., the Manual, or the Regulation, the CMCR, in its discretion, may extend any time limits prescribed and may dispose of any interlocutory or other appropriate matter not specifically covered by these rules, in such manner as may appear to be required for a full, fair, and expeditious consideration of the case. See Rule 14(c).
This rule is from ACCA Rule 23 (Motions) and 23.1 (Expedited Ruling on Motions). See also Supreme Court Rule 21 (Motions to the Court). Part is from 5th Circuit FRAP 27. 25 This rule is from ACCA Rules 20 (Extraordinary Relief), 21 (Government Appeals), and 24 (Continuances and Interlocutory Matters).
24
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(b) Petitions for extraordinary relief will be summarily denied, unless they pertain to a case in which there is an approved finding of guilty and appellate review has not been waived. The CMCRs authority is limited to interlocutory appeals by the United States under M.C.A. 950d and R.M.C. 908, cases referred to it pursuant to M.C.A. 950f and R.M.C. 1111, and petitions for new trial referred to it pursuant to R.M.C. 1210. (c) The CMCR may, upon motion and for cause shown, grant counsel an extension of time. The filing of a motion for an enlargement does not toll the prescribed time period. Counsel must file motions for enlargement of time at least three days prior to the deadline to allow timely consideration by the CMCR. (d) Motions for extensions require a particularized showing of necessity for the extension, which shall not exceed thirty (30) days. When engagement in other litigation is a cause, specific information is required as to the number and type of cases and the courts involved. If the complexity of issues on appeal is a cause, the number and nature of those issues should be explained. Extreme hardship to counsel, if a cause, must be explained. In each case, the motion must include information on whether the trial was contested, the number of transcript pages, the approved sentence and date of sentencing, and the appellants current status as to confinement. RULE 22. INTERLOCUTORY APPEALS BY THE UNITED STATES (a) Interlocutory appeals by the United States will be processed under the procedures, legal standards, and time limits established in R.M.C. 908 and Regulation 25-5. Briefs will comply with Rule 14. Briefs will be filed and oral argument, if any, will be scheduled in accordance with Rules 14 and 17, unless more restrictive rules are applicable under R.M.C. 908 or Regulation 25-5. (b) Appeals under this Rule will, whenever practicable, take priority over all other proceedings before the CMCR. (c) Appeals will ordinarily be decided within 30 calendar days after oral argument or filing of briefs, whichever is later, unless the Chief Judge grants an extension of time. (d) Appeals under this rule may be decided by order in lieu of a full written opinion. RULE 23. PETITIONS FOR NEW TRIAL Petitions for new trial referred to the CMCR by the convening authority under R.M.C. 1210 ordinarily will be decided, without additional briefs or oral argument, based on the materials submitted to the Convening Authority. RULE 24. RECUSAL OR DISQUALIFICATION OF JUDGES 26 (a) Grounds. Judges may recuse themselves under any circumstances considered sufficient to require such action. Judges must disqualify themselves under circumstances set forth in 28 U.S.C. 455, or in
26
This rule is from Fifth Circuit FRAP 48.
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accordance with Canon 3C, Code of Conduct for United States Judges as adopted by the Judicial Conference of the United States. (b) Procedure. A motion to disqualify a judge shall be referred to that judge for a final decision. If an initiating judge is recused or disqualified, that judge will notify the Clerk of Court, Court of Military Commission Review, who will arrange for assignment of a substitute judge. RULE 25. INTERNAL RULES (a) The Chief Judge, in consultation with the other members of the CMCR, may amend, modify or supplement these rules. (b) The Chief Judge may prescribe interim rules and procedures for the CMCR to be effective during consultation with the other members of the CMCR and while awaiting review and approval of the Secretary as required by R.M.C. 1201(b)(4). (c) Suggested changes in these rules should be addressed to the Clerk of Court. (d) All rules and procedures prescribed for the CMCR, including any suspension of the rules under Rule 1(c) and interim rules and procedures prescribed under this Rule, must be consistent with the M.C.A., the Manual, the Regulations, and the procedures for safeguarding classified information. RULE 26. RECORDING, PHOTOGRAPHING, BROADCASTING, OR TELECASTING OF HEARINGS 27 The recording, photographing, broadcasting, or televising of any session of the CMCR or other activity relating thereto is prohibited unless specifically authorized by the Court. RULE 27. CLERK OF COURT, CMCR 28 (a) The Clerk of Court receives documents for filing with the CMCR and has authority to reject any submitted filing that does not comply with these Rules. (b) The Clerk of Court maintains the CMCRs records and will not permit any of them to be removed from the CMCR except as authorized by the CMCR. Any document filed with the Clerk of Court and made a part of the CMCRs records may not thereafter be withdrawn from the official CMCR files without the permission of the panel where the case is docketed. (c) The Clerk of Court may accept authenticated portions of records of trial from the Clerk of Court for Commissions prior to authentication of the complete record of trial, and may thereafter transmit such records to the CMCR.
27
This Rule is similar to ACCA Rule 27 (Recording, Photographing, Broadcasting, or Telecasting of Hearings). If there is significant press interest in oral argument, closed circuit broadcast of oral argument may be appropriate. 28 This Rule is similar to ACCA Rule 29 (Clerk of Court) and Supreme Court Rule 1.
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RULE 28. RECORDS OF TRIAL 29 (a) Custody of records. Original copies of records of trial will not be removed from the Office of the Clerk of Court unless permission is granted by an employee of the Clerks office and a charge-out record is completed. Classified material will be handled in accordance with these rules, the M.C.A., the Manual, the Regulation, and applicable security regulations. (b) Altering records. No notes or marks of any kind will be made on the pages of an original record of trial, including the accompanying papers and exhibits, nor shall any page be removed, rearranged, or inserted except in the Office of the Clerk of Court by an employee of that office. Copies of records issued for use of appellate counsel remain subject to recall for further proceedings and for other necessary purposes; accordingly, the making of notes and other marks therein is discouraged, and such notes are not confidential or privileged. (c) Number of copies provided to the CMCR. The Clerk of Court shall provide one copy of the record of trial to each member of the panel to which the case is assigned. The original of the record of trial will be retained by the Clerk of Court. (d) Erroneous or incomplete records. Non-substantive, administrative errors and irregularities found in records of trial, if not made the subject of an order of the CMCR, should be brought to the attention of the Clerk of Court for administrative action with a view to correction. The Clerk of Court will not change an exhibit or transcript in the original record of trial, but can file an errata sheet in the allied papers of the record of trial. RULE 29. CASES INVOLVING CLASSIFIED AND PROTECTED INFORMATION 30 (a) CMCR security officer. The Clerk of Court shall serve as the CMCR security officer for the purpose of providing for the protection of classified information, and may designate such assistants as are appropriate for such purposes. (b) CMCR storage of classified documents. Documents containing classified information will be stored and safeguarded by the CMCR security officer in accordance with the Executive Order 12958 (EO), 60 Federal Register 19825 (April 20, 1995), Department of Defense Information Security Program Regulation (DoD Regulation 5200.1-R), and the applicable directives of the agency having classifying authority over the documents. Documents classified Secret or Top Secret shall not be removed from the premises of the Offices of the CMCR except under extraordinary circumstances, and removal must be personally authorized by the CMCR security officer or an authorized designee. Any question regarding
29 30
This Rule is similar to ACCA Rule 30 (Records of Trial). Rule 29 is primarily from 4th Circuit Local Rule 25 (April 16, 2007). If classified information is included in a filing or record of trial, the process is encumbered with additional administrative burdens. Computers and copiers have to be set aside for classified information. Special couriers have to be used to move the classified documents outside the CMCR offices. The classified information is supposed to be stored in a safe. If transported via e-mail, a classified-type system is necessary. DoD Regulation 5200.1-R contains general guidelines about treatment of classified materials. The CMCR security officer or designee shall consult with the designated point of contact of the originating agency to ensure that specific procedures necessary to protect classified information are implemented when classified information is presented to the CMCR.
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the classification level, proper handling, storage or other safeguarding procedures of any material shall be resolved by the CMCR Security Officer, who will refer the matter to the agencies having classification authority over said material for clarification, or for classification review, or for declassification review. (c) Classified and protected information in briefs and filings. Classified and protected information shall be included in documents filed with the CMCR only when absolutely necessary to full and fair consideration of the issues involved. The parties will ensure documents they file are properly classified and annotated as required by DoD Regulation 5200.1-R. (d) Certificates of confidentiality. At the time of filing any appendix, brief, motion, or other document containing, or otherwise disclosing, materials held under seal by another court, military commission or agency, counsel or a pro se party shall file a certificate of confidentiality. Upon motion by any party or sua sponte, the CMCR shall enter protective orders, as an individual case may require, or for the protection of classified information. (1) Record material held under seal by another court, military commission or agency remains subject to that seal on appeal unless modified or amended by the CMCR. (2) A certificate of confidentiality must accompany any filing which contains or would otherwise disclose sealed materials. The certificate of confidentiality shall: (i) identify the sealed material; (ii) list the dates of the orders sealing the material or, if there is no order, the lower court or agencys general authority to treat the material as sealed; (iii) specify the terms of the protective order governing the information; and (iv) identify the appellate document that contains the sealed information. (3) The order sealing the documents shall be attached to the certificate of confidentiality. (e) Motions to seal. Motions to seal all or any part of the record are presented to and resolved by the lower court or agency in accordance with applicable law during the course of trial, hearing, or other proceedings below. See e.g., M.M.C. Rules 905 and 906 and Mil. Comm. R. Evid. 505 and 506. (1) A motion to seal may be filed with the CMCR when: (i) a change in circumstances occurs during the pendency of an appeal that warrants reconsideration of a sealing issue decided below; (ii) the need to seal all or part of the record on appeal arises in the first instance during the pendency of an appeal; or (iii) additional material filed for the first time on appeal warrants sealing. (2) Any motion to seal filed with the CMCR shall: (i) identify with specificity the documents or portions thereof for which sealing is requested;
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(ii) state the reasons why sealing is necessary; (iii) explain why a less drastic alternative to sealing will not afford adequate protection; and (iv) state the period of time the party seeks to have the material maintained under seal and how the material is to be handled upon unsealing. (3) A motion to seal filed with the CMCR will be placed on the public docket for at least five calendar days before the Court rules on the motion, but the materials subject to a motion to seal will be held under seal pending the Courts disposition of the motion. (f) Filing of confidential and sealed material. (1) Record of trial. M.M.C. Rule 1104(d) describes the process for assembling a record of trial that includes classified materials. (2) Appendices: When sealed material is included in an appendix to a brief or motion, it must be segregated from other portions of the appendix and filed in a separate, sealed volume of the appendix. (3) Briefs, Motions, and Other Documents: When sealed material is included in a brief, motion, or any document other than an appendix, two versions of the document must be filed: (i) a complete version under seal in which the sealed material has been distinctively marked and (ii) a redacted version of the same document for the public file. (4) Personal data identifying information: Personal data identifying information, such as an individuals social security number, an individuals tax identification number, a minors name, a persons birth date, a financial account number, and (in a criminal case) a persons home address, shall be filed in accordance with section 205(c)(3) of the E-Government Act of 2002 and rules adopted there under. Names of witnesses should not be included in motions or briefs intended for public filing absent the consent of the witness. (5) Marking of sealed material: The first page of any appendix, brief, motion, or other document tendered or filed under seal shall be conspicuously marked SEALED and all copies shall be placed in an envelope marked SEALED. (6) Number of copies: Only one copy of a sealed appendix, brief, motion, or other document shall be filed, with one copy of the certificate of confidentiality or motion to seal. Unsealed volumes of the appendix and redacted copies of the public brief, motion, or other document shall be filed in conformity with the rules governing appendices, briefs, motions, and other documents. (7) Responsibility for Compliance: The responsibility for following the required procedures in filing confidential and sealed material rests solely with counsel and the parties. The Clerk will not review each filing for compliance with this rule.
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(g) Public access. 31 Parties must remember that any personal information not otherwise protected by sealing or redaction may be made available over the internet. Counsel should notify clients and witnesses of these facts so that informed decisions may be made on what information is to be included in a document filed with the Court. Absent consent, the names of witnesses should be considered protected or sensitive information, and accordingly redacted from the public version of the filed brief, motion, appendix or other document. (h) Delay prior to public release of documents. After a document is filed by the other party, either party within 48 hours may file a motion to seal, classify or redact the document. A party should immediately notify the clerk if the other party files a document that should be classified, and then file the supporting motion. A motion to seal, classify or redact a document must include: (1) A statement as to why sealing or redacting is necessary, and why another procedure will not suffice; (2) References to governing law or regulation; and (3) Unless permanent sealing is sought, a statement as to the period of time the party seeks to have the matter maintained under seal and as to how the matter is to be handled upon unsealing. The proposed order shall recite the findings required by governing law or regulation to support the proposed sealing. (4) This rule should not be construed to limit the effect of more restrictive protective orders governing the filing and review of matters before the Court. (i) Security Clearances. Security clearances for all Judges and personnel on the staff of the Court will be obtained by the Court Security Officer in accordance with the Department of Defense and Service Information Security Program Directives, Instructions and Regulations as well as Director of Central Intelligence Directive 6/4, Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information (SCI). (j) Additional rules. The CMCR may adopt additional rules to protect the security interests of the United States or any other nation or interest. RULE 30. PUBLIC RELEASE OF CMCR FILINGS AND DECISIONS 32 (a) The Clerk of Court is authorized to release unclassified filings with the CMCR and CMCR decisions. Filings and decisions will be available at: http://www.defenselink.mil/news/commissions.html. (b) Responses to media inquiries that cannot be answered by release of documents under Rule 30(a) will be referred to the Assistant Secretary of Defense for Public Affairs in accordance with Regulation 19-3.
See In Re Associated Press, 172 Fed. Appx. 1 (4th Cir. 2006) (discussing First Amendments requirements for timely release of trial-level documents). 32 This Rule discloses to the public the process for release of CMCR filings and decisions.
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APPENDIX 1. FORMAT FOR BRIEF ON BEHALF OF (APPELLANT) (APPELLEE) 33 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) IN THE COURT OF MILITARY COMMISSION REVIEW BRIEF ON BEHALF OF (APPELLANT) (APPELLEE) Case No. 00000000 Tried at Guantanamo, Cuba on (dates) before a Military Commission convened by________________
UNITED STATES
v. ____________________________ (Full typed name and alias, if any)
Presiding Military Judge Colonel ____________________
TO THE HONORABLE JUDGES OF THE COURT OF MILITARY COMMISSION REVIEW Table of Contents [If the brief exceeds ten pages, a table of contents and a table of cited authorities (i.e., cases alphabetically arranged, constitutional provisions, statutes, treatises, and other materials) with references to the pages in the document where such authorities are cited is required.] 34 Issue(s) Presented [Set forth, in a concise statement, each issue to presented to the CMCR. Issues presented will be set forth in upper case letters.] Statement of Statutory Jurisdiction [Set forth the statutory basis of the CMCRs jurisdiction.] Statement of the Case [Set forth a concise summary of the chronology of the case, including the general nature of the charges, the pleas of the appellant, the findings and sentence at trial, and any other pertinent information regarding the proceedings.] Statement of Facts [Set forth accurately all facts pertinent to the issues raised, including specific page references and exhibit designations. Assertions of fact must be supported by specific citations to the record of trial, exhibits, or, when appropriate, papers accompanying the record of trial (allied or related papers). Any inference a party wishes the CMCR to draw from the facts of record should be clearly identified and the facts supporting that inference set out. If counsel elects not to make a separate statement of facts, but to include them within the particular assignment of error, the pertinent facts should be set forth in
This Appendix is from Appendix 1 of the ACCA Rules. The Table of Contents is from Supreme Court Rule 34.2. A Table of Contents is not required under Army Court of Criminal Appeals rules unless the brief exceeds 50 pages.
34 33
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one or more paragraphs distinct from the statement of law and argument thereon. Answers may adopt appellants statement of facts if there is no dispute, or, if there is a dispute, may restate the facts as they appear from appellees viewpoint. The repetition of uncontroverted matters is not desired.] Errors and Argument [Set forth each assignment of error in upper case letters, followed by separate argument for each error unless two or more assignments of error are consolidated for purposes of argument. Arguments must discuss briefly the question presented, citing and quoting such authorities as are deemed pertinent. Each argument must include a statement of the applicable standard of review, and must be followed by a prayer for the specific relief requested.] Appendix [An appendix may set forth matters for the convenience of the CMCR, such as extracts from the record of trial, statutes, rules, or regulations; copies of decisions of other courts; and unpublished decisions. See Rules 14(d) and 20. Appendices must not be used to submit extra-record factual matter, which must instead be submitted to the CMCR by Motion to Admit (Defense)(Government) Appellate Exhibit (Letter or Numerical Designation), Motion to Judicially Notice (Description), or other appropriate motion.] ______________________________________ (Signature of counsel) ______________________________________ (Name, grade, branch, and title of military counsel, or name, address, email address of all counsel, and telephone number, including fax number, of civilian counsel, of all counsel should be included) CERTIFICATE OF COMPLIANCE WITH RULE 14(i) 1. This brief complies with the type-volume limitation of Rule 14(i) because:
[principal brief may not exceed 14,000 words or 1,300 lines; reply brief may not exceed 7,000 words or 650 lines; line count can be used only with monospaced type]
This brief contains ____________ [state the number of] words, or This brief contains ____________ [state the number of] lines of text. 2. This brief complies with the typeface and type style requirements of Rule 14(e) because:
[12-point font must be used with monospaced typeface, such as Times New Roman or Courier New]
This brief has been prepared in a monospaced typeface using _________________ _________________[state name and version of word processing program, e.g., Microsoft Word Version 2000 with __________________________ [state number of characters per inch and name of type style].
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/s/ _________________________________________ Attorney for __________________________________ Dated: __________________
CERTIFICATE OF SERVICE I certify that a copy of the foregoing was (mailed) (emailed) (delivered) (sent via ________________________________________________) to __________________________on the ______day of __________20___.
____________________________ (Signature of counsel) ____________________________ (Name, grade, branch, and title of military counsel, or name, address, email address of all counsel, and telephone number, including fax number, of civilian counsel, of all counsel should be included)
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APPENDIX 2. FORMAT FOR APPLICATION FOR ADMISSION TO THE BAR OF THE COURT OF MILITARY COMMISSION REVIEW Clerk of Court, Court of Military Commission Review (Address TBD) The undersigned hereby makes application for admission to the Bar of the Court of Military Commission Review pursuant to Rule 8, Rules of Practice for Court of Military Commission Review. NAME _____________________________________________________ SSN_______________________ MILITARY RANK (if applicable)___________________________________________________________ PRESENT OCCUPATION: Name of firm or military unit, address and telephone number:_______________________________________________________________________________ HOME ADDRESS (permanent) and TELEPHONE NUMBER: ______________________________________________________________________________________ ______________________________________________________________________________________ LAW SCHOOL: Name, location, and degree with year granted: ___________________________________________________________________ Name all jurisdictions and courts in which you have been admitted to practice law. Give year admitted to practice: JURISDICTION: _________________________ _________________________ _________________________ _________________________ COURTS (with year admitted) _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________
If you are currently certified by a Judge Advocate General pursuant to Article 27(b)(2), U.C.M.J., 10 U.S.C. 827(b)(2)state the armed force and date: _____________________________________________________________________________________ Have you been disbarred, suspended, reprimanded, censured, or otherwise disciplined as an attorney? Yes or No: ___________. If so, state the name and address of the authority in possession of the record thereof:______________________________________________________________________________ ____________________________________________________________________________________ Are there any charges or complaints now pending concerning your conduct as an attorney? Yes or No: ____________. If so, state the address of the authority in possession of the record thereof:__________ _____________________________________________________________________________________ _____________________________________________________________________________________ I have read the foregoing document and have answered all questions fully and frankly. The answers are complete and are true of my own knowledge. DATE__________________SIGNATURE___________________________________________________
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ADMISSION REQUIREMENTS a. To be eligible for admission to the Bar of the CMCR, an attorney must be a member in good standing of the Bar of the highest court of a state, territory, commonwealth, or possession of the United States, the District of Columbia, or of the Bar of a Federal Court. b. Except for persons currently certified by a Judge Advocate General pursuant to Article 26(b) or 27(b)(1), U.C.M.J., 10 U.S.C. 826(b) or 827(b)(1), the application must be accompanied by a current original certificate of admission and good standing before the Bar of the highest court of a state, territory, commonwealth, possession, or District of Columbia, or of the Bar of a Federal Court. (A certificate from the highest court of a State or similar jurisdiction is preferred.) The certificate is current if it is dated not more than one year before the date of admission. When admission is sought on the basis of certification under Article 26(b) or 27(b)(1), U.C.M.J. proof may be required at the discretion of the CMCR. c. Similarly qualified attorneys of foreign nations may be admitted to honorary membership in the Bar. ADMISSION PROCEDURES: Admission procedures are set out in Rule 8. Applications should be mailed to: Clerk of Court Court of Military Commission Review 875 North Randolph Street, Suite 8000, Arlington, VA 22203. FEE: There is no fee for admission to the Bar of the CMCR. REPORTING PROFESSIONAL DISCIPLINE: Any attorney admitted to practice before the CMCR who is subjected to public discipline by any court of the United States or the District of Columbia, or by a court of any state, territory, commonwealth, or possession of the United States, or is suspended from practice in courts-martial, or in another United States military court, commission or tribunal, or whose certification pursuant to Article 26(b) or 27(b)(1), U.C.M.J., is withdrawn, shall promptly inform the Clerk of Court of such action. Foreign lawyers will notify the Clerk of Court if they are subjected to public discipline or suspended from practice in their licensing jurisdictions.
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UNITED STATES OF AMERICA Appellant v. OMAR AHMED KHADR Appellee Court of Military Commission Review, Case 07-001 RULING ON MOTION TO DISMISS September 19, 2007
abundance of caution, the motion for reconsideration asked that the time period for filing an appeal be tolled pending a decision on [the motion for reconsideration]. By order issued June 8, 2007, the military judge, without ruling on the motion for reconsideration, specifically denied the prosecution request to toll the appeal period pending his decision on the underlying motion. On June 29, 2007, the military judge issued an order denying the motion for reconsideration. He appended a copy of his order to the record of trial before authenticating the record on that same date. The order provided two primary reasons for denial. First, the military judge found the prosecution motion failed to meet the threshold requirements for a valid request for reconsideration, in that it presented no new facts or new law. Based on that failure, the military judge, while elect[ing] to clarify and make clearer the rationale for [his] 4 June 2007 ruling, specifically decline[d] the opportunity to reconsider. Second, the military judge denied the motion for reconsideration on the merits of the underlying jurisdictional issue. Based on the language used, it is evident the military judges ruling on the merits was intended to be provisional, issued in the interest of judicial economy in the event a higher court found his refusal to reconsider erroneous. The military judge authenticated the record of trial that same date, after first appending his order denying the motion for reconsideration. On July 3, 2007, the prosecution filed a Certificate of Notice of Appeal, notifying the military judge the government was appealing his dismissal of the case.
On August 7, 2007, Appellee filed a Motion to Dismiss all or a portion of the governments appeal because: (1) the appeal was not timely filed with this Court; and (2) the Courts Rules of Practice were not properly promulgated and therefore did not exist when the appeal was filed. Both parties extensively briefed the issues raised by the Motion and it was one of several matters addressed during oral argument to this Court on August 24, 2007. PROCEDURAL HISTORY On June 4, 2007, the military judge in the above-styled case dismissed without prejudice the charges then pending against Appellee. On June 8, 2007, the prosecution filed a motion with the military judge, asking that he reconsider his June 4, 2007 ruling. The motion inferred a prosecution belief that the time within which to file a government appeal of the military judges June 4, 2007 ruling would not begin to run until the judge acted on the motion for reconsideration. However, out of an
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On July 4, 2007, the prosecution filed an interlocutory appeal with this Court, challenging the military judges dismissal of the case below. TIMELINESS OF APPEAL The Military Commissions Act (hereinafter referred to as the M.C.A. or Act) requires that notice of a government interlocutory appeal of an adverse order or ruling by a military judge be filed with the judge within five days after the date of such order or ruling. 10 U.S.C. 950d(b). This statutory requirement is reiterated in the Manual for Military Commissions (January 18, 2007) and in the Regulation for Trial by Military Commissions (April 27, 2007), both of which were promulgated by the Department of Defense to implement the M.C.A. Rule for Military Commissions (R.M.C.) 908(b)(2); Regulation for Trial by Military Commissions, 25-5b. Applying these statutory and regulatory provisions, and relying on the Supreme Courts decision in Bowles v. Russell, 551 U.S. ___, 127 S. Ct. 2360 (2007), the military judge determined, and Appellee asserts, that the five-day statutory appeal period cannot be extended by the military judge. Accordingly, Appellee argues that, to be timely, any appeal by the United States of the judges June 4, 2007 dismissal order must have been filed within five days of that date. Neither the military judge nor any higher court, including this one, can extend the five-day statutory limitation established by the M.C.A. for filing a government interlocutory appeal from a final order or ruling by a military judge. The Supreme Court has long held that the taking of an
appeal within the time prescribed is mandatory and jurisdictional. Bowles, 551 U.S. at ___, 127 S. Ct. at 2363-2364 (citations omitted). The Supreme Court enforces such time limits by refusing to accept appeals and writs itself, and upon lower courts through appropriate orders. Id. However, the issue presented by the circumstances of the case sub judice is not whether the time period within which to appeal can be extended. The issue here is when that appeal period starts to run if the government has submitted a motion for reconsideration of the underlying order or ruling. The M.C.A. does not address the impact of a motion for reconsideration on the time limitation for the United States to appeal. In the absence of an explicit statutory direction to depart from the ordinary judicial treatment of a request for reconsideration at the trial level, we will follow the Supreme Courts decision in United States v. Ibarra, 502 U.S. 1 (1991). Ibarra held that a timely motion renders the underlying order or ruling nonfinal for purposes of appeal as long as the petition is pending. 502 U.S. at 4 (quoting United States v. Dieter, 429 U.S. 6, 8 (1976)). Treating orders as nonfinal for purposes of review during the pendency of a motion for reconsideration promotes judicial economy because there is always a possibility that the order complained of will be modified in a way which renders [appellate] review unnecessary. Stone v. INS, 514 U.S. 386, 392 (1995) (citation omitted). We decline to adopt Appellees suggestion for application of a different rule to M.C.A. proceedings. 1
We are not persuaded by Appellees argument that the Supreme Courts ruling in Ibarra addressed a
1
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The provisions of the Manual for Military Commissions concerning rulings by the military judge are consistent with the principle enunciated in Ibarra. R.M.C. 801(e)(1)(A) indicates that a military judges ruling on a question of law or interlocutory matter is final. However, the very next section states that, with one exception not here applicable, the judge may change his ruling at any time during the trial. R.M.C. 801(e)(1)(B). Similarly, R.M.C. 905(f) provides that [o]n request of any party or sua sponte, the military judge may, prior to authentication of the record of trial, reconsider any ruling, other than one amounting to a finding of not guilty, made by the military judge. For these provisions to have any meaningful effect, the underlying order logically must be deemed nonfinal for purposes of appeal while a timely reconsideration request is pending. To hold otherwise would force the United States to appeal an order even though the judge who issued it was still in the process of reconsidering or risk losing its right to appeal altogether. That type of Hobbesian choice, and the resulting inefficiencies to the judicial process, is the very problem sought to be avoided by the ruling in Ibarra. 502 U.S. at 4. In this case, the governments motion for reconsideration of the military judges
dismissal order was filed on June 8, 2007, only four days after the order was entered and well before the military judges authentication of the record on June 29, 2007. As a result, the judges original dismissal order was not final until he ruled on the motion for reconsideration on June 29, 2007, which in turn started the five-day clock for filing a government appeal. Since the governments appeal was filed July 4, 2007, it met the five-day statutory deadline. We find no merit in Appellees argument that, because the military judge, in his June 29, 2007 ruling, specifically refused to reconsider his June 4, 2007 ruling, the start of the time within which to submit a government appeal reverted back to that earlier date. Whether the military judge refused to reconsider his original ruling or reconsidered and declined to change it, the impact on the government was the same -- it was in limbo until the judge ruled on its motion and could not know until the June 29, 2007 ruling was issued whether there was anything to appeal. We also attach no legal significance to the military judges order of June 8, 2007 specifically denying the prosecution request to toll the appeal period pending his decision on the underlying motion. First, as the Supreme Court made clear in Ibarra, filing a timely motion for reconsideration does not toll the running of the statutory appeal period, but simply renders the underlying order nonfinal until the court rules on the motion. The distinction is an important one, because it impacts the amount of time available to appeal after action on the motion for reconsideration is taken. Ibarra, 502 U.S. at 3. Second, as evident from the result in Ibarra, operation of the
regulatory versus a statutory appeal limitation and is therefore not controlling. Although the appeal period there at issue was also contained in Fed. R. Appellate Procedure 4(b), it was based on the identical time limitation specifically established by 18 U.S.C. 3731, and was thus statutorily based. Contrary to the Appellees assertion, Congress inclusion of a provision in that statute indicating that [t]he provisions of this section shall be liberally construed to effectuate its purposes, does not make the appeal period set forth therein any less binding than the appeal period at issue in the current case.
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legal principle enunciated in that case does not depend on whether the government, in connection with a motion for reconsideration, has requested tolling of an appeal period, or on the military judges decision to grant or deny such a request. Rather, the underlying order is rendered nonfinal by operation of law while a timely motion for reconsideration is pending. VALIDITY OF COURT RULES In addition to requiring that any government appeal be filed within five days of a final adverse order or ruling, the M.C.A. provides that such appeals shall be forwarded, by means specified in regulations prescribed [by] the Secretary of Defense, directly to the Court of Military Commission Review. 10 U.S.C. 950d(c). This requirement is carried forward into the Department of Defense implementing regulations through R.M.C. 908(b)(3) & (11) and Regulation for Trial by Military Commissions, 25-5c. The same implementing regulations specify how the procedures for appellate review used by the Court of Military Commission Review are to be created. Specifically, R.M.C. 1201(b)(4) provides, In consultation with the other appellate military judges of the Court of Military Commission Review, and subject to the review and approval of the Secretary, the Chief Judge shall prescribe procedures for appellate review by the Court of Military Commission Review. Regulation for Trial by Military Commissions, 25-3, similarly states, The Chief Judge of the CMCR [Court of Military Commission Review], in consultation with other members of the CMCR, shall issue operating guidelines for the CMCR consistent with the [Military
Commissions Act, the Manual for Military Commissions] and this Regulation. Appellee asserts that the rules of appellate procedure (hereinafter Court Rules or Rules of Practice) adopted by this Court at the time of Appellants appeal were not properly promulgated and were therefore invalid. Further, because those Court Rules were invalid, Appellants appeal, filed under those rules, cannot have been filed in accordance with regulations prescribed [by] the Secretary of Defense as prescribed in the statute. Appellee argues the appeal itself is therefore invalid and must be dismissed. The basic issue presented is whether a perceived flaw in the adoption of internal rules of appellate procedure by a newly created appellate court precludes exercise of a statutory right of appeal from a lower court decision. We conclude it does not, drawing guidance from Supreme Court precedents in cases addressing changes to existing court rules. The Supreme Court, in a variety of contexts, has consistently held that procedural rules adopted for the orderly transaction of court business are not jurisdictional in nature. See, e.g., Kontrick v. Ryan, 540 U.S. 443, 454 (2004); Schacht v. United States, 398 U.S. 58, 64 (1970); Am. Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539 (1970). As a result, discretionary changes to such rules are not reviewable except upon a showing of substantial prejudice to the complaining party. Am. Farm Lines, Id. Applying this same rationale to the circumstances of this case, we find no merit in Appellees assertion that errors in the procedure used to formulate this Courts Rules of Practice, if they occurred, preclude consideration of Appellants appeal.
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In reaching this holding, we recognize that statutory restrictions take precedence over discretionary procedural rules prescribed by a court for the orderly transaction of business. Hibbs v. Winn, 542 U.S. 88, 99 (2004). However, nothing within the body of this Courts Rules of Practice conflicts with the requirements imposed by the M.C.A. Moreover, the M.C.A.s general statutory requirement for this Court to adopt rules of appellate procedure in accordance with regulations promulgated by the Department of Defense cannot override the substantive rights and obligations afforded the parties by the same statute. Appellee does not suggest, nor would it be reasonable to do so, that an accused convicted and sentenced by a Military Commission could be deprived of the statutory right of appeal guaranteed him by 10 U.S.C. 950c because of delays or perceived errors in the establishment of the court designated to hear his appeal or in the creation of such courts procedural rules of practice. In such a situation, the substantive rights afforded by the statute would clearly take precedence. The same holds true for the statutory right of appeal afforded the United States under 10 U.S.C. 950d. Appellee has made no showing, or even assertion, of substantial prejudice from the operation of any of this Courts Rules of Practice, nor does the record support a finding of prejudice. Most of the Rules of Practice are purely procedural in nature, addressing items such as the length and format of appellate briefs, the procedures for oral argument, or the admission and conduct of counsel. Any substantive provisions, such as Rule 2, addressing jurisdiction of the Court, or Rule 13, addressing waiver or withdrawal of
appellate review, simply restate the requirements of the M.C.A., the Manual for Military Commissions, or the Regulations for Trial by Military Commission. Moreover, as an additional measure to ensure compliance with the M.C.A. and promulgating regulations, Rule 1(b) provides that in the event of a conflict between the Rules of Practice and the statute or the Manual for Military Commissions, the statute and Manual control. Finally, Rule 1(c) permits a party to seek suspension of any of the rules upon a showing of good cause. If Appellee believed that any particular Rule of Practice imposed a prejudicial hardship under the circumstances of this case, he could have requested suspension of that rule. We have received no such request. Beyond the above, we in any event find no actual defect in the promulgation of this Courts Rules of Practice. Appellee raises three main assertions in support of his argument that the process used in establishing this Courts Rules of Practice was flawed: 1) the rules were issued without the required review and approval by the Secretary of Defense; 2) the Rules were promulgated by the Deputy Chief Judge, who was not authorized to do so; and 3) nothing establishes that the Deputy Chief Judge conducted the required consultation with this Courts other Judges before purporting to approve and promulgate the rules. We address each argument in turn. SECRETARIAL REVIEW AND APPROVAL On December 1, 2006, Secretary of Defense Rumsfeld appointed former Attorney General Griffin Bell as a judge on the United States Court of Military
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Commission Review. Attachment A to Appellees Motion of July 19, 2007. On May 8, 2007, Deputy Secretary of Defense England appointed Captain John Rolph, Chief Judge of the Navy-Marine Corps Court of Criminal Appeals, as a judge on the United States Court of Military Commission Review. Attachment B to Appellees Motion of July 19, 2007. On June 15, 2007, Deputy Secretary of Defense England created the position of Deputy Chief Judge of the United States Court of Military Commission Review, to provide continuity of operations. Attachment D to Appellees Motion of July 19, 2007. The Deputy Chief Judge was authorized full discretion to exercise all authority vested in the Chief Judge, except as otherwise directed by the Chief Judge. Id. Former Attorney General Griffin Bell was appointed Chief Judge and Captain John Rolph was appointed Deputy Chief Judge in that same Action Memo. Id. Deputy Chief Judge Rolph completed coordination of the Courts Rules of Practice with the other United States Court of Military Commission Review Judges, and issued a notice promulgating this Courts Rules of Practice on June 28, 2007, with an effective date of June 27, 2007. See Appellants Opposition to Appellees Motion to Dismiss, August 13, 2007, and this Courts Ruling on Motions to Attach and Disclosure, August 14, 2007. On June 29, 2007, the Courts Rules were sent to the Department of Defense Office of General Counsel to be transmitted to the Secretary of Defense. On August 9, 2007, the Deputy Secretary of Defense approved the Courts Rules of Practice. See Appellants Motion to Attach, August 13, 2007, and this Courts
Ruling on Motions to Attach Disclosure, August 14, 2007.
and
Judge Bell became available to act as Chief Judge on August 17, 2007. On August 20, 2007, he ratified the same Rules of Practice for the United States Court of Military Commission Review that Deputy Chief Judge Rolph promulgated and prescribed on June 28, 2007. Chief Judge Bell stated, These Rules shall apply to all matters and cases that may currently be docketed with (or pending before) the Court, and to all matters and cases that may come before the Court after this date of promulgation. On August 20, 2007, Chief Judge Bell sent those Rules for review and approval of the Secretary of Defense. Appellee subsequently filed documents with the Court, and oral argument occurred on August 24, 2007. Appellee has not requested an exception to the Rules as permitted under Rule 1(c), or proposed any changes to the Rules. Appellee argues that the Deputy Secretary of Defenses action was ineffective, in that the M.C.A. and R.M.C. 1201(b)(4) required Secretary of Defense approval of the Rules. He further asserts that the Deputy Secretarys action was in any event too late, as it was not in place at the time Appellants appeal was filed on July 4, 2007. 10 U.S.C. 113 legislates the duties and responsibilities of the Secretary of Defense. Subsection (d) of that statute provides that [u]nless specifically prohibited by law, the Secretary may, without being relieved of his responsibility, perform any of his functions or duties, or exercise any of his powers through, or with the aid of, such persons in, or organizations of, the
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Department of Defense as he may designate. Acting pursuant to this authority, the Secretary of Defense has delegated to the Deputy Secretary of Defense the full power and authority to act for the Secretary of Defense and to exercise the powers of the Secretary of Defense upon any and all matters concerning which the Secretary of Defense is authorized to act, except as expressly prohibited by law. Department of Defense Directive 5105.02, Deputy Secretary of Defense, (February 26, 2007), 1.2. The Deputy Secretary of Defense is authorized to make specific further delegations as necessary, id. at 1.2, such as to the Chief Judge and Deputy Chief Judge of this Court. Nothing in the M.C.A., the Manual for Military Commissions, or the Regulation for Trial by Military Commissions specifically or expressly limits the authority of the Deputy Secretary of Defense to exercise that delegated authority with respect to matters affecting military commissions. 2 Accordingly, the Deputy Secretary had full power and authority to review and approve the Courts Rules of Practice. The fact that the Deputy Secretary of Defense did not complete his review and approval until August 9, 2007, well after Appellants July 4, 2007 appeal was filed, is of no legal significance. Although R.M.C. 1201(b)(4) indicates that the Courts rules are subject to review and
approval, the words subject to do not necessarily mean prior to operation of such rules. Nothing in the M.C.A., the Manual for Military Commissions, or the Regulation for Trial by Military Commissions specifies that the required review and approval must occur before an appeal is filed, or even before the rules themselves can go into effect. Indeed, because the right to appeal afforded the United States under 10 U.S.C. 950d, like the right of appeal afforded Appellee by 10 U.S.C. 950c, is statutorily based, requiring approved procedural rules of this Court to be in place as a condition of an effective appeal would do violence to that statutory right and be legally untenable. ROLE OF DEPUTY CHIEF JUDGE Appellee argues that Deputy Chief Judge Rolph had no authority to promulgate the Courts Rules of Practice because: 1) he was improperly appointed to the Court by the Deputy Secretary of Defense, who had no authority to do so; 2) the position of Deputy Chief Judge did not properly exist; and 3) authority to promulgate Court rules of procedure rests with the Chief Judge. Based on the Secretary of Defenses delegation of authority to the Deputy Secretary of Defense discussed above, and as further detailed in this Courts separate ruling on Appellees Motion to Abate, we find the Deputy Secretary of Defense has authority to appoint judges to the Court of Military Commission Review. Accordingly, Deputy Chief Judge Rolph was properly appointed to the Court. We find no legal defect in the designation of Judge Rolph as Deputy Chief Judge.
Contrary to the Appellees assertion at oral argument, we find no meaningful distinction between expressly and specifically for purposes of this issue. Both terms preclude limitation of the Deputy Secretary of Defenses delegated power through the inferences drawn by the Appellee from the language of the M.C.A. none of which this Court gleans from its reading of the Act.
2
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The M.C.A. requires the Secretary of Defense to establish a Court of Military Commission Review, but sets only very broad guidelines as to the composition of the Court and its operation. 10 U.S.C. 950f. Beyond those broad guidelines, details of the Courts structure and operation are left to the discretion of the Secretary. Further, the statute itself makes no mention of the position of Chief Judge. That designation appears only in the Manual for Military Commissions and the Regulation for Trial by Military Commission. Neither publication expressly precludes the additional appointment of a Deputy Chief Judge. Moreover, given the responsibilities of this Court, appointment of a Deputy Chief Judge to assist in the efficient operation of the Court is both reasonable and prudent. Such action was well within the authority of the Deputy Secretary of Defense, acting pursuant to his delegation from the Secretary of Defense. We also find no error in the action taken by the Deputy Chief Judge, rather than the Chief Judge, to promulgate the initial iteration of this Courts Rules of Practice. As Appellee notes, both the Manual for Military Commissions and the Regulation for Trial by Military Commissions specify that the Chief Judge will promulgate the Courts rules. However, that requirement is purely regulatory, and is not set forth in the statute itself. As a result, it was and is subject to deviation by the same authority which created the requirement, i.e., either the Secretary of Defense or the Deputy Secretary of Defense, acting under the authority delegated to him by the Secretary. The action appointing Judge Rolph as Deputy Chief Judge gave him full discretion to exercise all authority vested in the Chief Judge, except as
otherwise directed by the Chief Judge. Attachment D to Appellees Motion of July 19, 2007. That broad authority clearly was sufficient to encompass the task of promulgating this Courts initial Rules of Practice. Further, the Action Memorandum endorsed by the Deputy Secretary of Defense approving the Courts Rules of Practice clearly indicated on its face that the rules had been promulgated by Judge Rolph in his position as Deputy Chief Judge. The Deputy Secretary of Defenses endorsement of that action thus implicitly approved the deviation from the regulatory requirement that such rules be established by the Chief Judge. This minor deviation from the requirements of the regulations implementing the M.C.A. does not in our view constitute a change to those regulations within the meaning of 10 U.S.C. 949a(d), which would otherwise trigger a requirement for Congressional notification. 3 Finally, we note that the Chief Judge, by memorandum of August 20, 2007, specifically ratified the Rules of Practice previously promulgated by the Deputy Chief Judge, thereby effectively mooting this issue. See Memorandum from Chief Judge to Secretary of Defense re: Ratification of Rules of Practice for United States Court of Military Commission review, available for review at http://www.defenselink.mil/news/cour tofmilitarycommissionreview.html.
3 The Court has not inquired, and the parties have not provided evidence, as to Department of Defense notification to Congress concerning the Rules of Practice or other documentation concerning the Courts establishment.
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CONSULTATION REQUIREMENT Subsequent to the date of the Appellees Motion to Dismiss, in response to a separate Appellee Motion for Judicial Disclosure, the Court issued notice to the parties that prior to Deputy Chief Judge Rolphs promulgation of the Rules of Practice, consultation with the other Judges occurred through e-mail exchanges, telephone conversations, and inperson discussion. See Ruling on Motions to Attach and Disclosure, August 14, 2007. Such consultations satisfy the requirements of R.M.C. 1201(b)(4) and the Regulation for Trial by Military Commission, 25-3. ORDERED After review and consideration of Appellee's Motion to Dismiss, Appellant's Opposition, Appellees Response to Appellants Opposition, the Record of Trial by Military Commission and oral argument of the parties, Appellees Motion to Dismiss is DENIED.
Deputy Chief Judge Rolph did not participate in ruling on this motion.
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UNITED STATES OF AMERICA Appellant v. OMAR AHMED KHADR Appellee Court of Military Commission Review, Case 07-001 RULING ON MOTION TO ABATE September 24, 2007
appellate judges from the various Armed Services to serve as judges on the Court of Military Commission Review. Attachment B to Appellees Motion of July 19, 2007. On June 15, 2007, Deputy Secretary of Defense England created the position of Deputy Chief Judge of the United States Court of Military Commission Review, to provide continuity of operations. Attachment D to Appellees Motion of July 19, 2007. The Deputy Chief Judge was authorized full discretion to exercise all authority vested in the Chief Judge, except as otherwise directed by the Chief Judge. Id. Former Attorney General Griffin Bell was appointed Chief Judge and Captain John Rolph was appointed Deputy Chief Judge in that same Action Memo. Id. On July 11, 2007, Deputy Chief Judge Rolph assigned the judges on the Court to various panels and assigned this case to Panel One, of which he is a member. Appendix A to this Order. Subsequently, on August 20, 2007, Chief Judge Bell ratified the panel assignment of the judges in the instant case and the assignment of this case to that panel. Appendix B to this Order. This ratification predated oral argument in this case by four days and this decision by more than one month. LAW The Secretary of Defense shall establish a Court of Military Commission Review . . . and . . . shall assign appellate military judges to [the] Court. Military Commissions Act, 10 U.S.C. 950f(a) and (b).
On July 19, 2007, Appellee filed a Motion to Abate Proceedings alleging: (1) invalid appointment of the appellate judges in the instant case and (2) invalid assignments of both the case and appellate panel members. Both parties briefed the issues raised by the Motion and it was one of several matters addressed during oral argument to this Court on August 24, 2007. FACTS The facts regarding the appointment and assignment of the judges hearing the instant case are not in dispute. On December 1, 2006, Secretary of Defense Rumsfeld appointed former Attorney General Griffin Bell as a judge on the United States Court of Military Commission Review. Attachment A to Appellees Motion of July 19, 2007. On May 8, 2007, Deputy Secretary of Defense Gordon England appointed Captain John Rolph, Chief Judge of the Navy-Marine Corps Court of Criminal Appeals, and fifteen other active duty
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The Secretary shall appoint appellate military judges to the Court of Military Commission Review pursuant to 10 U.S.C. 950f. Rule for Military Commissions 1201(b)(1). Unless specifically prohibited by law, the Secretary [of Defense] may, without being relieved of his responsibility, perform any of his functions or duties or exercise any of his powers through, or with the aid of, such persons in, or organizations of, the Department of Defense as he may designate. 10 U.S.C. 113(d). The Deputy Secretary shall perform such duties and exercise such powers as the Secretary of Defense may prescribe. . . . The Deputy Secretary takes precedence in the Department of Defense immediately after the Secretary. 10 U.S.C. 132(b) and (c). [E]xcept as expressly prohibited by law, Deputy Secretary of Defense Gordon England has full power and authority to act for the Secretary of Defense and to exercise the powers of the Secretary of Defense upon any and all matters concerning which the Secretary of Defense is authorized to act pursuant to law. DoD Directive 5105.2, Deputy Secretary of Defense, [hereinafter delegation memo] (February 26, 2007), para. 1.2 The Deputy Secretary of Defense is authorized to make specific [further] delegations as required. Id. at para. 1.3. DISCUSSION Appellee avers legal defects in the delegation of the Secretary of Defenses authority to appoint judges to this court
and the Deputy Secretary of Defenses exercise of that same power. The plain language of 10 U.S.C. 113(d) provides the Secretary of Defense broad authority to delegate his powers as he sees fit, subject only to the limitation that he may not do so when it is specifically prohibited by law. (emphasis added). We apply the ordinary meaning of the terms specific and prohibit in analyzing this provision and find no explicit or definite 1 provision of law that forbid[s] 2 the Secretary of Defense from delegating authority to appoint appellate judges to this court. Similarly, we apply the plain meaning of the term express in finding no clearly indicated[,] explicit 3 provision of law express[ly] prohibit[ing] the Deputy Secretary from making judicial appointments to this Court pursuant to delegation from the Secretary (emphasis added). An example of a relevant specific prohibition is contained in Rule for Military Commissions [R.M.C.] 504(b): A military commission may be convened by the Secretary of Defense or persons occupying positions designated as a convening authority by the Secretary of Defense. The power to
convene military commissions may not be delegated 4 (emphasis added). No such

