united states of america v. ae 057(ksm, rbs, aaa, … · khalid shaikh mohammad, walid muhammad...

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNITED STATES OF AMERICA

v .

KHALID SHAIKH MO HAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTAS H, RAMZ I BrN AL SHIBH, ALI ABDUL-AZIZ ALl , MUSTAFA AHMED

ADAM AL HA WSA WI

1. Timeliness: This Mot ion is timely filed.

AE 057(KSM, RBS, AAA, MAH) Motion of Mr. Mohammad,

Mr. bin al Shibh, Mr. al Baluchi, and Mr. al Hawsawi

to Recogni ze that the Const itut ion Governs the Mili tary Commiss ions

16 July20 12

2. Relief Requested: The defense requests that the comm iss ion hold (a) that the

Const itut ion is presumed to apply in these proceed ings; (b) that the burden is on the government to

rebut that presumpt ion in part icu lar c ircumstances; and (c) that the standard the government must

meet to rebut the presumpt ion is proof that the app licat ion of the part icu lar ri ght would be

" impracticable and anomalous" under the c ircumstances.

3. Overview:

This comm iss ion will decide no more important quest ion than whether it will enforce the

const itut ional guarantees of fa irness and accuracy in th is proceed ing. In prior pleadings, the

government has argued that the Constitut ion does not apply in mili tary commiss ions. I That

pos ition is untenab le in li ght of the Supreme Court's dec ision in BOllmediene v. Blish. 2 In

BOllmediene, the Supreme Court held that the Suspension Clause applies to indi viduals detained at

the Guantanamo Bay Naval Stat ion (GTMO), penn itt ing them to br ing habeas proceedings. In

I See Brief for the United States, Hamdall v. United States, No. 11 - 1257 (D.c. Cir.), at 80 ("[I]ndividuals who are properl y subject to trial by mili tary comm iss ion are not entitled to the same panoply of procedural ri ghts as criminal defendants charged with offenses cogni zable by Article III courts.") ; AE036A Government Response to Defense Motion To Declare RMC 703 Unconstitutional at 20 ("[N]o court has app li ed the constitutiona l rights cited in the defense's brief to any ali en unprivileged enemy belligerent accused in a military commission."). 2 BOlllllediene v. Blish, 553 U.S. 723 (2008).

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reaching that deci sion, the Court establi shed a general framework for deciding when part icu lar

const itut ional ri ghts apply in extraterritorial proceedings . This comm iss ion should hold that the

same framework applies equall y to the bas ic constitutional ri ghts applicable in criminal

proceedings.

It is critical that the comm ission decide this quest ion now, early in the proceedings, so that

the accused and the government know the legal standards under wh ich their arguments will be

evaluated . There is an enormous body of constitut ional jurisprudence that mayor may not be

applicable in virtuall y all of the mot ions that the accused will fil e. Ne ither the Court of M ili tary

Comm iss ion Review nor the D.C. C ircu it have decided that quest ion, yet without an answer the

accused and the govern ment will not know how to shape the ir motions and legal arguments .

G iven the unprecedented and untested nature of comm iss ions system, the quest ion is more

press ing here than in any other, better-establi shed criminal just ice system . The defense therefore

asks the comm iss ion to determine that the accused are presumed to hold the same constitutional

ri ghts as defendants in other American criminal just ice systems; that the burden is on the

govern ment to demonstrate in part icu lar c ircumstances that a part icu lar right should not be

applied; and that the framework governing the eva luat ion of that claim is the framework

establi shed by the Supreme Court in BOllmediene.

Under that framework , const itut ional ri ghts app ly in an extraterritor ial proceed ing unless

honoring the particular right in the particular circumstances would be " impracticable and

anomalous.,,3 The framework recog ni zes that in some c ircumstances, the spec ific application of

a const itutiona l procedural rights is " impracticab le." With regard to the general ava il abili ty of

3 /d. at 759, 770.

