KSM II (AE013JJ-1)-2

7/28/2019 KSM II (AE013JJ-1)-2

1/11

UNCLASSIFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL J UDICIARYGUANTANAMO BA Y, CUBA

UNITED STATES OF AMERICAv_

KHALID SHAIKH MOHAMMAD,WALID MUHAMMAD SALIHMUBARAK BIN ATTASH,

RAMZI BINALSHIBH,ALI ABDUL AZIZ ALI,M USTAFA AHMED ADAM AL

HAWSAWI

1. Timeliness.

AE 013JJ-lGovernmen t's Response

To Defense Mot ion to Amend AE Ol3AAProtect ive Ord er # I to Pennit Defendant toPart ic ipate in Hi s Own Defense

20 May 20 13

This response is fil ed timely pu rsuant to M ili tary Commiss ions Trial Judic iary Rule ofCourt 3. 7.c( I).2. Relief Sought.

The Prosecution respect full y requests the Commission deny the Defense motion toamend paragraphs 6(g), 6(i), 8(a), and 8(a)(2)(b) .3. Overview.

"Und er no c ircumstances maya m ili tary ju dge o rd er the release of classif ied in fo rmationto any pe rson not authorized to receive such informa tion. " See 10 U.S.c. 949p- l (a); M.C.R.E.505(a)(I ) (stat in g "[t]hi s rule app lies to all sta ges of the proceedings"). In its proposedamendments to Protect ive Ord er # I, however, th e DeFense seeks to create a deFa ult mechani sm

by which all class ifi ed di scovery would be prov ided to the Accused in thi s case. Based on thestatutory and regulatory prov isions of the M ili tary Commissions Act and M ili tary Commiss ionRul es of Ev idence governin g di sclosure of class ifi ed inFormat ion, and consistent with Federalco urt practice under th e Class ifi ed Informat ion Procedures Act (CIPA) , the Commission must

Fi led wi th T20 May 2013 Appellate Exhibit 013JJ-1 (KSM et al.)Page10f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

2/11


deny the Defense mot ion. C leared defense counsel for each of the Accused will have theopportunity to review class ified discovery once he or she signs the Memora ndum ofUnderstanding (MOU) and submits it to the Trial Judiciary and Prosecut ion. I Where there is noconstitut ional right to discovery, it is the defense counsel, not the Accused, who must be able toreview a ll discovery, class ified or otherwise, in order to prepare and present a defense. SeePel1llsylania v. Ritchie, 480 U.S. 39, 59-60 . ( 1987)(,'There is no general constitutional right todi scovery in a cr im inal case.")4. Burden of Proof.

The Defense must demonstrate by a preponderance of the ev idence that the requestedrelief is warranted . R.M.C 905(c)(2).5. Facts.

On 9 February 20 13, the Military Commiss ion issued AEO13AA Amended Protect iveOrder # I.

On 19 February 2013, cou nsel for Mr. Ali signed the Amended Memorandu m ofAgreement in accordance with AEO 13AA Amended Protect ive Order # I.

On 18 March 20 13, the Prosecution provid ed 16 pages of class ified di scovery unrelatedto the RO t program to counsel for Mr. A li.

On 8 May 20 13, counse l for Mr. Bin Attash filed a not ice of jo inder . See AEo13JJ(WBA).

I Desp ite the Commiss ion 's admoni shment in the February 2013 hearing, M r. Co nnelland Lt Co l Thomas are the onl y attorneys who have s igned and submitted the requi site MOU.

Fi led wilh T J20 May 2013 Appellate Exhibit 013JJ-l (KSM et al.)Page20f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

3/11


6. Law and Argument.I. The Proposed Amendments to Protective Order #1 Are Impermissible Unde r theMilitary Commiss ions Act and Military Commission Rules of Evidence.

The law regarding di sclosure of classified information to the Accused is clear. "Under noc ircumstances maya mili tary judge order the release of classified in format ion to any person notauthorized to receive such infonnat ion. " See 10 U.S .c. 949p- l(a); M.C.R.E. 505(a)( I) (stating"[t]hi s rule app lies to all stages of the proceedings") . The Defense's proposed amend me nts toparagraphs 6(g), 60), 8(a), and 8(a)(2) seek to provide the Accused in this case all class ifiedinfonnation di scovered by the Prosecution. The wholesale di sclosure of class ified in format ion ina terrorism trial is not only inappropriate; but it is also impenn issible und er the M ili taryCommiss ions Act and M ili tary Conun ission Rule s of Ev id ence.