restriction is contained in the Military Commissions Act or R.M.C. 1201(b)(1) regarding appointment of appellate judges to this Court.
Random House College Dictionary 1262 (Rev. ed. 1982). 2 Id. at 1058. 3 Id. at 467. 4 The Rule for Courts-Martial [R.C.M.] upon which R.M.C 504(b) is based is equally plain it its express or specific prohibition: The power to convene courts-martial may not be delegated. (emphasis added). R.C.M. 504(b)(4).
1
442
We decline to take the logical leap urged by appellee in briefs and oral argument to find a negative inference to be the equivalent of an express or specific prohibition so as to preclude lawful delegation and exercise of Secretarial power pursuant to federal statute. Appellee, citing various cases, urges us to disregard the letter of 10 U.S.C. 113(d) and 132(b) as implemented by the Secretarys delegation memo in favor of a supposed intention under the principle of expressio unius est exclusio alterius. 5 However, those cases are distinguishable on their facts and unpersuasive. The correct rule of construction on these facts is a verbis legis non est recendendum. 6 In the instant case, Congress empowered the Secretary of Defense to delegate the authority to appoint judges to this court unless a positive statement of law forbids him from doing so. No such law exists. Similarly, as no law explicitly forbids the Deputy Secretary of Defense from exercising such authority, Deputy Secretary England had full power and authority to appoint the appellate military judges to this Court. Chief Judge Bells ratification of the assignment of the military judges to the instant panel and assignment of this case
to the same moots the latter portion of appellants motion. 7 Appellee has made no showing or assertion of substantial prejudice from the appointment of the judges in the instant case or assignment of this case to this panel, nor does the record support a finding of prejudice. ORDER After review and consideration of the parties filings and oral arguments, and the record of trial by military commission, Appellees Motion to Abate is DENIED.
Deputy Chief Judge Rolph did not participate in ruling on this motion.
5 Chevron v. Echazabal, 536 U.S. 73, 80-81 (2002) (citations omitted) (meaning expressing one item of [an] associated group or series excludes another left unmentioned). 6 The words of a statute must not be departed from. Blacks Law Dictionary 136 (Sixth ed. 1990). Appellee further urges us to attach legal significance to the difference in specific and express prohibitions referenced in 10 U.S.C. 113(d) and the delegation memo, respectively. We decline to do so. The terms are synonymous for the purposes of analyzing this issue. This is the ultimate distinction without a difference. Rapanos v. United States, 126 S. Ct. 2208, 2230 (2006).
7 In our September 19, 2005 decision denying the Motion to Dismiss in this case, we found Deputy Chief Judge Rolph was properly appointed to that position and properly promulgated the Courts Rules of Practice in that capacity. We incorporate the rationale and ruling from that decision into this Order and find the Deputy Chief Judges panel and case assignments in this case were properly made.
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UNITED STATES OF AMERICA Appellant v. OMAR AHMED KHADR Appellee Court of Military Commission Review, Case 07-001 Before ROLPH, FRANCIS, HOLDEN Appellate Military Judges Military Judge: Peter E. Brownback, III, JA, U.S. Army. For Appellant: Francis A. Gilligan (argued); Major Jeffrey D. Groharing, JA, U.S. Army (on brief); Captain Keith A. Petty, JA, U.S. Army (on brief); Lieutenant Clay G. Trivett, Jr., JAGC, U.S. Navy (on brief). For Appellee: Lieutenant Commander William C. Kuebler, JAGC, U.S. Navy (on brief; argued); Rebecca S. Snyder (on brief); Dennis Edney (on brief); Nathan Whitling (on brief; argued). 1 Amicus Curiae for Appellee: Frank W. Fountain (on brief); Madeline Morris (Professor of Law, Duke University)(on brief); Stephen Bornick (Special Editorial Associate for Professor Morris)(on brief); Landon Zimmer (Special Editorial Associate for Professor Morris)(on brief); Allison Hester-Hadded (law student, Duke University)(on brief).
OPINION OF THE COURT AND ACTION ON APPEAL BY THE UNITED STATES FILED PURSUANT TO 10 U.S.C. 950d September 24, 2007
ROLPH, Deputy Chief Judge: In this appeal by the Government (hereinafter Appellant) we are called upon to interpret for the first time the jurisdictional provisions contained in the
Military
Commissions
Act
of
2006
Mr. Edney and Mr. Whitling are both admitted to the bar in Canada and, upon motion, were authorized to appear as counsel for Mr. Khadrs appeal to argue pro hac vice pursuant to Rule 8(f) of our Rules of Practice.
1
(hereinafter M.C.A.) 2 as they relate to the trial by military commission of a Canadian citizen, Omar Ahmed Khadr, Appellee (hereinafter Mr. Khadr). Mr. Khadr was captured on the battlefield in Afghanistan in 2002, is currently detained in Guantanamo Bay, Cuba, and was pending trial upon charges that were referred for trial before a military commission. This interlocutory appeal was taken after the military judge presiding over Mr. Khadrs trial dismissed all charges against him without prejudice on June 4, 2007. The military judges ruling was based upon his sua sponte determination that the military commission lacked personal jurisdiction over Mr. Khadr. Where a court has no personal jurisdiction over an accused appearing before it, it is generally powerless to act. See, e.g., Ryder v. United States, 515 U.S. 177, 187 (1995)(Coast Guard Court of Criminal Appeals could not decide appeals because not properly appointed); Solorio v. United States, 483 U.S. 435, 442-451 (1987) (describing history of court-martial jurisdiction); Reid
2 Pub. L. No. 109-366, 120 Stat. 2600 (October 17, 2006), codified at 10 U.S.C. 948a-950w.
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v. Covert, 354 U.S. 1, 32-36 (1957) (no court-martial jurisdiction over civilians accompanying the forces overseas); Toth v. Quarles, 350 U.S. 11, 22-23 (1955) (no court-martial jurisdiction over soldier discharged from service).
The basis for the military judges ruling was Appellants failure to properly determine Mr. Khadrs status as an alien unlawful enemy combatant before his Combatant Status Review Tribunal (C.S.R.T.), which the judge ruled was an indispensable prerequisite to the military commissions ability to exercise personal jurisdiction under the M.C.A. The military judge further ruled that the military commission is not the proper authority, under the provisions of the M.C.A., to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr. See Military Judges Order on Jurisdiction of June 4, 2007 at 1-2; Record at 21. BACKGROUND Appellant charged Mr. Khadr with various offenses arising during the period from on or about June 2002 to on or about July 27, 2002. The allegations include murder of a U.S. Soldier in violation of the law of war; attempted murder of U.S. military or coalition forces by making and planting improvised explosive devices (IEDs) in violation of the law of war; conspiracy with Osama bin Laden, Ayman al Zawahiri and other members of al-Qaeda, an international terrorist organization, to attack civilians, destroy property, and commit murder all in violation of the law of war; providing material or resources in support of alQaeda and international terrorism; and
spying, in violation of 10 U.S.C. 950v(b)(15); 950t; 950v(b)(28); 950v(b) (25); and 950v(b)(27) respectively. Each charge and specification alleged against Mr. Khadr asserts the jurisdictional claim that he is a person subject to trial by military commission as an alien unlawful enemy combatant. See Charge Sheet, Charges I-V (Appellate Exhibit (AE) 1 at 4-7) (emphasis added). The record of trial, pleadings of the parties, and allied documents contain allegations that Mr. Khadr received oneon-one private al Qaeda basic training in Afghanistan during June 2002, consisting of instruction in the use of rocket propelled grenades, rifles, pistols, hand grenades, and various other explosives. See AE 1 at 6; AE 17. In July 2002, Mr. Khadr is also alleged to have participated in land mine training, which involved the conversion of landmines to IEDs and their strategic placement as weapons to be deployed against U.S. military and coalition forces. Id. On or about July 27, 2002, at a compound near Abu Ykhiel, Afghanistan, Mr. Khadr is alleged to have been a member of a group of al-Qaeda members that engaged U.S. military and coalition forces with small arms fire, killing two Afghan Militia Force members, and throwing a hand grenade which killed Sergeant First Class Christopher Speer, U.S. Army. Id. Mr. Khadr, though badly wounded in the engagement, was immediately treated on scene by U.S. military medical personnel. He was thereafter taken into custody, and ultimately transported to the U.S. detention facility located at Guantanamo Bay Naval Base, Cuba, where he presently remains.
445
On September 7, 2004, a three-member C.S.R.T. unanimously determined that Mr. Khadr was properly classified as an enemy combatant and an individual who was a member of, or affiliated with al Qaeda, as defined by a memorandum issued by the Deputy Secretary of Defense on July 7, 2004. See Report of C.S.R.T. (AE 11 at 6). APPELLATE JURISDICTION AND STANDARDS OF REVIEW The military judges ruling in this case dismissing all charges without prejudice qualifies for appeal by Appellant under 10 U.S.C. 950d(a)(A) in that it terminates proceedings of the military commission with respect to a charge or specification. See Rule for Military Commission (R.M.C.) 908(a)(1), Manual for Military Commissions (M.M.C.) (2007). Appellant properly gave notice of appeal to the military judge on July 3, 2007, 3 and filed the appeal directly with this Court within the time limits established in our Rules of Practice. See Rule 22, Rules of Practice, Court of Military Commission Review (2007). In ruling upon this appeal, we may act only with respect to matters of law. 10 U.S.C. 950d(c); R.M.C. 908(c)(2). We have reviewed the military judges factual determinations applying a highly deferential standard of review mandating that findings of fact not be disturbed unless they are clearly erroneous. See Amadeo v. Zant, 486 U.S. 214, 223 (1988);
United States v. Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007). Regarding all matters of law, we review the military judges findings and conclusions de novo. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2001); Pederson v. Louisiana State Univ., 213 F.3d 858, 869 (5th Cir. 2000); United States v. Rader, 65 M.J. 30, 32 (C.A.A.F.
2007). COMBATANT STATUS, GENERALLY The determination of whether an individual captured on the battlefield is a lawful or unlawful enemy combatant carries with it significant legal consequences (both international and domestic) relating to the treatment owed that individual upon capture and ultimate criminal liability for participating in warrelated activities associated with the armed conflict. The Third Geneva Convention Relative to the Treatment of Prisoners of War (GPW III) signed in 1949 and entered into force in 1950 following battlefield atrocities occurring during World War II sought to carefully define lawful combatant for all signatory nations. Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135, Art. 4. 4 See also Hague Convention No. IV
The United States is a signatory nation to all four Geneva Conventions. The Geneva Conventions are generally viewed as self-executing treaties (i.e., ones which become effective without the necessity of implementing congressional action), form a part of American law, and are binding in federal courts under the Supremacy Clause. See U.S. Const. art VI, 2 (This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land . . . .). United States v. Lindh, 212 F. Supp. 2d 541, 553-54 (E.D. VA. 2002)
4
3 The military judges ruling became final for purposes of the notice provisions of 10 U.S.C. 950d(a)(2)(b) on June 29, 2007, the day the military judge denied Appellants Motion for Reconsideration. See United States v. Ibarra, 502 U.S. 1, 6-7 (1991); see also Court of Military Commission Review Ruling on Appellants Motion to Dismiss of September 19, 2007.
446
Respecting the Laws and Customs of War on Land, October 18, 1907, 36 Stat. 2277, T.S. No. 539 (Hague Regulations). Article 4, GPW III makes it clear that lawful combatants will generally only include the regular armed forces of a party to the conflict, including members of militias or volunteer corps forming part of such armed forces. Also included are members of other militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict so long as they fulfill the following conditions: 1) They are under the command of an individual who is responsible for their subordinates; 2) They wear a fixed distinctive sign or symbol recognizable at a distance; 3) They carry their arms openly; and 4) They conduct their operations in accordance with the laws and customs of war. This critical determination of lawful or unlawful combatant status is far more than simply a matter of semantics. Without any determination of lawful or unlawful status, classification as an
enemy combatant is sufficient to justify a detaining powers continuing detention of an individual captured in battle or taken into custody in the course of ongoing hostilities. However, under the well recognized body of customary international law relating to armed conflict, and specific provisions of GPW III, lawful combatants enjoy combatant immunity 5 for their pre-capture acts of warfare, including the targeting, wounding, or killing of other human beings, provided those actions were performed in the context of ongoing hostilities against lawful military targets, and were not in violation of the law of war. See Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J. dissenting) (Legitimate acts of warfare, however murderous, do not justify criminal conviction . . . . It is no crime to be a soldier . . . .) (citing Ex parte Quirin, 317 U.S. 1, 30-31 (1942)(Mere membership in the armed forces could not under any circumstances create criminal liability . . . .); Lindh, 212 F. Supp. 2d at 553 (citing Waldemar A. Solf & Edward R. Cummings, A Survey of Penal Sanctions
Under Protocol I to the Geneva Conventions of August 12, 1949, 9 Case