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these ri ghts to mili tary comm ission defendants, however, the BOlllllediene ana lysis makes clear

that such c ircumstances will be the rare except ion rather than the rule.

The Court concl uded that the Suspens ion Clause applied in Guantanamo because, g iven

the Un ited States's "plenary contro l" over the nava l station and the nature of the pract ica l

difficulties attending enforcement of the ri ght in that sett ing, the government could not

demonstrate that enforcement of the right would compromise the military's miss ion there. With

few except ions, it can be antic ipated that enforcement of the const itut ional ri ghts will be far less

impracticable in these cases than enforcement of the Suspension Clause in non-criminal habeas

proceedings . If it is not impract icable to recognize detainees' Suspension C lause rights in

Guantanamo, then it is not "impracticable and anomalous" to recognize the constitutional ri ghts of

the defendants in th is case. Honoring these ri ghts will s imply guarantee the reliability and

fundamental fa irness of the comm iss ion process that is the standard in other systems of American

just ice. Accordingly, the burden is on the govern ment to demonstrate that application of a

part icu lar ri ght in part icular circumstances is " impracticable and anomalous."

Indeed, the gove rnment itself has taken the pos ition that Commiss ion accused have

const itut ional due process ri ghts. David Kris, then-Assistant Attorney General and head of

Department of Justice's Nat iona l Security Division, testified in Congress that " [o]ur analysis,

Senator, is that the due process clause app li es to m ili tary comm iss ions and imposes a

constitut ional floor on the procedures that would govern such comm issions, includ ing against

enemy ali ens.'.4

4 Senate Armed Services Comm ittee, Hearil1g to Receive Testimol1Y 011 Legal Issues Regardil1g Milita ry Commissiolls and The Trial of Detail1ees for signature 32:45 (Ju ly 7, 2(09) (test imony http://www.c-spanvideo.orglprogramlDeta ineesan) .

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ViolatiollS of the Law of War, at time of David Kri s) (ava il able at

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4. Burden of Proof: Because thi s mot ion presents a pure quest ion of law, there is no burden

of proof.

5. Relevant Facts: The mot ion presents a question of law.

6. Law and Argument:

a. In BOllmedielle, the Supreme Court held that constitutional rights apply

outside United States territory unless such application would be

" impracticable and anomalous."

BOllmediel1e lays out the analyt ical framework for determining the extraterritorial

applicabili ty of const itutional rights in general, not just the Suspension Clause. The Court had

long recognized that "even in unincorporated Territories the Govern ment of the United States was

bound to provide to noncitizen inhabitants ' guaranties of certain fundamental personal ri ghts

declared in the Constitution.'''s Dist illing the relevant precedents from the Insular Cases through

JOhllSOI1 v. Eisentragel and Reid v. Covert,7 Justice Kennedy concluded for the majority that the

extraterritorial effect of a particu lar const itutional provision turned on "objective factors and

practica l concerns, not formalism."g

The majority accordingly rejected the not ion that extraterritor iali ty was strictly a function

of the United States' terri torial sovereignty or the right-claimant' s citi zenshi p. lnstead, it adopted

Justice Harlan 's focus on the practica l obstacles to honoring the right: "the ' particular

c ircumstances, the pract ical necess ities, and the possible alternatives wh ich Congress had before

S BouIIlediene, 553 U.S. at 758 (quotillg Balzac v. Porto Rico, 258 U.S . 298, 312 ( 1922)). 6 Johl1son v. Eisel1trager, 339 U.S . 763 (1950) . 7 Reid v. Covert, 354 U.S. I (1957). g Boumediene, 553 U.S. at 764.

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it ' and, in particu lar, whether judicial enforcement of the prov ision would be ' im practicable and

anomalous. ,,,9

Because "the Government may act on ly as the Constitut ion authorizes, whether the act ions

in question are foreign o r domestic,"[O govern ment act ions in extraterritor ial sett ings are governed

by the Const itut ion as they wou ld be on the terr itory of the Uni ted States, unless holding the

government to these rights would be " impracticable and anomalous" under the particu lar

c ircumstances. I I BOlllllediene thus establi shes a presumpt ion that const itutional ri ghts should be

honored in extraterritor ial proceedings un less there are s ignificant pract ical reasons not to do so.

b. The BOllmedielle analysis dictates that, in general, the Constitution governs

proceedings in the military commissions.

