UNCLASSIFIEDIIFOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY

GUANTANAMO BAY

UNITED STATES OF AMERICA AE083

v. Defense Notice of the Undetailing of Mr. Paradis

ABD AL-RAHIM HUSSEIN MUHAMMED ABDU AL-NAS HTRI June 14,2012

As a result of interference by the mili tary judge with the accused's ri ghts to counsel, the

Ch ief Defense Counsel was compelled yesterday to undetail Mr. Paradis from these comm iss ion

proceedings. The defense files thi s not ice of the undetailing ofMr. Paradis. (See Attachment A) .

The accused objects to the undetailing of Mr. Paradis. The defense will file a form al mot ion

challenging the unconst itutional and improper act ions of the mili tary judge forthw ith .

43439-((() IfLEGALl4089660.1

lsi Richard Kammen RICHARD KAMMEN DOD Appoillfed Leamed COllllsel

lsi Stephen Reyes STEPHEN C REYES LCDR, JAGC, USN Detailed Defense

Is/Allison Danels ALLISON C DANELS, Maj , USAF Assistal1t Detailed Defellse COli/He!

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CERTIFICATE OF SERVICE

I cert i fy that on June 14,20 12, I electronically fil ed the forgo ing document with the Clerk of the Court and served the forgo ing on all counsel of record bye-mail. Service was completed after normal business hours on June 14 , 20 12.

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IIsil STEPHEN C. REYES Lieutenant Commander JAGC, US Navy Detailed Defense Counsel

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UNCLASSIFIEDIIFOR PUBLIC RELEASE DEPARTMENT OF DEFENSE

OFFICE OF THE CHIEF DEFENSE COUNSEL 1620 DEFENSE PENTAGON

WASHINGTON, DC 20301 · 1620

June 13 , 2012

MEMORANDUM FOR MR . MICHEL PARADIS , DEFENSE COUNSEL

Subject : Excusal From Further Duties in the Military Commissions Case of United States v . Al-Nashiri

1 . Pursuant to my authority as Chief Defense Counsel as specified in R . M. C . 505(d) (2) {B) (ii) and R . T.M . e . 9-1(a) , effective immediately you are excused from further duties as assistant detailed defense counsel in the military commission proceedings against Abd Al-Rahim Hussein Muhammed Abdu AI-Nashiri .

2 . On 9 November 2011 , Mr . Nashiri's military commission first addressed the question of whether your representation of Mr . Bahlul is in conflict with your representation of Mr . Nashiri .

a . The military judge appears to have concluded that at present there is no conflict , but that "an actual conflict would arise if Mr . Bahlul was a witness in this case ." l

b. The government has agreed that a conflict will only arise if Mr . Bahlul is called as a witness in its prosecution of Mr . Nashiri and that your present work on this case , particularly in your litigating questions of law , creates no conflict . 2 To date , the government has declined to commit to calling Mr . Bahlul as a witness against Mr . Nashiri .

c . Pursuant to my regulatory duty to ensure conflict free representation and on the basis of specific privileged information you have provided me as you r supervisor , I have also found that no actual or potential conflict has previously e xis ted between Mr. Bahlul and Mr. Nashiri and that , apart from my present concerns , the possibility of any conflict developing between Mr . Nashiri and Mr. Bahlul remains remote .

I Unoff icia l /Unau thenticated Transcript , 11 April 2012 AM , pp . 6 . 2 Id .; see also Government Motion For The Commission To Review Mr . Paradis's Represent at ion Of The Accused In This Case , filed 12 March 2012 , at p . 2 ("No matter the procedure , the government urges t he Commission to explore fu lly the accused 's knowledge and understanding of the consequences of the potential conflict presented by Mr . Paradis's concurrent representat ion of both the accuse d and Mr . Bahlul . ") . Neither the court nor the government believes that you were conflicted out of taking the lead on motions challenging the lega lity of the military commission proceedings aga inst Mr . Nashiri . See Unoff icia l /Unauthent icated Transcript , 11 April 2012 AM , p . 561 ("The motions that a re going to be a rgued today by Mr . Pa r adis are motions in which we submit Mr . Bahlul and Mr . Nashiri are i dent ica lly situated . There are no advers e interests; therefore there ' s no potential conflict , not even a potential conflict with regards to those issues ." )

