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MILITARY COMMISSIONS TRIAL J UDICIARY GUA NTANAMO BA Y, CUBA

UNITED STATES OF AMERICA

AE 013JJ-l Government's Response To Defe nse Mot ion to Amend AE Ol 3AA Protect ive Ord er # I to Pennit Defendant to Part ic ipate in Hi s Own Defense
20 May 20 13

v_
KHALID SHAIKH MOHAMMAD, WALID M UHAMMAD SALIH M UBARAK BIN ATTASH, RAMZI BINALSHIBH, ALI ABDUL AZIZ ALI, M USTAFA AHMED ADAM AL HAWSAWI
1. Timeliness.

Th is response is fil ed time ly pursuant to Mili tary Commiss ions Trial Judic iary Rul e of

Court 3. 7.c( I).

2. Relief Sought.

The Prosecut ion respect full y requ ests the Commiss ion deny the Defense mot ion to
amend paragraphs 6(g), 6(i), 8(a), and 8(a)(2)(b) .

3. Overview.
"Und er no c ircumstance s maya mili tary judge ord er the release of cl assified in fo rmation

to any person not authorized to rece ive such informati on. " See 10 U.S .c. 949p- l (a); M.C.R.E. 505(a)(I ) (stat in g "[t] hi s rule appli es to all stages of the proceedings"). In its proposed
amendments to Protect ive Ord er # I, however, th e DeF ense seeks to create a deFault mechani sm by which all cl assifi ed di scovery wou ld be prov ided to the Accused in thi s case. Based on the statutory and regulatory prov isions of the Mili tary Commissions Act and Mili tary Commiss ion Rul es of Ev idence governin g di scl osure of cl ass ifi ed inFormat ion, and consistent with Federal court practice under the Class ifi ed Informat ion Procedures Act (C IPA) , the Commission must

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deny the Defense mot ion. C leared defense cou nsel for each of the Accused w ill have the opportuni ty to review cla ss ifi ed discovery once he or she s igns the Memora nd um of Understanding (MOU) and submits it to the Trial Judiciary and Prosecut ion. I Where there is no const itut ional ri ght to discovery, it is the defense counsel, not the Accused, who must be able to review all discovery, classifi ed or otherw ise, in order to prepare and present a defense. See

Pel1llsylania v. Ritchie, 480 U.S . 39, 59-60. ( 1987)(,'There is no ge nera l constitutional ri ght to
di scovery in a crim inal case.")

4. Burden of Proof.
The Defen se must demon strate by a preponderance of the ev idence that the requested relief is warranted. R.M .C 905(c)(2).

5. Facts.
On 9 February 20 13, the M ili tary Commission issued AEO 13AA Amended Protect ive Order # I. On 19 February 2013, cou nsel for Mr. Ali s igned the Amended Memorandu m of Agreement in accordance w ith AEO 13AA Amended Protect ive Order # I. On 18 March 20 13, the Prosecution provid ed 16 pages of cl ass ifi ed di scovery unrelated to the ROt program to counsel for Mr. A li. On 8 May 20 13, cou nse l for Mr. Bin Attash filed a not ice of joinder . See AE

o13JJ(WBA).

Desp ite the Commiss ion 's admoni shment in the February 2013 hearing, M r. Conn ell and Lt Col Thomas are the onl y attorneys who have s ig ned and submitted the requi s ite MOU.
I

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6. Law and Argument.

I. The Proposed Amendments to Protective Order #1 Are Impermissible Under the

Military Commissions Act and Military Commission Rules of Evidence.