With regard to the Suspension Clause, the Court looked to three factors that it found

relevant to thi s practical determination: "( I) the c itizenship and status of the detainee and the

adequacy of the process through wh ich that status determination was made; (2) the nature of the

sites where apprehension and then detention took p lace; and (3) the pract ical obstacles inherent in

resolving the prisoner's entitlement to the writ." 12 The Court made clear that th is li st is

non-exclus ive, and that other and diFFerent factors will be applicable when other ri ghts are

involved .13

9 Boulllediene, 553 U.S. at 759, 770. (quotillg Reid, 354 U.S. at 74-75 (Harl an, J ., concurring)); see also UI/ited States v. Verdugo-Urquidez, 494 U.S . 259, 277-278 ( 1990) (Kennedy, J ., concurring) (applying the " impracticab le and anomalous" extraterritoriality test to the Fourth Amendment). 10 Verdugo-Urquidez, 494 U.S. at 277 (Kennedy, J. , concurring) . II Boulllediene, 553 U.S. at 765 ("Even when the United States acts outs ide its borders, its powers are not 'absolute and un limited' but are subj ect ' to such restrictions as are expressed in the Constitut ion. ''') . 12 Id. at 766. 13 Id.

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These factors apply onl y by analogy to the quest ion of the applicabili ty of const itu tional

rights in this proceeding. The "status determination" of the accused is directly relevant insofar as

it constitutes a jurisdictional predicate of the prosecution,14 but the purpose of the proceedings is

criminal puni shment, not the status determination itself. Moreover, the vast majority of the

"process" to be afforded the accused has not yet occurred, and it is the "adequacy" of thi s process

that is at stake in th is mot ion. S imilarl y, with respect to the second factor , the relevant

considerat ion IS not the site of "apprehension" and "detention," but the site of the criminal

proceedings . Finall y, because thi s mot ion addresses the applicabili ty of the procedural ri ghts

embodied in the Bill of R ights and related const itut ional provis ions, and not the Suspension

Clause, it is the "practica l obstacles" inherent in honoring those rights that are at issue here.

Nevertheless, because the BOlllllediene Court 's ana lysis is not limited to the Suspension C lause, its

holding is broad enough to estab li sh that, in general, constitut ional criminal procedural ri ghts

apply in these proceed ings subject onl y to potenti al except ions in part icu lar factua l or procedura l

c ircumstances.

Two elements of the BOlllllediene holding are critical here. First, the Court made clear

that neither de jllre sovereignty over the locat ion of the proceeding nor the c itizenship of the

accused is di spos itive of the const itut ional quest ion. IS Specificall y with regard to the s ite of these

proceedings, the Court held that Guantanamo Bay Nava l Stat ion is de/acto withi n the territory of

the United States. " In every practical sense Guantanamo is not abroad; it is within the constant

jurisdiction of the Un ited States.,,16

14 See 10 U.S .c. § 948c. IS BOllmediel1e, 553 U.S . at 76 1-762 (c itizenship not di spositive; di scuss ing Reid and in 111 re Ross, 140 U.S. 453 ( 189 1)); id. at 76 1-64 (deju re sovereignty not dispositive)) . 16 Id. at 769.


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That conclusion was based on the pragmat ic realities of the Uni ted States's contro l over

Guantanamo and not on any special characteristic of the Suspension Clause. "[T]he Constitut ion

has independent force in these territories, a force not contingent upon acts of legis lative grace.,,17

What was di spositive for the Court in conclud ing that GTMO deta inees had Suspension Clause

rights was that the "de jure sovereignty" Cuba ostens ibly exercises over GTMO is sovereignty in

name onl y. Because the federa l govern ment can, and does, treat GTMO as if it were U.S . soil , it

cannot take the pos ition that GTMO is Cuban so il when it comes to the Const itut ion.