W. Res. J. Intl L. 205, 212 (1977)). Lawful enemy combatants enjoy all the privileges afforded soldiers under the law of war, including combatant immunity and the protections of the Geneva Conventions if wounded or sick, and while being held as prisoners of war (POWs). 6 Additionally, lawful enemy combatants facing judicial proceedings for any of their actions in
(citing United States v. Noriega, 808 F. Supp. 791, 796 (S.D. Fla. 1990)). The Geneva Conventions stand preeminent among the major treaties on the law of war. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006) (citing Geneva 123 times in the opinion). The Geneva Conventions have been acceded to by 194 states. International Committee of the Red Cross, available at http://www.icrc.org/ Web/Eng/siteeng0.nsf/htmlall/genevaconventions. The United States implemented the Geneva Conventions via 18 U.S.C. 2441, Pub. L. No. 104192, 110 Stat. 2104 (1996).
5 6
Also referred to as belligerent privilege. Lindh, 212 F. Supp. 2d at 553-54; see also U.S. Army Judge Advocate Generals Legal Center and School, Dept. of the Army, Operational Law Handbook 16 (2006) (hereinafter Army Op. Law Handbook).
447
warfare that violate the law of war, or for post-capture offenses committed while they are POWs, are entitled to be tried by the same courts, and in accordance with the same procedures, that the detaining power would utilize to try members of its own armed forces (i.e., by court-martial for lawful enemy combatants held by the United States). See Arts. 84, 87 and 102, GPW III. Indeed, GPW III codified many existing principles of customary international law and added numerous additional provisions, all aimed at protecting lawful combatants from being punished for their hostile actions prior to capture; 7 ensuring that POWs were treated and cared for humanely upon capture; and seeking to guarantee the general welfare and wellbeing of POWs during the entire period they remained in captivity. See R.C. Hingorani, Prisoners of War 9 (1982). Accordingly, technical crimes committed by lawful combatants authorized to use force in the context of ongoing hostilities may not be prosecuted unless those offenses are unrelated to the conflict, or violate the law of war or international humanitarian law. Lindh, 212 F. Supp. 2d at 553; See John Cerone,
the Course of Criminal Proceedings, The American Society of International Law, Jan. 2002. At the conclusion of the armed conflict, lawful combatants who are held as POWs are entitled to be safely and expeditiously repatriated to their nation of origin. 8
Unlawful combatants, on the other hand, are not entitled to combatant immunity nor any of the protections generally afforded lawful combatants who become POWs. Unlawful combatants remain civilians and may properly be captured, detained by opposing military forces, and treated as criminals under the domestic law of the capturing nation for any and all unlawful combat actions. Lindh, 212 F. Supp. 2d at 554 (citing Ex parte Quirin, 317 U.S. at 30-31); see Army Op. Law Handbook 17. By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.
Status of Detainees in International Armed Conflict, and Their Protection in
7 See, e.g., GPW III, Article 87 ([POWs] may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed force of the said Power who have committed the same acts.) and Article 99 (No [POW] may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.). These two Articles, when read together, have been interpreted to make clear that a belligerent in war cannot prosecute the soldiers of its foes for the soldiers lawful acts of war. Lindh, 212 F. Supp. 2d at 553.
See Articles 118 and 119, GPW III.
448
Ex parte Quirin, 317 U.S. at 30. M.C.A. 948b(f) addresses Common Article 3s application, stating, A military commission established under this chapter is a regularly constituted court, affording all the necessary judicial guarantees which are recognized as indispensable by civilized peoples for purposes of [C]ommon Article 3 of the Geneva Conventions. 9 Under the M.C.A.,
unlawful enemy combatants who engage in hostilities against the United States or its co-belligerents, or materially support such, are subject to trial by military commission for violations of the law of war and other offenses made triable by that statute. See 948a(1)(A)(ii) and 948b(a). The burden of raising the special defense that one is entitled to lawful combatant immunity rests upon the individual asserting the claim. Lindh, 212 F. Supp. 2d at 557-58. Once raised before a military commission, the burden then shifts to the prosecution to prove beyond a reasonable doubt that the defense does not exist. R.M.C. 916(b). Determining lawful and unlawful combatant status under existing international treaties, customary international law, case law precedent (both international and domestic), and the
Article 3, GPW an Article common to all four Geneva Conventions suggests that even unlawful combatants are entitled to be tried in a regularly constituted court. The Supreme Court in Hamdan explained: Common Article 3, then, is applicable here and, . . . requires that Hamdan be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people. 6 U.S.T., at 3320 (Art. 3, 1(d)). While the term regularly constituted court is not specifically defined in either Common Article 3 or its accompanying commentary, other sources have disclosed its core meaning. The commentary accompanying [Article 66 of the Fourth Geneva Convention] defines regularly constituted tribunals to include ordinary military courts and definitely exclude[e] all special tribunals. GCIV Commentary 340 (defining the term properly constituted in Article 66, which the commentary treats as regularly constituted); see also Yamashita, 327 U.S., at 44, 66 S. Ct. 340, 90 L. Ed. 499 (Rutledge, J., dissenting)(describing a military commis-sion as a court specially constituted for a particular trial). And one of the Red Cross own treatises defines regularly constituted court as used in Common Article 3 to mean established and organized in accordance with the laws and procedures already in force in a country. Intl Comm. of Red Cross, 1
9
165 L. Ed. 2d at 778. Justices Breyer, Kennedy, Souter, and Ginsburg agreed in Hamdan, that those military commissions which generally adopt the structure and procedure of courts-martial, and are conducted[] similarly to courts-martial are regularly constituted military courts under United States law. Hamdan, 126 S. Ct. at 2803-04 (Souter, J., concurring in result). Notably, Justices Thomas, Alito, and Scalia agreed that the military commission at issue in Hamdan was a regularly constituted tribunal under Common Article 3, despite being substantially dissimilar from courtsmartial. 126 S. Ct. at 2850-52, 165 L. Ed. 2d at 836-38 (Alito, J., dissenting). If special means anything in contradistinction to regular, it would be in the sense of special as relating to a single thing, and regular as uniform in course, practice or occurrence. Websters Third New International Dictionary 2186, 1913. 126 S. Ct. at 2852, 165 L. Ed. 2d at 838.
Customary International Humanitarian Law 355 (2005); see also GCIV

