al nashiri ii (ae092f)

7/28/2019 Al Nashiri II (AE092F)

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UNCLASSIFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL J UDICIARYGUANTANAMO BAY

UNlTED STATES OF AMERICAv.

ABD AL-RAHIM HUSSEIN MUHAMMEDABDU AL-NASHIRI

AE092

DEFENSE MOTION TO COMPEL AVERSION OF AE 092 THAT IS MARKEDRELEASABLE TO THE ACCUSED[TITLE OF AE 092 IS ClASSIFlED]

15 March 2013

1. Timeliness: This mot ion is tiled within the timeframe establi shed by Rule for M ili taryCommission (R.M .C.) 905 .2. Relief Sought:

(a) The defense respectfully requests that the Comm iss ion compel the gove rn me nt to prooucean uncl ass ified vers ion of its pleadin g in AE 092,

(b) The defense requests that the Comm iss ion compel the gove rn me nt to pnxluce a vers ion ofAE 092 wh ich is marked releasable to Mr. AI-Nashiri.

(c) The defense further requests that the Commiss ion compel the gove rn me nt to produce acopy of the affidavit submitted as an ex parte attachment in support of AE 092 to the accused andthe defense.3. Overview: On 26 November 20 12, counsel for Mr. AI-Nashiri submitted a request to the

prosecut ion for an unclass ifi ed summary of AE 092. On I I December 20 12, the prosecut iondenied the di scovery request on the basis that an unclassifi ed summary would reveal the verynature of the classified information in AE 092. The prosecut ion cannot refuse to produce anuncl ass ifi ed summary because the prosecut ion has not validly invoked the class ified informationprivilege as required by Rule for Mili tary Commiss ion 70 1(f) .



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4. Burden of Proof and Persu asion: The defense bears the burden of persuas ion as themovin g party on th is mot ion and the sta ndard is preponderance of the evid ence. R.M .C. 905(c).However, denial of th is motion will v iolate the defendant 's rights guaranteed by the Fifth , S ixthand Eighth amendments to the Const itution of the United States of America , the MilitaryCommiss ion Act of 2009, the Detainee Treatment Act , treaty obligat ions of the Un ited States andfu ndamental fairness .5. Facts:

a. On 10 August 20 12, the prosecut ion delivered identica l cop ies of AE052/AE092Government' s Consolidated Not ice Regardin g Ex Parte, 111 Camera Filing and Mot ion forFinding to counsel for each defendant in the case of Ullited States v. Mohammed et al. and Mr.AI-Nashiri.

b. On 26 November 20 12, defen se counse l requested the prosecut ion to produce anuncl assified vers ion ancVor summary of AE 092. (Attachment A - Defense Request forDiscovery, dated 26 Nov 12)

c . On II December 20 12, the prosecution denied this request. The prosecut ion stated ,"The gove rn ment is not obligated to provid e an unclass ifi ed summary where it would reveal thevery in format ion sought to be protected . In this in stance , there is no pract ica l way to redact orsummarize AE 092 to an uncl ass ified level." (Attachment B - Government Response to DefenseRequest for Discovery , dated II Dec 12)6. Argument:

The government cannot withhold a summary of AE 092 because it has not made avalid invoca tion of classified information privilege as required by RMC 701(0.

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Apparently acknowledg in g that an uncl ass ifi ed summary of AE 092 would be helpful tothe defense, the prosecut ion has denied the defense request for such a summary on the bas is thatit would reveal cl ass ified infonnat ion. Under Rule for M ilitary Comm iss ion 70 I(f), theprosecution may not withhold discovery based on nat ional security concerns without a va lidinvocation of class ifi ed information priv ilege. The prosecut ion has made no claim of class ifi edinformat ion pr iv ilege, much less a claim that comports with statutory and case law requirements.Accordin gly, the prosecut ion must produce the requested summary.

Counse l' s discovery request for an unclass ifi ed summary ofAE 092 presents the legalquestion of whether the prosecut ion can withhold a sununary of AE 092 on nat ional secu ritygrounds. RMC 70 I(f)( I) prov ides, "To withhold di sclosu re of in format ion otherwise subject todi scovery under thi s rule, the military judge must find that the pr iv ilege is properl y claimedunder Mil. Comm . R. Ev id. 505 and 505 as app licable." By its pla in teI111s, thi s rule requires theprosecution to make a va lid claim of class ifi ed informat ion pr iv ilege under M.C.R.E. 505 tojust ify w ithholding di sclosure of in format ion on nat ional security grounds. The prosecution hasnot done so .