This analys is led the Court to draw an express analogy between the current status of

GTMO on one hand, and the status of Puerto Rico and the United States' other unincorporated

territories on the other. Even more so than these territories, GTMO has remained under the

"complete jurisdiction and contro l" of the federa l government since they were acquired, and the

federal government thus reta ins "de/acto sovereignty over this terr itory." Moreover, analagous

to the terr itories, the unquest ioned nature of that jurisdiction and control has only grown since

GTMO's initial acqu isition by lease. "[O]ver time the ties between the United States and any of

its unincorporated terr itor ies strengthen in ways that are of const itutional significance." 18

GTMO's original lease-hold status thus provides no basis " for questioning the app lication of . .

the Bill of Rights.,,19

There is no debate about the extraterritor ial app lication of the Ex Post Facto Clause, the

Bill of Atta inder Clause, Art icle 111, or the protections of the Fifth and Sixth Amendments to the

other Un ited States territories. They are among "those fundamental limitations in favor of

17 Id. at 757 . 18 Id. at 758 . 19 Id. at 77 1 (quoting Torres v. Puerto Rico, 442 U.S . 465, 475-476 (1979) (Brennan, J. , concurring)) .


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personal rights wh ich are formu lated in the Constitution and its amendments.,,20 To the extent

that the government now asserts that GTMO's territorial status exempts its conduct from the

limitat ions of these fu ndamental const itutional provis ions, the gove rnment must explain why it is

more " im practicable and anomalous" to confonn to the Constitution in a capital criminal

prosecut ion held in GTMO - which is geographically closer to the continental Uni ted States and a

far more contro ll ed security env ironment than any Un ited States territory - tha n in capita l

proceedings in , for example, the United States District Court for the District of Puerto Rico?1

Second, the BOlllllediene majorit y noted that s ignificant logistical and national security

concerns were a factor in the determination of whether the Suspension Clause should be held to

app ly in GTMO. " Habeas corpus proceedings may req uire expenditure of funds by the

Government and may di vert the attention of military personnel from other pressing tasks.,,22

Nevertheless, desp ite the ir clear potential for disruption , the Court held that these concerns were

not dispos itive: "The Government presents no credib le arguments that the military mission at

Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees'

claims.,,23

By contrast to enforcement of prisoners' Suspension C lause ri ghts, recog ni tion of

constitutiona l procedural rights will req lllre no expenditure of funds, nor will it "divert the

attention of military personnel from other pressing tasks.,,24 Nor will recogni tion of these ri ghts

20 Id. at 759 (quoting Late Corp. o/Church 0/ Jesus Christ 0/ Latter-Day Sail/fS v. United States, 136U.S.I , 44( IS90)). 21 See, e.g., United States v. Lopez, 327 F. Supp. 2d 13S, 143-45 (D.P.R. 2(04) (holding that confining a pretrial capital defendant in an adm inistrative detention Special Hous ing Uni t solely because he faced a possible death penalty v iolated the Const itut ion by imposing pretrial fu ni shment). 2 Boumediene, 553 U.S. at 769.

2J Id. 24 Id. at 769.

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require new jud ic ial proceedings in courtrooms far away from Guantanamo Bay. Instead, they

will guarantee the reliability and fundamental fa irness of the commiss ion process that is already

the "military mission at Guantanamo.,,25 There are thus no "credible arguments" that recognizing

const itut ional procedural ri ghts will place any burden on the govern ment other than the burden of

providing guarantees of factual accuracy and fa ir treatment before considering a sentence of death

against a defendant.

Given these considerat ions, there is no basis for argu ing that generally honoring the

defendants' constitutional rights is impracticab le and anomalous in the setting of this Commission.

c. Previous government arguments against the applicability of the Constitution

are unavailing.

Because they will almost certainl y be rai sed by the government in its response to the instant

mot ion, th is mot ion addresses two counter-arguments that it has made repeatedly in prior

li tigat ion.

