Orders Issued and Motions Litaged: A Government Summary
On Thursday, 19 December 2013, the U.S. Government -- under the rule for Military
Commissions -- requested a sanity board be convened for Ramzi bin al-Shibh. This had the effect of immediately concluding
the commissions until the board completes the evaluation and the Gov’t presents the board’s findings to the court.
The following summary of the orders issues and motions litigated this week related
to the 9/11 Miltiary Commission pre-trial hearings at Guantanamo Bay Naval Station (GBNS) was assembled by OSD Public Affairs:
(1) The Judge issued Appellate Exhibit 200II (1) denying the defense motion to
dismiss the charges and remove the death penalty as a possible punishment on the ground that Amended Protective Order #1 violates
the Convention Against Torture; (2) denying the defense motion to strike paragraphs 2(g)(3) and 2(g)(4) of Amended Protective
Order #1; and (3) granting the defense motion to strike paragraph 2(g)(5) of Amended Protective Order #1 as superfluous to
another provision already in the protective order.
Judge issued Appellate Exhibit 013DDD, the Second Amended Protective Order #1 to protect against disclosure of national security
(3) The Judge issued Appellate Exhibit 013CCC,
a second supplemental ruling regarding the government motion to protect against disclosure of national security information.
In it, the Judge:
- ordered defense counsel to execute
the Memorandum of Understanding attached to the Second Amended Protective Order by January 24, 2014, “[i]n order to
be provided access to classified information in connection with this case”; granted an unopposed defense motion
to amend the protective order to clarify control over the courtroom (AE 013CC);
- granted an unopposed defense motion to amend the protective order regarding defense team information
- granted an unopposed defense motion to amend
the protective order to clarify the “secure area” requirement (AE 013FF);
- denied a defense motion to amend the protective order to protect materials of the International Committee
of the Red Cross (AE 013GG);
- granted in part and denied
in part the defense motion to amend the protective order to secure privileged classification review (AE 013HH);
- granted in part and denied in part the defense motion to amend the protective
order to clarify open-source handling requirements (AE 013II);
in part and denied in part the defense motion to amend the protective order regarding the accused’s participation in
his defense (AE 013JJ);
- granted the defense motion to amend
the protective order to make conforming changes (AE 013KK);
- mooted the defense motion to compel the production of the author of a memorandum regarding open-source handling requirements
(AE 013MM); and
- denied the defense motion to dismiss based
upon inhibitions placed on seeking alternative sources of mitigation information (AE 200).
(4) The Judge issued Appellate Exhibit 164C denying the defense motion to stay
all review under 10 U.S.C. § 949p-4 and to declare 10 U.S.C. § 949p-4(c) and Military Commission Rule of Evidence
(“M.C.R.E.”) 505(f)(3) unconstitutional and in violation of the Uniform Code of Military Justice and the Geneva
(5) The Judge issued Appellate Exhibit 206I denying
Mr. Mohammad’s motion to recuse the Judge from hearing and deciding defense motion AE 206 to cease daily searches.
(6) The Judge issued Appellate Exhibit 200HH denying Mr. Aziz Ali’s motion
to compel discovery of communications with the governments of Kuwait and Pakistan.
(7) The Judge issued Appellate Exhibit 034B mooting the defense motion to compel the production of Jose
A. Rodriguez to testify at the June 12-15, 2012 motion hearing.
The Judge issued Appellate Exhibit 073J/AE 156J permitting the defense to submit their theory of defense to the Judge ex parte
by February 7, 2014.
(9) The Judge heard oral argument on
Appellate Exhibit 046C, a defense motion to reconsider Appellate Exhibit 046 (defense motion to compel witnesses in support
of Appellate Exhibit 031, which is a defense motion to dismiss for alleged unlawful influence).
(10) The Judge heard oral argument on Appellate Exhibit 029C, a defense motion to reconsider
Appellate Exhibit 029 (a defense motion to compel a witness in support of Appellate Exhibit 008, which is a defense motion
to dismiss the charges for alleged defective referral).
The Judge heard oral argument and took witness testimony on Appellate Exhibit 254, a defense motion regarding attorney-client
(12) The Judge heard oral argument on Appellate
Exhibit 008, a defense motion to dismiss the charges for defective referral. In August 2013, the Judge took testimony
from two witnesses regarding AE 008.
(13) The Judge granted
Appellate Exhibit 152G, a government motion for inquiry into Ramzi Binalshibh’s mental capacity to stand trial pursuant
to Rule for Military Commissions 706.
In addition, on Monday
the Judge held an in camera M.C.R.E. 505(h) hearing to make a determination regarding the use, relevance, or admissibility
of classified information the defense or prosecution sought to discuss during a session on the merits of a particular motion.
Once the judge grants a request to hold a Rule 505(h) hearing about classified material that may relate to a motion
to be litigated later, the parties will not litigate the merits of the underlying motions themselves—that takes place
in a session later, and such sessions are to be as open as possible. After holding the in camera hearing, the Judge issued Appellate Exhibits
008GGG and AE 031SS, denying Mr. Mohammad’s requests to disclose classified information during a session in which the
parties will litigate the merits of the underlying motions. The Judge determined that the classified information Mr.
Mohammad’s defense counsel seeks to disclose “is not relevant and is unnecessary for a fair determination of the
issue before the Commission.” The Judge also issued Appellate Exhibits 32BBB, 008FFF, 108Y, 070B, 133LL, and 133KK,
ordering supplemental argument in a closed session on Appellate Exhibits 008, 018, 031, 032, 108, 133AA, and 133J. The
Judge determined closure of a portion of the proceedings is necessary --and will be narrowly tailored -- to protect only information
the disclosure of which could reasonably be expected to damage national security. The Judge ordered a transcript of
the closed session to be provided, excising only classified national security information. To date, less than 1% of
the case proceedings has been closed to the public.
As DSJ reported, and potentially counter to the above OSD rendering, Defense Counsel James Connell revealed to the media that that the Judge's
determination, once released, will allow defendants to discuss information related to their treatment that is presently deemed