7/28/2019 Ksm II (Ae052-3(Mah))

1/5

UNCLASS IFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL J UDICIARYGUANTANAMO BAY

UNlTED STATES OF AMERICAv.

KHALID SHAIKH MO HAMMAD,WALID MUHAMMAD SALIH MUBARAKBIN 'ATTAS H,RAMZI BIN AL SHAIBAH, AMAR ALBA LUCH I ("ALI ABDUL AZIZ ALI "),

MUSTAFA AHMED ADAMALHAWSAW I

AE052-3(MAH)Defense Motionfor Appropriate Relief to Continuethe Filing Deadline for Mr. Hawsawi'sResponse to AE-OS2, GovernmentMotion for Finding

Filed: 12 September 2012

I. Timeliness: Thjs motion for appropriate relief is time ly fil ed pursuant to RMC 906(b)( I).2. Relief Sought: Mr. Hawsawi requests a continuance of the deadline for filing a response tothe Governme nt' s AE-052, until October 26111, 20 12, or two weeks after requested di scovery ha sbeen provided, wh ichever is later.3. Burden of Proof: As the mov ing party, the defense bears the burden on th is motion. SeeR.M .C. 905(c); 906(b)(I).4. Ove r view: Deta iled learned defense cou nsel for Mr. Hawsawi seeks a continuance of thedeadline to respond to AE-052 until October 26th , or two weeks after di scovery that ha s beenrequested has been tu rn ed over to the Defense, whjchever date is later.

The response is currently due September 13 th , 20 12. Defense counsel and Mr. Hawsawi'smitigation expert need to di scuss certa in sensitive issue s with Mr. Hawsawi in order to preparethe response to AE-052. Due to the cance llation of aM ili tary Comm issions fli ght scheduled totake defense cou nsel to Guantanamo for client meet ings the week of September loth, counsel isnow un able to travel until the week of September lih , 20 12; the mitigation specialist is notava ilable to travel until October 9th . Mr. Hawsawi, along with co-defendants' counsel, has alsosubmitted three requests for di scovery pert in ent to AE-052.

Fi led with T12 September 2012UNCLASSIFIEDIIFOR PUBLIC RELEASE

Appellate Exh ibit 052-3 (Con I. Ext) (MAH)Page 1 of 5

7/28/2019 Ksm II (Ae052-3(Mah))

2/5

UNCLASSIFIEDIIFOR PUBLIC RELEASE

The requested co ntin uance will a llow counsel and the mitiga tion expert to meet with Mr.Hawsaw i to discuss the sens itive issues in quest ion, and then adequately respond to AE-052; itwill also perm it review of discovery relevant to the response.

5. Facts:a. The Government filed AE-052 with the defense on August 10, 20 12.b. Ruling on ajo in t defense mot ion for a continuance, th is commiss ion agreed to delay the

filing of a response unt il September 13, 20 12, due to hearings in th is case that had been set totake place during the time a response would have been prepared.

c. The week of September 3rd, 20 12, in prepar ing the response to AE-052, defense counselfor Mr. Haw saw i recogni zed that certa in sensitive issues needed to be d iscussed with Mr.Hawsawi. To a id in wr itin g the response therefore, defense counse l planned to travel toGua ntanamo the week of September 10th , along with Mr. Hawsaw i's mitigat ion expert, in orderto discuss these sensitive issues with Mr. Haw saw i. The afte rn oon of Fr iday September ih,however, counse l were informed that the scheduled M ilitary Comm iss ions fli ght was cance led.Counsel were told that the onl y remaining flight to Guantanamo that week would require counseland supporting personnel to leave that evening, September ih, in order to catch a rotator fli ghtout of Jacksonville, Flor id a, the next morn in g. Cou nsel and supporting personnel were not ableto make alternat ive arrangements on suc h short notice. Add itionall y, Mr. Hawsawi's mitigat ionexpert, who does not res id e in Wash ington, DC , had been due to fly in to Washin gton D.C. onSu nday afternoon, so as to leave on the planned Mo nday September l Oth; he could not make theearlier, Saturday rotator fli ght to Guantanamo out of Jacksonville. Counsel requested for theteam to fly commerc iall y to Guantanamo on Mond ay September 10th , 20 12, but were in formedthat no fli ghts were ava ilab le. Counsel also indicated that they wou ld be willing to trave l on amilitary aircraft. Th is opt ion was denied as we ll.

d. Defense counsel antic ipates takin g the next schedu led Military Comm iss ions fli ght toGuantanamo, the week of September 17, 20 12. However , Mr. Guastafarro , Mr. Hawsawi'smitigat ion expert, is not ava ilable to travel to Gua ntanamo Bay until 09 October 20 12.

e. The Defense has filed three jo in t requests for discovery. These requests were filed August30, 20 12 (class ifi ed) , and two were subm itted on September 6, 20 12.

f. The next comm iss ion hearing in this case is set for October 15- 19, 20 12.

