Download - WALID MUHAMMAD SALIH For Defective Referral MUBARAK BIN ... · KHALID SHEIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN AL SHAIBAH, AMMAR AL BALUCH (ALI ABDUL AZIZ

UNCLASSIFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, C UBA

UNITED STATES OF AMERICA

v.

KHALID SHEIKH MOHAMMAD, WALID M UHAMMAD SALIH MUBARAK BIN ' ATTASH, RAMZI BIN AL SHAIBAH, AMMAR AL BALUCH (ALI ABDUL AZIZ ALI), MUSTAFA AHMED ADAM ALHAWSAWI

AE 008

Defense Motion to Dismiss

For Defective Referral

DATE FILED: April 19, 201 2

I. Timeliness: This motion is timely. It is in the interests of justice that this motion be heard at

the presently scheduled date for arraignment. See Reg. for Trial by Mil. Comm. 17-1. The

motion addresses the jurisdiction of thi s military commission to proceed at all, in view of the

many defects in the pre- referral phase and referral process. This motion therefore contro ls any

progress of this case, and must be heard at the earli est possible date .

2. Relief Sought: Through counsel, the accused in this case jointly move to di smiss the charges

and specifications based on defects in the referral process. In the alternati ve, the accused ask that

the Commiss ion direct the Legal Advisor to the Convening Authority (CA) to prepare a new

pretrial advice, after the CA affords counsel adequate time, resources, communications and the

type of cl ient access necessary to provide input to the CA.

3. Burden of Proof: As the moving party, the defense bears the burden of proof. The standard

of proof on any fact related to this motion is a preponderance of the ev idence. RMC 905(c).

Th is document has been renumbered to AE008(MAH) effective 5 May 2012.



4. Overview: This motion seeks dismissal of the charges because thi s military commission is

improperl y convened and therefore has no jurisdiction. The Legal Advisor's advice to the CA is

defective because the period preceding referral of this case to the commission was replete with

insurmountable obstacles to learned counsel, rendering their "assignment" meaningless. The

obstacles imposed on learned counsel who are expected to represen t these accused under the

Military Commissions Act (MeA) include: lack of timely security clearances; mitigation

specialists whom the CA appointed and who, to~date. cannot perform the most basic function of

meeting with the client in furtherance of their work because their security clearances still have

not been processed; an accused not having qua li fied and security cleared translator; an accused

lacking a case investigator until weeks before referral; and the total obstruction of privileged

attorney-client communications through Joint Task Force-Guantanamo's cont inual changes to

po licies, which led to the implementation of two Orders that st ill now require monitoring ofl egal

mail and control access to the clients. The latter policies put counsel in the untenable position of

either choos ing to comply with the ethical rules app licable to them in military commiss ions, or

violating those rules in order to communicate with their clients.

The "appointment" of learned counsel thus amounts to window-dressing: without use of

the basic resources and privileged communications necessary to represent the accused, counsel

are ineffecti ve, and the process put in practice here violates the learned counsel mandate of the

MCA. In effect, the accused have been denied the ass istance of learned counsel prior to referral.

Counsel could not prepare the comprehensive and complete pre-referral submission of mitigation

facts , a submission so lic ited by the CA. As a result, the Legal Advisor to the CA could not give

the lega lly suffi cient advice required by military commiss ions rules. Accurate advice that

includes mitigation information is required to infonn the CA's individualized decision-making

Th is document has been renumbered to AE008(MAH) effective 5 May 2012. 2


UNCLASSIFIEDIIFOR PUBLIC RELEAS E

process regarding each accused's case, before any dec ision is made to subj ect an accused to the

death penalty. The CA thus d id not have the benefit o f the thorough and accurate infonnation

with which to make required indi vidua lized dec isions on referral in a capita l case.

This military commiss ion therefore does not have jurisd iction and the charges must be

di smissed.

5. Facts:

In May 2011 , the U.S. government issued mili tary commissions charges aga inst the fi ve

co~accused in this case, Mr. Mohammad, Mr. bin ,,Attash, Mr. bin al Shibh, Mr. al Baluchi, and

Mr. Hawsawi, alleging their involvement in the events of September 11 ,200 1. The CA is

seeking the death penalty aga inst each of them.

A. 2008 Referral to Military Commission

All five accused were charged capi ta ll y together in 2008 . That capital referral ind icated a

joint trial with four other accused and li sted one accused, Mohammed al Khatani , who would not

be tried at that jo int trial. The CA determined that Mr. al Khatan i's case shou ld not be referred

for prosecution. That CA found that "[w]e tortured [Mohammed al-] Qahtan i, . . . His treatment

met the lega l definition of torture. And that's why I d id not refer the case" fo r prosecution. l The

CA pointed to facts she reviewed in reports she was presented prior to referral: "For 160 days his

onl y contact was with the interrogators . . .48 of 54 consecutive days of 18-to-20-hour

interrogations. Standing naked in front of a female agent. Subj ect to strip searches. And insu lts to

hi s mother and sister.,,2

The five accused were arraigned in earl y June 2008 and, after more s ix months of

1 Bob Woodward, Detainee Tortured, Says u.s. Official, Tria! Overseer Cites 'Abusive' Methods Against 9111 Suspect, The Washington Post, January 14,2009.




litigation, in January 2009, the case's prosecution was halted by Executive Order, following a

presidential e lection.3 The charges in that case were ultimately dismissed, without prejudice, in

January 20 10.

B. 2011 to 2012: New Preferral and Events Leading to Present Charges

The current charges were brought against the same fi ve accused on May 3 1, 20 II. They

were referred for prosecution in a joint death penalty trial on April 4, 2012.

On July 27, 2011 , Mr. Hawsawi rece ived a letter from the CA (dated July 2 1,2011)4

wherein the CA sought defense counsel' s submiss ion of any matters for hi s considerat ion, as he

made his referral decision. The letter st ipulated a deadline of September 2 1, 20 11 for submitting

these matters. In preparation for making a submiss ion to the CA, Mr. Hawsawi requested the

expert ass istance of a mitigation spec ialist on August 5, 20 II . The CA granted that request three

days later, and moved the dead line for submiss ion of mitigation information to September 22,

20 II. Because of delays from within the CA's office in obtaining a security clearance for Mr.

Hawsawi's mitigation spec ialist and the on-going lack ofa cleared and qualifi ed Arabic

translator, on September 19, 20 II , Mr. Hawsawi asked for an extension of the deadline. Att. B.

Aware of these de lays in the security clearance process, the CA informally suspended the

dead li ne. Then, on October 3, 20 II , he set a single dead li ne whereby all fi ve accused had to

make their pre-referra l submiss ions by January 15, 2011.5 Att. C. Due to matters imposs ible for

defense counsel to foresee, the approved mitigation specialist resigned in mid-October. Att . D.

3 See E.O. 13492, Closure of Gualltal1amo Detelltion Facilities , January 22, 2009, avai lable at http://www . wh i tehouse. gov Ithe-press-o ffi cel c I osu re-guantanamo-detenti on -fac iii ti es . 4 For reasons not explained to defense counsel , the letter from the CA was not sent to the defense until a week after its having been written . At thi s time, all co-defendants had different submiss ion dates.

5 Unt il then, some accused had been given mitigation submiss ion deadlines, and others had not.




Mr. Hawsawi immediate ly began the search for a replacement and made a request for a

rep lacement on November 23, 2011 ; that request was granted the same day. Then, on December

7,2011 , pointing to the fact that learned counsel for some of the accused had only just rece ived

security clearances, the CA extended the joint deadline for all fi ve accused to submit matters in

mitigation to February 6, 20 12.

On December 7, 2011 , the five accused jointly submitted a request to indefini tely

suspend the deadline for the mitigation submiss ion. Att . E. The request was based on extensive

and ongoing interference with the attorney-client privilege, the debilitating effect on attorney

client rel ationships, and the resulting inability to develop matters in mitigation - specifically,

JTF-GTMO's seiz ing, translating, and reading privileged attorney-client communications and

attorney work-product (described in more detail below). The CA denied the request, mainta ining

the February 6,201 2 deadline.

C. Obstacles to Representation Throughout the Pre-referral Period of the Case

1. Lack of Meaningful and Effective Representation for Mr. Hawsawi During Pre-Referral Period

Mr. Hawsawi was captured and has been in United States custody since March 1,2003. 6

Between March 2003 and September 2006, he was held in undisclosed locations where he was

interrogated on multiple occasions and had no access to defense counsel. 7 Although Mr.

Hawsawi has been in U.S. custody since March 2003, he was not assigned counsel until April

6 Director of National Intelligence, Detainee Biographies, at 4, available at http://www.dni.gov/announcementsicontentlDeta ineeBiographies.pdf

7 See White House Press Release, "President Discusses Creation of Military Commiss ions to Try Suspected Terrorists," September 6, 2006, http://www.whitehouse.gov/news/releases/2006/09/20060906-3 .html




2008. That counsel represented him until March 2009. Mr. Hawsawi was without senior military

couI1seluntil November 2009, when CDR Ruiz, hi s learned counsel, was detailed.8

Following the swearing of new charges against him, on August 5, 2011 , Mr. Hawsawi

submitted a request to the CA to produce exculpatory evidence. Att F. He asked, among other

items, for all documents and information about interrogation methods employed on him since hi s

capture, and any documentation indicating that information he provided may have been helpful

to the government. Mr. Hawsawi also made a request for medical records. No evidence was

turned over in response to these requests; the CA's representatives provided counsel with the li st

of evidence the government had provided in 2008 .

Mr. Hawsawi has not had a qualified, security~cleared interpreter to assist in hi s defense

since March 2011. In May and then July 2011 , he gave the CA's office, which is responsib le for

contracting interpreters and processing security clearances, the names of two candidates. The

clearance application for one of these remained in the CA's office for over a month, before it was

sent on to the agencies who vet the application. Both applications remain pending to~date. Prior

to the referral of the current charges, Mr. Hawsawi regularly infonned the CA of the obstacles

that the lack of a translator presented to his preparation of the case and submiss ion of evidence in

mitigation. At! B; Att. G.

Throughout the course of the pre-referral period, Mr. Hawsawi also repeatedly

communicated to the CA the debilitating effect to the presentation of any mitigation matters

caused by the lack ofa security-cleared mitigation specialist. At! . B; Att.G. Having a mitigat ion

specialist appointed but not cleared meant that the expert services afforded were on paper rather

than in substance. By the time of referral , April 4, 2012, Mr. Hawsawi's mitigation expert still

8 An assistant detai led counsel remained on Mr. Hawsawi's case until June 2011, when her military orders changed her duty and Mr. Hawsawi released her from representing him. Th is document has been renumbered to AE008(MAH) effective 5 May 2012. 6



had not been security·cleared, nor did he have the assistance ofa qualified and cleared

interpreter. As a resu lt of these major resource defi ciencies, Mr. Hawsawi did not have a

meaningfu l opportunity to prepare a mitigat ion submiss ion for the CA's review, and the referral

process for a capita l case was defic ient.

2. Interference with Attorney-Client Communications During Pre-Referral Period

The pre-referral obstacles to preparation of mitigation submiss ions were compounded in

October 2011 , when Joint Task Force-Guantanamo (JTF-GTMO), who is responsible for

oversee ing the detention of the fi ve acclised at Guantanamo Naval Base, began seizing legal

materi als. This legal mai l issue was panicularly egregious because of the vita l role that the

ability to exchange privileged legal mail plays in representing persons imprisoned at

Guantanamo. Counsel for each of the accused are located in various parts of the continental

United States . Travel to Guantanamo is not ava ilable as it would be to any other destinat ion in

the United States. Flights are limited, and require a full day's trave l time from the Washington,

DC area to Guantanamo. Every trip to Guantanamo requires each person traveling (whether

military or civilian) to obtain approval from the chain of command, trave l orders approved via

the CA's office, and a country clearance. Meetings with clients, moreover, are to be requested

through Joint Task Force~Guantanamo (JTF~GTMO), 14 days in advance. At any given time, a

maximum of four "high va lue deta inees" (HVD) may meet with their counsel. There are,

however, approximately 16 detainees classified as HVDs. There are therefore many counsel

(these include habeas counsel representing prisoners in federa l court proceedings, as well as

counsel appearing before military commissions) competing for the limited meeting slots

available. ITF-GTMO regu larly cancels meetings in weeks when the international Committee for

the Red Cross is visiting any detainees at Guantanamo, or when military commiss ion hearings




are taking place, thus reducing meetings slots to even less than the ten meetings available in any

given week. Because of the travel required to meet in person, the relative infrequency of fli ghts

to Guantanamo, and the obstacles to meeting their respecti ve clients at Guantanamo, counsel

depend very heav il y on written correspondence in order to maintain effect ive communications.

Since October 20 11 , however, JTF~GTMO's practices governing the delivery oflegal mail to

the fi ve accused has vac illated between one legal mail policy and another, each more intrusive to

the attorney-client relationship than the last, and culminating in the implementation of two JTF-

GTMO Orders that impermiss ibly regulate every aspect of the attorney-client relationship.

Without notice to counsel, generall y acceptable practices app lied until October 2011 were

di sregarded unilatera lly, correspondence from counsel was read by members of JTF-GTMO' s

legal department, and privileged materials were confi scated. The two Orders, instituted in

December and current ly in force, make confidential written communications between counsel

and the accused imposs ible. In fact , counsel have rece ived guidance from the Chief Defense

Counsel for the Military Commiss ions which instmcts them that the submission of written

material s through the system implemented under the Orders violates ethica l rules of legal

practice. 9 Att H.

These Orders came from JTF-GTMO after the CA had attempted, some six months earlier, to

issue a protective order that wou ld have governed legal mail, including correspondence, and the

exchange of documents more genera ll y between counsel and the accused. Upon defense

objections to this protective order, it was withdrawn.