(1) The BOllmedielle analysis is not limited to the Suspension Clause.

Despite the preceding analys is, in the past the government has argued that Boumediene is

narrowly restricted to the Suspension Clause and does not apply to other const itut ional rights.

That pos ition is d irectl y contradicted both by the Court's language and by its ana lysis. First, the

Court refers throughout the opinion to "the constitution" and "part icular provision[s] of the

Constitut ion" in the course of it s argument.26 Second, many of the cases relied upon by the Court

25 Id. 26 See id. at 755 ("The Court has discussed the issue of the Constitution's extraterritorial app li cation on many occas ions."); id. at 758 (''' [T]he determination of what particular provision of the Constitut ion is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its re lations to the United States'" (quotillg Downes v. Bidwell, 182 U.S. 244, 793 (190 1) (White, J. , concurring)).


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app li ed the " impracticable and anomalous" standard (or its functiona l equiva lent) to constitutional

ri ghts other than Suspension Clause, includ ing the Fourth, Fifth, and Sixth Amendments .27

Finally, the Court's analysis relied heavily on cases d iscllssing the question of the

Constitution's extraterritorial reach in genera l terms (cases that often also concerned individual

ri ghts other than the Suspension Clause) . For example, Justice Kenned y di scussed at length

Justice Frankfurter and Harlan 's concurrences in Reid v. Covert .28 Both Just ices analYLed the

quest ion presented there (the applicabili ty of the Fifth and Sixth Amendments to spouses of

service members serv ing overseas) as the genera l question of "determining where constitutional

guarantees extend.,,29 The Court in Bowllediene was concerned with the larger issue of the

extraterritorial reach of the Const itut ion, and not just that issue's app li cation in the particular case

of the Suspension Clause.

(2) Post-Boumedielle precedents do not undermine this analysis.

Several deci sions by the D.C. C ircu it and one by the Court of Mili tary Commiss ion

Rev iew handed down after Boulllediene have language suggest ing that the Fifth Amendment Due

Process Clause does not apply in GTMO.30 None of these control the issue presented here ,

however.

27 See, e.g ., Territory of Hawaii v. Mallkichi 190 U.S . 197 (190 1) Gury trial and indictment clause); Dorr v. Ullited States, 195 U.S . 138 (1904) (same); Ullited States v. Verdugo- Urquidez, 494 U.S. 259, 277- 278 (1990) (Kennedy, J. , concurring) (Fourth Amendment) . 28 Boulllediene, 553 U.S. at 759-762 (di scuss ing Reid v. Covert, 354 U.S. I ( 1956)) . 29 Id. at 759; see Reid, at 77 (Harl an, J ., concurring); id. , at 54 (Frankfurter, J ., concurring); see also See e.g. Balzac v. Porto Rico, 258 U.S. 298, 3 12 (1922) (recognizing that "the United States was bound to prov ide to nonc iti zen inhabitants [of its unincorporated territories] 'guarant ies of certa in fundamental personal ri ghts declared in the Constitution '''); Late Corp. of Church of Jesus Christ of Latter-Day Saillts v. Ullited States, 136 U.S . 1, 44 (1890) ("Doubt less Congress, in legislating for the Territories wou ld be subject to those fu ndamental limitat ions in favor of ~ersonal rights wh ich are formulated in the Constitution and its amendments").

Kiyelllba v. Obama, 555 F.3d 1022, 1027 (D.c. Cir. 2009), judgment vacated, - U.S . - , 130 S. Ct. 1235 (20 10) ("Kiyemba I"); Kiyemba P. Obama, 56 1 F.3d 509, 518 n.4 (D.C. Cir. 2009),