Commentary 340 (observing that ordinary military courts will be set up in accordance with the recognized principles governing the administration of justice). Hamdan, 126 S.Ct. at 2797-98,
449
M.C.A. is a matter well within the professional capacity of a military judge. It is against this legal backdrop that we now examine the significance of Mr. Khadrs 2004 C.S.R.T. classification as an enemy combatant, the subsequent referral of criminal charges against him to a military commission, and the military judges sua sponte dismissal of those charges without prejudice. ISSUES ON APPEAL Appellants appeal requires us to address two important issues. First, whether the military judge erred in ruling that Mr. Khadrs September, 2004 C.S.R.T. classification as an enemy combatant was insufficient to satisfy the congressionally mandated requirement, established in the M.C.A., that military commission jurisdiction shall exist solely over offenses committed by alien unlawful enemy combatants. see M.C.A. 948c and 948d(a). Second, if we answer the first question negatively, we must determine whether the military judge erred in ruling that neither the military commission nor the military judge were empowered under the M.C.A. to receive evidence, and thereafter assess Mr. Khadrs status as an alien unlawful enemy combatant for purposes of determining the commissions criminal jurisdiction over him. THE M.C.A. AND MR. KHADRS C.S.R.T. CLASSIFICATION Section 948d of the M.C.A. defines the jurisdictional limits of military commissions stating:
(a) JURISDICTION. A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001. (b) LAWFUL ENEMY COMBATANTS. Military commissions
under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy
combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter. (c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE. A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status
Review Tribunal or another competent tribunal established