As a result of JTF-GTMO's actions respecting communications between counsel and the

9 The Nat ional Association of Criminal Defense Lawyers and the New York State Bar also issued an opinion and a letter, respectively, that underscored the ethical and professional responsibility conflicts which JTF-GTMO's Orders presented for defense counsel, and highlighted that the Orders hindered effect ive representat ion. Th is document has been renumbered to AE008(MAH) effective 5 May 2012. 8



accused, the five accllsed in this case have been unable to exchange any privileged or

confidential writ1en materials since November 2011. The number of personal client meetings

has decreased because, without the necessary documents from which to di sc llss case-related

issues, these meetings are substantiall y less effective. It is during this very same time period that

the CA sought submiss ion of evidence that might mitigate aga inst death penalty referrals in thi s

case. Therefore, during this time, counsel was unable to estab li sh the necessary rapport to

effectively communicate regarding sensitive, privileged and personal information that was

indispensable in the preparation ofa submiss ion to the CA. Now, all five clients face the death

penalty following a defective referral process which e liminated the possibility of making an

adequate submission to the CA, precluded the CA from obtaining complete and meaningfu l pre-

referral advice regarding mitigat ion matters, and barred defense counsel from providing

meaningfu l representation at the pre-referral stage of the proceedings.

Since attempts at dialog with the JTF-GTMO led nowhere, in earl y January 20 12 Mr.

Hawsawi filed a petition in the Court of Appeals for the District of Columbia, seeking a writ of

mandamus and prohibition; he also asked that the Court to issue a preliminary injunction halting

the implementation of Commander JTF-GTMO's orders. See In re HalVsalVi , Case No. 12-1104

(Cir. D.C). The Court denied the request for injunction but ordered full briefing by the parties

and oral argument to be held in September 20 12. Mr. Hawsawi has filed his brief ea rl y, and

requested expedited scheduling in the Circu it. The Circuit Court has directed that oral argument

be scheduled at the earliest date in September, when the Court' s sess ions begin.

Challenging the constitutionality of JTF-GTMO's Orders, on February 1, 2012, learned

counsel for Mr. al Baluchi filed a motion for declaratory and injunctive relief against the

Commander, JTF-GTMO, in the U.S. Distri ct Court for the District of Columbia. That motion




remai ns pending before the District Court. See Case No. 12-0176, Connell v. Woods, (D.D.C.).

While this federal litigation has been pending, on February 2, 2012, defense counsel for all

five accused each made requests to the CA to extend the deadline to submit matters in

mitigation. Mr. Hawsawi sought four months, to make lip for the obstacles encountered with

client communications since JTF-GTMO's polic ies of interfering began in October 2011. Att . I.

Mr. Mohammed sought more time before referral because his learned counsel had only recently

been granted a security clearance, and once that occulTed, attorney-client meetings were severely

hindered because, by then, JTF-GTMO's policies were in place and debilitated the effectiveness

of any meeting, and thus of counsel too. Mr. bin al Shaibah sought more time because his

counsel was entirely new to him, hav ing only been appointed to represent him four months pnor

to referral , and security cleared less than two months before referral; Mr. bin al Shaibah also

emphasized that his mitigation specialist was lacking a security clearance (and still is). Mr. bin

"Attash requested more time before referral based on the effective lack of a mitigation specialist

because thi s expert, though appointed, had not yet been afforded a security clearance. Mr. bin

"Attash's request for time before referral was also based on the severe obstruction on

communications and client meetings posed by JTF~GTMO's legal mail Orders, and on the

absence ofa full~time investigator for his case until less than month before the referral

submission was due. Counsel for Mr. al Baluchi asked for more time to submit mitigation

matters because of the debilitating impact on communications that the JTF~GTMO Orders

caused.

The CA denied all counsels' requests the next day, thereby preserving the submission

deadline of Febmary 6, 2012.




D. Submission in lieu of mitigation matters

In substitution for matters in mitigation, Mr. Hawsawi wrote to the CA a statement on the

inability to provide a submission. Att K. This letter again provided the CA, in detai l, with the

hi story of obstac les that precluded a meaningful opportunity to submit adequate mitigation

information. The letter discussed the interference with attorney-client privi leged

communications; the absence of a cleared mitigation expert which made any meaningful

preparation of a mitigation submiss ion imposs ible; and the lack of a cleared, team-dedicated

translator which severely hindered discuss ing sensitive matters with Mr. Hawsawi.

6. Law and Argument:

3 . The failure to provide learned counsel a meaningful opportunity to submit matters in mitigation yiolated core provisions of the Military Commissions Act, and the Fifth and Sixth Amendments to the U.S. Constitution.

Under the Military Commiss ions Act (MCA) and its implementing regu lat ion, where tri al

counsel makes a recommendation to the CA that a charge be referred to a capital military

commission, the accused has a right to be represented by learned counse l. See 10 U.S.c. §

949a(b)(2)(C); RMC 602(d)(2); RMC 506(b); RTMC 9- 1 (a)(6)("In any case in which tri al

counsel makes a recommendation [ . . . J that a charge be referred to a capital military commiss ion,

the accused has the right to be represented by at least one additional counsel who is learned in

app li cable law relating to capital cases.") The MCA's provision for learned counsel in cases

referred to a capital military commiss ion is a signifi cant change from the earli er vers ion of the

Act. See generally, Sen. Rep. No. 110-335, at 863 (2008) (Conference Report) (highlighting

Congress' intentions with respect to the requirement for cap ita l counsel in military

commissions) .

Th is document has been renumbered to AE008(MAH) effective 5 May 2012. II



Legislati ve intent is a vital component in determining what "civilized standards" are in

the app li cation of the Eighth Amendment. See Woodson v. North Carolina, 428 U.S. 280, 288

(1976) (relying on Trap v. Dulles, 356 U.S . 86, 100,78 S.C!. 590, 598 ( 1958), to hold that under

the Eighth Amendment, the State's power to punish must be "exercised within the limits of

civilized standards," and that legislative enactments are an indication of these standards .)

Because legislative intent here, under the MeA is explicit, the failure to give full effect to the

right to learned counse l will result in vio lation of Eighth Amendment standards.

The full effect of the statutory right to learned counse l includes, as discussed above, the

right to learned counsel in the pre~refelTal phase of a commissions prosecution. In a federal

capital prosecution , the defense is afforded a meaningful opportunity to submit matters in

mitigation before the government determines whether to authorize the death penalty. See U.S.

Attorneys' Manua l (USAM) 9- 10.120 ("No final decision to seek the death penalty shall be

made if defense counsel has not been afforded an opportunity to present ev idence and argument

in mitigation .") In courts-martial practice for capital cases, it has become customary for

convening authoriti es to approve fundin g for mitigation spec ialists prior to refe rral. Us. v.

Kreutzer, 61 M.J. 293 (2005) (affinning the Army Court o f Criminal Appea ls ho lding that the

accused was erroneously denied the assistance ofa mitigation spec iali st) ; see also, Dwight H.

Sullivan, Raising the Bar: Mitigation Specialists in Mililwy Capital Litigation, 12 Geo. Mason

U. C iv. Rts. L.J . 199,227 (2002). Military Commissions are aligned with federal courts in that

they " incorporate all of those fundamenta l guarantees of a fair and just tri al that are demanded by

our va lues." B.Gen. M. Martins, Remarks to the American Bar Assoc iat ion, Dec. 1,2011. See

also, Remarks of B.Gen. M. Martins, Remarks at Harva rd Law School, April 3, 2012

("Reformed military commissions are not the spec ial, separate, and exclusive terror court that




some have sought and others have feared, and that is because these military commissions are

fully integrated within our federal framework of criminal justice . . . ").

The MeA's prohibition aga inst referral of charges as capital unless learned

counsel has been assigned affirms the critical role Defense Counse l are expected to play

in the pre~referral process in a cap ital military commiss ion. See RMC 60 1 (d)(2)

(providing that CA may not refer a capital offense unless learned counsel has been

appointed). The s imple assignment of counsel however, without allowing for actual

representation by counsel, vitiates congress iona l intent. Congress intended the defendant

to receive the benefit of meaningful pre· referral legal representation by learned counse l.

See 10 U.S.C. § 949a(b)(2)(C); RMC 506(b)("the accused has the right to be represented

... by at least one additiona l counsel who is learned in applicable law relating to capital

cases"); RTMC 9·1 (a)(6) . To have meaning, as Congress itse lf emphas ized in passing the

MCA of2009, that representation must include necessary resourcing. See Nat ional

Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111 ·84, § 1807, 123 Stat.

2 190 (20 I 0) ("[T)he sense of Congress that .. . the fairness and effecti veness of the

military commiss ions system under chapter 47 A of title 10, United States Code (as

amended by section 1802), will depend to a significant degree on the adequacy of defense

counsel and assoc iated resources for individuals accused, particularly in the case of

capital cases, under such chapter47A .. . "); see also, Sen. Rep. No. 110·335, at 863

(2008) ("the conferees strongly encourage the Secretary of Defense to take appropriate

steps to ensu re the adequacy of representation for detainees, particularly in cap ital cases.

The conferees further expect the Secretary . . .to give appropriate consideration to the




American Bar Association's Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases (February 2003) and other comparable guidelines.")

The Sixth Amendment to the Constitution, furthermore, assures the right to effective

assistance at thi s stage of the prosecution, where the CA is considering whether to seek the death

penalty. See Lafler v. Cooper, _ U.S. _ , 2012 WL 932019, '6 (March 2 1, 201 2). In addition,

the Court of Appeals for the Armed Forces has noted that mitigation spec iali sts are recognized as

"core members" of a capital defense team. See Kreutzer, 6 1 M.J . at 302 (c iting AmericQn Bar

Association Guidelines/or the Appointment and PClformance oj DeJense COl/llsel ill Death

Penalty Cases, Commentary to Guideline 4.1 (revised ed.2003). At the prewreferral stage

therefore, effective counsel includes the ability to use the serv ices ofa mitigation expert. The

importance of complying with pre-referral requirements is underscored, moreover, by the fact

that referral of a charge by a competent authority is a jurisdictional prerequisite. United Slales v.

Longmire, 39 M.J. 536, 539-40 (A.C.M.R. 1994) (c iting Wilkins , 29 M.J . at 421; ReM

20 I (b)(3)) .

In the context of death penalty prosecutions, the Supreme Court has continually

acknowledged the indispensable need for mitigation specialists, experts, investigators, and other

spec ial defense services in capital cases. See, e.g., Ake v. Oklahoma; 470 U.S. 68 ( 1985); Little v.

Armontrout, 835 F.2d 1240, 1245 (81h Cir. 1987) (capital and non-capital defendants have same

right to expert ass istance, and that right is not limited to medical experts). Erroneous denial ofa

mitigation spec iali st " implicates the right to present a defense, compulsory process, and due

process conferred by the Constitution, the right to obtain witnesses and evidence . . . and the ri ght

to assistance of necessary experts." Kreutzer, 61 MJ. at 298.




The lack of security clearance for Mr. Hawsawi's mitigation expert during the entire pre-

referral phase of the case has made that expert unable to be a "core member" of the defense

team, unable to serve leamed counsel, and thus unable to full y and effectively perfonn his

function. Because he does not have a security clearance, to thi s date the mitigation expert still

cannot examine approximately 1500 pages of classified documents which are relevant and

significant to the CA's advice pertaining to mitigation factors. Furthermore, the mitigation expert

is prohibited from meeting with Mr. Hawsawi without the requi site clearance. Not having an

opportunity to conduct any interv iews with Mr. Hawsawi, he cannot carry out thi s most bas ic

and critical function in the mitigation process. The inability to meaningfull y avail of the

mitigation expert has degraded learned counsel' s ability to meet his profess ional obligations and

provide effective pre-referral representation to Mr. Hawsawi. Learned counsel simply could not

develop the critical mitigating factors for the CA's consideration. Counsel's effecti veness has

been degraded even fu rther by the longstanding lack of a cleared, team-dedicated translator. Mr.

bin al Shaibah faced similar obstacles with security clearance delays in the pre-referral period ,

except with hi s learned counsel: he was not able to meet hi s statutory mandated learned counsel

until a three weeks before the mitigation submiss ion was due to the CA. Most of the accused

lacked mitigation specialists with security clearances, just like Mr. Hawsawi.

i. Meaning and Effect of Convening Authority' s Appointment of Mitigation Specialist

When he appointed mitigation experts in each of these cases, the CA appeared to

recognize the qualitati ve difference of the penalty inherent in a capital case, including the greater

degree of accuracy in fact-finding necessary to such cases. See Woodson, 428 U.S. at 305 ;

Gilmore v. Taylor, 508 U.S. 333, 342 ( 1993). By engaging in a process with the accused

whereby mitigation submiss ions would be accepted and rev iewed during the referral decision-




making phase, the CA triggered the constitutional imperatives of due process and effecti ve

assistance of counsel. Where a state takes on procedures, it must follow the dictates of the

Constitution when implementing those procedures. Laf ler v. Cooper, 201 2 WL 92301 9, March

2 1, 201 2, at *8, quoting Evitts v. Lucey , 469 U.S. 387, 40 I (1985); see a/so, Judu/ang v. Holder,

U.S. , 132 S.Ct. 476, 484 (2011). - -

As the CA considered whether thi s case and whether to refer each of the accused to death

penalty trials, these accused lack the core elements required to present a defense, including the

most fundamenta l ability to have privileged exchange of communications and documents with

their counsel. The inability to develop critical information for the CA's consideration precluded

effecti ve representation, and denied due process at the referral stage. See Lafler, WL 92301 9,

March 21 , 2012, at *8-9; Judu/allg, 132 S.Ct. at 484; see generally, Krelltzer, 6 1 M.J . at 298.

The process the CA initiated was not the meaningful one required by the Fifth, Sixth and Eighth

Amendments.

b. The referral is defective because the legal Advisor could not have fully and accurately discussed significant matters in mitigation or provided individualized consideration in his Pretrial Advice to the Convening Authority.