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The D.C. C ircu it pronouncements are dicta. More important, however, the cases are all

c ivil in nature - either habeas corpus pet itions (Kiyemba I, Kiyemba fl, and al-Mahdwalli) or c iv il

act ions aga inst government offic ials (Ra.wi). In contrast to cr iminal defendants, habeas

pet itioners and plain tiffs in c ivil act ions have no ri ghts under the S ixth Amend ment and onl y

limited ri ghts under the Due Process Clause.}1

Accord ingly, nu merous const itutional ri ghts afforded to criminal defendants do not apply

in habeas proceedings . Un like criminal defendants, habeas pet itioners have no ri ght to counsel

either at the ir original hearing or on their first appea1. 32 Criminal defendants have the ri ght to

retroactive app licat ion of new const itut ional rules when the ir cases are on direct review; habeas

pet itioners receive retroactive applicat ion of ri ghts onl y under extraord inary c ircumstances. 33

The Fourth Amendment's exclus ionary rul e app li es in criminal trials, but not in habeas

proceedings. 34 The ri ght to ajury trial is a fundamental right in criminal cases, but does not exist

cert. denied, - U.S.- , 130 S. C1. 1880 (20 10) ("Kiyemha II"); al-Mahdwal1i v ObamG, 642 F.3d 107 1, 1077 (D.C Cir. 20 11 ); Raslll v. Myers, 563 F.3d 527, 530-32) (D.CCir. 2009), cerl. denied, - U.S. - , 130 S. Cc 1013 (2009); Vlliled Stales v. Hamdall , 80 1 F. Stipp. 2d 1247, 13 13- 1322 (C.M.C. R. 20 11 ). Technicall y there are two deci sions of the Court of M ili tary Comm iss ion Rev iew address ing the due process clause issue. One, however, simply adopts the reasoning of the other. See Vniled Stales v. al Bahllll, 820 F. Stipp. 2d 11 4 1, 1256 (CM .CR. 20 II ) (adopting Hamdan holding by reference). 31 "Habeas corpus proceedings are characterized as civil in nature." Mayle v. Felix, 545 U.S. 644, 654 n.4 (2009); see also Hillon v, Bratlllskill, 48 1 U,S . 770, 776 ( 1987)(same). 32 Pellnsylvania v. Fillley, 48 1 U.S . 55 1, 555-556 ( 1987). Martin ez v. Ryall, 132 S. Ct. 1309 (20 12), did not hold that a ri ght to counsel ex ists for the first opportuni ty to rai se a claim on post-convict ion, but rather onl y that inadequate perfonnance of counsel at that po int can establi sh cause for procedural default. 33 Compare Griffith v. Kentucky, 479 U.S . 3 14, 320-328 (1987) (d irect appeal) with Teague v. ulIIe, 489 U,S . 288, 305-10 ( 1989) (habeas proceedings) . 34 Compare Mapp v. Ohio, 367 U.S . 643, 649 (196 1) (trial ) with Stolle v. Powell, 428 U.S . 465, 494-95 (1976) (habeas hearing) .


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in habeas proceed ings .35 As the Court explained in BOllmediene, "[h ]abeas corpus proceedings

need not resemble a criminal tria l. ,,36

Cr iminal and habeas proceedings a different at the most fundamental1evel. In the first,

the government seeks offic ial authorizat ion to end life or li berty; in the second , a prisoner seeks to

show that hi s exist ing imprisonment v iolates federa l law. It therefore does not follow from a

deci s ion denying due process ri ghts to habeas pet itioners that crim inal defendants lack such ri ghts.

Indeed, the D.C. C ircu it itself has recogni zed as much in its own GTMO habeascases. 37 In short,

the D.C. Circu it habeas cases do not control the outcome of th is motion.