under the authority of the President or the Secretary of Defense that a person is an
unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
(d) PUNISHMENTS. A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punish-
450
ment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war. 10 (italics added). The military judge in this case dismissed all charges and specifications (without prejudice) against Mr. Khadr based upon his conclusion that the jurisdictional provisions of M.C.A. 948d had not been met. 11 The judge correctly noted that the M.C.A. appeared to be clear in limiting jurisdiction for trial by military commission solely to unlawful enemy combatants, 12 and excluding from a commissions jurisdiction any lawful enemy combatants, who instead must be tried under the provisions of the Uniform Code of Military Justice, 10 U.S.C. 801 et seq. 13 We agree with the military judge
that Mr. Khadrs 2004 C.S.R.T. classification as an enemy combatant failed to meet the M.C.A.s jurisdictional requirements in that it did not establish that Mr. Khadr was in fact an unlawful enemy combatant to satisfy the jurisdictional prerequisite for trial by military commission. Under M.C.A. 948c, only an alien unlawful enemy combatant is subject to trial by military commission. The M.C.A., in 948a(1)(A), defines unlawful enemy combatant as follows: (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. 14 Appellant contends Mr. Khadrs designation as an enemy combatant by his C.S.R.T. in 2004 was itself sufficient to establish the military commissions jurisdiction and that the military judge
See also R.M.C. 103(a)(24). R.M.C. 201(b)(3) sets forth the specific requisites for military commission jurisdiction, which include: (a) The military commission must be convened by an official empowered to convene it; (b) The military commission must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here, personnel includes only the military judge and the members. (c) Each charge before the military commission must be referred to it by a competent authority; (d) The Accused must be a person subject to military commission jurisdiction; and (e) The offense must be subject to military commission jurisdiction. 12 See M.C.A. 948d(a). Mr. Khadrs status as an alien is not in dispute. 13 See M.C.A. 948d(b)(lawful combatants who violate the law of war are subject to the provisions of the Uniform Code of Military Justice; courts-martial shall have jurisdiction to try lawful combatants for any offense made punishable under the M.C.A.). See also Articles 84, 87 and 102, GPW III (mandating that lawful enemy combatants shall be tried by the
10 11
same courts and procedures the detaining power would use to try members of its own armed forces). 14 See also R.M.C. 103(a)(24).
451
erred in ruling otherwise. In its motion asking the military judge to reconsider his dismissal action, Appellant argued that the judge failed to give proper consideration and deference to a White House memorandum signed by President Bush in February 2002 15 which, in Appellants view, declared all members of the Taliban and al-Qaeda to be unlawful combatants under the Geneva Conventions. See Prosecution Motion for Reconsideration of June 8, 2007 at 4-6; see also Brief on Behalf of Appellant at 5 c. Appellant makes a similar argument regarding a July 2004 memorandum from the Deputy Secretary of Defense (then Mr. Paul Wolfowitz) to the Secretary of the Navy establishing the procedures to be employed for C.S.R.T.s, and summarily declaring: For purposes of this Order, the term enemy combatant shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. Each detainee subject to this Order has been determined to be an enemy combatant through multiple
levels of review by officers of the Department of Defense. 16 According to Appellant, Congress enacted the M.C.A. fully aware of the 2002 White House memorandum and the 2004 Wolfowitz memorandum, including the definitional provisions and declarations contained in both. Appellant argues that it was the clear intent of Congress to adopt the memorandas categorical declarations of combatant status regarding members of the Taliban and al-Qaeda, and that C.S.R.T. determination of enemy combatant status made prior to the adoption of the M.C.A. is sufficient to establish military commission jurisdiction. See Brief on Behalf of Appellant at 11-14. To buttress these assertions, Appellant has directed us to R.M.C. 202(b), which discusses in personam military commission jurisdiction and declares, [a] finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a [C.S.R.T.] or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by a military commission under the M.C.A. Appellant also highlights the following statement contained in the nonbinding Discussion to R.M.C. 202 regarding C.S.R.T. determinations: At the time of the enactment of the M.C.A., C.S.R.T. regulations provided that an individual
15
See Deputy Secretary of Defense Memorandum, Order Establishing C.S.R.T. 1 (July 7, 2004), available at http://www.globalsecurity.org/security/ library/policy/dod/d20040707review.pdf. (hereinafter Wolfowitz memorandum) (AE 14).
16
See White House Memorandum, Humane
Treatment of al Qaeda and Taliban Detainees 2 (February 7, 2002) available at http://www.washingtonpost .com/wp-srv/nation/ documents/ 020702 bush.pdf (hereinafter White House memorandum) (AE 13).
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should be deemed to be an enemy combatant if he was part of or supporting al Qaeda or the Taliban, or associated forces engaged in armed conflict against the United States or its coalition partners. The United States previously determined that members of al Qaeda and the Taliban are unlawful combatants under the Geneva Conventions. From the Presidents 2002 White House memorandum, the 2004 Wolfowitz memorandum, and this nonbinding Discussion to R.M.C. 202, we are now asked to categorically equate the administrations prior pronouncements regarding members of the Taliban and alQaeda, and use of the term enemy combatant throughout the C.S.R.T. process, with unlawful enemy combatant as defined in the M.C.A., and attribute that extrapolation to the clear intent of Congress. In this regard, Appellant invites us to interpret the parenthetical language contained in M.C.A. 948a(1)(A)(i) including a person who is part of the Taliban, al Qaeda, or associated forces as evidence that Congress statutorily ratified the Presidents prior determination and that [t]his crucial parenthetical established, as a matter of statute, that a member of al Qaeda or the Taliban without more is an unlawful enemy combatant who can be tried by military commission. Supplemental Brief on Behalf of Appellant at 5. In light of the plain language of the M.C.A., and applying common logic and reasoning, we decline to accept the Appellants position. We believe the Congress, well aware of the fact that trial by military commission is
an extraordinary measure raising important questions about the balance of powers in our constitutional structure, see Hamdan, 126 S. Ct. at 2759, 165 L. Ed. 2d at 738-39 (citing Ex parte Quirin, 317 U.S. at 19), was abundantly clear in precisely establishing the jurisdictional prerequisites it intended to mandate prior to any criminal proceeding before such a commission could occur. As with all matters of statutory interpretation, we look first and foremost to the language contained in the statute itself. See Duncan v. Walker, 533 U.S. 167, 172 (2001); Williams v. Taylor, 529 U.S. 420, 431 (2000). In doing so, we give the words contained in the text their ordinary meaning and interpret the statute in a manner that does not render words or phrases superfluous, unless no other reasonable interpretation can be made. 17 It is unequivocally clear to us from the plain language of the M.C.A. that Congress intended trials by military commission to be utilized solely and exclusively to try only alien unlawful enemy combatants. The M.C.A.s jurisdictional provisions ( 948c and 948d) and definitions section ( 948a(1)(A)(i)) make this intent perfectly clear. So also does the M.C.A.s express admonition in 948d(b) that military commissions shall not have jurisdiction to try a lawful enemy combatant. Congress further stated that a C.S.R.T.s
See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant)(internal quotation marks and citations omitted); Caminetti v. United States, 242 U.S. 470, 453 (1917) (if a statutes language is plain and clear, the sole function of the courts is to enforce it according to its terms).
17
453
(or other competent tribunals) determination that a person is an unlawful enemy combatant would be dispositive for purposes of establishing jurisdiction for trial by military commission. See M.C.A. 948d(c). 18 No such statement is made regarding a prior designation of a detainee as simply an enemy combatant and, in our opinion, such designation is not useful in resolving this ultimate issue of criminal jurisdiction under the M.C.A. Congress was undoubtedly aware of the White House (2002) and Wolfowitz (2004) memoranda when they wrote and enacted the M.C.A. in 2006. This is yet another case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the Presidents authority. Where a statute provides the
conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Hamdan, 126 S.Ct. at 2799, 165 L. Ed. 2d at 781 (Kennedy J., concurring). Had Congress intended prior designations of detainees as mere enemy combatants to be sufficient to establish military commission jurisdiction, it was fully capable of saying this in the legislation. It did not. Indeed, neither the White House nor Wolfowitz memoranda are ever referenced in the M.C.A. In our opinion, Congress, clearly aware of the previously troubled military commission process and armed with affirmative guidance from the Supreme Court provided in the June, 2006 decision in Hamdan v. Rumsfeld sought to enact new, clear, and unequivocal legislation to unambiguously guide and successfully implement trials by military 19 commissions.
Though Congress intended to create a safe harbor for C.S.R.T. determinations made prior to and after the M.C.A.s enactment, this provision cannot be used to transform an enemy combatant designation made for one purpose into a declaration of unlawful enemy combatant status for another. From the M.C.A.s language, this safe harbor exists only for previously made unlawful enemy combatant designations (italics added). Congress intended that properly made individual C.S.R.T. determinations of unlawful enemy combatant status established by a preponderance of the evidence should be afforded great deference by the military commission. See R.M.C. 905(c)(1), 2(B). For purposes of resolving this Government appeal, we need not determine whether this dispositive jurisdiction provision deprives a military commission Accused of a critical judicial guarantee[ ] . . . recognized as indispensable by civilized people under Common Article 3 of the Geneva Conventions (i.e., the right to affirmatively challenge the commissions in personam jurisdiction over him).
18
The Supreme Court determined that the military commissions deviated substantially from regular court-martial practice without an adequate demonstration that procedures more similar to courts-martial were not practicable. Hamdan, 126 S. Ct. at 2792-93, 165 L. Ed. 2d 773-74. Article 36, UCMJ, 10 U.S.C. 836 required either uniformity or justification for variation from UCMJ procedures, rendering those military commissions variations illegal. Id. The Court noted, Prior to enactment of Article 36(b), [UCMJ] it may well have been the case that a deviation from the rules governing courtsmartial would not have rendered the military commission illegal. Hamdan, 126 S. Ct. at 2793 n.54, 165 L. Ed. 2d 774 n.54 (citations omitted). The M.C.A. 948b(d) explicitly ended the applicability of Article 36, UCMJ, to military commission proceedings stating: (d) INAPPLICABILITY OF CERTAIN PROVISIONS. (1) The following provisions of this title shall not apply to trial by military commission under this chapter:
19
454
We find no support for Appellants claim that Congress, through the M.C.A., created a comprehensive system which sought to embrace and adopt all prior C.S.R.T. determinations that resulted in enemy combatant status assignments, and summarily turn those designations into findings that persons so labeled could also properly be considered unlawful enemy combatants. Similarly, we find no support for Appellants position regarding the parenthetical language contained in 948a(1)(A)(i) of the M.C.A. including a person who is part of the Taliban, al Qaeda, or associated forces. We do not read this language as declaring that a member of the Taliban, al-Qaeda, or associated forces is per se an unlawful enemy combatant for purposes of exercising criminal jurisdiction before a military commission. We read the parenthetical comment as simply elaborating upon the sentence immediately preceding it. That is, that a member of the Taliban, al-Qaeda, or associated forces
hostilities against the United States or its co-belligerents will also qualify as an
unlawful enemy combatant under the M.C.A. (emphasis added). This interpretation is consistent with 948b of the M.C.A., which describes the general purpose of military commissions as existing to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission. (italics added). Critical to this analysis is the understanding that unlike the White House and Wolfowitz memoranda, both of which declared enemy combatant status solely for purposes of continued detention of personnel captured during hostilities and applica-bility of the Geneva Conventions Congress in the M.C.A. was carefully and deliberately defining status for the express purpose of specifying the in personam criminal jurisdiction of military commission trials. In defining what was clearly intended to be limited jurisdiction, Congress also prescribed serious criminal sanctions for those members of this select group who were ultimately convicted by military commissions. 20 Contrary to the claims in Appellants briefs, the 2002 White House memorandum never affirmatively declared members of al-Qaeda to be unlawful enemy combatants. In the memorandum, the President simply stated, I also accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because,
who has engaged in hostilities or who has purposefully and materially supported
(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial. (B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination. (C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation. (2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by this chapter.
20
See 948d(d) (a military commission may adjudge any penalty up to and including death, when authorized under the M.C.A. or the law of war).
455
among other reasons, al Qaeda is not a High Contracting Party to Geneva. White House memorandum at 1, 2a. The memorandum later states that because Geneva does not apply to our conflict with al Qaeda, al Qaeda detainees . . . do not qualify as prisoners of war. Id. at 2, 2d. It is reasonable to assume that Congress would seek to affirmatively declare the circumstances under which individual members of al-Qaeda could become unlawful enemy combatants for purposes of exacting criminal liability under the M.C.A.. Limiting criminal responsibility solely to an individual (including a member of al-Qaeda or the Taliban, or associated forces) who actually engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents appears to be the clear intent of Congress, and requires more than mere membership in an organization for criminal responsibility to attach. 21
Regarding the Taliban, the 2002 White House memorandum pronounced the provisions of Geneva will apply to our present conflict with the Taliban. Id. at 2b. However, it then declared that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. Id. at 2d. This decision was based upon the Talibans failure to comply with fundamental law of war requirements. 22 Again, Congress, clearly aware of this language, appears to have decided that only a Taliban member who actually engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents should be subject to trial by military commission. To accept Appellants interpretation would allow criminal jurisdiction at a military commission to attach to members of the Taliban or al-Qaeda who had never engaged in or supported hostilities. Finally, the 2002 White House memorandum concluded that Common Article 3 of the Geneva Conventions does not apply to either al Qaeda or Taliban detainees. Id. at 2c. The Supreme Court subsequently determined that legal conclusion was erroneous. See Hamdan, 126 S. Ct. at 2795-96, 165 L. Ed.
21 Summary determinations of a groups unlawful combatant status would appear to violate the Supreme Courts ruling in Hamdi v. Rumsfeld, 541 U.S. 507, 533 (2004), which recognized the fundamental right to notice and an opportunity to be heard on matters affecting a detainees enemy combatant status determination. In Hamdi, Justice Souter suggested that U.S. Army regulations governing combatant status determinations, which were premised upon Article 5 of GPW III, would appear to preclude any categorical pronouncement regarding an individuals combatant status. Id. at 550 (Souter, J., concurring); see also Rasul v. Bush, 542 U.S. 466 (2004); 948d(c) M.C.A. (requiring that unlawful enemy combatant status in order to be dispositive of jurisdiction be established by a C.S.R.T. or another competent tribunal); see Detainee Treatment Act of 2005, Pub. L. No. 109148, 119 Stat. 2739, 1005. Appellant appears to concede the necessity of individualized combatant status determinations. See Reply Brief on Behalf of Appellant at 16.
22
See Press Release, White House Office of the Press Secy, White House Press Secretary Announcement of President Bushs Determination re Legal Status of Taliban and al Qaeda Detainees (February 7, 2002), available at http://www.state.gov/s/l/38727.htm (The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.).
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2d 776-78. 23 Congress, clearly aware of the Hamdan decision when it drafted the M.C.A., appears to have embraced the minimal safeguards guaranteed by Common Article 3 requiring that even unlawful enemy combatants be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. See 948b(f), M.C.A. (quoting Common Article 3 A military commission established under this chapter is a regularly constituted court, affording all the necessary judicial guarantees which are recognized as indispensable by civilized peoples for purposes of Common Article 3 of the Geneva Conventions); see also Art. III, GPW III, 1(d). No serious legal authority would contest the notion that one of the most indispensable and important judicial guarantees among civilized nations honoring a tradition of due process and fundamental fairness is the right to adequate notice and an
opportunity to be heard in regard to allegations which might result in criminal sanctions. 24 The M.C.A. did not exist until October 2006. Mr. Khadr could not have known at the time of his C.S.R.T. in 2004 that a determination of enemy combatant status pursuant to declarations contained in the 2002 White House memorandum, or definitions contained in the 2004 Wolfowitz memorandum, could dispositively qualify him two years after the fact for potential criminal liability before a military commission as an unlawful enemy combatant. We need not speculate how Mr. Khadrs personal participation in his 2004 C.S.R.T. evaluation may have been impacted had he been on notice of the potential criminal liability the C.S.R.T.s findings could impose upon him. Such lack of notice offends our most basic and fundamental notions of due process; therefore, it also violates Common Article 3. The declared purpose of the C.S.R.T. process used to review the status of hundreds of foreign national detainees captured in Iraq and Afghanistan and currently held under Defense Department control at Guantanamo Bay Naval Base, Cuba including Mr. Khadr was solely
The Supreme Court in Hamdan found that Common Article 3 of the Geneva Conventions was applicable to the conflict with al Qaeda because it was a conflict not of an international character occurring in the territory of one of the High Contracting Parties. Hamdan, 126 S. Ct. at 2795, 165 L. Ed. 2d 776 (quoting Common Article 3). Among the minimal protections provided by Common Article 3 is the prohibition against the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 6 U.S.T. at 3320 (Art. 3 at P1(d)); Hamdan, 126 S. Ct. at 2797, 165 L. Ed. 2d at 779 (Stevens, J., concurring). The plurality opinion in Hamdan postulated that a regularly constituted court must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. Id.; see also Jack M. Beard, The
23
24 Article 75 of Protocol I to the Geneva Conventions of 1949 articulates many of the fundamental guarantees which are recognized as indispensable by civilized peoples. See Protocol I, Art. 75(4)(a)-(j). Although the United States has declined to ratify Protocol I as a whole, Article 75 has been accepted by our government as an articulation of safeguards to which all persons in the hands of an enemy are entitled. Hamdan, at 2797, 165 L. Ed. 2d at 779 (quoting Taft, The Law of Armed Conflict After 9/11; Some Salient Features, 28 Yale J. Intl L. 319, 322 (2003) (Stevens, J., concurring). Among the many rights set forth in Article 75 are notice and opportunity to be heard provisions. See Protocol I, Art. 75(4)(a) and (g).
Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Counterterror Operations, Am.
Jour. Intl L. 58 (2006).
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to afford detainees the opportunity to contest designation as an enemy combatant. Wolfowitz memorandum at 1. The Wolfowitz memorandum never discusses addressing the issue of lawful or unlawful enemy combatant status; nor does the memorandum from the Secretary of the Navy implementing the C.S.R.T. process. 25 As far as we can discern, the C.S.R.T.s were never tasked with making that determination. Instead, they conducted non-adversarial proceedings aimed at deciding, by a preponderance of the evidence, whether each detainee met the criteria for designation as an enemy combatant under the definition in the Wolfowitz memorandum 26 to permit continued detention at Guantanamo Bay. Id. at 2. In doing so, Mr. Khadrs 2004 C.S.R.T. employed a less exacting standard than that contained in the M.C.A. for establishing unlawful enemy combatant status. A detainee could be classified as an enemy combatant under the C.S.R.T. definition simply by being a part of the Taliban or al-Qaeda, without ever having engaged in or supported hostilities against the United States or its coalition partners. Id. While such a classification would certainly be appropriate for authorizing continued detention during ongoing hostilities, it does not address in any way the lawful or unlawful nature of the detained
combatants belligerency under the M.C.A. Congress never stated that mere membership in or affiliation with the Taliban, al-Qaeda, or associated forces was a sufficient basis for declaring someone to be an unlawful enemy combatant for purposes of exercising criminal jurisdiction over that person. 27 In the M.C.A., military commission jurisdiction is limited solely to those who actually engaged in hostilities or who . . . purposefully and materially supported hostilities. . . . See 948a(1)(A)(i) (emphasis added). While Mr. Khadrs C.S.R.T. may have had more than sufficient evidence before it to properly classify him as an alien unlawful enemy combatant, it was not charged with making that determination, and could not have applied the definition established by Congress, as it did not come into existence until October 2006 two years later. We will apply the clear and unambiguous jurisdictional language Congress provided in the M.C.A. Doing so, we affirm the military judges conclusion that Mr. Khadrs C.S.R.T. classification in 2004 as an enemy combatant was insufficient to establish the military commissions criminal jurisdiction over him. THE MILITARY COMMISSIONS AUTHORITY TO DETERMINE UNLAWFUL ENEMY COMBATANT STATUS We next examine the military judges determination that the military commission is not the proper authority, under the provisions of the M.C.A., to determine that Mr. Khadr is an unlawful
See Secretary of the Navy memorandum of July 29, 2004 (Implementation of Combatant Status Review Tribunal procedures for Enemy Combatants detained at Guantanamo Bay Naval Base, Cuba), AE 21 at 1. 26 Id. at Enclosure (1), B (An enemy combatant for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.).
25
27 See Protocol I, Art. 4(b) (no one shall be convicted of an offense except on the basis of individual penal responsibility).
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enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr. See Military Judges Order on Jurisdiction of June 4 2007 at 12; Record at 21. A brief chronology of the procedural evolution of this military commission illuminates the judges ultimate ruling: Date June-July 2002 July 27, 2002 Event Mr. Khadrs alleged offenses take place. Mr. Khadr is captured in following Afghanistan being
2007
conducts an R.M.C. 802 28 conference with counsel. Military judge raises jurisdictional concerns based on Mr. Khadrs C.S.R.T. determination. Mr. Khadrs military commission meets at Guantanamo Bay, Cuba. The military judge sua sponte raises issue of in personam jurisdiction and ultimately dismisses charges without prejudice for lack thereof. Appellant submits a Motion for Reconsideration to the military judge. Military judge issues a Disposition of Mr. Khadrs Motion for Reconsideration declining to reconsider his ruling. Appellant provides written notice to the military judge of intent to appeal ruling to Court of Military Commission Review.
June 4, 2007
wounded in a firefight. September 7, 2004 Mr. Khadrs C.S.R.T. proceeding is held. He is determined to be an enemy combatant and a member of, or affiliated with al Qaeda. Legal Sufficiency Review of Mr. Khadrs C.S.R.T. proceeding concludes he is properly classified as an enemy combatant. Charges are sworn against Mr. Khadr. Charges are referred non-capital for trial before a military commission and served upon Mr. Khadr. Military judge June 8, 2007
June 29, 2007
September 10, 2004
July 3, 2007
April 5, 2007 April 24, 2007
R.M.C. 802 authorizes the military judge to conduct pretrial conferences with the parties to consider such matters as will promote a fair and expeditious trial.
28
June 3,
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July 4, 2007
Appellant files interlocutory appeal with Court of Military Commission Review.
that the Military Commission did not have jurisdiction. Id. at 4a. 30 We hold the military judge erred in two respects: first, in not affording Appellant the opportunity to present evidence in support of its position on the jurisdictional issue before the military commission; and second, in concluding that a C.S.R.T. (or another competent tribunal) determination of unlawful enemy combatant status was a prerequisite to referral of charges to a military commission, and that the military commission lacked the power to independently consider and decide this important jurisdictional matter under the M.C.A. a. Admission of Evidence on the Motion to Dismiss. We review a military judges decision in regard to admitting or excluding evidence utilizing an abuse of discretion standard. United States v. Billings, 61 M.J. 163, 166 (C.A.A.F. 2005); see also General Electric Co. v. Joiner, 522 U.S. 136, 139 (1997). The abuse of discretion standard of review recognizes that a judge has a range of choices [in such matters] and will not be reversed so long as the decision remains within that range. United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)); United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). Applying this standard is also appropriate in reviewing a judges decisions regarding evidence production during a motion hearing or at trial.
After ruling that Mr. Khadrs C.S.R.T. classification as an enemy combatant was insufficient to establish the military commissions jurisdiction over him, the military judge went on to conclude that he was not empowered to independently decide the matter of in personam jurisdiction because the M.C.A. requires [that] determination be made in advance for there to be jurisdiction to refer charges against the accused. This is what Congress directed, and the Military Judge lacks authority to ignore this mandate. Disposition of Prosecution Motion for Reconsideration (AE 23) at 4, (3)(a). After affirmatively concluding that neither he nor the military commission was authorized to render a determination on Mr. Khadrs unlawful enemy combatant status, 29 and that such a determination had to be made as a prerequisite to referral, the military judge faulted Appellant for not presenting proof at the military commission hearing of Mr. Khadrs unlawful enemy combatant status, or requesting a continuance to more thoroughly brief the issue. Id. at 3a(3) & 3b(1)-(3). In his ruling, he also categorically rejected the implication that the prosecution was not allowed to present argument or evidence on jurisdiction. Id. at 3b. He then decided
29 The military judge expressly stated in his written disposition of the prosecutions Motion for Reconsideration that, In this case, the prosecution was alerted [by the military judge] well ahead of time that it was going to be required to state in open court that there was a C.S.R.T. determination that the Accused was an alien unlawful enemy combatant. Such a determination was not presented. Id. at 3.
30 See also id. at f(7) where the judge concluded, The Military Judge does not find that the Commission is a competent tribunal to establish initial jurisdiction.
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Both the record of trial and the military judges actions and rulings in this case demonstrate that the prosecution was not afforded the opportunity to present evidence to establish the military commissions in personam jurisdiction over Mr. Khadr. Although the assistant prosecutor argued the military commission should interpret Mr. Khadrs 2004 C.S.R.T. enemy combatant classification as satisfying the M.C.As jurisdictional language, he also articulated a clear alternative position on the record. See Record at 11-13. This court is competent to make such a determination [on in personam jurisdiction], and the government will prove the jurisdictional element at trial by a preponderance of the evidence. In the event, Your Honor, that youre not willing to go forward absent a finding of jurisdiction by a preponderance of the evidence, the government is willing to prove jurisdiction today. Record at 12. 31 The assistant prosecutor then specifically listed the evidence the Government would present in support of Mr. Khadrs unlawful enemy combatant status, which, inter alia, included a videotape of Mr. Khadr engaged in unlawful combat activities including wearing civilian attire and making and planting roadside bombs, admissions made by Mr. Khadr,
and other statements that implicated him in conducting such unlawful activities. Record at 12. 32 The military judge did not allow the government to present their evidence and instead inquired whether anyone thought about going back and doing new [combatant status] review tribunals. Record at 17. Then, after a very brief recess, the military judge immediately announced his ruling on his own sua sponte motion, and dismissed the charges without prejudice. Record at 22. We disagree with the military judges statement in his ruling on the Motion for Reconsideration that the prosecution did not make a formal offer of proof concerning any of the evidence which it now proposes be used. Disposition of Prosecution Motion for Reconsideration (AE 23) at 3, 3b(1). The record demonstrates Appellant offered and was ready to present evidence to affirmatively establish the military commissions jurisdiction over Mr. Khadr, but was summarily denied that opportunity. The record does not support the assertion that the military judge afforded the prosecution an opportunity to present evidence on the jurisdiction and that they failed to do so. Asking counsel whether they have anything else to say in oral argument upon a pending motion is not the equivalent of an invitation or offer to present evidence. Id. at 3b(3); see, e.g., Record at 15 16. Indeed, oral argument upon a motion should rarely take place at all prior to evidence regarding the factual
31
32 Mil. Comm. R. Evidence 104(a) makes it clear that the military judge, when deciding preliminary questions relating to determining a military commissions jurisdiction, is not bound by the rules of evidence, except those with respect to privileges. Accord MANUAL FOR COURTS-MARTIAL, UNITED STATES, Mil. R. Evid. 104(a).
See also Record at 15, . . . the government would
be willing to prove before the military commission that he is, in fact, an unlawful enemy combatant. And if the court is not willing to move forward without a jurisdictional determination, then we are willing to produce evidence proving his status today.
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matters in dispute first being adduced at the motion hearing. 33 Finally, if there was any genuine confusion on this matter at the initial session of Mr. Khadrs military commission, Appellants subsequent Motion for Reconsideration made it clear the prosecution was and remains fully prepared to present evidence that would clearly establish jurisdiction over the accused. Prosecution Motion for Reconsideration of June 8, 2007 at 7. For these reasons, and those addressed in the next section of this opinion, we find the military judge abused his discretion in deciding this critical jurisdictional matter without first fully considering both the admissibility and merits of evidence Appellant offered to present on this issue. b. Ruling Concerning the Military Commissions Authority to Determine Jurisdiction. We also conclude that the military judge erred in ruling he lacked authority under the M.C.A. to determine whether Mr. Khadr is an unlawful enemy combatant for purposes of establishing the military commissions initial jurisdiction to try him. See Military Judges Order on Jurisdiction of June 4, 2007 at 1-2; Record at 21. The unambiguous language of the M.C.A., in conjunction with a clear and compelling line of federal precedent on the issue of establishing jurisdiction in federal courts, convince us the military judge possessed the independent authority to decide this critical jurisdictional prerequisite. [A] federal court always has jurisdiction to determine its own
jurisdiction. United States v. Ruiz, 536 U.S. 622, 627 (2002). A military commission is no different. See R.M.C. 201(b)(3)(A military commission always has jurisdiction to determine whether it has jurisdiction.). The military judge expressly acknowledged in his ruling upon the Motion for Reconsideration, there is no express statutory directive that the government must establish jurisdiction before it is allowed to proceed with a Military Commission. See Disposition of Prosecution Motion for Reconsideration at 6, 4e(3). Nevertheless, the military judge concluded there were clear and unambiguous indicia that Congress intended... initial jurisdiction be established before the mechanism set up by the M.C.A. was used in the case of a given person[.] Id. He concluded the only avenue for establishing initial jurisdiction was through a prior determination of unlawful enemy combatant status by a C.S.R.T. (or other competent tribunal). Id. at 7, 4e(3)(c). While we agree with the military judges view that Congress contemplated an initial assessment of an accuseds unlawful enemy combatant status prior to referral of charges to a military commission, we disagree with his conclusion that the only avenue for the assessment is that delineated in M.C.A. 948a(1)A(ii). See M.C.A. 948a-d. As previously noted, any alien unlawful enemy combatant engaged in hostilities against the United States or its cobelligerents is subject to trial by military commission for violations of the law of war and other offenses triable by military commission. See M.C.A. 948a-d; R.M.C. 201(b)(1). This jurisdiction attaches upon the formal swearing of charges against an
Arguments of counsel in motion hearings or at trial are not evidence. Instead, counsel may only properly argue factual issues based upon previously admitted evidence at trial or an agreed upon stipulation of fact.
33
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accused, after an individual subject to the Uniform Code of Military Justice avers under formal oath that the charges are true in fact. See R.M.C. 202(c) and 307(b). Charges may then be referred for trial by military commission under R.M.C. 601 as long as reasonable grounds [exist] to believe that an offense triable by a military commission has been committed and that the accused committed it. R.M.C. 601(d). The only relevant limitation upon referral of charges is the requirement in R.M.C. 406(b) that, inter alia, prior to referral, the charge(s) must be referred to the convening authoritys legal officer for pretrial advice, and that individual must state his/her conclusion as to whether a military commission would have jurisdiction over the accused and the offense. See R.M.C. 406(b)(3). All of these steps occurred in this case, and, as previously stated, each offense referred for trial against Mr. Khadr clearly alleges the express jurisdictional language used in the M.C.A., that he is a person subject to trial by military commission as an alien unlawful enemy combatant. AE 1 at 4-7 (emphasis added). We find that this facial compliance by the Government with all the pre-referral criteria contained in the Rules for Military Commissions, combined with an unambiguous allegation in the pleadings that Mr. Khadr is a person subject to trial by military commission as an alien unlawful enemy combatant, entitled the military commission to initially and properly exercise prima facie personal jurisdiction over the accused until such time as that jurisdiction was challenged by a motion to dismiss for lack thereof, or proof of jurisdiction was lacking on the merits.
In our opinion, the M.C.A. is clear and deliberate in its creation of a bifurcated methodology for establishing an accuseds unlawful enemy combatant status so as to permit that individuals trial before a military commission. These two methods are laid out in M.C.A. 948a(1)A where an unlawful enemy combatant is defined as: (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. (emphasis added). The disjunctive or between subsections (i) and (ii) clearly sets forth alternative approaches for establishing military commission jurisdiction. See In re Espy, 80 F.3d 501, 505 (D.C. Cir. 1996) ([c]anons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, and a statute written in the disjunctive is generally construed as setting out separate and distinct alternatives.) (quoting Reiter v. Sonotone Corporation,
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442 U.S. 330, 339 (1979)). The military judge did not apply the disjunctive separation of these two provisions, and erroneously interpreted the distinct provisions as if written in the conjunctive; that is, as if joined by the word and rather than or. 34 Such an interpretation would render subsection (i) nothing more than a definition in aid of a C.S.R.T. (or other competent tribunal) determination of combatant status under subsection (ii), and is contradictory to the statutes clear structure, wording, and overall intent. Upon challenge, the first method by which the M.C.A. contemplates jurisdiction being established is by evidence being presented before the military judge factually establishing that an accused meets the definition of unlawful enemy combatant as contained in subsection (i). In personam criminal jurisdiction over a criminal accused is generally a question of law to be decided by the military judge, and is usually resolved only after presentation of evidence supporting jurisdiction and entry of corresponding findings of fact. See United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000) (When an accused contests personal jurisdiction on appeal, we review that question of law de novo, accepting the military judges findings of historical facts unless they are clearly erroneous or
The military judge ruled, A strict reading of the M.C.A. would appear to require that, until such time as a CSRT (or other competent tribunal) makes a finding that a person is an unlawful enemy combatant, the provisions of the M.C.A. do not come into play and such person may not be charged, charges may not be referred to a military commission for trial, and the military commission has no jurisdiction to try him. Order on Jurisdiction of 04 Jun 2007 at 1, 7; see also Disposition of Prosecution Motion for Reconsideration of 29 Jun 2007 at 4, 4(d)(3)(a-b).
34
unsupported in the record.); United States v. Ernest, 32 M.J. 135, 136-37 (C.M.A. 1991) (twenty-four findings of fact entered by the trial court in determining whether to grant motion to dismiss for lack of personal jurisdiction); United States v. Cline, 26 M.J. 1005, 1007 (A.F.C.M.R. 1988) (returning record to trial court to more fully develop and analyze factual matters serving as basis for assertion of personal jurisdiction); see also United States v. Anderson, 472 F.3d 662, 666-67 (9th Cir. 2006) (determining personal jurisdiction in light of alleged violation of extradition treaty). There is a long and well-developed tradition in U.S. federal courts and, specifically, throughout military court-martial jurisprudence of military judges deciding matters of personal jurisdiction. See, e.g., Solorio, 483 U.S. 439, 450-51 (listing military cases where personal jurisdiction litigated); J. Horbaly, Court-Martial Jurisdiction 375534 (1986) (unpublished dissertation, Yale Law School) (listing numerous cases involving court-martial litigation to determine jurisdiction); Department of the Army Pamphlet 27-173, Legal Services Trial Procedure 40-112 (Dec. 31, 2002). Congress, clearly aware of historical court-martial practice, and desiring that military commissions mirror this firmly rooted practice to the maximum extent practicable, 35 would not have deprived military commissions of the ability to independently decide personal jurisdiction absent an express
35 See M.C.A. 949a(a)(mandating that military commission procedures shall, to the extent practicable, apply the principles of law and the rules of evidence in trial by general courtsmartial.); see also M.C.A. 948b(c)(stating that the procedures for military commissions are based upon the procedures for trial by general courts-martial under . . . the Uniform Code of Military Justice.)
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statement of such intent. No such statement is contained anywhere in the M.C.A. The military judges reliance on M.C.A. 948a(1)(A)(ii) for the proposition that a military commission itself cannot determine personal jurisdiction is misplaced. This provision supports Appellants position rather than detracts from it. Although Congress assigned a jurisdictional safe harbor for prior C.S.R.T. (or other competent tribunal) determinations of unlawful enemy combatant status by statutorily deeming them dispositive of jurisdiction, it did not in any way preclude Appellant from proving jurisdiction before the military commission in the absence of such a determination. Indeed, the existence of a statutorily recognized path to achieve a dispositive determination of jurisdiction suggests that pretrial procedures and pleadings alleging jurisdiction should simply be viewed as nondispositive. 36 Subsection (ii) does not eliminate
36 M.C.A. 948a(1)(A)(ii) appears simply to acknowledge the standards and definitions, enhanced procedural safeguards, and other general rights afforded a detainee through the C.S.R.T. process after passage of the Detainee Treatment Act of 2005. Of course, that Act was not in existence on the date Mr. Khadrs C.S.R.T. was conducted. Also, only C.S.R.T. (or other competent tribunal) determinations of unlawful enemy combatant status are considered dispositive of a military commissions personal jurisdiction over an Accused detainee. No such determination has ever been rendered in this case. As mentioned earlier, the C.S.R.T. which considered Mr. Khadrs status classified him only as an enemy combatant. Having rendered no determination of Mr. Khadrs lawful or unlawful status, the C.S.R.T. finding of enemy combatant status is not entitled to enter Congress statutory safe harbor. An enemy combatant finding is necessary for deciding whether to impose continuing detention upon an individual, but it is not dispositive for purposes of establishing military commission jurisdiction.
traditional methods of proving jurisdiction before the commission itself. We agree with Appellants suggestion that Congress, through subsection (ii), merely carved out an exception to the military commissions authority to itself determine jurisdictional matters. See Supplemental Brief on Behalf of Appellant at 12. As Appellant notes, subsection (ii) makes it clear that the military judge is not at liberty to revisit a C.S.R.T.s (or other competent tribunals) finding of unlawful enemy combatant status when there is such a finding. See Appellants Supplemental Brief in Response to Courts Request at Oral Argument at 7. However, nothing in the M.C.A. requires such a finding in order to establish military commission jurisdiction. Had they so intended, Congress could have clearly stated in the M.C.A. that the only way to establish military commission jurisdiction is through a prior C.S.R.T. (or other competent tribunal) determination of unlawful enemy combatant status. It did not. Accordingly, we may properly find as clearly indicated in the language of M.C.A. 949a(a) and 948b(c) that Congress intended for military commissions to apply the principles of law and the procedures for trial [routinely utilized] by general courtsmartial. This would include the common procedures used before general courts-martial permitting military judges to hear evidence and decide factual and legal matters concerning the courts own jurisdiction over the accused appearing before it. This view is supported in the Rules for Military Commissions, which provide exactly such procedures. R.M.C. 907(b) allows an accused to raise a Motion to Dismiss for Lack of Jurisdiction, and
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recognizes lack of jurisdiction as a nonwaivable ground for dismissal of charges at any stage of the proceedings. R.M.C. 905c(2)(B) assigns the burden of persuasion to the prosecution on a motion to dismiss for lack of jurisdiction; R.M.C. 905c(1) sets that burden on any factual issue necessary to resolve the motion as a preponderance of the evidence. Clearly, these rules contemplate potential litigation of personal jurisdictional issues by the military commission, and provide the procedures necessary to address such a challenge. 37 If the only avenue to achieve military commission jurisdiction was through a previously rendered C.S.R.T. (or other competent tribunal) determination of unlawful enemy combatant status, all of these rules would be superfluous, as dispositive jurisdiction would have attached before the fact. The text, structure, and history of the M.C.A. demonstrate clearly that a military judge presiding over a military commission may determine both the factual issue of an accuseds unlawful enemy combatant status and the corresponding legal issue of the military commissions in personam jurisdiction. A contrary interpretation would ignore the bifurcated structure of M.C.A. 948(1)(A) and the long-standing history of military judges in general courts-martial finding jurisdictional facts by a preponderance of the evidence, and resolving pretrial motions to dismiss for lack of jurisdiction. The M.C.A. identifies two potential
jurisdiction-establishing methodologies based upon an allegation of unlawful enemy combatant status. The first, reflected in 948a(1)(A)(i), involves the clear delineation of the jurisdictional standard to be applied by a military commission in determining its own jurisdiction. The second, contained in 948a(1)(A)(ii), involves a non-judicial related jurisdictional determination that is to be afforded dispositive deference by the military commission. Either method will allow the military commissions exercise of jurisdiction where unlawful enemy combatant status has been established by a preponderance of the evidence. This interpretation is consistent with the requirements of both the M.C.A. and with international law. 38 See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (acts of Congress will generally be construed in a manner so as not to violate international law, as we presume that Congress ordinarily seeks to comply with international law when legislating). Because we find the military judge had the power and authority under subsection (i) of 948a(1)(A) of the M.C.A. to hear evidence concerning, and to ultimately decide, Mr. Khadrs unlawful enemy combatant status, we need not address
38
37 See R.M.C. 202(b), Discussion (The M.C.A. does not require that an individual receive a status determination by a C.S.R.T. or other competent tribunal before the beginning of a military commission proceeding. If, however, the Accused has not received such a determination, he may challenge the personal jurisdiction of the commission through a motion to dismiss.).
See, e.g., Article 45(2) of Protocol I to the Geneva Conventions. That Article suggests that a detained individual who is not being held as a POW has the right to assert an entitlement to POW status before a judicial tribunal, and that judicial adjudication of combatant status shall occur before trial for any alleged substantive offense. Following the M.C.A. procedures, as we interpret them here, would allow an Accused to assert a claim of POW (i.e., lawful combatant) status at a pretrial motion session before the military judge. This pretrial determination of status would be fully in accord with Article 45(2) of Protocol I.
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whether or not a military commission is another competent tribunal under subsection (ii) to make that decision. CONCLUSION The military judges ruling he lacked authority to hear evidence on, and ultimately decide, the matter of Mr. Khadrs unlawful enemy combatant status under the provisions of the M.C.A. is reversed. The record of trial is returned to the military judge, who shall, consistent with this opinion, conduct all proceedings necessary to determine the military commissions jurisdiction over Mr. Khadr.
Judge FRANCIS and Judge HOLDEN concur.
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UNITED STATES OF AMERICA Appellant v. OMAR AHMED KHADR Appellee Court of Military Commission Review, Case 08-003 Before FRANCIS, FELTHAM, GEISER Appellate Military Judges Military Judge: Colonel Peter E. Brownback, III, JA, USA (motion); Colonel Patrick A. Parrish, JA, USA (reconsideration) For Appellant: Mr. Jordan A. Goldstein, Esq., U.S. Department of Justice; Major Jeffrey D. Groharing, USMC; Captain Keith A. Petty, JA, USA; Mr. John F. Murphy, Esq., U.S. Department of Justice. For Appellee: Lieutenant Commander William C. Kuebler, JAGC, USN; Rebecca S. Snyder, Esq. OPINION OF THE COURT AND ACTIONON APPEAL BY THE UNITED STATES FILED PURSUANT TO 10 U.S.C. 950d October 3, 2008
certain portions of Charge III and its Specification as surplus language beyond that necessary to allege the statutory offense of conspiracy. We hold the appeal to be untimely, and accordingly dismiss it as beyond the appellate jurisdiction of the Court. United States v. Khadr, CMCR 08003 BACKGROUND The charges against Mr. Khadr [hereinafter Appellee] referred for trial by military commission include, inter alia, a single charge and specification alleging conspiracy, in violation of 10 U.S.C. 950v(b)(28). As referred, the specification alleged both that the Appellee conspire[ed] and agree[d] with Usama bin Laden [and various other named and unnamed members of al Qaeda] and that he willfully join[ed] an enterprise of persons, to wit: al Qaeda,...that has engaged in hostilities against the United States... Thus, the specification encompassed both an agreement and an enterprise theory of conspiracy liability. Both potential theories of liability are included in the elements of the offense of conspiracy set forth in the Manual for Military Commissions (M.M.C.) (2007). M.M.C. Part IV, paragraph 6(b)(28)(b). On 11 January 2008, the defense moved to strike those portions of the specification alleging an enterprise theory of liability. The defense asserted that the statutory offense of conspiracy delineated by Congress under 10 U. S. C. 950v(b)(28) does not encompass the enterprise theory of liability. The defense argued that, as a result, the Secretary of Defenses inclusion of such a theory of liability
FRANCIS, Deputy Chief Judge: This case is before us on an interlocutory appeal by the Government [hereinafter Appellant], pursuant to 10 U.S.C. 950d. Appellant contends the military judge erred as a matter of law when he struck
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when defining the elements of conspiracy in the M.M.C. was beyond his authority. 1 On 4 April 2008, the military judge granted the defense motion to strike that portion of the specification alleging an enterprise theory of liability. By the same ruling, the military judge invited the defense to address whether the language, on September 11, 2001, and further attacks, continuing to date against the United States should also be deleted from the specification. The defense requested deletion and, on 9 May 2008, the military judge granted a defense motion to strike this additional language from the specification. On 11 July 2008, after appointment of a new military judge, Appellant moved for reconsideration of the first military judge's rulings on the defense motions to strike. The motion indicated in part that the contested rulings had also inadvertently deleted language concerning a knowledge element required to prove the remaining agreement theory of liability. On 14 August 2008, the new military judge denied the motion to reconsider the earlier rulings deleting the enterprise theory of liability language, but granted the Governments request to add back the knowledge element language required to prove the remaining agreement theory of liability. On 19 August 2008, Appellant filed a Notice of Appeal with both the military judge and this Court.
TIMELINESS OF APPEAL The Military Commissions Act (M.C.A.) requires that notice of a government interlocutory appeal of an adverse order or ruling by a military judge be filed within five days after the date of such order or ruling. 10 U.S.C. 950d(b). This statutory requirement is reiterated in Rule for Military Commissions (R.M.C.) 908(b)(2). Such a statutory appeal limitation is mandatory and jurisdictional, cannot be extended by a judge, and generally precludes this Court from entertaining appeals filed outside the stated period. Bowles v. Russell, 551 U.S. __, 127 S. Ct. 2360, 2363-2364 (2007) (citations omitted). A significant caveat to the above rule is that a timely request for reconsideration of an adverse order or ruling renders it nonfinal for purposes of appeal as long as the petition is pending. United States v. Ibarra, 502 U.S. 1, 4 (1991) (quoting from United States v. Dieter, 429 U.S. 6, 8 (1976)). In such case, the applicable appeal period runs from the date the judge rules on the request for reconsideration. The threshold question in the appeal now before the Court is thus whether Appellants request for reconsideration of the judges order striking the enterprise language was timely within the meaning of the above rule. If so, then the subsequent Government appeal, which was filed within five days of the judges ruling on the request for reconsideration, is itself timely. If not, then the appeal is untimely and must be dismissed. The M.C.A. makes no reference to requests for reconsideration within the
1 10 U.S.C. 949a(a) authorizes the Secretary of Defense, in consultation with the Attorney General, to prescribe pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission." Id. (emphasis added).
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context of a military commissions trial and thus provides no direct guidance on when such a request may be considered timely for purposes of a Government appeal under 10 U.S.C. 950d(b). In the absence of such explicit statutory guidance, Appellant draws the Courts attention to two M.M.C. provisions. R.M.C. 801(e)(1)(B) states that a military judge may change a ruling made by that or another military judge in the case[,] except a previously granted motion for a finding of not guilty,[ 2 ] at any time during the trial. Id. (emphasis added). Similarly, R.M.C. 905(f) provides that [o]n request of any party or sua sponte, the military judge may, prior to
001, Ruling on Motion to Dismiss (19 September 2007) (Appendix). We find no merit in Appellants argument. The referenced R.M.C. provisions, which are regulatory only, cannot trump the time limitations expressed by Congress in 10 U.S.C. 950d on the Governments ability to pursue an interlocutory appeal. Indeed, 10 U.S.C. 949a(a) specifically states that any regulatory provisions promulgated by the Secretary of Defense in implementing the M.C.A. may not be contrary to or inconsistent with the terms of the Act. Acceptance of Appellant's position would render the five day appeal limitation set forth in 10 U.S.C. 950d meaningless, in that the Government could revive and appeal an adverse ruling at any time prior to authentication of the record of trial, simply by first filing a motion for reconsideration. Appellants reliance on this Courts previous ruling, accepting a prior Government interlocutory appeal after the military judge denied a request for reconsideration, is misplaced. Although the Court in that decision did favorably cite the R.M.C. provisions pertaining to reconsideration as part of its rationale in finding that appeal timely, our ruling made clear that any motion for reconsideration also had to be timely. Appendix at 3. The distinction between that appeal and the one now at issue is that in the earlier litigation, the motion for reconsideration was itself made within five days of the adverse ruling. Here, Appellant filed the motion for reconsideration on 19 August 2008, more than two months after the military judge finalized the content of the specification at issue on 9 May 2008, eliminating the
authentication of the record of trial, reconsider any ruling, other than one
amounting to a finding of not guilty, made by the military judge. Id. (emphasis added). Appellant argues that these provisions, promulgated by the Secretary of Defense under the authority granted him by the M.C.A., 3 together make clear that a motion for reconsideration is timely if made at any time during the trial prior to authentication of the record. Accordingly, the appellant contends that the Governments motion for reconsideration in this case, though made more than three months after the judges initial adverse ruling, was timely, as was the appeal made from the judge's ruling on that motion. In support of this conclusion, Appellant points to this Court's earlier ruling denying a defense motion to dismiss a prior interlocutory appeal as untimely, wherein we cited both of the referenced R.M.C. provisions. See United States v. Khadr, C.M.C.R. 07-
This exception is not applicable to the ruling at issue here. 3 10 U.S.C. 949a(a), n. 1, supra.
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language concerning theory of liability.
the
enterprise
States v. Santiago, 56 M.J. 610, 615-616

