Ksm II (Ae136)

UNCLASSIFIED//FOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA

UNITED STATES OF AMERICA

v.

KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH

MUBARAK BIN ATTASH, RAMZI BINALSHIBH, ALI ABDUL AZIZ ALI,

MUSTAFA AHMED ADAM AL HAWSAWI

1. Timeliness.

AE136

~vernment's Memorandum of Law Regarding Accused Presence During

Closed Proceedings

1 February 2013

This memorandum is timely filed at the request of the Military Commission.

2. Overview.

During the trial session on 28 January 2013, the Military Judge directed the Prosecution

to submit its position on whether the Accused has a right to be present during pretrial hearings

where classified .information is disclosed.

3. Law and Argument.

The Military Commissions Act (M.C.A.) establishes pretrial, trial, and appeUate

procedures for the use of classified information in military-commission trials. 10 U .S.C. §§

949p-1 through 949p-7. The statute requires that classified information be protected from

disclosure dming aU stages of proceedings by military commission. 10 U.S.C. § 949p-l(a);

M.C.R.E. 505(a). The statute also makes clear that no unauthorized persons may access

classified information. 10 U.S.C. § 949p-l(a); M.C.R.E. 505(a). "Under no circumstances may

a military judge order the release of classified information to any person not authorized to

receive such information." 10 U.S.C. § 949p-1(a); M.C.R.E. 505(a)(1) (stating "[t]his rule

Filed with T J 1 February 2013

UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 136 (KSM et al.)

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applies to all stages of the proceedings"). The Accused are not authorized to receive classified

information and, as such, they may not be present during pretrial hearings where classified

information is disclosed.

Likewise, the Rules for Military Commissions state the Accused may not be present

during in camera presentations where classified information will be disclosed. R.M.C. 804(a)

(the accused has a right to be present "[e]xcept for certain in camera and ex parte presentations

as may be permitted under R.M.C. 701-703 and Mil. Comm. R. Evid. 505."). The rules are

consistent with the clear language and intent of the statute as it pertains to classified information.

The Accused have a right to be present- a right the Accused may waive- but that right does not

extend to all proceedings without limitation. Indeed, the Accused may be excluded from pretrial

hearings if they were to endanger the safety of individuals or disrupt the proceedings (R.M.C.

804(b )), and the Accused may be excluded from pretrial hearings where classified information is

disclosed. R.M.C. 804(a); lOU.S.C. § 949p-l(a); M.C.R.E. 505(a)(l)).

The statute sets forth a detailed procedme to ensure that the exclusion of the Accused and

the closure of proceedings to the public are a last reso1t . Indeed, before the Accused may be

excluded, the pa1ties are required to identify the specific classified information that must be

disclosed and work to minimize or eliminate the need for disclosing such information. 10 U.S.C.

§ 949p-6; M.C.R.E. 505(h). The process set forth in the statute is clear: where either pruty

believes that classified information is relevant and thus must be disclosed during a pretrial

heru·ing, it first must provide particularized notice of the specific classified information that it

intends to disclose. 10 U.S.C. § 949p-5; M.C.R.E. 505(g). When proper notice is provided,

either party may request an in camera hearing with the Commission. At the in camera heru·ing,

the Commission must consider the use, relevance, and admissibility of the classified information


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at issue. l 0 U.S.C. § 949p-6; M.C.R.E . 505(h)(l )(A). If the Commission authorizes the

disclosure of classified information, the govemment may seek to limit disclosure by offering to

stipulate to certain facts, provide a summary of the classified information, or use other

procedures in an effort to limit the disclosure of classified information that reasonably could be

expected to harm national security. 10 U.S.C. § 949p-6; M.C.R.E. 505(h)(3). The Commission

should accept the govemment's proposed altematives to the defense disclosing classified

information so .long as the defense would have substantially the same ability to make its

arguments as if the specific classified information were allowed to be disclosed. See I 0 U.S.C.

§ 949p-6(d)(2).