In Hamdall , the Court of Mili tary Commiss ion Review did hold that Mr. Hamdan had no

ri ght to equal protect ion under the Fifth Amendment Due Process C lause.38 That deci s ion has

been appealed and is currently awaiting deci s ion by the D.C. Circu it. Regardless of the outcome

of the appeal, however, Hamdan at most stands for the propos ition that the defendants in the

instant case have no equal protect ion rights. The court spec ificall y abjured any conclusion about

other ri ghts, including other Fifth and S ixth Amend ment ri ghts: "As our focus in the instant case

is on equal protect ion under the Fifth Amendment, we decline to opine as to what other, if any,

spec ific const itut ional due process ri ghts beyond habeas corpus might, under other c ircumstances,

35 Compare Duncall v. Louisiana , 39 1 U.S . 145 ( 1968) with Sigler v. Parker, 396 U.S . 482, 487 n. 2 ( 1970) (Douglas, J. , d issenting) (noting that "there is no right to jury trial in habeas corpus cases"); see also 28 U.S .c. § 2243 (habeas procedures; "The court shall summarily hear and determine the facts, and di spose of the matter as law and just ice require."). 36 Boulllediene, 553 U.S. at 783; see generally Brecht v. Abrahamsoll , 507 U.S . 6 19, 633-635 (1993) 37 See Al A/wi v. Obama, - F.3d - , 20 11 WL 2937 134, at *6 (D.C. Cit. , Jul y 22, 20 11 ) (habeas proceedings " not 'subject to all the protections g iven to defendants in criminal prosecutions"') (quoting, Al-Adahi v. Obama, 613 F.3d 1102, 1I1I n.6 (D.c.eir. 20 10), cert. dellied, - U.S. - , 131 S. Ct. I DO I (20 II )); AI-Bihani v. Obama, 590 F.3d 866, 879 (D.C. Cir. 20 I 0), cert. denied, -U.S . - , 13 1 S. Ct. 18 14 (20 11 ) (Confrontat ion Clause applies in crim inal but not habeas ~roceedin gs) .

8 United States v. Hamdan , 801 F. Supp. 2d 1247, 1313-22 (C.M .C.R. 20 11 ) . - 12-


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properly be afforded to [m ili tary commiss ion accllsed]. ,,}9 Thus, even if Hamdall is affinned, it

does not preclude a different "functional analysis under BOlmrediene,,40 of another const itut ional

ri ght under different circumstances.

Under that fu nct ional analys is, this comm iss ion should afford the defendants constitutional

procedural ri ghts in these proceedings, subject onl y to those c ircumstances in wh ich recogni tion of

the particular right would be " impracticable and anomalous."

7. Request fo r Oral Argument: The defense requests oral argument.

8. Witnesses: None

9. Conference with Opposing Counsel: On 16 July 20 12, counsel for Mr. a1 Baluchi

emailed the prosecut ion to request its position. At the time of filin g, the prosecut ion had not

responded.

10. Attachments:

A. Cert ificate of Service

Very respectfully ,

IIsll JAMES G. CONNELL, III Learned Counsel

Counsel for Mr. al Baluchi

IIsll DAVID Z. NEVIN Learned Counsel

IIsll JASON D. WRIGHT CPT, USA Defense Counsel

~ /d. at 1320. ~ /d. at 1322.

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IIsll STERLING R. THOMAS Lt Col, USAF Defense Counsel

IIsll DEREK A. POTEET Maj , USMC Defense Counsel


Appellate Exhibit 057 (KSM, RBS, AAA, MAH) of 15


Counsel for Mr. Mohammad

IIsll JAMES P. HARRINGTON Learned Counsel

Counsel for Mr. bin al Sh ibh

IIsll WALTER B. RUIZ CDR, USN Defense Counsel

Counsel for Mr. al Hawsawi

- 14-

IIsll KEVIN BOGUCKI LCDR, USN Defense Counsel


Appellate Exhibit 057 (KSM, RBS , AAA, MAH) of 15


CERTIFICATE OF SERVICE

I cert ify that on the 16th day of July, 20 12, I electronicall y filed the foregoing document

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


IIsil JAMES G. CONNELL, Ill, Leamed COimsel

UNCLASSIFIEDIIFOR PUBLIC RELEAS E Attachment A Page 1 of 1

Appellate Exhibit 057 (KSM, RBS , AAA, MAH) of 15

united states of america v. ae 057(ksm, rbs, aaa, … · khalid shaikh mohammad, walid muhammad...

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