(N-M. Ct. Crim. App. 2001). Appellant's discussion of that case correctly observes that decisions of the service courts of criminal appeals in construing provisions of the U.C.M.J. are not binding on this Court. 4 Nonetheless, we find the reasoning of the Santiago court persuasive, particularly since it dealt with application of interlocutory appeal and reconsideration provisions that are very similar, if not identical, to those at issue in the instant case. 5 Applying the above to trials by military commission, we hold that for a motion for reconsideration to be "timely", such that it renders the underlying order or ruling non-final until a decision on the motion is rendered, the motion for reconsideration must itself be filed within the five-day appeal period mandated by 10 U.S.C. 950d. Once a decision on a timely motion for reconsideration is issued, the Government then has five days to file a notice of appeal of that decision, if desired. This does not mean that R.M.C. 905(f), which allows a party to request reconsideration of an adverse ruling any time before authentication of the record, is without effect. Such requests can still be made and considered by the military judge. However, for such requests to be considered timely for purposes of a subsequent interlocutory appeal, they
We adopt the Supreme Court and other federal courts approach to determining the timeliness of a reconsideration motion or a rehearing motion, at least for purposes of a later appeal from the judge's decision on such a motion. That is, for a motion for reconsideration to be considered timely, so as to render the underlying order or ruling nonfinal for purposes of a later appeal, the motion for reconsideration must itself be filed within the applicable time period for appeal. See, e.g., Ibarra, supra (holding a government interlocutory appeal was timely, when a motion for reconsideration was filed within the 30-day appeal period there at issue and the appeal from denial of that request was also taken within 30 days of the denial); United States v. Healy, 376 U.S. 75, 79 (1964) (holding that "a rehearing petition, at least when filed within the original period of review, may also extend the time for filing a petition for certiorari... (emphasis added)); United States v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995) (stating criminal case motions for reconsideration are timely if filed
within the time prescribed for noticing an appealand, so filed, they destroy the
finality of the underlying judgment. ... [t]he effect of a timely filed motion to reconsider is to extend the time in which to appeal so that it begins to run when the motion is denied. (internal citations omitted) (emphasis added)). In reaching this conclusion, we note that the same approach has been deemed applicable in military courts-martial to government interlocutory appeals under Article 62, Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. 862. United
10 U.S.C. 948b(c). The primary difference between the interlocutory appeal provisions of the U.C.M.J. and the M.C.A. is that the former requires the government to file a notice of appeal within 72 hours, vice five days under the latter. The R.M.C. 9,05(f) reconsideration language is identical to reconsideration language set out in Rule for Courts-Martial 905(f).
5 4
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must also be filed within five days of the underlying adverse order or ruling. CONCLUSION The Governments interlocutory appeal, having not been filed within five days of the underlying adverse ruling, or within five days of a decision on a timely motion for reconsideration, is untimely. It is therefore outside the appellate jurisdiction of this Court and is accordingly dismissed. 6
Judge FELTHAM and Judge GEISER concur.
6 Dismissal of the Government's appeal moots without deciding any other issues the parties raised in their briefs.
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UNITED STATES OF AMERICA Appellant v. MOHAMMED JAWAD Appellee Court of Military Commission Review, Case 08-004 Before WILLIAMS, FRANCIS, OTOOLE Appellate Military Judges APPELLANTS REQUEST FOR DELAY February 4, 2009
filing of briefs, whichever is later, unless the Chief Judge grants an extension of time. We, therefore, understand the Appellants request for a 120-day delay to be a motion to extend the time ordinarily available under C.M.C.R. Rule 22 (c). The Appellee objects on the grounds that there is no authority for the grant of such a delay, that it is not in the interests of justice, and that it is to be substantial prejudice. The Appellee objects on the grounds that there is no authority for the grant of such a delay, that it is not in the interests of justice, and that it is to his substantial prejudice. The Appellee principally argues this prejudice results from his continued confinement, and a contravention of his speedy trial right. At the outset, we reject the Appellees contention that there is no authority by which this Court may grant the requested delay. C.M.C.R. Rule 22(c) recognizes the authority of the Chief Judge, one of the judges on this panel, to extend the time within which the Court may decide matters. We turn now to consideration of whether the requested delay is in the interests of justice. In doing so, we note that the reason for the delay is to allow the Department of Defense to participate in an Interagency review, not only of the military commission process, but also the status of those apprehended and presently detained at Guantanamo Bay including the Appellee their conditions, and the factual and legal bases for their apprehension and detention, all in the context of the national security and foreign policy interests of the United States. It is the latter, broad context which lends the most weight to the Appellants request for delay. Indeed, the
Before the Court is a motion by the United States, as Appellant, requesting a 120-day delay in issuing our decision on the Appellants preceding interlocutory appeal. That appeal challenges the military judges excluding from evidence certain statements purportedly made by the Appellee. Both parties filed their pleadings, and oral argument was held on January 13, 2009. The United States now requests a 120-delay in rendering our decision in order to participate in the review of the status of Guantanamo Bay detainees, and military commission process, mandated by the President of the United States in Executive Order 13492, issued on January 22, 2009.
The rule governing the timeliness of this Courts decisions is Court of Military Commission Review (C.M.C.R.) Rule 22 (c). That rule provides interlocutory appeals will ordinarily be decided within 30 calendar days after oral argument or
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U.S. Supreme Court has often recognized that the President has the principal constitutional responsibility for national security and foreign policy. See e.g., Dept of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v Agee, 453 U.S. 280, 293-4 (1981) (citing the generally accepted view that foreign policy was the province and responsibility of the Executive); Harlow v. Fitzgerald, 457 U.S. 800, 812 N. 19 (1982) (national security and foreign policy are central Presidential domains); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (stating the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations). We, thus, accord great deference to the President in his determination that the Interagency review is required now in the interests of national security and foreign policy. Against the weight of the Presidents stated need for a 120-day delay we still must balance the objections and prejudice asserted by the Appellee. Before proceeding, we pause to consider the important public interests in the process of appellate review. The public relies on appellate courts to impartially and expeditiously determine appeals. In particular, the assurance that motions to suppress evidence are correctly decided through an orderly process of appellate review protects both the accused and the rights of public justice. Beavers v. Haubert, 198 U.S. 77, 87 (1905). In this regard, we conclude that the manner by which the request was tendered to the Court as a motion within the pending litigation and not as a military order, dispels the perception of both improper
influence with the publics interest in orderly appellate review. Turning to the Appellees asserted right to a speedy trial, we not that it derives explicitly from Rule for Military Commissions (R.M.C.) 707. 1 At a minimum, the Appellee has a right to have the presiding military judge announce the assembly of the military commission within 120 days of service of charges. R.M.C. 707 (a)(2). Ordinarily, the delay attending an interlocutory appeal is excluded from calculating this 120 days, unless the appeal was frivolous and interposed for the purpose of this delay. R.M.C. 707 (b)(4)(B) and (c). Since neither the interlocutory appeal, nor the requested delay, was frivolous or interposed for a delay, a direct application of the rules would seem to place the requested delay beyond any speedy trial challenge. However, neither the R.M.C. not the C.M.C.R. Rules anticipate the circumstances presented here, where the requested delay is not sought as necessary to the proper discharge of this Courts responsibility in ruling on the pending appeal. Under these unique facts, we decline to rely only on the routine exclusion of time incidental to appeals as determinative. We look, instead, to continue our evaluation of whether the requested delay is in the interests of justice.
1 We need not, and specifically do not, hold that the Appellee has a constitutional due process right to a speedy trial. However, even if we were to adopt the functional test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), the result in this matter would be the same , based on your balancing the [l]ength of delay, the reason for the delay, the [Appellees] assertion of his right, and prejudice to the [Appellee].
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The Appellee asserts a range of prejudice will inure to him in the event we grant the requested delay. While asserting his right to a speedy trial, the Appellee does not assert specific prejudice related to his ability to defend at trial. In a period of four months, there would be some increased chance that exculpatory evidence might be lost. But, that is speculation. It is not speculation to concede that the Appellee is detained at Guantanamo Bay and has been so detained for more than six years. Though the charged offense is serious enough to warrant some level of restraint pending trial, six years appears at first glance to be such an excessive period as to demonstrate prejudice. However, actual prejudice related to delay of trial in this case is less compelling than it might first appear. Appellees detention status is not entirely related to the charges now pending against him, rather, it is the result of his classification as an enemy combatant, and the administrative determination that his continued detention is in the interest of national security. We also note that since the Appellee has the right to petition for a writ of habeas corpus, his status and the conditions of his confinement are subject to challenge in the federal district courts quite apart from whether this Court issues, or stays, its decision in the pending interlocutory appeal. 2 Against the Appellees assertions of prejudice, we balance the public interest in conducting the review directed by the
President. We conclude that the balance tips in favor of granting the requested delay as in the interests of justice. This is because the review involves not only consideration of the rights of the Appellee, but also the rights of all of the other detainees, the public interest in the fair and expeditious disposition of the detainees, and the national security of the United States, including the impact of the military commission process on international relations. There are all matters of great public concern that involve both law and policy, and which, as noted, properly fall within the Presidents authority and responsibility. And, they are not unconnected to this case or the rights of this Appellee. To counter-balance these considerations, the strongest assertion of prejudice by Appellee is the undifferentiated part of his detention related to his pretrial status. Since his detention status is to be reconsidered, under the review directed by the President, and is under the active review of the federal district court, we conclude this consideration is, for the present, outweighed by the purpose justifying the requested delay. Finally, while it is not at all clear that a prompt resolution of the preceding interlocutory motion would in any way prejudice an on-going Interagency review, we acknowledge that we are not in the proper position to determine what, if any unintended consequences could impact national security or international relations as the result of our denying the requested delay and issuing our opinion. The ordinary 30-day decision requirement of C.M.C.R. Rule 22(c), within which to adjudicate the appellants
2 The Appellee admits that he has filed a petition for a writ of habeas corpus and that a Minute Order was entered requiring the Government to file a factual return with the U.S. District Court for the District of Columbia by February 27, 2009, setting forth the basis for the Appellees continued detention. Appellee Response at 5.
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interlocutory appeal in this case, is extended to May 20, 2009. With the concurrence of the panel, Appellants motion is GRANTED.
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UNITED STATES OF AMERICA Appellant v. MOHAMMED JAWAD Appellee Court of Military Commission Review, Case 08-004 Before WILLIAMS, FRANCIS, OTOOLE Appellate Military Judges APPELLANTS REQUEST FOR DELAY
and which is the subject of pending proceedings in the U.S. District Court for the District of Columbia. See Order, Al
Halmandy, et al. v. Barack H. Obama, et al., No. 05-2385 (D.D.C. Apr. 22, 2009).
Additionally, this Court concludes that the potential prejudice asserted as diminishing Appellees ability to defend himself during any subsequent proceedings in this case remains speculative; and, should any prejudice occur, it is susceptible of relief at such time as any trial resumes, or any conviction is reviewed on appeal. It is therefore ORDERED:
May 22, 2009 That Appellants motion is GRANTED; and that the ordinary 30-day decision requirement of CMCR Rule 22(c), within which to adjudicate the appellants interlocutory appeal in this case, is extended to September 17, 2009.
Before the Court is a motion by the United States, as Apellant, requesting a second 120-day delay in issuing our decision on Appellants preceding interlocutory appeal in the captioned matter. Thus court previously granted a 120-day delay, after balancing the weight of the objections and prejudice asserted by the Appellee against the deference to be afforded the President in his determination that the on-going Interagency review is required in the interests of national security and foreign policy, and considering the publics interest in conducting that review. CMCR order of 4 February 2009. Having considered the pleadings of both parties addressing the Appellants additional request for delay, this Court again concludes that the deference to be afforded the President under the circumstances set forth in this Courts prior ruling continues to outweigh Appellees assertions of prejudice related to confinement that is not entirely related to the charges now pending against him,
479
LIST OF CASES
(italicized numbers indicate footnote text) Alhami v. Bush 98 Amadeo v. Zant 445 Am. Baptist Churches v. Meese 59 Am. Farm Lines v. Black Ball Freight Service 434 Andrus v. Glover Const. Co. 340 Balzac v. Porto Rico 130, 143 Barker v. Wingo 138, 140, 473 Beavers v. Haubert 138, 473 Brumark Corp v. Samson Resources Corp. 11 Boumediene v. Bush 30, 98, 119, 128, 141, 247 Bowles v. Russell 155, 432, 468 Chae Chan Ping v. United States 228 Chambers v. Florida 136 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 100, 102 Christopher v. Harbury 30 Cobell v. Norton 12 Collins v. Loisel 61 County Sovereignty Comm. v. U.S. Dept of State 30 Crandon v. United States 102 CTS Corp v. Dynamics Corp of Am. 62 Cummings v. State of Missouri 173 Diaz v. Inch 146 Dept of the Navy v. Egan 473 Dorr v. United States 130, 142 Dowling v. United States 60 Downes v. Bidwell 131 Duncan v. Walker 452 Durant v. Essex Co. 62 Evans v. United States Parole Commn 102 Ex parte Quirin 47, 146, 196, 200-2, 2045, 209-10, 215-16, 218-19, 3302 44648, 452 General Electric Co. v. Joiner 459 Giakoumelos v. Coughlin 49 Gonzales v. Oregon 102 Graham v. Richardson 31 Greggs v. Georgia 62 Haig v. Agee 473 Hamdan v. Rumsfeld 7, 20, 50, 60-62, 7980, 134, 159-60, 446, 453 Hamdi v. Rumsfeld 136, 138, 161, 455 Harbury v. Deutch 30 Harlow v. Fitzgerald 473 Hawaii v. Mankichi 130, 143 Horton v. California 62 Huynh Thi Anh v. Levi 58 In re Espy 462 In re Griffiths 31 In re Iraq & Afghanistan Detainees Litig. 59 In re Times Publ. Co. 305, 308 Iwanona v. Ford Motor Co. 59 Johnson v. Eisentrager 130, 143, 446 Kahn v. Anderson 146 Kiyemba v. Bush 98 Kontrick v. Ryan 434 Loving v. United States 146 Marks v. United States 62 Minister of Justice, et al., v. Omar Ahmed Khadr 177 Miranda v. Arizona 133, 350 Munaf v. Geren 131, 143 Murray v. Schooner Charming Betsy 26, 465 Natl Cable & Telecomms Assn v. Brand X Internet Servs. 102 New York v. Quarles 133
480
Nicaragua v. United States 134 O'Callahan v. Parker 162 Oshan v. Bush 98 Pan Am World Airways, Inc. v. Aetna Casualty & Sur. Co. 92 Paracha v. Bush 98 Pauling v. McElroy 30 Pederson v. Louisiana State Univ. 445 Peoples Mojahedin Org. of Iran v. U.S. Dep't of State 30 Prosecutor v. Delalic et. al., Case IT-9621-T, Judgment (Trial Chamber) 58 Rasul v. Bush 161, 455 Razatullah v. Gates 98 Reid v. Covert 131, 143 Reiter v. Sonotone Corporation 462 Relford v.Commandant 162 Rhode Island v. Innis 133 Rovario v. United States 221 Ryder v. United States 443 Schacht v. United States 434 Schiro v. Farley 60 Schwarzenegger v. Fred Martin Motor Co. 445 Solorio v. United States 443 Stone v. INS 432 Toth v. Quarles 444 United States ex rel. New v. Rumsfeld 146 United States v. Allen 86, 136 United States v. Anderson 463 United States v. Aref 374 United States v. Argo 87 United States v. Ayala 86 United States v. Bailey 48 United States v. Benitez 332, 339 United States v. Billings 459 United States v. Biagase 87 United States v. bin Laden 332, 339
United States v. Boumediene 97 United States v Breeding 74 United States v. Bresnahan 70 United States v. Brewer 470 United States v. Caban 48 United States v. Cabrera-Frattini 445 United States v. Caritativo 324, 356 United States v. Carlisi 60 United States v. Cline 463 United States v. Crafter 247 United States v. Cruz 86 United States v. Curtiss-Wright Export Corp. 128, 141, 473 United States v. Czeschlin 102 United States v. Dear 247 United States v. Delgado-Garcia 60 United States v. Demeisis 374 United States v. Dieter 432, 468 United States v. Dowty 146 United States v. Ernest 463 United States v. Freeman 70 United States v. Garries 70 United States v. Gerlich 87 United States v. Gomez-Gomez 332 United States v. Gonzalez 60 United States v. Gore 459 United States v. Grant 49 United States v. Hardin 324, 356 United States v. Healy 470 United States v. Ibarra 432, 445, 468 United States v. Johnston 86 United States v. Kaspers 288 United States v. Lee 71 United States v. Lindh 47-48, 445 United States v. Lovett 173
481
United States v. Lynch 325 United States v. Manzella 102 United States v. McCollum 459 United States v. McGoff 102 United States v. Melanson 463 United States v. Moussaoui 50 United States v. Musa 374 United States v. Neapolitan 102 United States v. Rader 445 United States v. Rosser 86 United States v. Ruiz 461 United States v. RW Profl. Leasing Servs. Corp. 12 United States v. Santiago 470 United States v. Saulter 61 United States v. Smith 60 United States v. Stombaugh 87 United States v. Stoneman 86 United States v. Tokash 48 United States v. Thieman 225 United States v. Thomas 86 United States v. Valenti 305, 308 United States v. Valenzuela-Bernal 49 United States v. Verdugo-Urquidez 12931, 134, 143 United States v. Wallace 459 United States v. Warner 288 United States v. Wattanasiri 286 United States v. Yunis 221 Whitefield v. United States 101 Williams v. Taylor 452 Zapata v. Mukasey 286
483
INDEX
(italicized numbers indicate footnote text) Abuse of discretion standard 459 Admissibility 82, 113, 115-16, 133, 13536, 252, 277, 305, 315, 350, 351, 388, 459-61 Afghanistan 5-6, 10, 13, 22-24, 28, 36-37, 53-59, 71-73, 98, 103-4, 121-24, 127, 131, 136-139, 144, 151, 183-84, 18889, 191, 193-94, 197, 199, 203, 206-7, 211-12, 237, 313, 319, 329, 331, 334, 335, 338, 339, 345, 349, 353, 363, 393, 443-44, 454, 455, 456, 458 Agreement theory of liability 102-4, 468 Alien Unlawful Enemy Combatant 7, 10, 21-22, 26-31, 58, 65, 103, 131, 144, 147-48, 152, 156-57, 161-62, 183-84, 188, 193, 197, 199, 203, 206, 211-212, 224, 237, 327, 330-332, 338-39, 34748, 444, 449-462 Combatant 26, 200, 445-51, 456-57, 463, Anti-Taliban Force 24, 27, 121 Arabic 38, 126-27, 285-87, 303, 307, 30712 Arraignment 82, 106, 139, 262-65, 268, 270-71, 293, 295, 298, 314, 365-68, 375 Army Field Manual 56 Atef, Muhammad 103 Authorization for the Use of Military Force 63 Ayub Kheyl 151 Azerbaijan 353 Bagram Air Base 66, 122, 125, 136 al-Bahri, Nasser 16, 35, 74, 77 Bayat 23, 125 Bill of attainder 31, 173-74 Bill of particulars 108, 188-89, 192 Bill of Rights 143 Fifth Amendment 121, 128, 13034, 144, 247, 350 Sixth Amendment 130, 137, 141, 144-48, 290 bin Laden, Osama 5, 21-24, 27-28, 35-37, 63, 74-75, 91, 103-4, 108, 183, 188, 193, 197, 206, 211, 237, 259, 332, 339, 353, 363, 369, 444, 467 Boujaadia, Said 15, 22, 25 Bush, George W. 451, 455 Camp Delta 124-126 Capacity (to stand trial) 93-98, 229, 242, 274, 280-81, 283, 293-96, 320, 335,
465
Combatancy 8, 18, 30, 57 Immunity 47-48, 70, 200, 203, 446-48 Lawful combatants 28-29, 37, 47-48, 57, 70-71, 152-53, 157, 199, 200, 202, 332, 445-50 Unlawful Enemy Combatant 710, 20-22, 26, 28-29, 31, 33-34, 58, 65, 114, 131, 133-34, 137, 139, 142, 144, 152-53, 156-63, 172, 200-201, 224, 327-28, 332, 347, 445-466, 474 Al-Farouq 23-24, 124, 126 Al-Qaeda 5-8, 10, 15, 21-23, 27, 35-38, 51, 53-54, 70-71 74-75, 91-92, 104, 108, 114, 119, 122-25, 127, 132, 140, 151, 226, 259-61, 313, 353, 363, 369-70, 393, 444, 451-52, 454-55, 457 Altenburg, John D. 84 Amador, Xavier F. 293-94, 311 Amicus curiae 22, 223, 226-29, 406, 408, 412-15, 417, 443 Ansar Brigade 24, 29, 36-37, 47, 70-71
336
Capture videos 112, 122, 135 Central Intelligence Agency 265, 297, 298, 312 Child soldier 223-29, 338, 341, 342-43 Classified information 38, 41, 44, 49-52, 68, 106, 109, 166, 179, 265-71, 297301, 310-11, 374-85, 401, 408, 410, 421-23
484
Confidential 166, 266, 298, 306, 308, 377, 385, 422-24 For official use only 165-66, 300, 385 Law enforcement sensitive 165-66, 178, 300, 385 Secret 40, 166, 235, 266, 298, 377-78, 385, 422 Secret/NOFORN 40 Top secret 166, 266, 298, 385, 422 Sensitive compartmented 266, 298, 378, 425 Sensitive unclassified 165 Classified Information Procedures Act 374 Coercive interrogation see Interrogation Combatant Status Review Tribunals 6-7, 10, 20, 33, 152, 156-58, 161, 224, 327, 331, 338, 444, 449-50, 457, 460, 462 Committee on the Rights of the Child 227, 338, 345, 349 Common criminal enterprise 38, 100 Competency hearing 95, 276, 280, see also
Criminal Investigation Task Force 41, 166, 177-78, 385 Davis, Morris 3, 40, 43, 78, 322, 354 Death penalty 204, 228, 340 Department of Defense 43, 79, 83, 90, 161, 166, 267-70, 322, 379-82, 403, 406, 422, 425, 432, 434-38, 441, 451, 472 Department of Justice 79, 85, 267, 380, 454, 467 Department of State 54, 298, 252 Detainee abuse 42, 233 Detainee Treatment Act 139, 161, 291,
455, 464
Detaining power 19, 21, 31, 147, 446-48 Dinstein, Yoram 26, 47, 57, 147 Direct participation 26-27, 91 Discovery 37, 39-40, 42, 49, 66-69, 97-98, 100, 106, 108, 116, 128, 135-36, 166, 177, 179, 180, 189, 191, 221-22, 23036, 240, 262, 264, 266, 274-77, 28082, 290-91, 293, 296, 298, 300, 314, 317, 329-30, 345, 349, 362, 370, 37377, 387, 390-92, 394-97 Due process 30, 50, 130, 247, 336, 373-74, 376, 391, 456, 473 Enterprise theory of liability 100-104, 467-470 Enemy combatant see unlawful enemy
R.M.C. 909
Conditions of confinement 72, 95, 295 Conspiracy 5, 35, 38, 51, 60-65, 100-104, 117, 151, 188-191, 193-198, 206, 210, 217, 219-220, 246, 250, 260, 353, 363, 369, 393, 444, 467-469 Continuance 33-34, 72-73, 97-99, 119120, 139, 156, 252-54, 256, 262-64, 274-76, 302, 304-7, 317, 329-30, 35759, 361-62, 365-66, 370-72, 396-97, 419, 459 Convening Authority 5, 33-34, 40, 43-44, 46, 72-73, 78, 80-86, 88, 90, 96, 145, 151, 154, 157, 162, 228-29, 243, 245, 260, 268, 282-87, 291, 294, 313, 319, 322-27, 331, 339-40, 342-344, 353-58, 361, 363, 365, 369, 381, 392, 393-94, 396, 406, 410, 415, 417, 420, 441, 462 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 335 Corn, Geoffrey S. 117-118 Crawford, Susan J. 44, 83-85, 88, 325, 356 Criminal investigation 115-16, 124, 127
combatant
Equal protection 31 Ex parte 68, 175, 179, 255, 288-89, 306-7 Ex post facto 30-31, 115, 201-202, 205, 210, 215-216, 218-219 Expert witness 70, 72, 118, 288-89, 294, 342-43 Fair status determination 171 Fatwa 23 Fechheimer, David 344 Federal Bureau of Investigation 166, 298, 385 Federal civilian court 173
485
Frakt, David 321 Frequent flyer 334-36 Geneva Conventions 6-8, 10, 19-21, 5355, 147, 291, 334, 340, 451-65 Article 4 GC III 6-8, 47, 445-48, 455 Article 5 GC III 6-8, 18-21, 28-29, 31, 53, 131, 144, 158 Arts. 12-25 GC III 147 Article 4 GC IV 53-59 Article 5 GC IV 147 Article 75 AP I 456 Common Article 3 115, 133, 147, 160, 453, 455-56 Graham, Lindsey O. 20, 58, 80, 83, 223 Habeas corpus 7-8, 60-61, 98, 105-106, 119, 128-30, 137, 141-43, 173, 311, 474 Hague Regulations 56, 445-46 Article 42 56 Hague Convention see Hague Regulations Hartmann, Thomas W. 40, 43-46, 78, 8184, 87-89, 282, 322-25, 354, 356 Hicks, David 80, 82 High value detainee 16-17, 35, 49, 51, 79, 107, 109, 310 Hilton Declaration 50 In camera 40, 68, 109-110, 179, 255, 271, 282, 284, 374, 383 International Committee of the Red Cross 19, 26, 446, 448 International Criminal Tribunal Former Yugoslavia 57, 133 Rwanda 133 International humanitarian law 27, 31, 223, 447-448 Interrogation 66, 68-69, 72-73, 115, 12123, 133, 135, 165, 180, 182, 239, 249, 334-35, 345, 349-51 Iraq 143, 456 Jihad 22-23, 123, 125, 127
Joint Task Force Guantanamo 235-36, 239, 279, 295-96, 316, 334, 336, 393, 398 Jurisdiction 6-10, 12-15, 18-19, 21-22, 26, 29-34, 45-46, 48, 53, 60-61, 64, 81, 91, 98, 106, 116, 143-145, 152-153, 156163, 171-174, 199, 201, 203, 205-6, 210, 211, 215, 218, 223-26, 228-29, 245, 250, 325, 327-29, 331-33, 338-42, 347, 391, 406, 409-10, 426, 429-32, 434-35, 443-45, 449-55, 457-71 Jury 5, 130, 141-48 Juvenile crimes 223-224, 229 Juvenile Delinquency Act 225, 339 Kabul 125, 329, 331, 334, 338, 345, 349 Kabul Military Training Center 349 Kandahar 23-25, 27, 36-37, 47, 54, 122125, 136, 260 Keller, Alvin 344 Keram, Emily 72, 93, 95, 121, 128 Law motions 100, 120, 277-78, 314-15, 387, 389 Law of armed conflict 21, 26, 28, 31, 43, 47, 56, 62-63, 92, 117, 147, 342, 343 Law of nations Law of war 7-8, 28, 48, 63-65, 70-71, 102, 104, 134, 146-47, 151, 188, 193, 19697, 199-206, 209-10, 215-16, 218-220, 224, 237, 247, 260, 319, 327, 331-32, 334, 338-40, 342, 347-48, 363-64, 369-70, 444, 446-50, 454-55, 461 Legal Advisor 33-34, 40, 42-46, 78-79, 8190, 282-84, 322-26, 354-56 al Libbi, Abu Faraj 15 Lyons, Michael 319, 329 al Maari, Sheik Sayeed 103 Manual for Military Commissions 13, 60, 80, 95, 101, 155, 165-66, 168-69, 177, 179, 185, 194, 197-99, 203, 207, 21314, 217, 228, 242, 245, 265, 279, 297, 316, 327, 331, 354, 377, 385, 398, 406, 432-38, 445, 467
486
Martin, Christopher 319, 329 al Masri, Abu Hafs 103 Mental capacity see Capacity Military Commission Trial Judiciary 347 Staff 262, 269 Military Commissions Act 7, 10, 12, 18, 30, 79, 115, 134, 137, 139, 146, 155, 173, 177, 200, 204, 214, 218, 220, 242, 305-6, 316, 335, 338, 348, 349, 354, 406, 434, 441, 443, 449-51, 456, 462, 468 948 7, 22, 26, 58, 87, 113, 114, 152, 157, 165, 168-69, 179, 224, 245, 265, 279, 297, 373, 377, 385, 398 949 80, 114, 175, 179, 196 950 100, 217, 327, 331, 338, 432, 440 Military Commission Rules of Evidence 13, 346, 350 M.C.R.E. 301 350 M.C.R.E. 304 133, 135, 136, 252, 329, 346, 350-51 M.C.R.E. 502 268, 282-83 M.C.R.E. 504 268 M.C.R.E. 505 39, 51, 175-76, 179, 265-66, 268, 270-71, 297-300, 374-75, 377, 380-84 M.C.R.E. 513 268 M.C.R.E. 702 118, 342 M.C.R.E. 804 75 Minimum age of criminal responsibility 227 Morris, Lawrence 3 Morris, Madeline 22, 342, 443 Multiplicity, Multiplication 183, 185-86 Nano-management 81, 89 National security 37-38, 50, 68-69, 132, 175, 179, 265-66, 270-71, 297-301, 373-74, 377-78, 382-84, 391, 394, 472-76 Navy Criminal Investigation Service 4142, 124, 128 New York Police Department 124-25
Occupying Power 54-56 Original classification authority 267-69, 299, 377-78, 380 Omerk, Assadullah Khan 329 Pakistan 24-25, 122, 259-60, 313, 319, 369, 393 Pashto 320, 335 Personal jurisdiction see Jurisdiction Pictet, Jean S. 19, 54-57 Porterfield, Katherine 252-53, 342 Pre-trial detention 149 Prisoner of war 7, 9, 18, 21, 28-29, 32, 53, 57, 114-115, 133, 147, 159 Pro se 273-77, 386, 390-92, 303-5, 307-8, 423 Protective order 105-6, 165-70, 177, 235, 265-71, 281, 297-98, 300, 310-11, 314, 373-75, 377-80, 382, 384-86, 394, 396, 423, 425 Providing material support for Terrorism 5, 60, 117, 151, 183, 185, 211, 213, 215-16, 261, 313, 353, 364, 370, 393
see also Terrorism