Excluding an Accused from hearings where classified information will be disclosed is not

unique to mil itary commissions. Federal district courts also exclude defendants from such

hearings. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93 (2d Cir. 2008)

("In re Terrorist Bombings"). In In re Terrorist Bombings, the district comt excluded the

defendant from hearings involving classified information. The defendant argued that the district

court violated his Fifth Amendment and Sixth Amendment rights to be present at a crucial stage

in his trial by excluding him from those hearings. The Second Circuit dismissed the defendant's

claim that his Sixth Amendment right to be present was violated, stating "[b]ecause no witnesses

testified at the hearings in question, we proceed on the understanding that [the defendant] is

claiming a violation of the rights guaranteed to him by the D ue Process Clause of the Fifth

Amendment." In re Terrorist Bombings, 552 F.3d at 128 (citing United States v. Peterson, 385

F. 3d 127, 137 (2d Cir. 2004) ("A criminal defendant's constitutional right to be present at various

stages of his trial is rooted in the Confrontation Clause of the Sixth Amendment and, when

confrontation is not at issue, the Due Process Clause of the Fifth Amendment.")).


3 UNCLASSIFIED//FOR PUBLIC RELEASE

Appellate Exhibit 136 (KSM et al.) of 7


The Second Circuit also found no Fifth Amendment Due Process Clause violation under

the following fom-factor test: (1) whether the justification for batTing the defendant was

compelling, such as the need to protect national security; (2) whether the defendant's personal

history "inspire[d] confidence in his selection as a safe repository [of] classified information";

(3) whether the defendant's attorneys were permitted to attend the hearing and patticipate on his

behalf; and (4) whether the substance of the matters discussed at the heru·ing bore any

relationship to the question of the defendant's guilt or innocence of the crimes chru·ged. In re

Terrorist Bombings, 552 F. 3d at 129-30 (citing United States v. Bell, 464 F.2d 667, 672 (2d Cir.

1972)).

As in In re Terrorist Bombings, the Commission should find that the Accused can be

excluded from hearings involving classified information. In fact, the statute requires the

Accused to be excluded from such hearings unless classified information is admitted into

evidence at trial. I 0 U.S. C. § 949p-l(a), (b); M.C.R.E. 505(a). The Second Circuit's holding in

In re Terrorist Bombings confirms that this statutory requirement does not violate constitutional

rights, assuming their applicability to this Militruy Commission. Even if the Accused had a

Sixth Amendment right of confrontation, the Accused could be excluded from such a session

unless a witness was expected to offer classified testimony for use at triaL L ikewise, following

In re Terrorist Bombings, there is no Fifth Amendment Due Process Clause violation (assuming

the Fifth Amendment rights apply) by excluding the accused when: (1) there is a compelling

reason to exclude the accused-namely, to avoid compromising national security through the

unauthorized disclosw·e of classified information; (2) the accused does not inspire confidence as

a safe repository of classified information given his ties to al Qaeda; (3) the accused' s attorneys

would attend the heru·ing and patticipate on behalf of the accused; and (4) there ru·e no motions


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relating to classified information where the substance of the matters discussed bear any

relationship to the question of the accused's guilt or innocence.

In addition to the statute, rules, and case law, the Commission entered a protective order

in this case that "establishes procedures applicable to all persons who have access to or come

into possession of classified documents or information in connection with this case." AE 013P at

<j{ 1. That order defines who may access classified information as only those people with an

appropriate security clearance and the requisite need-to-know. The Accused does not have the

required security clearance or a need-to-know and, thus, he may not review classified

inf01mation nor be present during pretrial hearings where classified information is disclosed.

4. Attachments.

A. Certificate of Service, dated 1 February 2013.


Respectfully submitted,

/Is// Joanna Baltes Deputy Trial Counsel

Kiersten Korczynski Assistant Trial Counsel

Mark Martins Chief Prosecutor

Office of the Chief Prosecutor Office of Military Commissions 1610 Defense Pentagon Washington, D.C. 20301

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ATTACHMENT A


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CERTIFICATE OF SERVICE

I certify that on the 1st day of February 2013, I filed AE 136, the Government's Memorandum of Law Regarding Accused Presence During Closed Proceedings with the Office of Military Commissions Trial Judiciary and I served a copy on counsel of record.


/lsi/ Joanna Baltes Deputy Trial Counsel Office of the Chief Prosecutor Office of Military Commissions


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Ksm II (Ae136)

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