v. mr. al baluchi's response khalid shaikh · pdf filearraignment script. as a starting...

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UN ITED STATES OF AMERICA

v .

KHALID SHAIKH MOHAMMAD, W ALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN AL SHIB H, ALI ABDUL-AZIZ ALl , MUSTAFA AHMED

ADAM AL HA WSA WI

I. Timeliness: Th is response is timely filed.

AE 037 A(AAA) Mr. al Baluchi 's Response

to Government Mot ion Regarding Accused's Presence During Comm ission Proceedings

24 May 20 12

2. Burden of proof: As the moving party, the prosecut ion bears the burden of proof on any

factual issue. RMC 905(2)(2) .

3. Relief Sought: This commiss ion should deny AE037 Government Mot ion Regarding

Accused's Presence During Commiss ion Proceedings as premature, and advise Mr. a1 Baluchi of

the consequences of voluntary abse nce under RMC 804. The comm iss ion should also order JTF-

GTMO not to conduct any forced ce ll extract ion to secure the presence of Mr. a1 Baluchi for a

hearing without spec if ic authorization from the comm iss ion.

4 . Overview: Like any other criminal defendant, Ammar al Baluchi has a Sixth and

Fourteenth Amendment ri ght to be present at each stage of the proceedings against him. He may

wa ive th is ri ght, however, explic itly or by hi s conduct. RMC 804 clearl y reflects both the ri ght

to presence and the waiver by voluntary absence provided e lsewhere in the law, and does not

incl ude the problematic "good cause" standard advocated by the prosecution. To avoid

unintended consequences, th is mili tary comm iss ion should order ITF-GTMO not to cond uct any

forced cell extraction to secure the presence of Mr. al Baluch i for a hearing without spec ific

authorization from the comm ission.

Filed with T J 24 May2012

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UNCLASSIFIEDIIFOR PUBLIC RELEASE Appel late Exhibit 037A (AAA) of10


5. Facts:

a. On informat ion and belief, Joint Task Force-Guantanamo Bay has a po licy of

forced cell extraction to secure the presence of a defendant who declines to attend a hearing of

the mili tary comm issions, including a hearing other than an arra ignment.

b. Mr. a1 Baluchi demands proof of factual matters the government pleads on

information and be lief in § See) of its AE037 Government Motion Regarding Accused's

Presence During Comm iss ion Proceed ings.

6. Law and Argument:

AE037 Government Motion Regarding Accused's Presence During Commission

Proceed ings does not seek any actual relief. Instead, it requests thi s commiss ion to rule in the

abstract on an issue that has not yet arisen: under what c ircumstances can one of the defendants

imp li c itly or exp lic itl y wa ive the ir presence at tr ial? Th is commiss ion should deny the

government's motion as premature and rule on the issue of waiver if and when it is presented. In

the meantime, the comm iss ion should advise Mr. al Baluchi of the consequences of voluntary

absence in accordance with the proposed arra ignment script. The comm ission should also order

that ITF-GTMO shall not cond uct a forced cell extract ion to secure the presence of Mr. al

Baluchi for a hearing without spec ific authorization from the commiss ion.

A. The military commission should advise Mr. al Baluchi of the consequences of absence in accordance with RMC 804.

Onl y one actual controversy is pending before the mili tary comm iss ions: whether to

adv ise the defendants of the consequences of non-appearance in accordance with the proposed

arraignment script. As a starting place, the mili tary conun ission should adv ise Mr. al Baluchi of

the consequences of non-appearance.


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UNCLASSIFIEDIIFOR PUBLIC RELEASE Appel late Exhibit 037A (AAA) of 10


At the arra ignment in the capital case of United States v. at Nashiri, the mili tary

comm ission advised the accused that he has a ri ght to be present at every stage of the

proceedings, but that that the proceedings can continue without him i f he is voluntaril y absent. I

When the mili tary commiss ion came to that port ion of the script in the 9/ 11 case, the military

commiss ion inquired as to whether RMC 804 applied in a cap ital case,2

RMC 804 and other author ities provide that Mr. a1 Baluchi has a ri ght to be present at all

stages of the proceedings, but that the proceedings may go on without him in certa in

c ircumstances, includ ing hi s voluntary absence. Th is rule is applicable whether or not the

mili tary comm ission accepts the prosecut ion invitat ion to rule in advance on the spec ific

c ircumstances wh ich may just ify a finding of vo luntary absence. This m ili tary commiss ion

should advi se Mr. al Baluchi of hi s ri ght to be present, and warn him of the poss ible

consequences of hi s absence, in accordance with we ll -establi shed law in both Art icle III courts

and Art icle III courts-mart ial.