Al-Qalaa, Muhammed Ali Qassim 74-75, 77 Al-Qalaa, Umat Al-Subur Qassim 74-75, 77 Res judicata 60-61, 63, 65, 92 Romig, Thomas J. 20 Rule for Courts-Martial 175, 336, 410,
441, 470
Rules for Military Commissions R.M.C. 103 324, 336, 355, 450 R.M.C. 201 7, 157, 461 R.M.C. 202 327-28, 450-52, 462, 465 R.M.C. 406 33, 86, 146, 283, 324-25, 355-56, 462 R.M.C. 505 257 R.M.C. 602 262 R.M.C. 701 37, 49, 68-69, 106, 17981, 221, 230-34, 240-41, 280, 295-96, 391-92, 394, 396-97
487
R.M.C. 703 13, 16-17, 49-50, 68, 7475, 110, 117, 277-78, 288-89, 329, 342, 387-88 R.M.C. 705 86, 88-89 R.M.C. 706 93, 97-99, 274, 276, 280, 288, 293, 295-96, 335 R.M.C. 707 14, 139, 263, 276, 305-6, 315, 361-62, 473 R.M.C. 801 11-12, 433, 469 R.M.C. 802 156, 230-34, 240, 329, 390, 394, 397, 458 R.M.C. 803 371 R.M.C. 806 168-69, 375, 417 R.M.C. 904 263, 365 R.M.C. 905 7, 11-13, 18, 26, 53, 6062, 70, 433, 453, 469-70 R.M.C. 906 108, 189, 192, 276 R.M.C. 907 100, 185-86, 327, 336, 464 R.M.C. 909 95, 97, 242, 274, 276, 28081, 293-96 R.M.C. 916 18, 48, 71, 229, 242, 448 R.M.C. 917 333 R.M.C. 1103 285, 287 R.M.C. 1104 285 R.M.C. 1106 86, 325 R.M.C. 1201 328, 421, 434, 436-37, 439, 441 Rules of engagement 117 Rumsfeld, Donald H. 435, 440 al Adel, Saif 103, 188, 193, 197, 206, 237 Secretary of Defense 7, 68, 84-85, 100-2, 113, 139, 158-59, 161-62, 166, 196, 224, 245, 282, 286, 288, 291, 304, 306, 317, 354-55, 357-58, 361, 365, 371, 418, 434-38, 440-42, 449-51, 462, 467-69 Secure Area 267-70, 376, 379-82, 384 Self-incrimination see Bill of Rights/Fifth
Speedy trial 14, 137-40, 263, 329, 358, 366, 454, 472-74 Speer, Christopher 151, 184-85, 189, 194, 199, 207, 212-13, 238, 444 Standard of proof 33 Preponderance of evidence 7, 9-10, 18, 20, 26, 31-32, 48, 56, 71, 134, 136, 140, 280, 328, 332, 350, 392, 453, 457, 460, 465 Proof beyond reasonable doubt 58, 328, 332-33, 347 Start of hostilities 64, 91-92 State department see Department of State State of armed conflict 91-92, 117-18 Status determination see Geneva
Conventions/Article 5 GC III or Fair status Subject matter jurisdiction see Jurisdiction