The law regarding di sclosure of classifi ed information to the Accused is clear. "U nder no c ircumstances maya mili tary judge order the release of classifi ed in format ion to any person not authorized to receive such infonnat ion. " See 10 U.S .c. 949p- l (a); M.C.R.E. 505(a)( I) (statin g "[t] hi s rule app li es to all stages of the proceedin gs") . The Defense's proposed amend ments to

paragraphs 6(g), 60), 8(a), and 8(a)(2) seek to provid e the Accused in this case all class ifi ed
infonnation di scovered by the Prosecution. The wholesale di sclosure of classifi ed in format ion in a terrorism trial is not onl y inappropriate; but it is also impenn iss ible und er the M ili tary Commiss ions Act and Mili tary Conun iss ion Rule s of Evid ence. Asc ited in PennsyLvania v. Ritchie, 480 U.S . 39 ( 1987), "[t]here is no ge neral const itut ional right to discovery in a crimin al case . .. " Penllsylvania, 480 U.S . at 59-60 citing Weatherford v. Bursey, 429 U.S . 545, 559 ( 1977). Th is view is consistent with the Uni ted States Court of Appeals for the Second Circu it's op ini on in 111 re Terrorist Bomhings of US Emhassies
ill East Africa v. Odeh, 552 F.3d 93 (2008) regarding discovery:

Our understandin g that product ion of materials to a party's attorney alone fall s w ith in the common meaning of 'discovery' further strengthen s our convict ion that discovery restriction s imposed by the Di strict Court were perfect ly appropr iate and valid in li ght of the standard by wh ich our Court determine s when the government' s privil ege 'must give way to a criminal defendant' s ri ght to present a meanin gful defen se. 111 re Terrorism Bomhings of US Emhassies in East Africa, 552 F.3d at 126 citing United States v. Are/, 533 F.3d 72, 79 (2d . C ircu it 2(08); see also id. at 79-80 (a dopting the stand ard set forth in Roviaro v. United States, 353 U.S. 53,77 ( 1957). Wh il e the Defense c ites 111 re Terrorist Bombings of US Embassies ill East Africa to illu strate that the Second Circu it consid ered

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defendant access to class ifi ed informat ion as "an aspect of the ri ght to present a defense," the Defense fa il s to acknowledge the Court's actual holding in that case: "the Di strict Court's deci sion to impose a mandatory clearance requirement for access to classified in format ion, pursuant to CIPA, was we ll w ithin its informed di scretion." Id. at 123 . As suc h, EI-Hage, the defendant, was never provid ed access to c lass ifi ed discovery. In fact, the Second Circuit further

held, " ... it is clear that any interest EI-Hage had in personall y in spect in g the material was
in sufficient to outwe igh the government' s in terest in avo idin g unauthorized disclosure s of class ifi ed in fonnat ion. " /d . at 125 . Simil arl y, the Defen se seeks to further its argument by c iting nu merous protect ive orders entered by federal di strict courts in cases in volv ing class ifi ed informat ion. The reference to these protect ive orders as examples of instances where "federa l courts have spec ificall y penn itted the defendant blanket access to classifi ed di scovery" is utterly inaccurate . See AE I3JJ at 5. Desp ite the attachments incl uded in the Defense mot ion, the Defense fail s to c ite an actua l terrorism case where the govern me nt provided a criminal defendant w ith wholesale access to class ifi ed discovery. In fact, no such case ex ists. Instead , the Defense makes much of these protect ive orders whil e failing to acknowledge that the major ity of these orders governed cases where the heart of the government's all egat ions was the class ifi ed informat ion at issue (e .g., an esp ionage case involv ing unauthorized di sclosu re of classified informat ion by an indi vid ual possess in g a security c1earance).2 For the remaining protect ive orders c ited by the Defense,

2 See AEO 13JJ Attachment E , United States v. Campa, Southern Di strict of Florida (Five agents of the Cuban Directorate of Intelli gence were charged w ith espionage aga in st the Uni ted States military and Cuban exil es in Southern Florid a); Attachment F, United States v. Kiriakoll , Eastern Di strict of V irg ini a (Former CIA officer charged w ith unauthor ized di sclosu re of a covert officer's id enti ty and other classif ied in fonnation and ly in g to C IA's Pub licat ions Review Board ); Attachment G United States v. Smith , Ce ntral Di strict of Ca liforni a (FBI Spec ial Agent charged w ith gross neg ligence for all ow in g an FB I asset and Ch inese spy access to class ifi ed