The Rules for Military Commiss ion (RMC) establi sh the process for a legal advisor to

assist the CA in making a decision regarding referral of charges . RMC 406. Under these rules, a

case may not be referred to a military commiss ion except in compliance with RMC 406. See

RMC 60I (d). Rule 406 requires that the legal advisor "make an independent and informed

appraisa l of the charges and evidence in order to render advice." RMC 406 (Discussion). The

di scuss ion to Rule 406 al so specifies that "pretrial advice should include, when appropriate: a

brief summary of the evidence; and discussion of significant aggravating, extenuating, or

mitigating factors." /d. The di scussion to the rule also admonishes that the pretri al advice must




be accurate. /d. When infonnation contained in the adv ice is " incorrect or so incomplete as to be

misleading," the advice may be defective. /d. Finally, the di scussion to Rule 406 rule specified

that infonnation which is incorrect, or so incomplete as to be misleading, may result in a

determination that the advice is defective." Id. The responsibilities of the Legal Advisor are

made explicit:

Id.

The legal advisor is personally responsible for the pretrial advice and must make an independent and infomled appraisa l of the charges and ev idence in order to render the adv ice. Another person may prepare the adv ice, but the lega l advisor is, unless disqualified, responsible for it and must sign it personally.

The U.S. Department of Justice's procedures for reviewing potential death penalty cases

are instructive regarding the process it applies before fully triggering a capital prosecution. These

procedures provide for the estab lishment of a Death Penalty Review Committee that hears from

each defense team. See USAM 9· 10.1 20. The Department of Justice, therefore, considers any

evidence regarding a defendant 's background, record, character, or evidence about the

circumstances of the offense that mitigate app li cat ion of the death penalty. This practice thereby

acknowledges the importance of having a systematic process which allows for the consideration

of individual factors. See USAM 9-10.030 ("The overriding goal of the review process is to

allow proper individualized cons ideration of the appropriate factors re levant to each case.").

The back drop for any full capital prosecution is the Constitution's Fifth Amendment,

wh ich guarantees the right to indictment by an unbiased grand jury. The grand jury's hi storic role

"has been to serve as a "J"l"0tecti ve bulwark standing solidly between the ordinary citizen and the

overzealous prosecutor, ' " United States v. Pabiall, 704 F.2d 1533, 1535 (II th Cir.1 983),

quoting United States v. Dionisio, 410 U.S. I , 17, 93 S.Ct. 764 ( 1973). The Supreme Court has




therefore reiterated frequently over time the princip le that, in OUf constitutional scheme, the

grand jury serves the" ,pual function of determining if there is probable cause to be li eve a crime

has been committed and of protecting citizens against unfounded criminal prosecutions.' "

United States v. Sells Engineering, Inc., 463 U.S . 418, 423, 103 S.Ct. 3133 (1983), quoting

Branzbllrg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646 ( 1972). In order to fulfill these

functions, the Fifth Amendment's guarantee of the right to indictment by a grand jury

"necessarily presupposes ,fIn investigative body acting independently of either prosecuting

attorney or judge.' " Pabian, 704 F.2d at 1535, quoting Dionisio, 410 U.S. at 16.

The Constitution's grand jury requirement is not just some constitutional technicality .

Due process and fundamental fairness require checks on the power of the government to bring

charges, particularly in capital cases. These protections act "as a vital check against the

wrongful exerc ise of power by the State and its prosecutors." Powers v. Ohio, 499 U.S. 400, III

S. Ct. 1364 (1991). The grand jury "controls not only the initial decision to indict, but also

significant decisions such as how many counts to charge and whether to charge a greater or

lesser offense, including the important decision to charge a capita l crime. (c itation omitted)"

Campbell v. Lallisiana, 523 U.S. 392, 399 (1998).

The military courts-martial process has some vers ion of a grand jury process, and

individualized review, through an Article 32 proceeding. See 10 U.S.c. § 832. This proceeding is

used to make the government demonstrate probable cause for the accusations before a neutral

investigating officer, who hears witnesses and prepares a report offindings for the CA. At an

Article 32 proceeding, an accused also has the opportunity to cross-examine any government

witnesses, and deve lop and present ev idence in mitigation. See Rule for Courts-Martial 405 . The




CA, before making a referra l decision in a court-martial, reviews the neutral hearing offi cer's

report and findings, in addition to obtaining the legal advice of hi s counse l.

In the absence of an independent investigati ve body such as the grand jury, and in the

face of having completely di spensed with the Article 32 stage of the pre-referral process present

in court-martial cases, the military commissions system attempts to compensate for thi s fatal

flaw and requires the CA to rely entirely on the pretri al advice of his Legal Advisor. The

requirements of Rule 406, as well as the responsibilities the rule places on the Legal Advisor,

assume added significance here. The capita l context, moreover, further underscores the

importance of accurate and complete advice: " the death penalty is qualitative ly different from a

sentence of imprisonment [ . . . ] Because of that qualitative difference, there is a corresponding

difference in the need for reli ability in the determination that death is the appropriate punishment

in a specific case." See Woodson v. North Carolina , 428 U.S. 280, 305 ( 1976).

The CA impliedly recognized the importance of the pre-referral phase, and the need for

individualized input regarding mitigation matters, when he provided an opportunity for each

accused to make a submiss ion 10 him, and appointed mitigation experts to each accused. The CA

had to be aware of the vital role that mitigating ev idence plays cannot be overlooked. Such

evidence had a significant pan in the non-prosecution of Mr. al Khatani , the sixth co-accused in

the 2008 prosecution. The CA's decision not to refer Mr. al-Khatani for prosecution hinged on

the detennination that "hi s treatment met the legal definition oftonure.,, 10

The Constitution's Eighth Amendment ca ll s for a respect for human dignity that requi res

individualized consideration before the penalty of death is imposed. Eddings v. Oklahoma, 455

U.s. 104 ( 1982). The Supreme Coun has struck down death penalty schemes that preclude a

10 Bob Woodward, Detainee Tortured, Says Us. OfJicial, Trial Overseer Cites 'Abusive ' Methods Against 9/11 Suspect, The Washington Post, January 14, 2009. Th is document has been renumbered to AE008(MAH) effective 5 May 2012. 19



sentencer from considering evidence in mitigation, whether through statutory preclusion or

through judicial instruction. See Lockell v. Ohio. 438 U.S. 586 ( 1978); Bell v. Ohio, 438 U.S.

637 (1978); Penry v. Lynaugh , 492 U.S. 302 ( 1989). The Court has also expansive ly defined

mitigation as any factor relating to the individual or the offense which warrants a sentence less

than death. See Tellllared v. Dretke, 542 U.S. 274 (2004) (d ispensing with the requirement that a

nexus exist between the mitigating evidence and the crime); Lockett, 438 U.S. at 604. The

process during the submiss ion phase of the present case, however, did not afford the

fundamenta l, core resources necessary to develop the kind of individualized and comprehensive

mitigation case for the CA to review. See Kreutzer, 6 1 M.1. at 302 (c iting American Bar

Association Guidelines that make mitigation expert a "core member" of the defense team).

There was an effective absence of a mitigation experts because these have not been granted

security clearances necessary to meet with each accused and review class ified documentation

relevant to mitigation in each case. The same lack of security clearance for a quali fied Arabic

interpreter prevented counsel from conducting in depth interviews with Mr. Hawsawi about the

kind of sensitive matters that need to be developed to address mitigation. Finally, the

debilitating obstacles to communications between client and counsel, at the very time when a

pre·referral mitigation investigation was to be conducted, degraded the attorney·client

relationship and barred the abi lity to share documents and information necessary to develop

critica l information in thi s phase of the case. Att. J. These fu ndamental obstacles did not allow

for the meaningfu l development of submiss ions to the CA.

The obstacles to the development of a comprehensive pre· referra l submiss ion also

inev itably deprived the Legal Advisor of important infonnation which undermined his ability to

prepare the kind of individualized advice necessary to satisfy the Eighth Amendment and the




commiss ion ru les . See Eddings, 455 U.S . 104. As a result, the Pretrial Advice was deficient

because it made no distinction between the accused , and thus it failed to afford the individua lized

consideration necessary. Furthermore, the Legal Advisor was hampered by the gaping black

hole of information regarding Mr. Hawsawi's whereabouts and treatment from March 2003 until

his arri val at Guantanamo Bay in September 2006. It is uncontested that all the accused, as part

of the " high-va lue detainee" program, were subject to years of incommunicado detention in

secret fac ilities. I I It is important to note here that the Pretrial Advice specifies that the Legal

Advisor consulted with the Director of National Inte lligence and ap propriate intelligence

agencies, who led him to conclude that the trial of this case wou ld not be harmful to nationa l

security.

The process employed for pre-referral submiss ions was fundamentally defective because

the defense lacked the necessary resources to prepare a meaningful submiss ion of mitigation

matters to the CA. The CA therefore was not able to review type of critical information

necessary to identify significant mitigating factors and make the kind of accurate and reasoned

decision necessary for a capital referral. As a result, the process was contrary to the underl ying

purpose of Rule for Military Commission 406, and to the heightened requirement of reliabi li ty

necessary in a capita l case.

7. Request for Oral Argument: The Defense requests ora l argument to allow for

thorough consideration of the issues raised by thi s motion. RMC 905(h) provides that either

party may request an RMC 803 session to present oral argument or have ev idence heard on a

motion.

I I Office of the press Secretary, President Discllsses Creation of MilitaJY Commissions to Try Suspected Terrorists, September 6,2006. Ava il able at: http://georgewbush-w h i tehouse. arch i ves. gov Inews/rel eases/2006109/pri ntl2 0060906 -3 . h tm I Th is document has been renumbered to AE008(MAH) effective 5 May 2012. 2 1



8. Request for Witnesses and Evidence:

a. Office of the General Counsel, Department of Defense b. MacDonald, Convening Authority c. Mr. Michael Breslin, Legal Advisor, Office of the Convening Authority for the

Military Commissions d. Mr. Michael Chapman, Legal Advisor, Office of the Convening Authority for the

Military Commissions c. RDML David B. Woods, Commander, Joint Task Force-Guantanamo f. CDR Thomas Welsh, Staff Judge Advocate, Joint Task Force-Guantanamo g. Assistant Staff Judge Advocate, Joint Task Force-Guantanamo.

9. Attachments:

Attachment A: Certification of Service Attachment 8: Memorandum to the CA from Mr. Hawsawi dtd 19 Sep 2011 Attachment C: CA Letter to all accused re Submission of Matters in Mitigation 3 Oct

2011 Attachment D: Resignation of Mitigation Specialist ICO Mr. Hawsawi 18 Oct 2011 Attachment E: Joint Request for Indefinite Extension 7 Dec 2011 Attachment F: Mr. Hawsawi's Pre-referral Request for Evidence 5 Aug 2011 Attachment G: Email from counsel for Mr. Hawsawi to CA 24 Aug 2011 Attachment H: Ethics Guidance from the Chief Defense CounseL 13 Jun 2012 Attachment I: Mr Hawsawi's Request for Extension of Deadline for Pre-referral

Mitigation 12 Feb 2012 Attachment J : Mr. Hawsawi's Memorandum to CA re Inability to Submit Pre-referral

Matters in Mitigation 2 May 2012 Attachment K: CDR Ruiz Declaration 3 Jan 2012

Th is document has been renumbered to AE008(MAH) eHective 5 May 2012.

WALTERB.RUIZ CDR, JAGC, USN Defense Counsel

22



CERTIFICATE OF CONFERENCE

Pursuant to Rule of Court 3.S(h)

I certify that on April 18, 2012, I conferred with the prosecution regarding the

Government's position on this MOTION TO DISMISS BASED ON DEFECTIVE REFERRAL.

The Govenunent opposes the motion.

This document has been renumbered to AE008(MAH) eHective 5 May 2012.

WAL R B. RUlZ CDR, JAGC, USN Defense Counsel

23



This document has been renumbered to AE008(MAH) effective 5 May 2012.



CERTIFICATE OF SERVICE

Pursuant to Rule o/Court 3.5(i)

I certify that on April 19, 2012, I caused to be served via electronic mail the

following motion on Government counsel: MOTION TO DISMISS BASED ON

DEFECTIVE REFERRAL.

This document has been renumbered to AE008(MAH) eHective 5 May 2012.

WAL'F RB. RUIZ CDR, JAGC, USN Defense Counsel


Attachment A


DEPARTMENT OF DEFENSE OFFICE OF THE CHIEF DEFENSE COUNSEL

OFFICE OF MILITARY COMMISSIONS 1600 DEFENSE PENTAGON

WASHINGTON, DC 20301·1600

MEMORANDUM FOR The Convening Authori ty, Military Commissions

Subj: DEADLINE FOR SUBMISSION OF MATTERS IN MITIGATION ICO UNI1EDSTATESv. HAWSAWI

Ref: (a) Ltr from CA to the Defense for Mr. Hawsawi, dtd 21 July 201 1 (b) Ltr from CA to the Defense for Me. Hawsawi, dtd 8 August 2011

19Sep II

(c) LtT from Detailed Defense Counsel for Mr. Hawsawi to CA, dtd 5 August 2011

I. On 27 July 2011 , the defense received your letter dated 21 July 2011. Rcf(a). In that letter, you established September 21 , 2011, as the deadline for submission of written matters in mitigation bearing on the appropriateness ofa death penalty referral in Mr. Hawsawi's case.

2. On 8 August 2011 , you granted the defense's request for the appointment cfDr. Hans Selvog in order to assist the defense in preparing matters in mitigation prior to the referral decision. Ref. (b). In that same correspondence, you established September 22,2011 as the deadline for the submission of matters in mitigation.