B. Mr. al Baluchi has a Sixth and Fourteenth Amendment right to be present at all critical stages of the proceedings, but that right may be waived by conduct.

The government correct ly argues that the defendants have "a right to be present."} Th is

ri ght of presence derives from the Confrontation Clause of the Sixth Amendment and the Due

I Transcript of 9 November 20 11 , United States v. at Nashiri, at 173-74. The government did not object to this coll OCJuy, or rai se any purported except ion in capital cases. 2 Transcript of 5 May 20 12, UI/ited States v. Muhammad, at 222-26. 3 AE037 at I.

Filed wilh T J 24 May2012

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Process Clause of the Fifth Amendment.4 Any wa iver of the right to be present at trial must be

knowing, voluntary, and in telligent. 5

Cit ing Diaz v. United States,6 the government notes that at one poin t, the law recognized

a di st inct ion between the wa iver of presence by a capita l and a non-capital defendant. The

Supreme Court has never directly ruled on the capacity of a defendant to waive the ir presence at

a cap ital triaL7 The First and Nin th Circu its have held that the cap ital/non-capital di stinct ion in

wa iver of the ri ght to presence has not survived the century since the Supreme Court decided

Diaz.s The Eleventh Circu it, on the other hand, has held that a capital defendant cannot waive

hi s or her ri ght to be present at tria1. 9 Interest ingly, the govern ment does not go so far as to

advocate the applicat ion of the no-capital-waiver rule.

The government misstates contro lling law, however, when it claims that "such a waiver

must be made in person and on the record in open court. "I O T he ri ght to be present cannot be

waived by an attorney without the client' s consent, but, as with all rights, " [w]hether the personal

4 See United States v. Gagnol/, 470 U.S . 522, 526 (1985) (per curiam); see also, e.g. , Campbell v. Wood , 18 F.3d 662, 67 1 (9· Cir. 1994) (en bane) . 5 See, e.g., Brookhart v. Janis , 384 U.S. 1, 7-8 (1966) (holding that wa iving ri ght to plead not guilty requires knowing, voluntary, and in telligent wa iver); Johl/son v. Zerbst, 304 U.S . 458, 463-64 (1938) (ho lding that right to counsel requires knowing, vo luntary, and in te lligent waiver) . 6 AE037 at 8 (c iting Diaz v. United States , 223 U.S. 442, 455-56 (19 12). 7 See Drope v. Missouri , 420 U.S . 162, 182 (1975) (reserv ing issue); see also L 'Abbe v. Dipaolo, 3 11 F.3d 93, 97 ( I SI Or. 2(02) (explaining that the Supreme Court has not directly addressed the issue) . 1:\ See United States v. Mitchell, 502 F.3d 93 1, 987 (9111 C ir. 2007) (quot ing Campbell v. Wood, 18 F.3d 662, 672 (9th Cir. 1994) (en bane)); L 'Abbe, 3 11 F.3d at 98 n.4.; Campbell v. Wood, 18 F.3d 662, 672 (9th C ir. 1994) (en bane) (,There is no princ ipled bas is for li miting to noncapital offenses a defendant's abili ty knowingly, volun taril y, and intelligently to wa ive the r ight of f resenee.") .

See Hall v. Waillwright, 733 F.2d 766, 775-76 ( 11 111 Or. 1984); Proffitt v. Wainwright, 685 F.2d 1227, 1257-58 ( II " C ir. 1982), modified, 706 F.2d 3 11 (II " C ir. 1983). The Eleventh Circu it has described the holding in Allen as "a limi ted exception to the no-waiver rule for defendants who will fu ll y disrupt the ir trials." Proffitt, 685 F.2d at 1258 . 10 AE037 at 10.


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consent must be exp li cit or can be detemlined by a course of conduct may be another matter." ll

In IIlil/ois v. Allen, the Supreme Court explic itly held that the ri ght to presence can be wa ived by

a course of conduct. 12 In Taylor v. United States , the Supreme Court explic itly held that a

volun tary absence after ini tial presence sat isfies the Zerbst standard for a knowing, voluntary,

and intelligent waiver of the ri ght to presence. 13 The Supreme Court has even held that a criminal

defendant can wa ive the ri ght to be present s imply by not assert ing it. 14 There is simply no

authority for the government's cla im that abandonment of the right to presence requires an in-

person on-the-record waiver as opposed to a waiver shown by conduct.