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where class ifi ed infonnat ion was not the substance of the govern ment's all egat ions, the Defense' s argument is even more in accurate. Eve n a cursory reading of these protect ive orders reveal s that no defe nd ant in a terrorism tr ial was provided blank et access to classifi ed information. 3

infonnat ion); Attachment H, United States v. Poindexter, Di strict Court for the Di strict of Colu mb ia (Former Nat ional Security Advisor charged w ith ly ing to Congress about Iran-Contra; Attachment I, United States v. Jasil1 , Eastern Di strict of Penn sylvani a ( Hi gh-ranking officer in a military technology company charged w ith consp iring to ill egall y transfer weapons and money to South Africa); Attachment J, United States v. Jon es, Di strict Court for the Di strict of Co lu mbia (State Department employee charged w ith prov idin g class ifi ed documents to a Cameroon nat ional); Attachment K, United States v. Pitts, Eastern Di strict of V irgini a (FB I Spec ial Agent charged w ith consp iracy to commit esp ionage for Russ ia and the former Soviet Uni on); Attachme nt L, United States v. Lee, Di strict of New Mexico (Nuclear Physic ist employed at Los A lamos charged w ith mishandlin g class ifi ed in format ion); Attachment M , United States v. Libby, Di strict Court for the Di strict of Columbia ( Hi gh-rankin g U.S . Governm ent offic ial charged w ith obstruction, fa lse statements, and perjury relatin g to the ill egal leakin g of class ifi ed identity of a covert C IA agent); Attachment N, United States v. Franklill , Eastern Di strict of Virg ini a (Department of Defense employee charged w ith conspiracy to commu nicate national defense infonnat ion and conspiracy to communicate national defense infonnat ion to an agent of a forei gn govern ment); Attachme nt 0 , United States v. Drake, Northern Di strict of Maryland (NSA contractor charged w ith w illful retention of nat ional defense informat ion); Attachment P, United States v. Sqllillacote, Eastern Di strict of V irgini a (Hu sband and w ife charged w ith consp iracy to commit espionage aga inst the U.S . on behalf of East Germany, Sov iet Uni on, Russia , and South Africa); Attachment Q , United States v. Sterling, Eastern Di strict of V irgini a (Fonner CIA employee charged w ith unlawful detenti on and unl awful di sclosure of nat ional defen se infonnat ion to a jou rna li st) and ; Attachment U, United States v. Kim , Di strict Court for the Di strict of Colu mbia (Seni or Analyst at Li vennore Nat ional Laboratory charged w ith unauthorized disclosure of nat ional defense information to a journali st). 3 See AEO I 3JJ , Attachment 0 , United States v. Milsa ("Defen se cou nsel and the defendants shall be g iven access to class ifi ed nat ional security documents m,' Ile ce~..sary to prepare for proceedin gs in th is case in accordance w ith the terms of the Protect ive Order."); Attachme nt R, United States v. MOlIssaolli ("Ifit is Ilecessary for a defendant to review or di scuss class ifi ed matters, or otherw ise meet w ith defense counsel, in the Secure Area, thi s w ill only occur und er appropriate supervi s ion ... "); Attachment S, United States v. Holy Lalld ("If, UpOIl entry of a !.eparate order of the Court, it becomes Ilecen'ary for defendant(s) to review or di scuss class ifi ed matters, or otherw ise meet w ith defense counsel, in the Secure Area , th is w ill only occur under appropriate supervi s ion ... "); Attachment T , United States v. Amawi (Counse l for the government shall be g ive n an opportu ni ty to be heard in response to any defen se request for di sclosure to a person not named in th is Order, including any defendant. "); Attachment V , United States v. Aref("Upon applicat ion by defense counsel, an in camera hearing w ill be held , in the presence of the Court Security Officer, to determine whether aud to what extent the