Asc ited in PennsyLvania v. Ritchie, 480 U.S . 39 (1987), "[t]here is no ge neralconst itut ional right to discovery in a cr imin al case . .." Penllsylvania, 480 U.S . at 59-60 citingWeatherford v. Bursey, 429 U.S . 545, 559 (1977). Th is view is consistent with the Uni ted StatesCourt of Appeals for the Second Circu it's op inion in 111 re Terrorist Bomhings ofUS Emhassiesill East Africa v. Odeh, 552 F.3d 93 (2008) regarding discovery:

Our understanding that product ion of materials to a party'sattorney alone fall s with in the common meaning of 'discovery'further st rengthens our convict ion that discovery restriction simposed by the Di st rict Court were perfect ly appropr iate and validin light of the standard by which our Court determine s when thegovernment's priv ilege 'must give way to a criminaldefendant' s right to present a meaningful defense.

111 re Terrorism Bomhings ofUS Emhassies in East Africa, 552 F.3d at 126 citing United Statesv. Are/, 533 F.3d 72 , 79 (2d . C ircu it 2(08); see also id . at 79-80 (adopting the stand ard set forthin Roviaro v. United States, 353 U.S. 53,77 ( 1957). Wh ile the Defense cites 111 re TerroristBombings ofUS Embassies ill East Africa to illustrate that the Second Circuit cons id ered

Fi led with T20 May 2013 Appellate Exhibit 013JJ-l (KSM et al.)Page30f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

4/11


defendant access to class ified in format ion as "an aspect of the right to present a defense," theDefense fa ils to acknowledge the Court's actual holding in that case: "the District Court'sdeci sion to impose a mandatory clearance requirement for access to classified in format ion,pursuant to CIPA, was we ll within its in formed di scretion." Id. at 123 . As suc h, EI-Hage, thedefendant , was never provid ed access to c lass ified discovery. In fact, the Second Circuit furtherheld, " . . . it is clear that any in terest EI-Hage had in personally in spect ing the material wasin sufficient to outweigh the government's in terest in avo iding unauthorized disclosures ofclass ified in fonnat ion. " /d . at 125 .

Sim ilarly, the Defense seeks to further its argument by c iting numerous protect ive ordersentered by federal di strict courts in cases in volv ing class ified in format ion. The reference tothese protective orders as examples of in stances where "federal courts have specifica llypenn it ted the defendant blank et access to class ified di scovery" is utterly inaccurate . See AE I3JJat 5 . Desp ite the attachments included in the Defense mot ion, the Defense fail s to c ite an actualterrorism case where the governme nt provided a cr im inal defendant with wholesa le access toclass ified discovery. In fact, no such case ex ists . Instead , the Defense makes much of theseprotect ive orders while failing to acknowledge that the major ity of these orders governed caseswhere the heart of the government' s allegat ions was the class ified in format ion at issue (e.g., anesp ionage case invo lv ing unauthorized di sclosure of class ified informat ion by an individ ualpossess ing 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 (F iveage nts of the Cuban Directorate of Intelligence were charged with espionage aga in st the UnitedStates military and Cuban ex iles in Southern Florid a); Attachment F, United States v. Kiriakoll ,Eastern District of Virg ini a (Former CIA officer charged with unauthor ized di sclosure of acovert officer's id entity and other classif ied in fonnation and ly ing to C IA's Pub licat ions ReviewBoard); Attachment G United States v. Smith, Central District of Ca lifornia (FBI Special Agentcharged with gross neg ligence for allow in g an FB I asset and Ch inese spy access to class ified

Fi led with T J20 May 2013 Appellate Exhibit 013JJ-1 (KSM et al.)Page40f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

5/11


where class ifi ed infonnat ion was not the substance of the govern ment' s all egations, theDefense's argument is even more in accurate. Even a cursory reading of these protective ordersreveals that no defe ndant in a terrorism tr ial was provided blanket access to class ifiedin formation. 3

infonnat ion); Attachment H, United States v. Poindexter, District Court for the District ofCo lumbia (Former Nat ional Security Adviso r charged with ly ing to Congress about Iran-Contra;Attachment I, United States v. Jasil1 , Eastern District of Pennsylvani a (Hi gh-ranking officer in amilitary technology company charged with consp iring to illega lly transfer weapons and money toSouth Africa); Attachment J, United States v. Jones, District Court for the District of Co lu mbia(State Department employee charged with providing class ifi ed documents to a Cameroonnat ional); Attachment K, United States v. Pitts, Eastern District of Virginia (FBI Special Agentcharged with consp iracy to commit espionage for Russ ia and the former Soviet Uni on);Attachme nt L, United States v. Lee, Di strict of New Mex ico (Nuclear Physic ist employed at LosA lamos charged with mishandling class ifi ed in format ion); Attachment M , United States v. Libby,Di strict Court for the District of Columb ia (Hi gh-ranking U.S . Governm ent of fic ial charged withobstruction, false statements, and perjury relating to the illegal leakin g of class ifi ed identity of acovert CIA agent); Attachment N , United States v. Franklill , Eastern District of Virginia(Department of Defense employee charged with consp iracy to commu nicate national defenseinfonnat ion and consp iracy to communicate nat ional defense infonnat ion to a n agent of a foreigngovern ment); Attachment 0 , United States v. Drake, Northern District of Maryland (NSAcontractor charged with willful retention of nat ional defense information); Attachment P, UnitedStates v. Sq llillacote, Eastern District of Virginia (Hu sband and w ife charged with conspiracy tocommit espionage aga in st the U.S . on behalf of East Germany, Sov iet Union, Russia , and SouthAfrica); Attachment Q, United States v. Sterling, Eastern Di strict of Virginia (Fonner CIAemployee charged with unlawful detention and unlawful di sclosure of nat ional defenseinfonnat ion to a jou rn a list) and; Attachment U, United States v. Kim , Di strict Court for theDi strict of Co lumbia (Senior Analyst at Li vennore Nat ional Laboratory charged withunauthorized disclosure of nat ional defense information to a journali st) .