3. At this time, I am requesting that you extend the deadline for the submission of matters in mitigation until a reasonable amount of time after the completion of Dr. Selvog's TS/SCI clearance process and the appointment of a qualified Arabic translator to Mr. Hawsawi's defense team. The defense has madc every effort to insure the security process moves forward expeditiously. However, progress has been slow or non-existent at times due to administrative matters internal to the Convening Authority's security department which are beyond defense cOlU1sel's control. l

I The defense's request for a mitigation 2n'"ning Authority on 8 August 2011. The next day, Tuesday August 9, the defense on in order to initiate the security clearance process for Dr. Selvog. At that fuedCfon<e !h"the "actual the CA's, one of the legal advisor and our process." The same the defense e-mailedMr. Chapman. Mr. Apostol and Mr. Breslin, Breslin responded on 15 August 2011, infonning the defense that will let you know what is needed." The same day, the defense ,-rr,aij;;a 2011, and requested the information necessary in order to provide Mr. for applying for a security clearance. The defense provided that infonnation Dr. Selvog subsequently up t\vice by phone, as well as

did not return Dr. Selvog's calls or e-mails. J p:;~:::;~~!::~ on 24 August 201 if more infonnation was required. I was

liJ,;;;;;;;i;onh,d been received and that the E-Quip Protocol link would follow. As ofSeptembcr had been received and no further infonnation had been forthcoming. On that day,l contacted and later Mr. I requesting their assistance with moving this process forward.