Fi led with TJ12 September 2012U N C L A S S I F I E D F O ~ PUBLIC RELEASE

Appellate Exh ibit 052-3 (Con I. Ext) (MAH)Page 2 of 5

7/28/2019 Ksm II (Ae052-3(Mah))

3/5

UNCLASSIFIEDIIFOR PUBLIC RELEASE

6. Law and Argument:The discussion to Ru le for M ili tary Commiss ion 906(b) states that "[t]he m ili tary judge

should, upon a showing of reasonable cause, grant a contin ua nce to any party for as long and asoften as isjust." R.M.C. 906(b)( J)(Discussion). The Regulat ions for Trial by M ili taryComm ission also recogni ze the statutory requirement that the defense must have a reasonableopportuni ty for access to ev id ence. RTMC 17-3(a)("Pursuant to Chapter 47 A of T itle 10 U.S .c. 949j, the defense cou nsel in a m ili tary commiss ion shall have a reasonable opportunity toobtain witnesses and other ev idence as prov id ed by R.M.C. 70 1-703 .")

In order to file an adequate response to AE-052, defense cou nsel and the mitigat ion expertneed to di scuss certain sensitive matters with Mr. Hawsaw i. Counsel has been unable to do so,given the timing of the f iling of AE-052, and the m ili tary comm issions fli ght schedule. Theunant ic ipated cance llation of the M ili tary Comm issions fli ght to Guantanamo the week ofSeptember lOth has re sulted in cou nsel having to cancel meet ings with Mr. Hawsaw i. Meet in gswith the case mitigat ion expert, Mr. Guastaferro, w ill now not take place until after October 9,20 12, s ince Mr. Guastaferro is not be ava ilable to travel to Guantanamo until that date. Given thein terference with scheduled fli ght s and the current hearin g schedule, there is good cause for therequested delay to f ile a respo nse here, and granting th is request is in the in terests of just ice . SeeR.M.C. 906(b)( I)(discuss ion). Th is br ief delay, moreover, w ill give defense counsel reasonableopportuni ty to obta in ev id ence requested of the prosecution that is relevant to an adequateresponse to AE-052 . See 10 U.S .C 949j; R.M .C. 70 1, 703; R.T.M.C. 17-3(a).

The requested del ay w ill have no impact on th is M ili tary Comm ission's current schedule,s ince AE-052 is not docketed for the next scheduled hearing week of October 14 111,20 12.Accord in gly, Mr. Hawsawi seeks a continuance until October 26 111 , or two weeks after di scoverythat has been requested has been turned over to the Defense, whichever date is later.7. Conference: The Prosecut ion indicated on 12 September 20 12 that the Government opposesth is mot ion.8. Request fo r Oral Argument: None.

Fi led witll TJ12 September 2012UNCLASSIFIEDIIFOIJ PUBLIC RELEASE

Appellate Exhibit 052-3 (Con I. Ext) (MAH)Page 3 of 5

7/28/2019 Ksm II (Ae052-3(Mah))

4/5

UNCLASSIFIEDIIFOR PUBLIC RELEASE

9. Request for Witnesses and Evidence: None.10. Additional Information: None.II. Attachments:

A. Certificate of Service.IIsil

WALTER B. RUIZCDR , JAGC , USNDetailed Defense Counsel

U N C L A S S I F I E D F O ~ PUBLIC RELEASEFi led with TJ12 September 2012 Appellate Exhibit 052-3 (Con t. Ext) (MAH)Page 4 of 5

7/28/2019 Ksm II (Ae052-3(Mah))

5/5

UNCLASSIFIEDIIFOR PUBLIC RELEASE

CERTIFICATE OF SERVICE

1certify that on the 12 day of September, 20 12, 1 electronica lly filed the Defense Motionfor Appropriate Relief to Continue the Filing Deadline for Mr. HawsawPs Response toAE-OS2, Government Motion for Finding w ith the Clerk of the Court and served the foregoingon all counsel of record bye-mail.

Fi led with TJ12 September 2012

IIsilWALTER B. RUIZCDR , JAGC , USNDetailed Defense Counsel

UNCLASSIFIEDIIFOR PUBLIC RELEASEAttachment APage 1 of 1 Appellate Exhibit 052-3 (Con t. Ext) (MAH)Page 5 of 5