C. RMC 804(c) reflects the constitutional principle that a defendant may waive the right to presence by his conduct.

The government 's attempt to parse RMC 804(c) out of its plain meanmg cannot

overcome the s imple fact that the rule perm its the comm ission to determine the wa iver of the

right to presence on the basis of conduct. RMC 804(c), tit led "Continued presence not req uired,"

provides in relevant part that "the accused shall be considered to have waived the ri ght to be

present whenever an accused: ( I) is voluntaril y absent after arra ignment ." RMC 804(c) is

unambiguous as well as consistent with Rule for Court-Mart ial 804, Federa l Rule of Cr iminal

Procedure 43, and the Supreme Court caselaw.

II Gonzalez v. Ullited States , 553 U.S . 242, 247-48 (2008) . 12 Illinois v. Allen, 397 U.S . 337, 343 (1970); see also Snyder v. Massachusetts, 29 1 U.S . 97, 106 (1934) (not ing that ri ght to personally confront witnesses can be wa ived by consent or misconduct) . 13 Taylor v. United States, 4 14 U.S . 17, 19-20 (1973); cf Crosby v. United States, 506 U.S . 255, 26 1 ( 1993) (holding that Federal Rule of Criminal Procedure 43 recognizes a di stinction between absence followin g ini tial presence and ini tial absence) . 14 United States v. Gagllon, 470 U.S. 522, 529 ( 1985) (per curiam) (applying Federal Rule of Criminal Procedure 43) .


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The structure of RMC 804 supports the plain reading of RMC 804(c) the mili tary

commiss ion stated during the arra ignment. l s RMC 804(a) requires the presence of the defendant

at most stages of the proceedings, "except as otherwise prov ided by thi s rule." The exceptions

authorized in RMC 804(a) appear in RMC 804(b) and (c), and include the voluntary absence of

the defendant as provided in RMC 804(c)(J). RMC 804(c) goes on to prov ide that, "An accused

who is in military custody or otherwise subject to mili tary control at the time of tr ial or other

proceeding may not properl y be absent from the trial or proceeding without securing the

permission of the military judge." This prov is ion all ows the m ili tary comm iss ion to require a

defendant' s appearance if necessary, such as for identificat ion by a witness. Read as a whole,

RMC 804 clearly pemlits the military judge to accept a defendant' s voluntary absence and

proceed without him.

Interest ingly, the government c ites as authority Hamdan v. RUIII.geld,16 wh ich spec ificall y

identified consent as a bas is for not be ing present at trial. In Hamdall, a p lurali ty app li ed Art icle

75 of Protocol I of the Geneva Conventions of 1949 as customary law. Under these princ iples,

the p lurality reasoned, "an accused must, absent di sruptive cond uct or Co/Hent, be present for hi s

15 In fram ing the issue, the mili tary comm ission stated, [U]nder the Rules for M ili tary Comm ission 804, it appears to explic itl y perm it an accused, with notice of the time of a hearing, . . the ri ght not to appear unless required to ... because of some other trial contingency. For example, the accused have no ri ght not to show up at the arra ignment, or perhaps there 's an identif icat ion issue. But on the other hand, if it 's s imply a legal issue that the accused chooses not to come, the rules appear to let him, aga in, after not ice of the time and date of hearing, not to come.

Transcript of 5 May 20 12, United States v. Muhammad, at 222 . 16 AE037 at 2 (c iting Hamdal1 v. Rums/eld, 548 U.S. 557, 634 (2006)) .


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trial and must be privy to the evidence against him.,,17 The voluntary absence provision of RMC

804(c)(I) embod ies this principle.

D. This commission should not adopt the prosecution's proposed "good cause" standard , especially in the absence of any explicit or implicit waiver of presence.

Although the text of RMC 804 is plain enough, the government seeks to create an

additional inquiry into the reasons a defendant m ight wa ive become voluntaril y absent. It is

difficult to see how such a standard would apply to the many forms that voluntary absence might

take, ranging from drug overdose to injury in a forced cell extract ion. Apparentl y, the

government seeks to app ly its good cause standard to onl y one situat ion, in which a defendant

vo ices a desire not to attend a hearing.