and he

assistance and Mr. Breslin, Dr. Selvog received the Equip link that same day . However, due to

~~~~~:~~~~~·~~~~~i~lo~:cked, a problem which required technical aid from the CA 's office, Dr. ~ process until 12 September 20 II.



RE: DEADLINE FOR SUBMISSION OF MATTERS IN MITIGATION ICO UNfl'ED STATESv. HAWSAWI

4. In appointing Dr. Selvog as a mitigation expert qualified and necessary to the defense of Mr. Hawsawi at this stage of the proceedings) you recognized the qualitative difference of the penalty inherent in a capital case, including the greater degree of accuracy and fact-finding necessary to such a casc. See ref. (c), citing Woodson v. North Carolina, 428 U.S . 280, 305 (1976); Gilmore v. Taylor, 508 U.S. 333, 342 (1993). You recognized that, in capital litigation jurisprudence, a qualified mitigation investigator is essential in order to develop the family and social history component of the mitigation investigation, as well as to "assist counsel in obtaining evidence in support ofa non-capital referral." Ref. (b). Dr. Selvog, however, does not currently possess a security clearance, which is indispensable for him to effectively assist the defense in a case of this magnitude. The security rules that have been imposed on this case make it impossible for Dr. Selvog to meet with Mr. Hawsawi, or to review any documents designated as Secret or Top Secret SCI, until he receives the appropriate security clearance. The defense is in possession of approximately 1500 pages of classified documents from a government discovery production in 2008; these documents are directly pertinent to Dr. Selvog's pre-referral work. Yet, Dr. Selvog cannot review these documents because he lacks the requisite security clearance. Even more importantly, because of this security status, Dr. Selvog cannot meet with the client, or discuss with the defense team matters it has learned fTom the client. Dr. Selvog is therefore, at this time, a mitigation expert on this case in name only; he cannot yet function as a full-fledged mitigation expert to assist the defense in preparing the pre-referral mitigation submission you have indicated the defense may .submit. To give meaning to the appointment of Dr. Selvog, a delay should be granted so that he can obtain the required security clearance to function as a mitigation expert.

5. Defense counsel and the mitigation expert must work hand in hand in order to effectively represent Mr. Hawsawi at this stage of the proceedings; they cannot do so when Dr. Selvog does not have the required clearance. Unlike ordinary capital cases, I am the only counsel representing Mr. Hawsawi. While I have some capital litigation experience, I do not hold any specialized degree or certification, nor do 1 have any specialized training in any fie ld related to mitigation investigations. No other member of the defense trial team holds any specialized degree or certification or has any specialized training in any field related to mitigation investigations. By contrast, Dr. Scivog has extensive experience as a mitigation specialist in death penalty cases. His background is in clinical and forensic social work. He has a Doctoral Degree in Social Work and is certified as a Licensed Clinical Social Worker. He also has clinical experience treating a diverse population of patients. He has spent hundreds of hours per case investigating social backgrounds of capital casc defendants in over 200 cases, and has conducted thousands of comprehensive social histories for use in the courts. In addition, he taught at continuing legal education seminars for attorneys, and has been invited to lecture on capital case mitigation in several jurisdictions. Notably, he taught the subject of death penalty mitigation at the Naval Justice School. Dr. Selvog's work was cited with approval in the seminal case of Wiggins v. Smith, 539 U.S. 510 (2003). Dr. Selvog must be properly cleared in order to effectively assist in the preparation of a proper pre-referral mitigation submission. Defense counsel is simply not qualified to pcrfonn this funct ion alone.

6. Further compromising the defense's ability to effectively prcpare an adequate submission, Mr. Hawsawi' s defense team has been without a dedicated Arabic translator since early March 2011. The defense submitted a request for the assignment of a designated translator on II March 200 I. Subsequently, the names of two candidates for the Arabic translator position were sTfijft1ia:at'Mrtheas~ingJ~lMhmity's security department, one on 5 May 2011 and the other to AE008(MAH) effective 5 May 2012.

2 UNCLASSIFIEDIIFOR PUBLIC RELEASE


RE: DEADLINE FOR SUBMISSION OF MATIERS IN MITIGATION ICO UNITED STATESv. HAWSAWI

on 20 July 2011. In one instance, the translator's security clearance package was not forwarded for action by said security department until after more than a month had elapsed. As of this date, the defense continues to wait on the security clearance process in order to move forward to the next stage of the hiring process. Each of these translators already possessed a TS clearance at the time the defense submitted their names. Thus, only the SCI portion of their clearances has been pending review. As a result of the delay in clearing these personnel, the defense has not had a team translator since the Administration announced, on April 4, 2011, that Mr. Hawsawi 's case would be prosecuted by military commission. The unavailability of a trained linguist is debilitating to beginning any mitigation investigation - and this expertise is particularly important when the client does not share the attorney's racial, ethnic, or cultural background. See Scharlette Holdman and Christopher Seeds, Cultural Competen(y in Capital Mitigation, 36 Hofstra L. Rev. 883 (2008). This situation continues to seriously undennine counsel's ability to effectively represent Mr. Hawsawi. Certainly, until a dedicated translator is cleared and assigned full -time to work collectively with the defense counsel and mitigation expert, Mr. Hawsawi's defense team is unable to effectively begin to develop the type of social and familial history required for an adequate pre-capital decision submission in a case of this complexity and severity.

7. An extension of time for the submission of matters in mitigation on behalf of Mr. Hawsawi will not unduly delay the referral decision in the case of United Stales v. Mohammed, el. aI, given the current submission deadlines of the other co-defendants. Mr. Mohammed's case currently has an indefinite submission deadline of 60 days after learned counsel completes the TS/SCI classification process, the true timeline for which is currently unknown. Similarly, Mr. Bin al-Shibh's case has a submission deadline of60 days after learned counsel completes the TS/SCI process as welL Mr. Bin al Shibh's learned counsel submitted his security questionnaire on 25 August 2011. The deadline for Mr. bin' Attash is also 60 days from completion of learned counsel's security clearance process. Finally, Mr. AI -Baluchi's current submission date is November 1,2011. The state of affairs with respect to mitigation deadlines is therefore quite confused at this stage. In view of these other deadlines, as well as the critical importance of obtaining a security clearance fo r Dr. Se1vog to perform his function, and the insunnountable obstacles the defense faces without a qualified and cleared translator at this stage of the case, Mr. Hawsawi's present request for time is a reasonable one.

8. Your prompt consideration of this request is appreciated. Should you require further information, please contact me at (703) 588-0430 or [email protected]


w. B. RUIZ CDR, JAGC, USN Detailed Military Defense Counsel


UNCLASSIFIEDIIFOR PUBLIC RELEASE '. "

~. OFFICE OF THE SECRETARY OF DEFENSE OFFICE OF MILITARY COMMISSIONS

.aGO MARK CENTER DRIVE ALEXANDRIA, VA 22302100

Convening Authority

October 3, 2011

MEMORANDUM FOR MR. DAVID NEVIN, MS. CHERYL BORMANN, MR. JAMES HARRINGTON, MR. JAMES CONNELL, AND CDR WALTER RUIZ, OFFICE OF THE CHIEF DEFENSE COUNSEL

SUBJECT: Submission of Matters in Mitigation; US v. Mohammed, el af

On June 1. 2011, the trial counsel forwarded sworn charges against your clients with the recommendation that the charges be referred jointly to a capital military commission. Although not required by statute, regulation, or other provision of law, I gave you an opportunity to submit matters in mitigation for my consideration prior to a decision on referral provided they are timely submitted. In addition to any matter you choose to provide me regarding referral, and, if referred. whether charges against your client should be referred capital , you may include any comment on the issue of a joint trial.

To give all counsel a unifonn due date for the submission of all matters for my consideration prior to a decision on referral, please submit matters to me no later than January 15, 2012. This date supersedes any previous due date for the submission of mitigation matters.

Copy to: BG Mark Martins, OMC·P Mr. Robert Swann, OMC-P CDR Suzanne Lachelier, OCDC LTC Michael Acuff, OCDC Maj. Sterling Thomas, OCDC Maj . William Hennessey, OCDC


~:::~f Convening Authority

for Military Commissions


October 18, 20 II

Walter Ruiz. Esquire CDR, JAGC, USN Defense Counsel


I lans II. Sclvog, Ph.D., L.C.S.w.

Forensic & Clinical Social Worker

6230 \X"'ilshire Boulevard, #2035

Los Angeles. California 90048-5126

323.333.9 19 1 cell, 323.938.0119 fax

E-mail: h~clvog@pmai\.cQm

Office of the Chief Defense Counse l Mjlitary Commissions

RE: Res ignation and withdrawal of appoin tment as mi tigation spec ialist in the matter of U.S. v. Hawsawi

Dear C DR Rui z:

With this lener' wish to inform you tllal I will be resigning from my appointment as mitigation specialist on behalf of the de lense in the mailer of United States v. Hav·:sawi due to unforeseen personal circumstances. I regret an) inconvenience that this will cause.

Respectfull y, .......-;~~

I l anS~I~l.i~~:;;;;;~~~~2:::::;:;~ Forensic Clinical Social Worker





1620 DEFENSE PENTAGON WASHINGTON. DC 20301~1620

MEMORANDUM FOR CONVENING AUTHORITY

7 December 2011

SUBJECT: Request for Extension of Mitigation Submission Deadline ICO Unired States v. Mohammad, et al

1. The defense counsel for Messrs. bin' Anash. Bin Al-Shibh, AI-Baluchi and AI-Hawsawi respectfully request that you suspend indefinitely the 6 February 2012 deadline for submission of matters in mitigation in the above-captioned case.

2. On 12 Qctober 201 I, we discovered JTF-GTMO had been seizing, translating, and reading privileged attorney-client communications and anomey work-product we have mailed and handdelivered to our clients. The material seized, translated, and read also includes privileged communications our clients have mailed or delivered to us. We immediately notified JTFGTMO of our objection to this breach of privilege and violation of Military Commissions Rule of Evidence 502. but the conduct continued.

3. On 2 November 2011 , counsel for Mr. bin' Attash requested that you indefinitely suspend the 15 January 2012 mitigation submission deadline on the basis that all written communication between Mr. bin 'Attash and his defense team had ceased due to JTf-GTMO's ongoing breach of attorney-client and work-product privileges. On 18 November. you denied this request because "[you had] been advised that JTF-GTMO [was] complying with the procedures for reviewing detainee mail that are set forth in Military Judge PoW's Order of November 9,2011 in United Slales v. AI Nashiri . ... " This premise was and continues to be incorrect.

4. Despite Judge PoW 's order, JTF-GTMO continues to review legal mail for content. Between 29 November and 3 December 20 II, we attempted to deliver to our clients legal materials for our respective cases, much of which was specifically related to the development of mitigation. On numerous occasions throughout this week, auomeys assigned to JTF-GTMO's SJA office rejected material based upon its content. All of the barred material was intended to address specific issues of concern to the various accused and was designed to further the development of case-related and/or mitigation strategies. This material was and continues to be protected by the attorney-client and work-product privileges.

5. According to Rule 1.6 of the American Bar Association 's Model Rules ofProfessionaJ Conduct:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permiued by paragraph (b).




(b) A lawyer may reveal information relating to the representation ofa client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodi ly bann;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lav,rycr and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

6. Each of us is licensed in a jurisdiction in which Rule 1.6 bas been adopted, ei ther verbatim or in significant substance. We may not reveal information relating to our representation without client consent. Messrs. bin' Attash, Bin A1-Shibh, AI-Baluchi and Al-Hawsawi have not consented to JTF-GTMO's access to attorney-client communications or attorney work-product.

7. The ongoing breach of privilege prevents us from communicating in writing with our clients. Such communications are not only a required professional obligation (see ABA Model Rule 1.4), but necessary to prepare any mitigation submission. Consequently. we are unable to prepare these submissions for each of our clients by your requested date of 6 February 2012. We, therefore, request an indefinite suspension of the current deadline until this issue is resolved.

Respectfully submitted,


Maj William/y, USMC

2



~'Q captMiCel Schwanz

-~ CDR Walter Ruiz. USN

Copy to: Mr. Clay Trivett, Trial Counsel


3



05 Aug 2011

To: Tria! COll/lsel From: CDR W. B. Ruiz, JAGC •. USN. Detailed Defense CouoseLforMr. a! Hawsawi

Subj: REQUEST FOR pRE-mllR:&AfDIscwsuRE OFExClJLPAT0RY AND MITIGATION EVIDlll'lC£ EOI<THEDtfIiNSEOY:Mt1STAF AAL-HAWSA WJ( ISN 100 II) ICO UNfFED ST ATES-Je-MOHAMMED, ef al.

COll/lsel for Mr. A1-Hawsawi requests tlu!.t the government produce any evidence favorable to him on the issue of gUilt ot~punishment. Tll,is'iilformation includes but is not limited to the following: '

• ~y infonn~oI!::~~h_ c~~g~!C8~~~ludes tQ_Mi~ _~-Hawsawi's relativ~ role and or relative culpability in·thealleged-Olfenses.

• Any and all reports or other docurn";tation thaMndicates that Mr. AI-Hawsawi <;ooperated (jj: .. sisted aulliOifti ... ·iriCluding D\!loot limitedtoCwnether such information was beneficial in~ping_to identityo! mvent any attacks; led to the apprCheosion_ofany fndiVldual(~);JidPed identifY Sourceaof financing or any other matter that may prove oi=li8S prayeD beneficial to the government.

- - ~.

• All records and information reJaiing'iO interr"gliioirmethods-employed on Mr. A.I-.I~awsa'l'i :sjll9<' his captuteJl!!.MJU'ch 1,200:3. This request. includes a request for logs, notes and any other docUiften~tion addressing methods of interrogation employed on him, -

• Ail records andinfollll!ltion relating to alIel!.e4.s~Cd, investigated. silbsUmtiated of-:-aciuaI iIlgdents:.ofifl~ent..of-Mr. Al·Hawsawiwhen he was held in or interrogated' at Q1!8,lltllQatno Bay NavalBlISC and at any other detention fadiity. .

• All doeumenfs ~r information-~g~l!g ~y mis,~tment ofMr. -Al~Hawsawi at the hands ofU.S~or Allied Armed Forces. _U.S_.ciyilians or contractors. 'Mistreaunent'includes but-;"DoHintited to the useofllny "special interrogation plan." "harsh interrogation techniques" or other"lDetb<xIs of interrogation. This includes any-recorded allegation of such mistteatnient made by Mr. AI-Hawsawi. any witness to the Il)jstreatment;.or any notes or-reports" from non·governmental organization (e.g .• the Inten1aiional Committee -Cor the Red Cross) that purport to document a1legations.of mistreatment

This document has been renumbered to AE008(MAH) effective 5-May 2012.


'.~. ~~ ~~ ~.~-.,.--,--~....,.,..". ........ ---~. ~. &_O _ ______________ _


The defense requests productiooof these documents in time to ",view them and meaningfully utilize them in the CoJiVeoioIi Authority' s pri-referra1 capital case review process. This request i~based·onthe Fiftb;.Sixth, and Eighth Amendments to the United States Constitution and·the points and authorities set forth below.

It is well-established .that "in a death pjmIllty prosecution, the Brady obligation requires the Government to disc:h~.se ma~rial-~¢onnation that exculpates the defendant of the crime and that would be materiaFtti 1he defendant's presentation of factors mitigating against a sentence of death." .u"rr.d Statis.'lI::f'I:~nk, l1'F~ ~IlJ!P . 2d 322, 327{S.D.N. Y. 1995); see a/so United States v. Perez, 222 ·F. Supp. 2d 164, 170(D. Conn. 2002); United States v. Felidano, m F. Supp. 166, 170 '(D. Conn. 1998); United States v. BecJiford, 962 F. Supp .. 304, 811 (E .. D:Va. 1997); Unli •. " States v. Storey, 956 F. Supp. 934, 939-40 (D. Kan. 1997). .

The United States mus-rprovlde eXc'UIpatory'evidence as part of the death penally protocol because the defense ~l:1Stha~~. ~~_e'y'idence in sufficient time to use it in seeking to avoid a.death penalty..j!lji~cution; ~. timing of the government's disclosures of Brady and Giglio . evid~n.ce and infoonation to' the defense is important." United States v. Celis, 608 F.3d 818, S3S.(D.C. Cir. 2010). ~·

In ordering pteauthorization Brady.disclosUtes, one court has explained "that '[tJhe exigencies of capitil=litigationoompef,:-aj-a practical matter, in order to ensure-the fair and orderly disposition. of the case, promprdisclosure of all information which will affect the choice ofpenalty.'"United $lD~ v. Diilatorre, A38.F ,·Supp.2d 892, 900 {N.D. III. 2oo6)(quotina United Stale .... Di",,;:1'I!', Q5..-<:<-0161, 2ooS.WL 1575191, ·10·11 (N.D. Cal. 2005)); see a/so, e.g., UnitedJSf"tes v. Perez, 222 F. Supp.2d 164, 170 (D. Conn. 2002); United States v. Felicifmo~ 998 F. Supp, 166, 170 (D. Conn. 1998). "These courts have ordeted discoveryi=duced subjectto'immediat~ disclosure to bell9Cd in defense counsel's argumeniJ ilgtijnst pursuit of the death' penalty to bOth the · Unite<! States Attorney and·the Depaniil,mt of Ju~tiCe':Delato"e, 438 F. Supp.2d at 900.

. .

In United States v. Karake, 281 F. Supp.2d 302 (D.D.C. 2003), the Court addressed the United States' Brady-obligations prior10 a'decision whether the government intends to seek the death peoalty.- The CourtcemphaSized1hat, "the government wisely does not contest the application of Bradj>at this stagC; of the proceedings to the statutory mitigating factors." [d.-at 307. The United Siatesalso told-the Court that it intended.to produce all Brady evidence in its possession.Id . • t 305-06. Finding that the United States defined its Brady obligation "far too narrowly,'.'bQwcver, the Court Q~ered the United States to produce infoimation favorable tg t)i~ defCJiJe-for use in the authorization process. Jd at 307; seHilso De/atori e,A38 F. Supp, .. 2d al 2OlL(citing Kar.ake in.support of the proposition that; "SeYerai districtroUl'ls:have allowed'disco"ery. before the Government has made.aiinal decision.regaiding~e;hei'1i> seek the ~.penalty; i.e.''preauthorization discovery.").