Most fundamentall y, the prosecut ion has not filed a declaration pursuant to M .C.R.E.505(1)(1 )(A) in vokin g class ifi ed informat ion pr iv ilege . M.C R.E. 505(1)(1 )(A) prov ides,

In any case before a military commiss ion in wh ich the Un ited States seeksto delete, withhold , or otherwise obta in relief with respect to the discovery of oraccess to any class ifi ed infonnation , the trial counsel shall submit a decl arationinvok ing the Uni ted States' class ified in foI111at ion priv ilege and sett in g forth thedamage to nat ional sec urity that the di scovery of or access to such informat ionreasonably could be expected to cause. The declaration shall be signed by aknowledgeable United States offic ial possessin g authority to class ifyinfoI111ation. 1

I MeRE 505(1)(1 )(A) is id entica l to 10 U.S.c, 949p-4.

3UNCLASSIFIEDIIFOR PUBLIC RELEASE


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The prosecut ion has not comp li ed with M .C.R.E. 505(f) by filin g a declaration in vok ingthe class ifi ed informat ion pr iv il ege. Ne ither has the prosecution filed documentation of a claimof priv il ege sati sfy ing M.C.R.E. 505(c) . A 505(f)( I)(A) declaration , which does not sati sfy therequirements of VI/ired States v. ReY l1olds ,2 presupposes a prior M .C.R.E. 505(c) declarationfrom the head of an age ncy or delegee. To invoke class ifi ed in foI111ation privil ege with respectto AE 092, therefore, the prosecut ion must file a declaration or declarations which comply withboth M .C.R.E. 505(c) and (f ) . Unl ess extraord inary c ircumstances ex ist, the prosecut ion mustfile these declarations publicl y. 3 M.R.E. 50S - applicable onl y in crim inal cases- is "basedupon the Supreme Court's discussion of execut ive priv il ege in United States v. Reynolds, 345U.S. I (1953) , and United States v. NixOIl , 4 18 U.S . 683 (1974) .,,4 The state sec rets pr ivil ege ,explained in ReYl10lds and appli ed in ElIsburg, is the basis for the government assert ion ofpriv ilege in ClPA as we ll as M.R.E. 505 and M .C.R.E. 505. 5 The class ifi ed informat ionpriv ilege is in extricably in tertw in ed with the state secrets doctrine, although applicat ion of thedoctrine affects pr ivate pla in tiffs and crim inal defendants differently.

The prosecution has not complied with Regulation for Trial by MilitaryCommission 17.4(c).6 That regu lat ion requ ires, among other th ings, for the prosecut ion to

2345 U.S. I (1953).J See Ell.l-berg v. Mit chell, 7(1) F.2d 5 [,63--64 (D.C. [983). For a more detailed explanation of this argument, seeAEO 13G Joint Defense Response to Government Motion to Proteet Against Disclosure of Nationa[ SecurityInformation at [ [- [5, incorporated here hy reference.4 Ana[ysis of the Mi[itery Rules of Evidence, Manua[ for C o u r L ~ - M a r t i a l , Appendix 22, at A22-41.5 See, e.g., United State.l v. Are/, 533 F.3d 72, 79 (2d Cir. 2008) ("According[y, we hold that the app[icahle privilegefin a CIP A case I is the state-secrets privilege."); United States v. Klimaviciu.I-Viloria, [44 F 3d [249, [26 [ (9th Cir.[998) (app[ ying Reynolds standard in c riminal case).6 RTMC [7-4(e) provides in relevant part,

If trial counsel intends to invoke the national security privilege und er R.M.C. 70[(1) orMil. Comm. R. Evid. 505, counsel shall provide the military judge with the following : ( I) a draftorder; (2) the classified material for which privilege is sought to be claimed or a summary thereof(if the military judge finds that the circumstances permit the use of such a summary in lieu of the

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prov ide the m ilitary judge with the in format ion necessary to determine whether the class ifiedinformat ion pr iv ilege is properly claimed.

There is, in fact, no rea son to beli eve the prosecut ion can prope rl y claim the class ifiedinfonnation privilege. AE 092 bears none of the mark ings by an Original Class ificat ionAuthor ity required by Execut ive Order 13526 1.6(a), includin g the reason for class ificat ion. 7Ne ither does AE 092 bear any derivative class ificat ion mark ings .