3 See AEO I3JJ , Attachment 0 , United States v. Milsa ("Defense cou nsel and thedefendants shall be g iven access to class ifi ed nat ional security documents m,' .sary toprepare for proceedin gs in this case in accordance with the terms of the Protective Order.");Attachme nt R, United States v. MOlIssaolli ("Ifit is Ilecessary for a defendant to review ordiscuss class ifi ed matters, or otherwise meet with defense counsel, in the Secure Area, this w illonly occur under appropriate supervision . . . "); Attachment S, United States v. Holy Lalld ("If,UpOIl entry ofa !.eparate order of th e Court, it becomes Ilecen'ary for defendant(s) to review ordiscuss class ifi ed matters, or otherwise meet with defense counsel, in the Secure Area , th is w illonly occur under appropriate supervision . . . "); Attachment T , United States v. Amawi (Counse lfor the government shall be g iven an opportuni ty to be heard in response to any defense requestfor 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 will be held ,in the presence of the Court Security Officer, to determine whether aud to what extent the

Fi led with T J20 May 2013 Appellate Exh ibit 013JJ-1 (KSM et al.)Page50f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

6/11

UNCLASS IFIEDIIFOR PUBLIC RELEASE

The Prosecut ion agrees that the Defense may prov ide to the Accused any informat ionpreviously prov id ed by an Accused to the Defense and therefore, does not object to proposedsubparagraph ( l) of paragraph 6( i). Based on the arguments above, however , the Defense maynot prov ide class ified pleadin gs filed with the M ilitary Comm iss ion to the Accused and thereforeobjects to proposed subpa ragraph (2) of paragraph 6( ;)4 Proposed subparagraph (3) ofparagraph 6( i) is unnecessary as the Prosecut ion must already comply with the statutory andregu latory provisions ma ndat ing that any infonnat ion admitted in to ev idence be prov ided to theAccused. 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 authorizedto receive class if ied in format ion and therefore, may not be present during certa in pretrialhearings where class if 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 app li es to all stages of the proceed ings") .s F in a ll y, the Prosecutionobjects to proposed subparagraph (5) of paragraph 6( i) where the Defense seeks to create a newdefault category of class if ied discovery to the Accused. Where discovery is in tended for releaseto the Accuse d, the Prosecution will mark the document appropriate ly. As discussed supra,"[u]nder no c ircumstances maya m ilitary judge order the release of class ified infonnat ion to any

defendants !.-JlOuld be grallted access to cenaill clanified illjonnatioll without having receivedsecurity clearances.") emphasis added .

4 As discussed 111 re Terrorist Bomhillgs ofu.s. Embassies ill East Africa, thegovernment submitted a memorandum of law argu in g for the necess ity ofa ma ndatory clearancerequirement: "AI Qaeda also monitors court papers related to tr ials of al Qaeda assoc iates. Forexample, . . . A li Mohamed [(a defendant in the in stant case)] sent a document concern ing thetr ial of She ikh Omar Abdel Rahman , wh ich took place in the Southern District of New York,from Ca li fornia, where he the n lived, to the defendant Wad ih EI Hage in Kenya for furtherdelivery to [O]sama Bin Laden. Upon infonnat ion and be lief, the document sent by Mohammed(who was not a defendant in that case) was prov ided to the defense in that case, but not publiclytiled. See 111 re Terrorist Bombillgs of u.s. Embassies ill East Africa, 552 F.3d at 11 7, fn. 22.

5 The Prosecution incorporates by reference all arguments made in AE 136(Gove rn ment' s Memorandu m of Law Re ga rding Accused Presence During Closed Proceedings .

Fi led with TJ20 May 2013 Appellate Exhibit 013JJ-1 (KSM et al.)Page60f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

7/11


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 ).