This document has been renumbered to AE008(MAH) effective 5 Ma"y 2012.-

2


-- - ------~----~~--~~----~-~.~-~. ~- ---. ----------------------... UNCLASSIFIEDIIFOR PUBLIC RELEASE

Furthe.nn<?re, the KaraklUlPiIlign llelll ~Ub~_govemment..i&~bligated to disclose any informa!ion that reflects-that defendants "'" equallY"t less-culpable tIuin other co-consp~rs," Karake,-281 'F, Supp.29,at 308. _~_

The Federal Death Penalty Act reflects constitutional principle by defining the threshold mental states that mllst bC proven before-s i!DY-may impose the death penalty on a defendant; and thus narrowIDg the class of eligi!>!e defendiUits, as required under the Eighth·Amendment. -Si e US. v. Le. 32'7:1;:s-utm.211.601(E.D.Va.2004). The Act provides -that. defendOiii ;'ho did nothing-.or did not herSelf participate in an act of violence, is only eligible fOr the deat1i ~ty ifbe or she "intentionally participated in an act, contemplating that the life orii perS<tit"",uld bei:Ol<enor inteoiling that lethal force would be-used in connection wi.th-a-person,.;other tlian Cine of the participants in the ofi'ense,.'!nd the victimdied as a direct result 'ofthe ac!."18U.S.C. § 3591(a)(2)(C); see United States v. Baske11liile, 49l F. Supp'.-2d 516, 522(D,NcJ. 2007) (explaining that an order for a cO-conspf~tor to kill~15 onIy under §352.I.(~Xl)(C).

__ -'.. _ .c .. ~

Mr. AI-Hawsawi seeks the basic, ~xcull"'tory infonnation in the hands of the government so that he may be adeqll!'tely represented "t this stage of the case. Mr_ Al-Hawsawi should have exculpatory information, as weU as the additional infofIiUition requested abovc,ooat this point inthe proc~~;"-so: that he_can pr~nt the information to the Convening Auillorltyand meaningfully pm'llclpate in iIlepte-referral death penalty decision makingprQcess. - ,, - -

YOUr assishmce and _ coliSide~ij9n in this$ttef is appreci$d. Should youicquire further information, -please COI;!act me at (703) 588-0430 [email protected]

This document has been renumbered to AE008(MAH) ~Hect ive 5 Mat2Q12.

R sub')iJ-"~

CDR W AGe, USN Deta' ed Defense -Counsel ' OffiCe of the Chief Defense Counsel Office oflbe Mili~cCommissions 16()([Pl;f;nse POfifagon; -Room 3B688 Wasliillgton, D.C,,20101

3



--··-Original Message-----From: Ruiz, Walter B, CDR 050 OMC Defense

24, 2011 4:48 PM OSD OMC Convening Authority; OMC Convening

Subject: Security Issues.

Good afternoon,

I am following up our conversations of this afternoon concerning ongoing issues with respect to obtaining proper clearance for a number of our team members.

On 8 August 2011, The Convening Authority, approved the defense's request for Dr .. Hans Selvog to assist ico United States v. Mustafa AI-Hawsawi in order to submit matters in mitigation pre-referral. Since that time, I have been attempting to move the security clearance process forward. As of today, Mr. Selvog has still not received the necessary link in order to begin inputting the information necessary for his security clearance process. I have sent several e-mail communications on this issue but as of today, the issue remains unresolved.

On July 20th, 2011, SAIC delivered via fax Mr. security package to the Convening Authority, I understand per my conversation that the package was not delivered to DIA until today. According to my conversation it takes 3-4 weeks for mail to be processed once it reaches the convening authority to be irradiated, a process which sometimes results in the pages of the paper being burned. Please confirm this timeline with respect to Mr ._ package.

I also learned today per my conversation with Mr. ! hat the Convening Authority is not currently able to schedule SAP briefs as they are not currently being given pending an investigation. My understanding is that there is not timeline and this is currently an indefinite suspension meaning that as of right now, no defense personnel can receive a SAP brief if needed. According to this guidance I cancelled a previously schedule trip by one of our pro-bono attorneys who was scheduled to come in this Friday In order to get his paperwork corrected so that he can expeditiously travel to Guantanamo and meet with the client.

I ask that you please advise as soon as possible when SAP briefings wi ll resume. Until such time, the Tl:H8'tfhlmJlJlen'abll6~eedrW1ttlrmimy of the functions essential to providing effective lega l to AE008(MAH) effective 5 May 2012.



representation.

I appreciate your time and attention to these matters.

Regards,

Walter Ruiz

CDR, JAGC, USN

Defense Counsel

Office of the Chief Defense Counsel

Military Commissions

Caution: This communication may be privileged as attorney work product and/or attorney-client communication or may be protected by another privilege recognized under the law. Do not distribute, forward, or release without the prior approval of the sender or the Office of Chief Defense Counsel for Military Commissions. In addition, this communication may contain individually identifiable information the disclosure of which, to any person or agency not entitled to receive it, is or may be prohibited by the Privacy Act,S U.S.c. §552a. Improper disclosure of protected information could result in civil action or criminal prosecution

Th is document has been renumbered to AE008(MAH) eflective 5 May 2012.




1620 DEFENSE PENTAGON WASHJNGTON, DC 20301 · 1620

MEMORANDUM FOR THE OFFICE OF THE CHIEF DEFENSE COUNSEL

January 13, 2012

Subject: Professional Responsibility Guidance on the JTF-GTMO-CDR Orders Governing Written Communications Management for Detainees Involved in Military Commissions of 27 December 2011 and Governing Logistics of Defense Counsel Access to Detainees Involved in Military Commissions of 27 December 2011

1. On January 8, 2012, I issued an ethics instruction via electronic mail to all military commission defense counsel regarding compliance with the subject named orders. This Memorandum supplements that guidance.

2. Background

a . Commander, JTF-GTMO recently promulgated norder Governing Written Communications Management for Detainees Involved in Military Commissions of 27 December 2011" and "Order Governing Logistics of Defense Counsel Access to Detainees Involved in Military Commissions of 27 December 2011" [hereinafter Orders] .

b. The Orders impose a pre-screening regime on any correspondence between counsel and their clients and any materials counsel seek to bring into our out of attorney-client meetings. Case related written material, including material containing privileged and confidential information, is expressly included in this pre-screening regime.

c. The pre-screening regime requires that written material be reviewed by a "Military Commission Privilege Team" [hereinafter Privilege Team). The Privilege Team, which works for Commander, JTF-GTMO, is composed of one or more lawyers and one or more intelligence or law enforcement personnel. None of the Privilege Team members are members of any defense team, nor do any Privilege Team members share in a ny attorneyclient relationship.

d . The Orders contemplate that in some circumstances, the Privilege Team will review the content of attorney-client privileged and con£idential case-related material. The Privilege Team is affirmatively obligated to disclose to Commander, JTF-GTMO, the information learned in such review. Broader dissemination of any information received from the Privilege Team is at the exclusive discretion of Commander, JTF-GTMO.

e. The Privilege Team is obligated to preserve only "lawyerclient and other related legally-recognized privileges," and it must preserve those pri vileges only "to the fullest extent possible in a manner cons i stent with [these] Order[s]. "




f. The Orders also impose a requirement that counsel acknowledge that they will comply with the Orders. Counsel must make this acknowledgement in order to be allowed to meet with their client, even if they do not intend to bring written material into that meeting.

3. Authori ty

a. Regulation for Trial by Military Commission (2011 Edition) [hereinafter RTMC]. paragraph 9.1{a) (2) states, "The Chief Defense Counsel shall supervise all defense activities and the efforts of detailed defense counsel and other office personnel and resources pursuant to the M. e.A . and the M.M.C .• ensure proper supervision and management of all personnel and resources assigned to the Office of the Chief Defense Counsel (CeDC), and facilitate the proper representation of all accused referred to trial before a military commission appointed pursuant to t he M. C.A."

b. RTMC paragraph 9.l(a) (3) states, "the Chief Defense Counsel shall regulate the conduct of detailed defense counsel as deemed necessary, consistent with the aforementioned legal authorities [the M.C .A., the M.M.C., this Regulation, all Supplementary Regulations and Instructions issued in accordance therewith, and the orders of the commission] as well as subordinate instructions and r egulations."

c. RTMC paragraph 9.l(a) (9) states, "The Chief Defense Counsel shall take appropriate measures to ensure that each detailed defense counsel is capable of zealous representation and unencumbered by any conflict of interest. In this regard, the Chief Defense Counsel shall monitor the activities of all defense counsel (detailed and civilian) and take appropriate measures to ensure that defense counsel remain unencumbered by conflicts of interest . "

4. Applicable Rules and Regulations

a. Air Force Rules of Professional Conduct (AFRPC of 17 Aug 2005) FRPC 5.2 (b ) states" [a] subordinate lawyer does not violate these rules if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty."

b. JAGINST 5803.1C, Subj: Professional Conduct of Attorneys Practicing Under the supervision of the Judge Advocate General of 9 Nov 2004: Rule 5.2(b), which guides Navy and Marine Corps judge advocates, is identical to the Air Force Rule, with the added requirement that the supervisor's resolution must be in 'liriting. Paragraph l2a o f the Navy rules authorizes a covered attorney to seek written informal ethics advice from "supervisory attorneys in the field. "

c. Army Regulation 27-26 (Rul es of Professional Conduct for Lawyers of 1 May 1992 ) Rule S.2 (b) is identical to the Air Force and Navy/Marine Corps rule.


2



d. Rule 5.2(b) of the Model Rule of Professional Conduct (hereinafter Model Rule) is identical to each of the Service rules.

e. AFRPC Rule 1.6(a), and JAGINST 5803.1C Rule 1 . 6(a) provide that a lawyer nshall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are implicitly authorized in order to carry out the representation."

£. Army Regulation 27-26 Rule 1.6(a), and Model Rule 1.6(a) impose the same obligation of confidentiality as the Army and Navy, with the addition that disclosure is permitted when required or authorized by law.

g. Rules for Military Commissions [hereinafter RMC], Rule 502 (d) (7), Discussion, provides that "Defense counsel must: guard the interests of the accused zealously within the bounds of the law. . and may not disclose the accused's secrets or confidences except as the accused may authorize {see also Mil. Comm. R . Evid. 502).n

h. Military Commission Rule of Evidence (hereinafter MCRE] , Rule 502 (a) provides that "A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client."

i. RMC 701(j) states that that nEach 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."

5. Discussion

a. As the supervisor of all of the attorneys assigned to, and operating under the supervision of, the Office of the Chief Defense counsel, I may provide written "resolution of an a r guable question of professional duty."

b. Rules of Professional Responsibility impose upon counsel the obligation to safeguard information relating to representation of a client. Counsel are prohibited from disclosing such information except in limited circumstances. I have concluded that compliance with the Orders would require counsel to violate that obligation.

c. In the case of persons governed by Army Regulation 27-26 or a state code of professional responsibility based upon Model Rule 1.6, I have concluded that the existence of the Orders does not qual ify as a legal requirement or authority to disclose confidential information. See American Bar Association Center for Professional Responsibility, Annotated Model Rules of Pro fessi onal Conduct , 6l~ ed ., at 108i Virginia State Legal Ethics Opinion 1811 (2005) (exception to rule of confidentiality to comply with "other law or a court order" is limited to "statutes, judicial rulings, and various types of administrative regulations and rulings . (which have been] 'adopted in accordance wi th the procedural requirements


)



imposed by Congress,'U; quoting ABA Formal Cp. 95-396) (available at http : //www.vacle . org/opinions/1811.htm).

d. Rules for Military Commission also impose upon counsel the obligation to safeguard client secrets and confidences. Counsel are prohibited from disclosing such information except in limited circumstances. Rule S02(d) (7), Discussion. For those persons representing clients who are subject to the Rules for Military Commission, I have concluded that compliance with the Orders would require counsel to violate that obligation.

e. Rules for Military Commission provide that a party may not impose upon another party unreasonable requirements to obtain access to witnesses or evidence. RMC 701(j) . I have concluded that the Orders impede a client's access to witnesses and evidence in ways that are inconsistent with the MCA and the MMC, and thus are unreasonable. I have further concluded that counsel's compliance with the Orders would amount to an improper forfeiting of the client's rights under that RMC provision .

f. Military Commission Rules of Evidence recognize that a client may prevent other persons from disclosing confidential communications. Counsel have an obligation to comply with a client's exercise of this privilege . MCRE S02(a). For those persons representing clients who are subject to the provisions of the Military Commission Rules of Evidence, I have concluded that, absent the client's express waiver of the privilege, compliance with the Orders would require counsel to violate their obligation to follow the client's exercise of his rights.

g. The Order Governing Logistics of Defense Counsel Access to Detainees Involved in Military Commissions of 27 December 2011 requires that counsel agree to comply with the pre-screening process to gain access to the client even in the absence of written material. I have concluded that agreeing to comp ly with the pre-screening process, without the client's express consent, violates counsel's obligation to the c lient. See e.g. United States v . Re i d , 214 F . Supp.2d 84, 94 (D .Mass . 2002 ) (requirement of counsel's signature o n f o rm agreeing to abide by terms of Special Administrative Measures ~as a condition of the free exercise of Reid's Sixth Amendment right to consult with his attorneys fundamentally and impermissibly intrudes on the proper role of defense counsel").

6. Guidance

a. Counsel are advised not to submit attorney-client privileged materials for review to the Privilege Team established by the Order Governing Written Communications Management for Detainees Involved in Military Commissions of 27 December 2011.

h. Counsel are advised not to execute/sign the Acknowledgement found as Attachment A to JTF-GTMO-CDR Order Governing Written


4



Communications Management for Detainees Invol ved in Military Commissions of 27 December 2011.

c. Counsel are advised not to execute/sign the Acknowledgement found as Attachment A to JTF-GTMO-CDR Order Governing Logistics of Defense counsel Access to Detainees Involved in Military commissions of 27 December 2011.

d. Counsel are advised that to the extent that any attorney has previously executed either Acknowledgement addressed in "b" or "e" above, that Acknowledgement must be withdrawn immediately.

e. Military counsel will forward this Memorandum to any retained military commissions pool counsel in your respective cases immediately.

7. The guidance in this Memorandum will continue in force unless superseded by me or other competent authority.


y~ t~lonel' u .s. Marine Corps Chief Defense Counsel

5





WASHINGTON, DC 20301-1600

MEMORANDUM FOR The Convening Authority, Military Commissions

Subj: DEADLINE FOR SUBMISSION OF MA TIERS IN MITIOA TION [CO UNlTED STATES v. HAWSAWI

Ref: (a) Ltr from CA to the Defense Counsel in United States v. Mohammed el aI., dtd 3 Oct 20 II

02 Feb 12

(b) Ltr from CA to Defense Counsel in United States v. Mohammed, et aI., dtd 7 Deell

(c) Joint Ltr from Detailed Defense Counsel to CA, Seeking indefinite extension, dtd 7 Decll

(d) Ltr from CA to Detailed Defense Counsel for Mr. Hawsawi, dtd 23 NovII (c) Ltr from CA to Defense Counsel, dtd 13 Dec 11

Enel : (I) Instruction from Chief Defense Counsel, Military Commissions, to Military and Civilian Counsel, dtd 8 Jan 12

(2) Order from the United States Court of Appeals for the District of Columbia Circuit, In re Hawsawi, Case No. 12-1004, dtd 10 Jan12

(3) Order from the United States Court of Appeals for the District of Columbia Circuit, In re Hawsawi, Case No. 12-1004, dtd 20 Jan 12

1. I ain requesting that you extend the deadline for the submission of matters in mitigation for a period of four months for the reasons discussed below.

2. On 05 October 2011 , the defense received your letter dated 3 October 2011. Ref (a). In that letter, you establi shed 15 January 2011, as the deadline for submission of written matters in mitigation bearing on the appropriateness of a death penalty referral in United States v. Mohammed, el al. On 7 December 2011, you extended that same timeline to 6 February 2012. Ref (b).

3. On 7 December 20 11 , defense counsel in the case of United Stales v. Mohammed, et al., submitted ajoint request asking you to suspend indefinitely the 6 February 2012 dead line due to the extensive and ongoing violations of the attorney-client privilege and the resulting debilitating effect on the attorney-client relationships. Ref (c). On 13 December 2011, you denied the joint request for indefinite extension of matters in mitigation, and cited to the implementation of procedures consistent with the Military Judge's Order of9 November, 2011, in United States v. Al Nashiri.

4. On 27 December, 2012, the Commander, Joint Task Force Guantanarno (JTF-GTMO), issued two orders, one governing the logistics of defense counsel access to detainees (Logistics Order) and the other governing written communications between lawyers and defendants (Communications Order). These orders, among other things, require the use of a nrivile.ge revietw team. The Drivbilel!c review team reports the Commander JTF-GTMO), who is , Itus aocumen : has Deen renum erOO to AE008(MAH) effective 5 May 2012.



REo DEADLINE FOR SUBMISSION OF MATTERS IN MITIGATION ICO UNITED STATESv. HAWSAWI