Rule for Mili tary Commissions (RM.C.) 505 provides for the accused to obtainaccess to all information admitted into evidence. At the heart of th is issue, M.C.R.E. 505illustrates the procedures that govern class ified in format ion and ev id ence in these proceed in gs .M.CR.E. 505(a)(2) plainly states that "any in format ion adm itted in to evid ence pursuant to anyrule, procedure or order by the military judge shall be prov ided to the accused ." M.CR .E.505(a)(3) goes on to say that ''Trial counse l shall work with the or igin al class ificat ion authoritiesfor ev idence that may be used as tr ial to ensure that suc h ev idence is declass ified to themax imum extent poss ible, consiste nt w ith the requirements of nat ional security." In this case,the government submitted a document in to ev idence - an attachment in support of its mot ion.The govern ment has presented no legal basis or authority by wh ich they have presented th isev id ence ex parte and thus denied thi s piece of ev id ence to the defense. Ev id ence in support of amot ion is st ill ev id ence. M.CR.E. 505(a)(2) doe s not make a di st inct ion between ev id ence insupport ofa mot ion or substantive ev idence at tr ial. It spec ifica lly says, "any infonnation . ..

classified material); (3) information necessary for the judge to detennine whether the privilege isproperly claimed; and (4) a proposed alternative, if practicable, to disclosure as authorized byChapter 47 A of Title [0 949p- [ and 949p-3, R.M.C. 70[ (I) and Mil. Comm. R. Evid. 505.

7 E.O . 13526 1.6(a) requires, in addition to class ifica tion markin gs, the id entity or id entifier ofthe OCA, the agency of ori gin , declass ificat ion instruction s, and a conc ise statement of thereason for class ifica t ion.



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pursuant to any rule . .. " (emphas is added) The government is fu lly aware of the protect ions ofM.C.R.E. 505(f) regarding the discovery of classifi ed information and of the alternat ives todi sclosure. The subm ission of evid ence is a different argument altogether, and therefore, notgoverned by the same rules of di scovery. The defense is entitled to any in fonnation put forth asevidence in support of the government' s motion in AE 092. Spec ifica ll y, the defense is entitledto the documentation presented ex parte in support of AE 092.

Mr. AI-Nashiri ha s a Sixth Amendment right to ass ist in his own defense. It shouldgo without saying that the infonnation conta ined with in AE 092 is relevant , necessary, andmaterial to the preparat ion of Mr. AI-Nashiri 's defense. Right now, the onl y knowledge Mr. AI-Nash iri has is that the government filed a secret motion in hi s case that the prosecut ion claims hecann ot be present to hear argued, that hj s counsel cannot share with him the subject matter of themot ion, and that he will be forced to trust that hi s best in terest is be ing represented in th is closedhearing. The M.C.A. spec ifica ll y sets out the right for the accused to be present at all "sessionsof he military commissioll " and describes onl y two c ircumstances where in he may be removed:Neither suggests that the presentation of classifi ed ev id ence requires exclusion. Moreover,involuntary exclus ion of the accused during hj s capital tr ial is structural error requiring reversal. 8The information the prosecut ion seeks to keep hidden via class ificat ion is clearly relevant,necessary, and material to the capita l defense of Mr. AI-Nashiri. Mr. AI-Nashiri must be awareof what the prosecution has asserted in AE 092 in order to di scuss th is informat ion with hi s

8 Federal civ ilian courts cont in ue to acknowledge the significant public in terest in ensuringjustice in capital cases involv ing defendants who remain in confinement. Courts will go to gre atlengths to avo id holding a trial ill absentia. See, e.g . Illinois v. Allen , 397 U.S . 337, 344 (1970)(not ing that in some cases, it might be preferable for trial courts to order an extremely di sruptivedefendant bound and gagged rather than keep him out of the courtroom in order to comply withdefendant's opportuni ty to confront witnesses at trial).

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counsel and in order for defense counsel to provide effect ive ass istance of counse l. 9 Thegovernm ent has an ob ligat ion to declass ify infonnat ion to the extent possible or ri sk not be ingable to present that ev id ence in court. There are several methods by wh ich the government couldmini mize the exposure of Mr. AI-Nashiri to class if ied in formation where he could still ass ist inhi s defense. See 10 U.S.c. 949p-6(d)(2) They have made no efforts to do so - even upondefense request. That is the prosecut ion 's cho ice; however, theirs is not an unfettered ri ght toimp inge on Mr. AI-Nash iri 's Sixth Amendment and Due Process ri ghts.

ConclusionThe defense is entitled to the attachment to AE 092 because it was attached as ev idence

in support of the mot ion. Further, Mr. AI-Nashiri has a ri ght to ass ist in hi s defen se, and thegovernment has made no efforts to make any part of AE 092 releasab le to him. Because it hasnot sa ti sfied the requirements of RMC 70 1 f), the prosecut ion cannot withhold an unclass ifi edsummary of AE 092 that the defense may use to consu lt with the accused and with relevantwitnesses and experts.7. Witnesses: None.8. Oral Argument: Requested9. Conference with opposing counsel: The defense has conferred with the prosecution,and the prosecut ion objects to this mot ion.10. Attachments:

A. Defense Request for Di scovery, dated 26 Nov 12 ( I page)

9 Further, the prosecution has not made any of the classilied summaries releasable to the accused. On 9November 20 12, the defen!>C spccilically requested this from the pro!>Ccution. (Attachment B). Without thispermission the accused is not receiving e lTcctive or adequate assistance of counsel.