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The Prosecut ion agrees that the Defense may prov ide to the Accused any informat ion prev iously provid ed by an Accused to the Defen se and therefore, does not object to proposed subparagraph ( l) of paragraph 6(i). Based on the arguments above, however, the Defense may not prov id e class ifi ed pleadin gs filed w ith the M ili tary Comm iss ion to the Accused and therefore objects to proposed subpa ragraph (2) of paragraph 6(;)4 Proposed subparagraph (3) of paragraph 6( i) is unnecessary as the Prosecut ion must already comply w ith the statutory and regu latory provis ions ma nd at ing that any infonnat ion admitted into ev idence be prov ided to the Accused. See 10 U.S .c. 949p- l (b); M .C.R.E. 505(a)(2). The Prosecut ion objects to proposed subparagraph (4) as the Accused are not authorized to receive classif ied in format ion and therefore, may not be present during certa in pretrial hearings where classif ied in fonnat ion is di sclosed. See 10 U.S .c. 949p- 1(a); M .C.R.E. 505(a)(l) (stat in g "[t]h is rule appli es to all stages of the proceed ings") .s F in all y, the Prosecution objects to proposed subparagraph (5) of paragraph 6( i) where the Defense seeks to create a new default category of classif ied discovery to the Accused . Where discovery is in tend ed for release to the Accuse d, the Prosecut ion w ill mark the document appropriately. As discu ssed supra, "[u]nder no c ircumstances maya m ilitary judge order the release of classifi ed infonnat ion to any

defendants !.-JlOuld be grallted access to cenaill clanified illjonnatioll w ithout having received secu rity clearances.") emphasis ad ded . 4 As discu ssed 111 re Terrorist Bomhillgs of Embassies ill East Africa, the government submitted a memorandum of law argu in g for the necess ity ofa mandatory clearance requirement: "AI Qaeda also moni tors court papers related to trials of al Qaeda assoc iates. For example, ... Ali Mohamed [(a defendant in the in stant case)] sent a document concern ing the tr ial of She ikh Omar Abdel Rahman , wh ich took place in the Southern Di strict of New York, from Ca liforni a, where he then li ved, to the defendant Wad ih EI Hage in Kenya for further delivery to [O]sama Bin Laden. Upon infonnat ion and be li ef, the document sent by Mohammed (who was not a defendant in that case) was prov ided to the defense in that case, but not publicl y tiled. See 111 re Terrorist Bombillgs of Embassies ill East Africa, 552 F.3d at 11 7, fn. 22. 5 The Prosecut ion incorporates by reference all arguments made in AE 136 (Govern ment's Memorandu m of Law Regarding Accused Presence Durin g Closed Proceedings .

u.s.

u.s.

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person not author ized to receive such in fonnat ion. " See 10 U.S .c. 949p- l (a); M.C.R.E.
505(a)(I ).

Based on the Prosecution's objections to the proposed subparagraphs in paragraph 6(i), the Prosecut ion also objects to the proposed amendments of paragraphs 6(g), 8(a), and 8(a)(2) .

ll. The Defense Has Yet to Receive Classified Discovery and Therefore Cannot Articulate Classified Information It Wishes to Prov ide to The Accused.
As the Second C ircu it held in 111 re Terrorist Bombings of

u.s. Embassies ill East Africa,

" .. CIPA authorizes di strict courts to li mit access to class ifi ed informat ion to persons with a security clearance as long as the applicat ion of th is requirement does not deprive the defense of evid ence that would be 'usefu l to cou nter the govern ment's case or to bolster a defense." See 111
re Terrorist Bombillgs of

u.s. Embassies ill East Africa, 552 F.3d at 122.

