walid muhammad salih for defective referral mubarak bin ...· khalid sheikh mohammad, walid muhammad

Download WALID MUHAMMAD SALIH For Defective Referral MUBARAK BIN ...· KHALID SHEIKH MOHAMMAD, WALID MUHAMMAD

Post on 02-May-2019

216 views

Category:

Documents

0 download

Embed Size (px)

TRANSCRIPT

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.

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

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 RELEASE

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.

Th is document has been renumbered to AE008(MAH) effective 5 May 2012. 3

UNCLASSIFIEDIIFOR PUBLIC RELEAS E

UNCLASSIFIEDIIFOR PUBLIC RELEASE

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.

Th is document has been renumbered to AE008(MAH) effective 5 May 2012. 4

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

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

Recommended

View more >