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UNCLASSIFIED//FOR PUBLIC RELEASE

UNITED STATES OF AMERICAv .

KHALID SHAIKH MOHAMMAD, WALIDMUHAMMAD SALIH MUBARAK BIN'ATTASH, RAMZI BIN AL SHIBH, AUABDUL-AZIZ ALI, MUSTAFA AHMED

ADAMALHAWSAWI

1. Timeliness: This response is timely filed.

AE136A(AAA)Mr. al Baluchi's Responseto Government Motion Regarding Accused's

Presence During Closed Proceedings8 February 2013

2. Burden of proof: As the moving pruty, the prosecution bears the burden of proof on anyfactual issue. RMC 905(2)(2).

3. Overview: Common Alticle 3, the Fifth and Sixth Amendments , the MilitaryCommissions Act of 2009, and the Rules for Mil itary Commissions al l prohibit the militarycommission from excluding the defendants on the basis of pmported national security concerns.

4. Facts: Mr. a1 Baluchi demands proof of factual matters the government pleads in supp01tof its purported multi-factor test.

5. Law and Argument:The prosecution ' s AE136 Motion Regarding Accused' s Presence During Closed

Proceedings demonstrates the truth of George Santayana' s famous proclamation that those whodo not study history are doomed to repeat it. In AE136, the prosecution asks the militruycommission to judicially adopt the precise flaw- excluding the defendants from proceedings onnational security grounds- that led the Supreme Coutt to strike down Military CommissionsOrder No. 1. This course of action seems unwise.

Filed with TJ8 February 2013

1UNCLASSIFIED//FOR PUBLIC RELEASE

Appellate Exhibit 136A (AAA)Page 1 of9

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A. The Military Commissions Act of 2009 prohibits the military commission fromexcluding the defendants from pretrial hearings on the basis of national securityconcerns.With the benefit of Hamdan v. R u m . ~ f e l d 1 Congress provided the defendants the right to

be present at all proceedings except deliberation and voting unless their conduct justifiedexclusion. The Military Commissions Act of 2009, like its 2006 predecessor, forecloses thegovernment's position that the military commission may exclude the defendants from all"pretrial hearings where classified information is disclosed."2

Title 10 U.S.C. 949a sets f01th a minimum set of rights which the Secretary of Defensemay not abrogate by rule, even when classified information is involved. Section 949a(b)(l)provides that the SECDEF may vary from the rules governing courts-martial "as may be requiredby the unique circumstances of the conduct of military and intelligence operations dminghostilities or by other practical need." But the statute fmther provides that "notwithstanding anyexceptions" required by militruy or intelligence needs, the defendants shall have the right "[t]obe present at all sessions of the military commission (other than those for deliberations orvoting), except when excluded under section 949d of this title.''3

Section 949d, in tum, only a11ows the military commission to exclude the defendants toprevent disruption or threats to physical safety. The statute initially restates the critical right topresence: "Except as provided in subsections (b), (c), and (d), any proceedings [withoutmembers] shall be conducted in the presence of the accused, defense counsel, and trial counsel,

I 548 U.S. 557 (2006).2 AE136 at 2.3 10 U.S.C. 949a(b)(2)(B). If the military commission arrogates to itself the authority toexclude the defendants on national security grounds, the Supreme Comt would reach the sameresult today under 949a that it reached in 2006 under Article 36 of the UCMJ.




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and shall be made a part of the record." 4 The statute allows the military commission to excludethe defendants only in three circumstances: (1) when the members deliberate or vote; 5 (2) whenthe defendant persists in conduct that justifies exclusion to ensure the physical safety ofindividuals;6 and (3) when the defendant persists in conduct that justifies exclusion to preventdisruption of the proceedings.7 The statute does not empower the militaty commission toexclude a defendant to protect classified information; in fact, the statute prohibits such exclusion.

The plain text of the statute makes Congress' intent that the defendants be p resent at theirown sessions abundantly clear. Section 949d(c) allows the military commission to close theproceedings to the ''public"- but not the "accused"- to protect information the disclosure ofwhich could threaten national security. The defendants are not the public; they are involuntarypmticipants in the military commission.