Ba sed 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 CannotArticulate Classified Information I t Wishes to Prov ide to The Accused.As the Second Circu it held in 111 re Terrorist Bombings of u.s. Embassies il l East Africa,

" . . CIPA authorizes district courts to limit access to class ifi ed informat ion to persons with asecurity clearance as long as the app licat ion of th is requirement does not deprive the defense ofev id ence that would be 'useful to counter the govern me nt' s case or to bolster a defense." See 111re Terrorist Bombillgs ofu.s. Embassies ill East Africa, 552 F.3d at 122. Analogous provisionsunder M.C.R .E. 505 govern access to class ifi ed information in this Commiss ion. In th is case, theProsecut ion w ill prov ide class ifi ed discovery to c leared defense counse l. As such, the Defense isnot 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 District Court . . . observed that, because EI-Hage's attorneys had 'seen theclass ifi ed in format ion at issue, it [was] not c lear why' the provisions of the protect ive ordershould have a detrimental effect on EI-Hage's ab ili ty to present a defense. ") In its mot ion, theDefense argues that "refus in g the defendants access to cla ss ifi ed information abollt themselvesw ill almost certainly deprive the defense of useful ev id ence, as the defendants w ill not be able toconfinn , deny, or supplement the infonnat ion the governme nt provides." See AE013JJ at 5.Certainl y, the Accused are not prevented from ta lking "about themselves" to the ir attorneys.Without disclos in g class ifi ed in format ion to the Accused, there is noth in g to prevent the Defensefrom questioning the ir clients about the Accused's all eged in volvement in the September II lhattacks, the ir capture, any statements made to the govern me nt, and conditi ons of conf ineme nt.

Fi led with T J20 May 2013 Appellate Exhibit 013JJ-1 (KSM et al.)Page70f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

8/11


Ba sed on any in formation prov ided by the Accused, the Defense is more than able to prepare.Any information that the Prosecut ion in tends to use affirmatively in its case- in -chiefwill bereleasable to the Accused, regardless of its class ifica tion status.

The Prosecut ion has yet to prov ide the bu lk of its class ified di scovery to the Defense. Assuch, the Defense cannot reasonably just ify the ir request that that the Accused are entitled toview class ified discovery genera lly. The onl y proffer the Defense makes is that the Accusedshou ld be entitled to v iew class ified in fonnat ion about themselves. However, the Accused arefully aware of their activ ities pr ior to capture, the ir statements, and their condi tions ofconfinement and are free to di scuss those topics with the Defense . To simply state that class ifi edinformation about an Accused renders that information di scoverable and releasable to thatAccused is who lly 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 ified informat ion is notdi scoverable on a mere showing of theoret ica l relevance in the face of the govern ment'sclass ified informat ion pr iv ilege, but that the threshold for discovery in th is context furtherrequires that a defendant seeking classified infoI111at ion . . . is entitled o nl y to informat ion that isat least 'helpful to the defense of [the] accused."')7. Oral Argument.

Due to the numerous motions to amend Protective Order # I, the Prosecution wa ives oralargument and respectfully requests the M ili tary Judge issue a ruling based on the motions alone.8. Witnesses and Evidence.

The Prosecut ion w ill not rely on any witnesses or ev idence in support of this motion.

Fi led with T J20 May 2013 Appellate Exhibit 013JJ-l (KSM et al.)Page80f l lUNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

9/11

UN CLASSIFIEDIIFOR PUBLIC RELEASE

9. Attachment.A. Cert ificate of Service dated 20 May 20 13.

Fi led with TJ20 May 2013

Re spectfully submitted,IIsll

Kiersten KorczynskiLT, JAGC, USNAssistant Trial CounselJoann a BaltesDeputy Tr ial CounselMark Mart insCh ief ProsecutorOffice of the Ch ief ProsecutorOffice of Mili tary Commissions

Appellate Exhibit 013JJ-l (KSM at al.)Page90fl1UN CLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

10/11

Fi led w ith TJ20 May 2013


ATTACHMENT A

Appellate Exhibit 013JJ-l (KSM et al.)Page 100f 11UNCLASSIFIEDIIFOR PUBLIC RELEASE

7/28/2019 KSM II (AE013JJ-1)-2

11/11


CERTIFICATE OF SERVICE

I certify that on the 20th day of May 2013, I filed AE 0 13JJ - I, the Government's Response toDefense Motion to Amend AE Ol3AA Protect ive Order # 1 to Secure Privileged Classificat ionReview with the Office of M ili tary Commissions Tr ial Judiciary and I served a copy on cou nselof record.

Fi th

IIsllKiersten KorczynskiLT, JAGC, USNAssistant Tr ial Counsel

hi

Documents

KSM II (AE013JJ-1)-2