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d . The military j udge believes , however , that the commission must obtain Mr. Bahlul ' s view on the dual representation issue , including potentially by " call [ing 1 Mr. Bahlul to this courtroom and see ling) what he wants to dO ." 3 The commission has ordered Mr . Nashiri to produce , by 14 May 2012 , either "a signed piece of paper from Mr. Bahlul that he intends or wants to keep Mr . Paradis as his counsel , or , alternatively , a legal motion why that ' s not required. " 4

e . The government concurs in this effort on the grounds that Mr . Bahlul "falls under the protection of [the NashiriJ commission . li S

f . While Mr . Nashiri does not believe that it is necessary for the military commission to ascertain Mr . Bahlul ' s view on this matter , he does not oppose the commission ' s proposal to compel Mr . Bahlul ' s attendance at a hearing to address the issue . 6

g . Mr . Bahlul ' s hostility towards the United States , its government , and the military commission process is well known . 7 The military j udge has observed that Mr . Bahlul would appear to have no interest in assisting the government in its prosecution of Mr . Nashiri ; the government acknowledges it can only speculate as to why he might have changed his attitude . s

3. The issues surrounding your concurrent representation of Mr . Nashiri and Mr . Bahlul have been extensively analyzed within the Office of the Chief Defense Counsel. That analysis has taken into consideration privileged and confidential information , especially with respect to your representation of Mr . Bahlul. Accordingly , I have concluded as follows :

a . It is contrary to Mr . Bahlul's present desires to be required to become involved in Mr . Nashiri ' s military commission in any way .

b. As Mr . Bahlul ' s counsel , you are obligated to oppose any effort to compel his involvement in Mr . Nashiri ' s military commission . 9

3 Unofficial/Unauthenticated Transcript , 11 April 2012 AM , pp . 539- 540 , 543 , 554 . 4 Unofficial/Unauthenticated Transcript , 12 April 2012 PM , pp . 896 - 897 .

Id . at p . 534 . 6 Id . at pp . 540 - 552 . 1 U.S . v . Bahlul , 09- 001 (C .M. C . R . 2011) at pp . 13- 15 , 133- 136 . 8 Unofficial/Unauthenticated Transcript , 11 April 2012 AM , pp . 533 - 536 . 9 Given that Mr . Bahlul's military commission concluded in 2009 and has ceased to exist , it is unclear that Mr . Nashiri's military commission has the authority to compel Mr . Bahlul ' s participate in the dual representation issue. See Denedo v . U . S ., 66 M. J . 114 , 124 (U . S . Ct . A. A. F . 2008) ("In the military j ustice system , the trial court -- the court - martial -- does not have independent j urisdiction over a case after the military j udge authenticates the record and the convening authority forwards the record after taking action . " (citations omitted)) ; US . v . Quintanilla , 56 M. J . 37 , 41 (U . S . Ct . A. A. F . 2001 ("There are important distinctions , however , between a

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c . It is not necessarily in Mr . Nashiri ' s interest to oppose his military commission obtaining Mr . Bahlul ' s view on the dual representation issue , and in fact it may be in his interests that it do so .

d . As Mr . Nashiri ' s counsel , it may be inappropriate for you to oppose the commission ' s effort to obtain Mr . Bahlul ' s view of the issue .

4 . The intent of Mr . Nashiri ' s military commission to obtain Mr . Bahlul ' s view on the dual representation issue , if necessary by compelling his attendance at a hearing , has created a conflict of interests between your two clients .

5. You cannot continue representing both Mr . Nashiri in his military commission proceedings and Mr . Bahlul in his appeal .

6. You were detailed to represent Mr . Nashiri in September 2011 as assistant defense counsel . Mr . Nashiri ' s case is presently in the pre -trial phase .

7. You were detailed to represent Mr . Bahlul in 2009. You have been lead counsel since the referral of his case to the Court of Military Commission Review. Mr. Bahlul ' s case is presently in the final stages of the appellate briefing process in the U. S . Court of Appeals for the District of Columbia Circuit. I am aware of additional factors relevant to your representation of Mr . Bahlul .

8 . I have concluded that you should continue representing Mr . Bahlul.

J.P. COLWELL Colonel , U.S . Marine Corps Chief Defense Counsel

military judge and a federal civilian judge . . A fede r a l civilian judge typically has j urisdiction over a ll cases ar ising under applicable federal l aw , but a military judge does not exercise general jurisdiction over cases a rising under the UCMJ . A military judge may exercise authority only over the specific case to which he or she has been det a iled ./I (citations omitted)) As you know, when earlier this year the government challenged your representation of Mr . Bahlul it d i d so in the court in which his case is presently pending - the U. S . Court of Appeals for the District of Columbia Circuit .

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