In promulgating RMC 804, the SECDEF followed the restrictions placed on it by 949a.RMC 804(a) requires the presence of the defendant at most stages of the proceedings, "except asotherwise provided by this rule." RMC 804 only petmits the militaty commission to exclude adefendant for dangerous or disruptive behavior, using the precise language of 949d(d). MCRE505, mentioned in RMC 804(a), purp01ts to authorize vmious ex parte or in camera hearings, butdoes not authorize the military commission to exclude the defendants from sessions on the basisthat classified evidence will be presented. Indeed, when the prosecution presents classifiedevidence, MCRE 505(a)(2) specifically requires that the defendants have access to the classifiedinformation.

4 10 U.S .C. 949d(a)(2) .5 949d(b).6 949d(d)(l ).7 949d(d)(2).




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B. The Supreme Court struck down Military Commissions Order No. 1 because itincorporated the exclusion authority the prosecution advocates here.The legislative history explains the reason for Congress' decision to include the

defendants in sessions involving classified evidence. The UCMJ, in language essentiallyidentical to 949d(a), 8 "requires that all proceedings of the court, except the deliberations andvoting by the members, be conducted in the presence of he accused' unless waived.9 The pre-statutory Military Commission Order No. I, however, provided that the Presiding Officer's"decision to close a proceeding or portion thereof' on national security grounds "may include adecision to exclude the Accused." 10

The authority to exclude the defendant from the proceedings on the basis of nationalsecurity concerns was the fatal flaw in the pre-statutory military commissions framework. TheD.C. District prohibited the trial of Salim Hamdan because Order No . 1 allowed the PresidingOfficer to exclude the defendant on national security grounds. 11 In Hamdan v. R u m ~ f e l d , theSupreme Court adopted the same reasoning, condemning Order No. 1 for its "clear and admittedfailure to apply one of the most fundamental protections afforded ... by the UCMJ itself: theright to be present." 12 As the prosecution itself has explained, the Supreme Comt in Hamdan"determined that a military commission lacked authority to proceed specifically on legal

8 Compare 10 U.S.C. 839(a) with 10 U.S.C. 949d(a)(l); compare 10 U.S.C. 839(b) with 10U.S.C. 949d(a)(2).9 United States v. Cook, 20 U.S.C.M.A. 504,506 (C.M.A. 1971).10 Military Commission Order No. 1 6(B)(3) (Mar. 21, 2002).11 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 172 (D.D.C. 2004), rev'd, 415 F.3d 33 (D.C. Cir.2005), rev'd, 548 U.S. 557 (2006).12 Hamdan v. R u m ~ f e l d , 548 U.S. 557, 624 (2006) (opinion of the Comt).




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reasoning associated with purported authority to conduct proceedings outside of the accused' spresence." 13

Small wonder, then, that Congress rejected the authori ty to exclude the defendants fromclassified sessions when crafting the Military Commissions Act of 2006 in response toHamdan. 14 Although the Bush Administration argued that the military commissions should beable to protect classified inform ation by excluding the accused, "Congress flatly rejected theAdministration's request to allow the limited exclusion of the accused from portions of theproceedings." 15 Instead, Congress appropriated the language of the UCMJ, held up as a model

by the Court in Hamdan.C. The Constitution and customary international law also prohibit exclusion of thedefendants based on national security concerns.The defendants, of course, have a constitutional right to be present for proceedings in

their capital prosecution. 16 Any waiver of th is right must be knowing, voluntary, and

13 AE037 Government Motion Regarding Accused's Presence Dming Commission Proceedingsat 2 (citing Hamdan, 548 U.S. at 634).14 See Jennifer K. Elsea, The Military Commissions Act of 2006: Analysis of Procedural Rulesand Comparison with Previous DOD Rules and the U n ~ f o r m Code ofMilitary Justice 20 (2007);Jennifer K. Elsea, The Military Commissiom Act of 2006: Background and ProposedAmendments 16 (2009).15 James Nicholas Boeving, The Right to Be Present Before Military Commissions and FederalCourts: Protecting National Security in an Age of Classified Information, 30 Harvard J. L. &Pub. Pol. 463, 506 (2007).16 See United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam); see also, e.g., Campbellv. Wood, 18 F.3d 662,671 (9th Cir. 1994) (en bane).