the final arbiter of all disputes arising from the privilege team review. Counsel were ordered to submit for review by this team all correspondence and materials intended for their clients.

5. On 4 January 2011, Mr. Hawsawi, through counsel, filed a petition, In re Hawsawi, seeking a writ of mandamus and prohibition before the United States Court of Appeals for the District of Columbia Circuit, and also asking that Court to issue a preliminary injunction halting the implementation ofConunander JTF-GTMO's orders, pending review of the petition.

6. On 8 January 2012, the Chief Defense Counsel issued an ethics instruction against the execution of the affinnations required by the JTf-GTMO CDR Orders, and against submitting legal mail to the newly instituted privilege team. EncJ. (1)

7. On 10 January 2012, in In re Hawsawi, the U.S. Court of Appeals for the District of Columbia ordered the government to respond to Mr. Hawsawi's petition for writ ofmandamu~ and prohibition by I February 2012. The Court futher ordered that a reply from Mr. Hawsawi is due by 13 February 2012 . EneL (2). On 20 January 2012, the Court of Appeals denied Me. Hawsawi's motion for preliminary injunction. Ene!. (3)

8. I am requesting that you extend the deadline for the submission of matters in mitigation for a period of four months, because of the obstacles faced by learned counsel over the last four months during this critical stage of the proceedings in preparing this submission. On 12 October 2011. it was first discovered that JTF-GTMO had been seizing, translating and reading privileged attorney-client communications and attorney-work product that had been mailed or hand-delivered to the clients, including Mr. al Hawsawi. Since that time, the flow of written communications has been continuously disrupted due to the shifting landscape of the mail policy in response to the latest legal rulings.

9. JTF-GTMO's interpretation of the Military Judge's Oder mentioned in your 13 December 11 correspondence has been arbitrary and capricious. As one example, your 23 November 2012 letter approving Mr. Hawsawi's request for appointment of a mitigation expert was rejected for delivery to Mr. Hasawi because JTF-GTMO did not consider it legal mail directly related to Mr. Hawsawi's defense. Ref. (d). Similarly, your 13 December 2011 letter denying the joint request for an indefinite suspension of the 6 February, 2012 date, was not deemed relevant legal material and was accordingly excluded. l Ref. (e) Finally, a five-page personal letter, sent to Mr. Hawsawi in late December, was also rejected by the assistant staff judge advocate. These are only a few illustrative examples meant to highlight the real and substantial difficulties encountered by defense counsel while trying to provide timely and effective legal representation during this critical stage.

10. Due to the geographical distance from Mr. Hawsawi, I depend heavily on written correspondence in order to communicate. I would routinely forward legal mail for lv1r. Hawsawi 's review in advance of our personal meetings. Similarly, I would often carry materials to our meetings in order to contemporaneously review documents and inform the discussion. The current ethical questions surrounding the mandated disclosure of privileged material to third

I Counsel was directed to place these materials in the United Slates Post Office mail system. However, counsel learned that mail delivered to the Guantanamo Bay branch of the United States Postal Service would have to first be slJW~8&~~Jffli~'lWhUlTltt?h!8uted via the United States Mail system ,before being re-delivered to the GHaA~fMWHp~~tRfets: Msy~t~~es Post Office to await pick up by representatives of JTF-GTMO.



RE: DEADLINE FOR SUBMISSION OF MA TIERS IN MITIGATION ICO UNITED STATESv. HAWSAWI

parties preclude me from uti lizing written materials in the course of my representation. Meeting with Mr. Hawsawi without the ability to effectively utilize written materials is not adequate access to my client and directly causes my representation ofhim to fall far short of the standards required in capital cases.

11. Commander JTF-GTMO's orders raise complex constitutional and statutory issues related to the right to effective representation and the right to learned counsel. There are also complicated and serious questions about defense counsel's ethical obligations. Currently, I am effectively unable to engage in any written correspondence or exchange any written materials with Mr. Hawsawi because doing so may result in ethical violations. In effect, Mr. Hawsawi is being deprived of his right to counsel at a critical stage of the proceedings. As detailed above, these issues are the subject of ongoing litigation in the U.S Court of Appeals for the District of Columbia Circuit. The inability to effectively communicate since early October 2011 has further degraded my ability to develop and prepare a pre-referral mitigation submission. Until these issues are resolved, I am not in a position to develop a mitigation submission by the current 6 February, 2012 timeline.

12. Your prompt consideration of this request is appreciated. Should you require further infonnation, please contact me at (703) 588-0430 or [email protected]


~-W. B. RUIZ CDR, JAGC, USN Detailed Military Defense Counsel

J



OF:PA RT\I PiT OF I>F:FF:'1:E OFFICE OF nlE CIIlU I>EFE~SE COl':'ISEL

162fl DEFF.'l"F Vr'iT \ GO"'/" " \~HI\GTO"l. DC 20301 -1 620

MEMORANDUM FOR THE OFFICE OF THE CHIEF DEFENSE COUNSEL

January 13, 2012

Subject: Pro fessiona l Responsibility Guidance on the JTF-GTMO -CDR Orders Governing Written Communications Management for De t ainees Involved in Military Commissions of 27 December 2011 and -Governing Logistics of Defense Counsel Acce ss to Detainees Involved in Military Commissions of 27 December 2011

I. On January a, 2012, I issued an ethics instruction via electronic mail to all military commission defense counsel regarding compliance with the subject named orders. This Memorandum supplements that guidance.

2. Background

a. Commander, JT~-GTMO recently promulgated ~Order Governing Writ t en Communications Management for Detainees Involved in Military Commissions of 27 December 2011" and "Order Governing Logistics of De fense Counsel Access to Detainees Involved in Military Commissions of 27 December 2011" [hereinafter Orders] .

b. The Orders i mpose a p~e - screening regime on any corr espondence between counsel and their c lients and any materials counsel seek to bring into our out of attorney-client meet ings. Case related written naterial, i nc ludi ng material conta ining privi leged a nd confidential information, is expre ssly included in t his pre-screening r egime .

c. The pre-screening regime requires that written material be reviewed by a "Military Commission privilege Team" [hereinafter privil ege Team]. The Privilege Team, which works for Commander, JTF-GTMO, is composed of one or more lawyers and one or more intelligence or law enforcement personnel. None of the privilege Team members are members of any defe nse team, nor do any Pr ivi lege Team members share in any attorneyclient relationship.

d. The Orders contemplate that in s ome circumstances, the privilege Team will review the content of a ttorney-cl i ent privileged and confidential case-related material . The Privi l ege Team is aff irmatively obligated t o disclose to Commander, JTF- GTMO, the information learned in such review . Broader dissemination of any information received f rom the privilege Team is a t the exc lusive discre t ion of Commander, JTF -GTMO.

e. The privilege Team is obligated to preserve only "l awyer~lient and other related l e gally- recognized privileges," and it must pre serve those pri vileges only ~to the ful l est extent possible in a manner consistent with [the se) Order[s].w




f. The Orders also impose a requirement chat counsel acknowledge that they wil l comply wi th the Orders. Co~~sel must make this acknowledgeme~t in order to be allowed to meet with their client, even if they d o not intend to bri ng written material into that meeting.

3 . Authority

a. Regulation f or Trial by Mil itary Commission (2011 Edition) (hereinafter RTMC] , paragraph 9 . 1(a) (2) st.ates, " The Chief Defense Counsel shall supervise all defense a cti vities and the efforts of detai led defense counsel and other office personnel and resources pursu~'t to the M.e.A. and the M.M.C., ensure proper supervision and management of all personnel and resources assigned to the Office of the Chief Defense Counsel (OCOC) , and facilitate the proper representation of all accused referred to trial before a military commission appointed pursuant to the M.C.A.n

b. RTMC paragraph 9.1 (a ) (3) states, "the Chief Defense Counsel shal l regulate the conduct of detailed defense counsel as deemed necessary, consi stent with the aforementioned legal authorities [the M.C.A., the M.M.C., this Regulat ion, all Supplementary Regulations and Instructions issued in accordance therewith, and the orders of the commission] as well as subordinate instructions and regulations.~

c. RTMC parag"raph 9.1(a ) (9) states, "The Chi ef Defense Counsel shall take appropriate measures to ensure tha t each detailed defense counsel ~s capable of zealous representation and unencumbered by any conflict of interest. In this regard, the Chief Defense Counsel shall moni tor the activities of all defense counsel (detailed and civilian) and take appropriate measures to ensure that defense counsel remain unencumbered by conflicts of i nterest."

4. Applicable Rules and Regulations

a. Air Force Rules of Professional Conduct (AFRPC of 17 Aug 2005 ) FRPC 5.2 (b) states n [a] subordinate lawyer does not violate these r ules if that lawyer acts in accordance with a supervisory lawyer'S reasonable resolution of an arguable question of professi onal duty."

b. JAGINST 5803.1C, SUbj: Professional Conduct of Attorneys practicing Under the SuperviSion of the Judge Advocate General of 9 Nov 2004: Rule 5.2(b), which guides Navy and Marine Corps judge advocates, is identical to the Air Force Rule, with the added requirement that the s upervisor's resolution must be in T .... rit ing. paragraph 12a of the Navy rules authorizes a covered attorney to seek written informal ethics advice from "supervisory attorneys in the field."

c. Army Regulat ion 27-26 (Rules of Professional Conduct for Lawyers of 1 May 1992.) Rule 5.2 (b) is identical co the Air ?orce and Navy/Marine Corps rule .


2



d. Rule 5.2(b) of the Model Rule of Professional Conduct [hereinafter Model Rule] is identical to each of the Service rules.

e . AFRPC Rule 1.6(a), and JAGINST 5803 . 1C Ru l e 1.6(aJ provide that. a l awye r "shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are implicitly authorized in order to carry out the representation.~

f. Army Regulation 27-26 Rule 1.6(a). and Model Rule 1.6(a) i mpose the same obligation of confidentiality as the Army and Navy, with the addition that disclosure is permitted when required or authori zed by law.

g. Ru l es for Military Commissions [hereinaf ter RMC), Rule 502 (d) (7), Di scussion, provides that "Def ense counsel must : guard the interests of the accused zealously within the bounds of the law ... and may not disclose the accused's secrets or confidence s except as the accused may authorize (see also Mil. Corom. R. Evid. 502) . R

h. Military Commission Rule of Evidence (hereinafter MCRE]. Rule 502(a) provides that ~A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client."

i . RMC 701 (j) states that that "Each par ty shall have adequate opportuni ty to p=epare its case and no part y may unreasonably impede the access of another party to a witness or evidence ."

5. Discussion

a. As the supervisor of all of the attorneys assigned to, and operating under the supervision of, the Office of the Chief Defense Counsel, I may provide written "resolution of an a rguable question of profess ional duty. II

b. Rules of Profess i onal Re sponsibility i mpose upon counse l t he obligation to safeguard information r e l a ting to representat ion of a client. Counsel are prohibited from di sclosing such information except in limited circumstances. I have concluded t hat compliance with the Orders would requi re counsel to violate that obligation.

c. In the case o f persons governed by Army Regulation 27-26 or a s t ate code of professional responsibility based upon Model Rule 1.6, I have concluded that the ex istence of the Orders does not qual ify as a legal requirement or authority to di sclose conf identi a l information. See Amer i can Bar Association Center f or Professional Respons i bil ity, Annotated Model Rules of Pro fessional Conduct , 6~t ed., at 108i Virginia State Legal Ethics Opinion 1811 (2005 ) (exception to rule of confident i ality to comply with ~other law or a court o r deru is limited to ·statutes, j udicial rulings, and various types of 3.drninistra tive regulations and rul ings .. [which have been) ' adopted in accordance , .... i th the procedural requirements


3



impose d by Cong ress.'H; quo ting ABA Formal Cp. 95-396 ) (a va ilabl e at http://www.vacle.org/opinions/1Bll.htm).

d . Rules for Military Commission also impose upon counse l the obligation to safeguard client secrets a nd confidences. Counsel are p~ohibited from disclosing such information except in limited c i rcumstances. Rule S02(d) (7). Discussion. For those pe r sons r epresenting clients who are subject to the Rules for Military Commission, I have concluded that compliance with the Orde rs would require counsel to violate that obligat.ion.

e. Rules for Milita~ Commission provide that a party may not impose upon another party unreasonable requirements t o obtain access to witnesses or evidence. RMC 701(j). I have concluded that the Orders impede a cl i ent's access to witnesses and evidence in ways that are inconsistent with the MCA and the MMC, and thus are unreasonable. I have further concluded that co~~sel's compliance with the Orders would amount to an improper forfeiting of the client 's rights under that RMC prov~sion.

f. Military Comm~ssion Rules of Evidence r ecogni ze that a client may prevent other persons from disclos i ng confidential communications. Counsel have an Obligation t o comply with a client's exercise of this privilege . MeRE S02(a). For those persons representing clients who are subject to the provisions of the Military Commission Rules of Evi dence, I have concluded that, absent the client's express waiver of the privilege, compliance with the Orders would r equire counsel to violate their obligation to follow the client's exercise of his rights.

g. The Order Governing Logi s tics of Defense Counsel Access to Detainees Involved in Military Commissions of 27 December 2011 requires that counsel agree to comply with the pre-screening process to ga in access to the cl i ent even in the absence of written ma t erial . I ~~ve concluded that agreeing to comply with the pre-screening process, without the client's express consent, violates counsel's obligation to the client. See e.g. UniCed SCates v. Reid, 214 F.Supp.2d 84, 94 (D.Mass . 2002 ) (requi r ement of counsel's signatur e on form agreeing to abide by terms of Special Admi nistra tive Measures "as a =ondition of the free exerc ise of Reid's Si xth Amendment right to consult with his attorneys fundamentally and impermiSSibly intrudes on the proper role of defense counse l" ) .

6. Guidance

a. Counsel are advised not to s ubmit attorney-client privi leged ~aterials for review to the privilege Team established by the Order Governing Written Communicat ions Management for Detainees I nvolved in Military Commissions of 27 Decembe r 2011.

b . Counsel are advised not to execute / sign the Acknowledgement found as Attachment A to JTF-GTMO ·COR Order Governing Written


4



Communica~ ions Management f or Detainees Involved in Military commissions of 27 December 2011.

c. Counsel are advised not to execute/sign the Acknowledgement f ound as Attachment A to JTF-GTMO- CDR Order Gov erning Logistics of Defense Counsel Access to Detainees Involved in Military Commissions of 27 December 2011.

d . Counsel are a dvised that to the extent that any attorney has previously executed either Acknowledgement addressed in ~b~ or neW above, that Acknowledgement must be withdrawn immediately.

e. Mi litary counsel will forward this Memorandum to any retained military commissions pool counsel in your respective cases immediately.

7. The gu i dance in this Memorandum wi ll continue in force unless superseded by me or other competent authority .


y~ (~lonel' O.S. Marine Corps Chief Defense Counsel

5



USCACase#12-1004 Document #1351946 Filed: 01/10/2012 Page 1 011

;lIiniten ~tlttes QIoud of J\ppeltls FOR THE DISTRICT OF COL.UMBIA CIRCUIT

No. 12-1004 September Term 2011

CMCR

Filed On: January 10. 2012

In re: Mustafa Ahmed AI Hawsawi,

Petitioner

BEFORE: Rogers. Garland. and Brown. Circuit Judges

ORDER

Upon consideration of the petition for writ of mandamus and writ of prohibition; the motion to exceed the page limit for the petition; the motion for leave to proceed in forma pauperis; and the motion for preliminary injunction , the response thereto, and the reply, it is

ORDERED that the motion for leave to proceed in forma pauperis be granted. It is

FURTHER ORDERED that the motion lor leave to exceed the page limit be granted. The Clerk is directed to file the lodged petition. It is

FURTHER ORDERED that the United States l ile. by January 18. 2012. a surreply (not to exceed 10 pages) addressing the arguments presented in petitioner's reply in support of the motion for preliminary injunction, including but not limited to counsel's representations concerning the February 6, 2012 deadline set by the Convening Authority for mitigation submissions in support of a non-capital referral. It is

FURTHER ORDERED. on the court·s own motion. that the United States file a response (not to exceed 30 pages) to the petition by February 1. 2012. and that petitioner file any reply (not to exceed 15 pages) by February 13. 2012. The parties are directed to file the paper copies of their pleadings by hand.


Per Curiam

FOR THE COURT: Mark J. Langer. Clerk

BY: lsi Lynda M. Flippin Deputy Clerk



USCA Case #12-1004 Document #1353949 Filed: 01/20/2012 Page 1 of 1

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12·1004

In re: Mustafa Ahmed AI Hawsawi,

Petitioner

September Term 2011

CMCR

Filed On: January 20. 2012

BEFORE: Rogers, Garland, and Brown, Circuit Judges

ORDER

Upon consideration of the motion for preliminary injunction, the response thereto, the reply, the surreply, and the letter submitted pursuant to Federal Rule of Appellate Procedure 280). it is

