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UNCLASSIFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL J UDICIARYGUANTA NAMO BA Y, CU BA

UNITED STATES OF AMERICAv.

KHALID SHAIKH MOHAMMAD;WALID MUHAMMAD SALIHMUBARAK BIN ' ATTASH;RAM ZI BINALSHIBH;

ALI ABDUL AZIZ ALI;MUSTAFA AHMED AL HA WSA WI

1. Timeliness

AE052EGo vernment Response

To Jo in t Mot ion to Compe l the Product ionof an Uncl ass ifi ed Summary of AE052

2 1 November 20 12

Th is response is fil ed time ly pursuant to M ilitary Commiss ions T rial Judi c iary Rul e o fCourt 3.7.c( I).2. Relief Sought

The Prosecution respectfully requ ests that the Commission deny the defense mot ion tocompel production of an unclassified sununary of its pleading in AE052.3. Overview

The Defense's argument that th e Prosecution cann ot refuse to produce an unclassifi edsummary without validly in voking the class ifi ed informat ion priv ilege is incorrect. Th eDefense's argument fails on several grou nd s. First, the Prosecut ion has a lready prov id ed theDefense with the class ified pleading. As such, the Prosecut ion is not seek ing to w ithhold thein fo rmat ion from th e defense. Second, there is no requirement th at the Prosecu tion prov ide theDefense with an unclass ified summary of the very classified pleading that the Defense hasalready receive d.4. Burden of proof

As th e mov ing party, the defense must demonstrate by a preponderance of the ev idencethat the requested relief is warranted. R.M .C. 905(c)( I)-(2).

UNCLASSIFIEDIIFOR PUBLIC RELEASEFi led with T21 November2012 Appellate Exhibit 052E (KSM et al.)Page 1 of7

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5. FactsOn 3 1 May 20 11 and 25 January 20 12, pursuant to the Military Commiss ions Act of

2009, charges in co nnect ion with the II September 200 1 attacks were sworn aga inst KhalidShaikh Mohammad (Mohammad), Wa lid Muhammad Salih Bin Attash (Bin Attash), RamziBinalshibh (Binalshibh ), Ali Abdul Az iz A li (A li ), and Mustafa Ahmed Adam a1 Hawsawi(Hawsawi). These charges were referred jo in tly to this cap ital M ilitary Comm iss ion on 4 Apr il20 12. The accused are each charged with Consp iracy, Attack ing Civilians, Attackin g C ivilian

O ~ j e c t s , Intenti onally Causin g Serious BcxJily Injury, Murder in Violat ion of the Law of War,Destruction of Property in Violat ion of the Law of War, Hi jack ing an Aircraft, and Terrorism.

On 10 August 20 12, the Prosecut ion filed a class ifi ed plead ing, Government' sConso lidated Not ice Regarding Ex Parte, In Camera Filing and Mot ion for Finding to counselfor each defendant. See AE052.

On 6 and 13 September 20 12, counsel for Mr. Ali and Mr . Bin Attash, respectively,subm itted class ifi ed reque sts for product ion of an unclass ifi ed summary of AE052 . SeeAE052D, Attachments Band C.

On 12 October 20 12, the Prosecu tion ack now ledged its discovery ob ligat ions, but deniedboth requests on the bas is that product ion of an unclass if ied vers ion of the stated plead ing wouldreveal the class if ied in format ion sought to be protected. See AE052D, Attachment D.6. Law and Argument

I. The Prosecution Has Provided the Defense with the Classified Pleading in AE052The Prosecution is not seeking to withhold di sclosure of in format ion subject to M.C.R.E.

505 or 506 . Accordin gly, the Defense reliance on Rule for Military Commiss ion 70 1(f)( 1) isin apJXJs ite here where the Prosecut ion has already prov ided the Defense with the c lass ifi edplead ing. Further, the pleadin g at issue is not discovery subject to R .M .C. 70 1. Where class ifi edin fonnat ion is not be in g withheld, there is no invocation of a class ifi ed informat ion pr iv ilege .

Fi led with T21 November2012

2UNCLASSIFIEDIIFOR PUBLIC RELEASE

Appellate Exhibit 052E (KSM et al.)Page 2 of 7

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There is no requirement, nor has the Defen se provid ed one, that the Prosecution provid ean unclass ified summary of a classified pleading fi led under sea l. In thi s case, the Prosecutiondenied the Defense's request for an unclass ified sum mary because doin g so would "reveal[J theclassified informat ion sought to be protected." See AE052D, Attachment D. Although theremay be some instances where it is possible to produce an unclass ified vers ion of a class ifieddocument , there is no pract ical way to redact or sununarize AE052 to an unclassified leve l. Thegovern ment is not obligated to provid e an unclassified summary where it would reveal the veryinfoI111ation sought to be protected. Furthermore, the "[M] ili tary [J]udge [cannot] order therelease of class ified informat ion to any person not authorized to receive such in fonnat ion. " SeeM.C.R .E. 505(a)( I). S ince the Defense ha s already received the classified infonnation conta inedin the plead ing, there is no good faith argument that the Prosecut ion is withholding informat ion.Not onl y is it di s ingenuous, it is simply incorrect.