Suppress, Suppression of statements 4243, 69, 72-73, 112, 114, 116, 121-22, 133, 235, 239, 241, 252, 256, 329-30, 345-46, 349-51, 473 Tabarak, Abdallah 74-76 Tajikistan 22, 37, 125, 361 Takta Pol 24-25, 27, 54, 121-22 Taliban 6-8, 23-25, 27, 36-37, 47, 54, 7071, 121-22, 124, 224, 327, 450-51, 454-55, 457, 462 Tanzania 104, 183, 188, 193, 197, 206, 211, 369-70, 390-91 Tate Commission 83-84, 90 Terrorism 91, 104, 128, 132, 141, 184, 186, 188, 193, 197, 206, 212, 214, 219, 237, 260, 364, 369-70, 444 see also
Providing material support for terrorism

The Al-Qaeda Plan 70-71 Torture 79-80, 83-84, 89, 122-23, 329, 334-37, 345-46, 350 Treanor, Joseph V. 355 Unclassified sensitive materials see
Amendment
September 11 36-37, 51, 63-65, 91-92, 104, 108, 183, 188, 193, 197, 206, 211, 224, 260, 282, 342, 347, 449, 468 Severance 276 al Sharqawi, Abdul 16
Classified information
488
Under seal/Order Under Seal 168, 170, 179, 268-69, 301, 381, 423-25 Uniform Code of Military Justice 112-13, 146-47, 162, 173, 228, 328, 340, 391, 409, 450, 454, 462, 470 United States Constitution 30-32, 63, 65, 98, 119-20, 129-35, 137-38, 140-46, 148, 160, 173, 196, 200-2, 204-5, 20810, 214-16, 218-19, 291, 336, 366, 391, 409, 426, 445, 452, 473 see also
Bill of Rights, Due process, Equal protection, Habeas corpus

Unlawful command influence 46, 86-87, 282, 371 USS Cole 23, 28, 36, 104, 125, 183, 188, 193, 197, 206, 211, 259, 363-64 USS Sullivans 364 Voir dire 145, 252, 263, 277-78, 315, 388 Weapons of mass destruction 125, 132 Williams, Brian 15, 22, 70 Yemen 5, 15-16, 22, 35, 54-55, 58, 74-75, 77, 111, 131, 140, 144, 364 al Zawahiri, Ayman 35, 103, 188, 193, 197, 206, 237, 444

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MILITARY COMMISSION REPORTER

MILITARY COMMISSION REPORTER VOLUME 1

Washington, D.C. 2009

United States v. Hamdan ............................................................................................ 5

1 MILITARY COMMISSION REPORTER

NATIONAL INSTITUTE OF MILITARY JUSTICE

United States v. Khadr............................................................................................ 151

1 MILITARY COMMISSION REPORTER

NATIONAL INSTITUTE OF MILITARY JUSTICE

1 MILITARY COMMISSION REPORTER

Scheduling Order (Apr. 28, 2009) .................................................................. 256

Order (June 1, 2009)........................................................................................ 257

United States v. Mohammed .................................................................................. 259

NATIONAL INSTITUTE OF MILITARY JUSTICE

1 MILITARY COMMISSION REPORTER

United States v. Kamin ........................................................................................... 313

United States v. Jawad ............................................................................................ 319

NATIONAL INSTITUTE OF MILITARY JUSTICE

United States v. al-Darbi ........................................................................................ 353

United States v. al-Nashiri ..................................................................................... 363

1 MILITARY COMMISSION REPORTER

United States v. Ghailani........................................................................................ 369

United States v. Uthman Muhammed ................................................................... 393

Order (D-004) (May 29, 2009)........................................................................ 398

United States v. Khadr, Ruling on Motion to Dismiss CMCR 07-001

United States v. Khadr, Ruling on Motion to Abate CMCR 07-001

NATIONAL INSTITUTE OF MILITARY JUSTICE

United States v. Jawad, Appellants Request for Delay CMCR 08-004

United States v. Jawad, Appellants Request for Delay CMCR 08-004

Index .............................................................................................................................. 483

1 MILITARY COMMISSION REPORTER

Washington, D.C. June 2009

1 MILITARY COMMISSION REPORTER

High Value Detainees).

NATIONAL INSTITUTE OF MILITARY JUSTICE

18 U.S.C. App. III 1-16.

1 MILITARY COMMISSION REPORTER

NATIONAL INSTITUTE OF MILITARY JUSTICE

Boumediene v. Bush, 128 S.Ct. 2229 (2008).

1 MILITARY COMMISSION REPORTER

Washington, D.C. June 2009

NATIONAL INSTITUTE OF MILITARY JUSTICE

NATIONAL INSTITUTE OF MILITARY JUSTICE

NATIONAL INSTITUTE OF MILITARY JUSTICE

MILITARY COMMISSIONS PERSONNEL

CHIEF DEFENSE COUNSELS

NATIONAL INSTITUTE OF MILITARY JUSTICE

UNITED STATES v. SALIM AHMED HAMDAN

1 MILITARY COMMISSION REPORTER

NATIONAL INSTITUTE OF MILITARY JUSTICE

1 MILITARY COMMISSION REPORTER

NATIONAL INSTITUTE OF MILITARY JUSTICE

1 MILITARY COMMISSION REPORTER

NATIONAL INSTITUTE OF MILITARY JUSTICE

ii. Evaluation of authorities cited by Defense:

i. Review of the issue under the Rules for Military Commissions:

1 MILITARY COMMISSION REPORTER

iii. Application to the case at hand:

NATIONAL INSTITUTE OF MILITARY JUSTICE

Dated 18 May 2007, Appellate Exhibit 008, at 1011.

1 MILITARY COMMISSION REPORTER

NATIONAL INSTITUTE OF MILITARY JUSTICE