ORDERED that the motion for preliminary injunction be denied . Petitioner has not satisfied the stringent requirements for an injunction pending court review, including a showing of irreparable harm. See Winter v. Natural Res. Def. Council, 555 U.S . 7, 20 (2008); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2011). We note the declaration of the 8taff Judge Advocate of Joint Task Force-Guantanamo that petitioner's counsel has been and will continue to be permitted to meet with his client without requi ring counsel to sign the acknowledgments contained in the Order Governing Written Communications Management and the Order Governing Logistics of Defense Counsel Access, and that the suspension of this requirement will continue until the court rules on the petition for writ of mandamus and writ of prohibition .


Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: lsi Scott H. Atchue Deputy Clerk





WASHINGTON, DC 20301-1600

MEMORANDUM FOR The Convening Authority, Military Commissions

Subj: TNABILITY TO SUBMIT MATTERS TN MITIGATION ICO UNITED STATES v. HAWSAWI

Ref: (a) Ltr from CA to Detailed Defense Counsel, granting extension, dtd 3 Oct 11 (b) LtT from CA to Detailed Defense Counsel extending deadline, dtd 7 Dec 11

05 Feb 12

(c) Ltr from Detailed Defense Counsel to CA, seeking extension, dtd 19 Sep 11 (d) Ltr from CA to Detailed Defense Counsel , mitigation specialist, dtd 23 Nov 11 (e) Ltr from CA to Detailed Defense Counsel, denying extension, dtd 3 Febl2 (f) Ltr from Detailed Defense Counsel to CA, seeking extension, dtd 2 Feb 12

I. Mr. MacDonald, at this time, I cannot submit an adequate pre-referral mitigation submission to assist you in your decision-making process. You have given some time but ~ertainly not the tools necessary to provide a meaningful opportunity to prepare an adequate mitigation submission for your consideration.

2. Your extension from 21 September 2011, was predicated on the absence of a properly cleared team-dedicated translator as well as your desire to implement a uniform submission date for all counsel. I Your extension of the deadline, from 15 January 11 to 6 February 12, was based on your recognition that some learned counsel had "not received their security clearances until recently." Ref.(a), (b).

Continued Absence of a Cleared. Team-Dedicated Translator

3. As you arc aware, Mr. Hawsawi's defense team has been without a dedicated Arabic translator since early March 2011 .2 I indicated to you in my 19 September 11 extension request, that until a dedicated translator was cleared and assigned full -time to work collectively with the defense counsel and mitigation expert, Mr. Hawsawi 's defense team would be unable to effectively begin to develop the type of social and familial history required for an adequate precapital decision submission in a case of this complexity and severity. Ref (c). I stressed to you that the lack of a team translator continued to seriously undermine my ability to effectively represent Mr. Hawsawi. The unavailability of a dedicated linguist has continued to frustrate my efforts to prepare any meaningful mitigation submission. 3

I Immediately after my 19 September I I extension request, Mr. Michael Breslin called me and informed me that J should consider the 21 September II no longer applicable. No new submission date was provided at that time. Mr. Breslin expressed concern with the absence ofa team translator for Mr. Hawsawi, and acknowledged that it was not an acceptable state of affairs. 2 A dedicated translator is essential in order to avoid legal conflicts of interest between co-defendants, preserve the attorney-client privilege, and ensure that communications with my client regarding complex legal topics are consistemly possible. 3 On 12 January 2012, Co lonel _ infonned me that additional information had been requested in order to cOflliig~ge6frteNfflllslB~~JPMWl5~e linguist candidates. The candidates needed to provide supplemental intfs>~~~i~M~~W~';W¥2:rhe next day, I contacted Colonel _ and explained that I would be



RE: rNABILITY TO SUBMIT MA TIERS IN MITIGATION ICO UNfTED STATES v. HAWSAWf

4. The defense has at all times exercised due diligence in requesting the assignment of a designated translator. The defense first requested a dedicated translator on 11 March 200 1.4

Subsequently, the names of two candidates for the Arabic translator position were submitted to the Convening Authority's security department, one on 5 May 2011 and the other on 20 July 2011. In onc instance, the translator's security clearance package was not forwarded for action by your security department until after morc than a month had elapsed. Each of these translators already possessed a TS clearance at the time the defense submitted their names. Thus, only the SCI portion of their clearances has been pending review. As of this date, the defense continues to wait on the security clearance process in order to move forward to the next stage of the hiring process. As a result of the delay in clearing these personnel, the defense has not had a team translator since the Administration announced, on April 4, 2011, that Mr. Hawsawi's case would be prosecuted by mi litary commission.

Continued Absence of a Cleared Mitigation Expert

5. In appointing Dr. SelvogS, and later Mr. Guastaferro, as a mitigation expert qualified and necessary to the defense of Mr. l-Iawsawi, you appeared to recognize the qualitative difference of the penalty inherent in a capital case, including the greater degree of accuracy and fact-finding necessary to such a case. Ref. (c), citing Woodson v. North Carolina, 428 U.S. 280, 305 (1976); Gilmore v. Taylor, 508 U.S. 333, 342 (1993). You seemed to recognize that, in capital litigation jurisprudence, a qualified mitigation investigator is essential in order to develop the family and social history component of the mitigation investigation, as well as to "assist counsel in obtaining evidence in support ofa non-capital referral." Ref. (d).

However, you now fail to recognize that Mr. Guastaferro cannot effectively assist the defense in a case of this magnitude because he does not currently possess a security clearance, which is indispensable to proceed with any work in this case. The security rules that have been imposed on this case make it impossible for Mr. Guastafcrro to meet with Mr. Hawsawi,6 or to review any documents designated as Secret or Top Secret SCI, until he receives the appropriate security clearance. The defense is in possession of approximately 1500 pages of classified documents from a government discovery production in 2008; these documents are directly pertinent to Mr. Guastaferro's pre-referral work. Yet, Mr. Guastaferro could not review these documents because he lacks the requisite security clearance. Even more importantly, because of this security status, Mr. Guastaferro could not meet with the client, or discuss with the defense team matters it has learned from the client. You are aware therefore, that Mr. Guastaferro is a mitigation expert on this case in name only; he could not yet function as a full-fledged mitigation expert to assist the defense in preparing the pre-referral mitigation submission which you characterized the defense had "more than adequate time and opportunity to submit." Ref. (e).

willing to take on someone temporarily, but that I needed someone who was dedicated exclusively to my team and consequently fully covered under the attorney-client privi lege. I requested that the candidate have not met with other Guantanamo Detainees in order to avoid conflicts and maintain full confidentiality . I explained that I was simply at a point where I was looking for options to resolve this issue.

4 Mr. _ Mr. Hawsawi ' s previous dedicated linguist, resigned in order to take a position with a different company. S Mr. Selvog withdrew from his appointment as mitigation specialist on 18 October 11 due to unforeseen personal circumstances. 6 1WP.f&~ittlaW~~\:!tlBk1ffefOO case, anyone meeting with Mr. Hawsawi must have a Top Secret si8u~~ctO~~fij,"&CtW&~~#~~ to a Special Access Program pertinent to this case.



RE: INABILITY TO SUBMIT MATTERS IN MITIGATION ICO UNITED STATES v. HAWSAWI

Interference with Attorney-Client Privileged Communications

7. As I detailed in my extension request of2 February 2012, the current ethical questions surrounding the mandated disclosure of privileged material to third parties preclude me from util izing written materials in the course of my representation. Ref (t). The inability to effectively communicate with Mr. Hawsawi since early October 2011 has further degraded my ability to develop and prepare a pre-referral mitigation submission. Meeting with Mr. Hawsawi without the ability to effectively utilize written materials or take notes is not adequate access to my client; this state of affairs directly causes my representation of him to fall far short of the standards required in capital cases.

8. Rule for Military Commission (R.M.C.) 60 I (d) (2) mandates that, "the convening authority may not refer the charge as a capital offense unless the provisions regarding the provision of learned counsel under R.M.C. 506(b) have been met." Without a full attorney-client relationship, which includes the right to full and confidential communications and adequate translation services, Mr. al Hawsawi is not truly represented within the meaning ofR.M.e. 506.

9. Rule of Military Commission 406 provides, that before a charge may be referred to trial by military commission, it shall be referred to the legal advisor of the convening authority for consideration and advice. The discussion section of R.M.e. 406 specifies that your legal advisor "should include when appropriate a discussion of significant aggravating, extenuating, or mitigating factors." Furthennore, " whatever matters are included in the advice, whether or not they are required, should be accurate. Information which is incorrect or so incomplete as to be misleading may result in a determination that the advice is defective." R.M.e. 406 (Discussion). There is no proper way for your legal advisor to fulfill his function in Mr. Hawsawi's case, given the fundamental resource defects in this case that effectively bar the submission of complete information necessary to the referral decision.

10. Your decision to move forward without providing a meaningful opportunity for an adequate mitigation submission to inform your review betrays the new military commissions' professed core values of fairness , transparency and justice. There is nothing fair, transparent or just about this process.


w. B. RUIZ CDR, JAGC, USN Detailed Military Defense Counsel



DECLARATION

T, Walter B. Ruiz, Jr, hereby declare as follows:

1. My name is Walter 8. Ruiz, Jr. I am an attorney in good standing licensed to practice by the highest courts of Florida and Georgia. I am a Judge Advocate General Naval Reserve Officer currently on active duty and assigned to the Office of Chief Defense Counsel, a tenant conunand of the Office of Military Conunissions, Department of Defense.

2. On November 6, 2009, I was detailed by the Chief Defense Counsel, as Lead Military Counsel, for Mr. Mustafa a1 Hawsawi, in litigation pending in the United States Military Commissions ("Military Commissions"). I am also Mr. Hawsawi ' s learned counsel.

3. J have been asked to prepare a declaration stating some of my interactions with Joint Task Force-Guantanamo ("JTF-GTMO") regarding the issue of legal mail and handcarried legal documents. I understand that this declaration will be used to support litigation in the District of D.C. This declaration does not and is not intended to state every fact within my knowledge regarding JTF-GTMO.

4. On October 24,2011, I met with Commander Thomas J. Welsh, United States Navy, Staff Judge Advocate ("SJA"), JTF GTMO. Among other things, CDR Welsh informed me and others present that detention staff had seized and searched Mr. al Hawsawi's legal bin for compliance with the Memorandum of Rear Admiral Mark H. Buzby, United States Navy, dated May 19, 2008 ("Buzby Memo"). At this meeting, I asked if there were specific concerns that precipitated the _ search of mail. CDR Welsh informed me that there were no specific reasons but that the general feeling was that "we needed to get a better handle on what materials were back there." CDR Welsh referred to this process as a "baseline review." I then sought more specific information to c~ understanding that there were no specific security concerns which precipitated _ _ mail. CDR Welsh again reiterated that there were no specific written materials or conduct that had caused a concern prior to the search. CDR Welsh then added that there were no specific security concerns resulting from the search.

Over the course of my representation of Mr. Hawsawi, the policy and procedures outlined in the Buzby Memo, have not applied on balance in such a way as to permanently and consistently intrude on confidential communications. Under the procedures that were practiced for more than three years, commissions counsel have been required to mark each page of any document going to a detainee with counsel's name and Petitioner's detainee number. If there were any questions about any document found in a detainee's possession, therefore, the counsel with whom the document originated could be sought out. Using these procedures without incident, detailed military lawyers for the most part, corresponded effectively with their clients through secure channels established by the

Department of Defense and implemented with the cooperation of JTF-GTMO.




5. On October 26, 201 1, counsel for Abd al Rahim Hussein Muhammed Abdu a1 Nashiri filed a motion in the Military Commissions challenging JTF-GTMO legal mail policy as articulated in the Buzby Memo and as applied.

6. On October 27, 2011, I attended a meeting at court room 2 in Guantanarno Bay. This meeting was CDR Welsh. At this I learned that Mr. al Hawsawi's mail had been 26 October

7. On November 1, 2011, r signed classified and unclassified versions of a letter to the Deputy Secretary of Defense for Detainee Affairs, protesting lTF-GTMO legal mail policy on behalf of Mr. al Hawsawi.

8. On November 22, 2011 , I and others received an email from CDR Welsh, which had as an attaclunent the Memorandum of Rear Admiral D.B. Woods, United States Navy, dated November 22, 2011 ("Revision Memo").

9. On November 29, 2011, I had an approved legal visit scheduled with Mr. al Hawsawi. As instructed by JTF-GTMO, prior to our visit I met with Commander Jennifer A. Strazza, Assistant Staff Judge Advocate, United States Navy, regarding materials we wished to take into the legal visit. After identifying myself, I presented CDR Strazza with two documents, properly marked as attorney-client communications: (1) a copy of the 22 Nov 2011 revision of privileged commtulications screening procedures signed by Admiral Woods and (2) a 99 page document prepared by an analyst pursuant to my directions, which contained work relevant to Mr. a1 Hawsawi's defense. CDR Strazza opened the materials and immediately indicated that the Revision Memo from RDML Woods regarding JTF-GTMO's legal policy was not legal material as it constituted a third party communication. CDR Strazza then asked me if the rest of the materials included third party materials. I indicated that I considered all of these materials to be covered as attorney-client commtulications and work product. CDR Strazza then reviewed the second document. CDR Strazza was clearly looking at each page and taking a look at the materials on the page. CDR Strazza examined each page in this manner, taking a few seconds on each page, with enough time to detennine the nature and content of the documents. CDR Strazza then indicated that the document would not be allowed, as it did not meet the definition of Legal Material under RDML Woods 'Revision Memo, which she notcd was predicated on Judge Pohl's ruling. I replied that Judge Pohl's order was not binding on my case. CDR Strazza indicated that Judge Pohl's guidance was being implemented and applied to all cases. I took back the documents and questioned CDR Strazza on the current application and definition of the legal mail. I asked CDR Strazza to confinn that JTF-GTMO's own mail policy is not considered a matter of confidential attorney client communications. After CDR Strazza confinned that JTFGTMO's legal mail policy was not considered legal mail, I asked that CDR Strazza justify the exclusion of work-product created by my team which contained our thoughts and impressions. CDR Strazza alluded to the appearance of the contents of the document and also indicated that it was not addressed from me to the client. I told CDR Strazza that




she was putting me in a position to justify and explain to her further why this document is relevant to my client's case, a justification which would require disclosure of attorneyclient privileged infonnation. CDR Strazza then asked me to "certify" that the documents were prepared by me. I affirmed, again, that my tearn and I had prepared these documents . At that CDR Strazza said that the second document could

10. On November 30, 2011, I had an approved legal visit scheduled with Mr. al Hawsawi. As instructed by JTF-GTMO, prior to our visit I met with LT _ , regarding materials we wished to take into the legal visit. After identifying myself, I presented L T _ with two documents, properly marked as attorney-client communications: (1) a letter from the Convening Authority approving the defense request for the assignment of Mr. Joseph Guastaferro as mitigation expert in Mr. Hawsawi's case; (2) a copy of the transcript for Mr. al Nashiri' s hearing of 09 November 2011. LT _ briefly thumbed through the documents and said that they did not fal l within the definition of "privileged communications and would have to go to the client through non-legal mail channels." LT _ retained the documents and promised to route them through non-legal mail channels.

11. On December 14, 2011 , I electronically mailed eighteen established secure electronic channel for delivery to Mr. al Hawsawi

acting as defense courier. According report, accepted only four items for delivery to

although all were properly marked as attorney-client communication. The remainder of the mail was refused. I

12. On December 23, 201 1, I electronically mai led twenty two documents including a four page personal an established secure electronic channel for . to Mr. al Hawsawi acting as defense courier. According mail del ivery mai l package was rejected. 2Therefore, D,:Ce"mii:ei is the last known communication that has reached the client. January 4, 2012 is the first opportunity to travel to GTMO since December 5 2011.

1 The documents are not listed here due to confidentiality concerns. The list of documents is available should the Court wish to review in camera. 2 The documents are not listed here due to confidentiality concerns. The list of documents is available should the Court wish to review in camera.




As of today. no working privilege team exists. No mail is currently being delivered per CDR Strazza, ASJA JTF-GTMO.

,~,~ .. '.re~;", "~~. '~".'''''.~

Walter B. Ruiz, Jr.



Download - WALID MUHAMMAD SALIH For Defective Referral MUBARAK BIN ... · KHALID SHEIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN AL SHAIBAH, AMMAR AL BALUCH (ALI ABDUL AZIZ

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