Other than its concern for the defendants' Sixth Amendment ri ghts, the government

offers li ttle reason to adopt a standard the SECDEF chose not to include in RMC 804 . The

govern ment's proposed "good cause" rule- wh ich does not appear in Ru le 804 proper- would

create perverse incentives . Clearl y, the government cannot endorse the types of misconduct

courts and courts-mart ial have accepted as voluntary absences, including escape, self- injury, and

overdose. By impos ing an overl y stringent "good cause" requirement, the government would

incentivize misconduct in a defendant reluctant to appear and encourage behavior which it may

later seek to use as ev idence in aggravation of punishment.

The government' s proposed "good cause" rule also demonstrates the advisory nature of

the ruling the govern ment seeks. The mili tary comm iss ion is not faced with any set of facts

requiring adjudication. Any applicat ion of a good cause standard- stringent or lenient- at th is

point is merely a hypothetical, because no defendant has explic itly or implic itly wa ived the ir

17 Hamdall, 548 U.S . at 634 (pluralj ty op.) .


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right to presence. If Mr. a1 Baluchi seeks to wa ive hi s presence by word or conduct , the military

comm ission w ill have to address the facts of that attempted wa iver in the context of the

c ircumstances at the time. Consider a s ituat ion in wh ich Mr. a1 Baluchi reports to JTF-GTMO

staff that he is too ill to come to court, but is willing to allow the proceedings to go forward:

Relevant factors m ight include the severity of the illness, the nature of the symptoms, the

opmlons of med ical personnel, a hi story of related medical problems, the likelihood of

malingerin g, the nature of the hearing affected, and the avail abili ty of other court dates. G iven

the broad range of poss ible scenar ios, an advisory ruling on what facts might or m ight not

const itute gocxl cause will do li ttle to ass ist either the military comm ission or the part ies.

E. This military commission should order JTF-GTMO not to conduct a forced cell extraction to secure the presence of Mr. al Baluchi for a hearing without specific authorization from the commission.

The major issue underl ying the government' s motion is the question of forced cell

extraction. The "amount of force necessary,,1 8 referenced by the govern ment apparently includes

the use of violence to remove a reluctant pr isoner from hi s ce ll to deliver him for a hearing.

Clearl y, the use of violence to remove a prisoner presents ri sks of injury to both prisoners

and staff. The mili tary comm ission, not ITF-GTMO, should make the deci s ion whether to incur

these ri sks to bring a defendant to a mili tary commiss ions hearing. After all , the military

commiss ion has the authority to grant its perm iss ion for a defendant to be absent, and noth ing in

RMC 804(c) requires that dec is ion to be made weeks or months in advance of a hearing.

By analogy to an Art icle III court , the mili tary comm iss ion has the authority to order

ITF-GTMO not to forc ibly remove Mr. al Baluchi from hi s cell in order to attend a military

commiss ions hearing. In at Wady v. Obama , the D.C. District Court ordered a Guantanamo Bay

" AE037 at 5.


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prisoner to meet with hi s prospect ive habeas counsel so that the attorney could assess whether

the prisoner' s refusal of counsel was knowing, voluntary, and intelligent. 19 The court, however,

ordered that JTF-GTMO should not resort to a forced cell extraction to bring the pr isoner to a

hearing room, but rather not ify the court of any refusal to leave his cell. 20 Th is mili tary

commission should fo ll ow a s imilar procedure.

7. Request for Oral Argument: Oral argument is requested.

8 . Request for Witnesses: Mr. a1 Baluchi will request attendance by a ITF-GTMO witness

responsible for forcible cell extract ion policy.

9. Additional Information: None.

10. Attachments:

A. Cert ificate of Service.

Very respectfuUy,

IIsll JAMES G. CONNELL, III Detailed Learned Counsel

Counsel for Mr. al Baluchi

1Is11 STERLING R. THOMAS Lt Col , USAF Detailed M ili tary Defense Counsel

19 See at Wady v. Oha",a , 623 F. Supp. 2d 20, 24 (DD.C. 2(09). >J Id.


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UNCLASSIFIEDIIFOR PUBLIC RELEASE Appellate Exhibit 037A (AAA) of 10


CERTIFICATE OF SERVICE

I cert ify that on the 24th day of May, 20 12, 1 electronica ll y fi led the foregoing document

with the Clerk of the Court and served the foregoing on all counsel of record bye-mail.


IIsil JAMES G. CONNELL, Ill, Leamed COimsel

10

UNCLASSIFIEDIIFOR PUBLIC RELEASE Appel late Exhibit 037A (AAA) Page IOof10

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