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intelligent,17 but may be demonstrated by conduct. 18 The defendants' right to be present, evenwhen classified evidence is discussed, is independent of the right to a public trial. 19

The same right obtains under international law. In Hamdan, a plurality applied Article 75of Protocol I of the Geneva Conventions of 1949 as customary law. Under these principles, theplurality reasoned, "an accused must, absent disruptive conduct or consent, be present for histrial and must be privy to the evidence against him."20

Although the prosecution 's position regarding the constitutional right to presence getssome suppmt from the Second Circuit, its cases do not sweep as broadly as the governmentclaims. First, the analysis of In re Terrorist Bombings was limited to hearings at which nowitnesses testified.21 The Second Ci rcuit, like other cowts, recognizes a defendant's right to bepresent when factual issues are resolved or testimony is presented.22

Second, In re Terrorist Bombings was hardly a broad holding that a court can generallyexclude defendants from hearings involving classified information. Rather, the comt'sconclusion turned on a number of specific facts, including the nature of the information, thenature of the confinement facilities, and the abili ty of the defendant to contribute to the conduct

17 See, e.g., Brookhart v. Janis, 384 U.S. 1, 7-8 (1966) (holding that waiving right to plead notguilty requires knowing, voluntary, and intelligent waiver); Johnson v. Zerbst, 304 U.S. 458,463-64 (1938) (holding that right to counsel requires knowing, voluntary, and intelligent waiver).18 Taylor v. United States, 414 U.S. 17 , 19-20 (1973); Illinois v. Allen, 397 U.S. 337, 343(1970); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934).19 See United States v. Abu Marzook, 412 F. Supp. 2d 913, 923 (N.D. Ill. 2006) (discussing rightto confrontation in a closed hearing) .20 Hamdan, 548 U.S. at 634 (Opinion of Stevens, J.) . But cf id. at 653-54 ("First, I would notdecide whether Common A.tticle 3's standard . . . necessarily requires that the accused have theright to be present at all stages of a criminal trial.") (B reyer, J., concuning).21 552 F.3d 93 , 128 (2d Cir. 2008).22 See Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000); see also, e.g., Kentucky v. Stincer, 482U.S. 730,745 (1987); Snyder, 291 U.S. at 105-06; United States v. Law, 528 F.3d 888,904 (D .C.Cir. 2008).




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of the proceeding. The military commission will need factual development of these issues eachtime the govemment seeks to exclude the defendants from a session.

Finally, the cases underlying In re Terrorist Bombings demonstrate its limits. In UnitedStates v. Bell, the Second Circuit affirmed the exclusion of a defendant from the limited portionof a suppression hearing that described a "hijacker profile."23 Bell set fotth the four factor testcited later in In re Terrorist Bombings. Bell, however, permitted the defendant's exclusion fromone limited pOition of the pretrial hearing rather than the blanket exclusion the govemment seekshere.

When the Second Circuit revisited this same topic the following year, it rejected thebroad approach that the govemment now advocates. In United States v. Clark, the SecondCircuit dealt with a "wholly different set of circumstances" in which the government excludedthe defendant from suppression motion addressing both classified and unclassified matters. 24The Second Circuit rejected a wholesale exclusion of the defendant as a violation of the right tobe present at a suppression hearing where testimony is taken.25

The prosecution 's view that the military commission can forbid the presence of thedefendants is no more sound than its previous view that the militaty commission must compelthe presence of the defendants. Mr. al Baluchi 's position, on the other hand, was conect inAE037 and is correct now: he has a right to attend the proceedings unless he waives that right bystatement of conduct.

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

23 464 F.2d 667, 672 (2d Cir. 1972).24 475 F.2d 240, 245 (2d Cir. 1973).25 Id. at 246.




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7. Request for Witnesses: Mr. al Baluchi requests the presence of any witnesses necessaryto test the veracity of the prosecution's factual assertions.

8. Additional Information: None.9. Attachments:

A. Certificate of Service.

Very respectfully,/Is//JAMES G. CONNELL, IllDetailed Learned CounselCounsel for Mr. al Baluchi

/lsi/STERLING R. THOMASLtCol, USAFDetailed Military Defense Counsel


Filed with TJ8 February 2013 Appellate Exhibit 136A (AAA)Page 8 of9

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CERTIFICATEOF SERVICEI certify that on the 8th day of February, 2013, I electronically filed the foregoing

document with the Clerk of the Court and served the foregoing on all counsel of record by email.

Filed with TJ

/lsi/JAMES G. CONNELL, ill,Learned Counsel

UNCLASSIFIED//FOR PUBLIC RELEASEAttachment A Appellate Exhibit 136A (AAA)

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