II. The Civil States Secrets Doctrine is InapplicableThe Defense argues that states secrets case law - namely United States v. Reynolds, 345

U.S. I (1963) and Ullited States v. Nixon, 4 18 U.S. 683 (1974) - as well as Regu lation for Trialby M ili tary Commission 17-4(c) require the Prosecution to file a declaration invokin g theclass ified informat ion priv ilege. Aga in , the Defense 's argument fa ils. The Prosecut ion is notrequired to file a declaration invok ing a c lass ified informat ion privilege where it is not seeking to"delete, withhold , or otherwise obtain relief with re spect to the di scovery of or access to anyclass ified informat ion." See AE052D at p. 3. Not onl y are pleadings not cons idered di scovery,but the Prosecut ion ha s provided the class ified informat ion at issue to the Defense. In prev iousplead ings, the defense has demonstrated the ir understanding of the concept that class ificat ion andthe class ified in format ion priv ilege are two separate questions. See AE 009 Supplement, p. 3.The Prosecution' s act of filing a class ified fi ling which was prov ided to the defense does notrequire an invocat ion of any priv ilege.




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Contrary to the defense assert ions, even where the Prosec ution does seek to tile adeclarat ion invok ing the class ified infonnation priv ilege as authorized in M .C.R.E. 505, there isno requirement that suc h a declaration be filed publicly or that it be s igned by the head of anagency. See AE052D at p.3-4. The defense claims that the state sec rets pr iv ilege is the bas is forthe govern ment assert ion of pr iv ilege in CIPA, M .R.E 505 and M.C.R.E. 505. See AE052D at p.4 . The defense however, ignores relevant statutory language in the 2009 Military Comm iss ionAct and fa il s to ack now ledge the ju dic ial construction of the Class ified Infonnat ion ProceduresAct , as authoritative in the interpretation ofM .CR.E. 505 . Although the defen se correctly notesth at in United States v. Are/. 533 F.3d. 72, 79-8 1 (2008) , the Second Circuit op ined that the mostlikely sou rce for the protection of class ified infonnation was found in the common-law pr iv ilegeaga in st disclosu re of state secrets, it did so in the co ntext of reviewing the District Court'sdeci sion to issue a protect ive order under CIPA Sect ion 4 and Federa l Rule of Cr im in alProcedure 16(d)( I). In the abse nce of language in CIPA regarding in vocation of a pr iv ilege, theSecond C ircu it required that a department head must agree that di sclosu re of class ifiedinformat ion wou ld pose a ri sk to nat ional security. Id. at 80 . That procedure is the extent towh ich a federal court has app lied the c iv il state sec ret doctrine in a CIPA case. To be clear, theSecond C ircu it did not order that the invocation of the pr iv ilege be made in an adversa rialsett in g, nor did it order the governm ent's ex parte submiss ion under C IPA Section 4 be madeava ilable to the defense . Id. at 8 1 ("Both C IPA Sect ion 4 and Rule 16(d)( I) authorize ex partesubmiss ions.") . Further undercutt ing the defense pos ition, the Fourth Circu it express ly rejectedthe A ref holdin g in United States v. Rosen, 557 F.3d 192, 198 (2009). It reasoned that the c iv il"state secrets" pr iv ilege, to wh ich the "head of age ncy" requirement perta in s, is inapplicable tocr iminal cases and that CIPA imposes no suc h requirement. See also, H.R. Rep. 96-83 1, pt. I , at15 n.12 ("the common law state secret s priv ilege is not applicable in the cr im inal arena.")

Fin a lly, in enact in g the 2009 M ilitary Comm iss ion Act , Congress eli m inated anyconfusion between the c iv il state secrets doctrin e and the cr im inal class ified in fonnationpriv ilege. Unlike C IPA which does not prov ide guidance on the in vocation ofa privilege,




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Congress spec ifica lly provid ed in M.C.R.E. 505(f)( I)(a), that: I) declarations in vokin g theUnited States' class ified in format ion pr ivilege "shall be signed by a knowledgeable Un ited Statesoffic ial possess in g authority to c lass ify information"; and 2) that suc h declarations submittedunder M.CR .E. 505(f)(2) may be filed ex parte. See M.CR .E. 505(f)(2)(B).7. Conclusion

The Prosecut ion is not required to in voke the class ified in foI111at ion pr iv ilege when itfile s a class ified document. The defense cannot cred ibly argue that the Prosecution has withheldin formation whe n the defense was prov ided with the class ified pleadin g at issue. TheProsecution prov ided AE052 to the Defense in a class ified fonnat to protect class ifiedinfoI111at ion the disclosure of wh ich wou ld be detrimental to the nat ional security. Accordin gly,the defense motion should be denied.8. Oral Argument

The Prosecution wa ives ora l argument; however , if the Defense has an opportuni ty topresent oral argument, the Prosecution requests an opportunity to be heard.9. Witnesses and Evidence

The Prosecut ion will not rely on any witnesses or ev idence in support of th is mot ion.10. Attachments

A. Cert ificate of Service dated 2 1 November 20 12.


Respectfu lly submitted,IIsll

LT Kiersten J. Korczynski , JAGC, USNAss istant Trial CounselJoa nna BaltesDeputy Tr ial Cou nsel

Mark Mart insCh ief ProsecutorMilitary Comm iss ions



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Fi led with TJ21 November2012


ATTACHMENT A

UNCLASSIFIEDIIFOR PUBLIC RELEASEAttachment APage1of2 Appellate Exhibit 052E (KSM et al.)Page 6 of 7

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CERTIFICATE OF SERVICE

I certify that on the 21 day ofNovember 20 12, I filed AE 052E, the Government's Response toJointMotion to Compel the Production of an Unclassified Summary of AE052 with theOffice ofM ili tary Commissions Tr ial Judiciary and I served a copy on cou nse l of record.

Fi led w ith TJ21 November2012

IIsllJoann a BaltesDeputy Trial CounselOffice of the Ch ief ProsecutorOffice ofM ili tary Commissions


Attachment APage2of2 Appellate Exhibit 052E (KSM at al.)Page 7 of 7

ksm ii (ae052e)

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