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B. Government Response to Defense Request for Discovery , dated II Dec 12 (2pages)

IIsl/ Richard KammenRICHARD KAMMENDoD Appoillfed Leamed COI lI1selIIsl/ Stephen C. ReyesSTEPHEN C. REYESLCDR, l ACC, USNDetailed Defense l I l . ~ e LIIsl/ Allison C. DanelsALLISON C. DANELS, Maj, USAFAssistal1t Detailed Defellse Coullsel

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CERTIFICATE OF SERVICE1cert ify that on 15 March 20 13, I electroni ca lly filed the forgoing document with the Clerk ofthe Court and served the forgo ing on all cou nsel of record via ema il on the date of filin g.

IIslI Stephen C. ReyesSTEPHEN C. REYESLCDR, lAGC, USNDetailed De/elISe COll llse l



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ATTACHMENT

A



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DEPARTMENT OF DEFENSEOFFICE OF T HE CHIIlF DEFENSE COUNSEL

1620 DEFENSE PENTAGONWASHINGTON , DC 20301-1620

MEMORANDUM FOR Tr ial Cou nselFROM: Maj Allison C. Danels, Ass istant Detailed Defense Counsel

26 November 20 12

SUBJECT: DEFENSE REQUEST FOR DISCOVERY (Unclass ified Vers ion of AE052/092)On 10 August 12, trial counse l in the cases of United States v. Mohammad, et a 1. and United

States v. Al-Nashiri filed government mot ions AE 052 and AE 092, respect ively. This motionwas filed as class ifi ed at the hi ghe st level - TS/SC l.In accordance with M.C.R.E. 505(a)(3), the defense requests that the government prov idean uncl assifi ed vers ion and /or summary of AE 0521092 to the defense.The Defense consid ers this request to be ongo ing. Please not ify the Defense in wr iting by 5

December 20 12 if you do not in tend to comply w ith any part of th is request. Thank you foryour prompt attention in this matter. If you have any quest ions about this request or wou ldlike to di scuss further, please feel free to contact me.

Very Re spectfully Submitted,

IIsllALLISON C. DANELS, Maj , USAFAss istant Deta iled Defense Cou nsel

The above di scovery request was delivered to trial cou nsel via ema il after normal duty hours onon 26 November 20 12.



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ATTACHMENT

B



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MILITARY COMMISSIONS TRIAL JUDICIARYGUANTANAMO BAY, CUBA

UNITED STATES OF AMERICAv.

ABD AI. RAHIM HUSSAYNMUHAMMAD AI. NASH)R)

Government Response to DefenseRequest for Discow.!ry

11 December 2012

The government received the defense request for discovery dated 26 November 2012.The government hereby responds to the defense request.The government wil l -as it has in the past and continues \0 do-produce all re levant,

ma terial, and responsive information in accordance with the Military Commissions Act("M.CA.") of 2009, 10 V.S .C. 948a el seq., Rules for Military Commissions ("R.M.C.") 701and 703. Military Commissions Rule of Evidence (" M.C.R.E.") 505, and Olher applicable law.

The government understands the magnitude of available discovery in this case andcontinues to take all reasonable measures to enable defense counsel full opportunity to obtainwitnesses and other evidence as required by law and reduce the likelihood of surprise or delay attrial while al so protecting information from any disclosures detrimental to national security. Thegovcrnmcn t' s discovery Obligations with regard to classified information extend only to thatwhich is relevant and helpfu l to the preparation of the defense . See United Sfates II Yunis, 867F.2d. 617, 623 (D.C. eir 1989) (stating "classified information is not discoverable on a mereshowing of theoretical re levance"); see also United States II. Mejia, 448 FJd 436 (D.C. Cir.2006) (applying Yunis); R.M.C. 701(c), Discussion (c it ing YIJn is to define what infonnation ismaterial to the preparation of the defense).

TIle govemment acknowledges its duty and respon sib ility to continually review andprovide the defense with infOffilation that is relevant, material to the preparation of the defense,and necessary, when such infonnation is in the government's pos..


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Respectfully submilled,

11'1011Alllhony W , MauiviCDR Andrea Lockhart, JAGC, USNJustin T. SherJoanna Ba ltesMaj C hris Rugc, USMCLT Cherie Jolly. JAGC, USNTri al CounselMark MartinsCh ie f ProsecutorMilitary Commi ssions

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al nashiri ii (ae092f)

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