Analogous provi sions

under M.C.R.E. 505 govern access to class ifi ed informat ion in this Commiss ion. In th is case, the Prosecut ion will prov ide classifi ed discovery to c leared defense counsel. As such, the Defense is not deprived of any ri ght to present its case. See Id. at 120 citillg 200 1 U.S . Dist. LEXIS 7 19, WL at 8 ('The Di strict Court ... observed that, because EI- Hage's attorneys had 'seen the class ifi ed in format ion at issue, it [was] not c lear why' the prov isions of the protect ive order should have a detrimental effect on EI-Hage's abili ty to present a defense. ") In its mot ion, the Defen se argues that "refusing the defendants access to cla ss ifi ed informat ion abollt themselves will almost certainl y deprive the defen se of useful ev idence, as the defendants will not be able to con finn , deny, or supplement the infonnat ion the govern me nt provides." See AE013JJ at 5. Certainl y, the Accused are not prevented from ta lkin g "about themselves" to the ir attorneys. Without d isclosing class ifi ed informat ion to the Accused, there is noth in g to prevent the Defense from questioning the ir clients about the Accused's all eged in volvement in the September II lh attacks, the ir capture, any statements made to the govern ment, and conditi ons of conf ineme nt.

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Based on any in formation prov ided by the Accused, the Defense is more than able to prepare. Any informat ion that the Prosecut ion intends to use affirmative ly in its case- in -chiefwill be releasable to the Accused, regardless of its cla ss ification status. The Prosecut ion has yet to prov ide the bu lk of its class ifi ed di scovery to the Defense. As such, the Defense cannot reasonably justify the ir request that that the Accused are entitl ed to v iew class ifi ed discovery generall y. The onl y proffer the Defense makes is that the Accused shou ld be entitled to v iew class ifi ed infonnat ion about themse lves. However, the Accused are fully aware of their activ ities pr ior to capture, the ir statements, and their condi tions of confinement and are free to di scuss those topics w ith the Defen se. To simply state that class ifi ed informat ion about an Accused renders that informat ion di scoverable and releasable to that Accused is wholl y in accurate and inconsistent w ith the 2009 M ilitary Commiss ions Act, C lPA, and controlling Federal case law. See United States v. Ylll/is, 867 F.2d 6 17, 623 (D.c. C ir. 1989)

citing Roviaro v. United States, 353 U.S . 53 ( 1957)(" ... class ifi ed informat ion is not
di scoverab le on a mere showing of theoret ical relevance in the face of the govern ment's class ifi ed informat ion priv il ege, but that the threshold for discovery in th is context further requires that a defendant seeking classifi ed infoI111at ion ... is entitl ed o nl y to informat ion that is at least 'helpfu l to the defense of [the] accused ."')

7. Oral Argument.
Due to the numerous motion s to amend Protective Order # I, the Prosecution wa ives oral argument and respectfully requests the M ili tary Judge issue a ruling based on the motion s alone.

8. Witnesses and Evidence.

The Prosecut ion w ill not rely on any w itnesses or ev idence in support of thi s motion.

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9. Attachment.
A. Cert ificate of Serv ice dated 20 May 20 13.

Respectfu lly submitted ,

IIsll Kiersten Korczynsk i LT, JAGC, USN Ass istant Trial Cou nsel

Joann a Baltes Deputy Trial Cou nsel

Mark Mart ins Ch ief Prosecutor Office of the Ch ief Prosecutor Office of Mili tary Commissions

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ATTACHMENT A

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CERTIFICATE OF SERVICE
I certify that on the 20th day of May 20 13, I filed AE 0 13JJ - I, the Government's Response to Defense Mot ion to Ame nd AE Ol 3AA Protect ive Order # 1 to Secure Privil eged Class ificat ion Rev iew with the Office of Mili tary Commissions Trial Judiciary and I served a copy on cou nsel of record.

IIsll Kiersten Korczyn ski LT, JAGC, USN Ass istant Trial Cou nsel

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