UNCLASSIFIED//FOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY

UNITED STATES OF AMERICA AE018BB(WBA) v.

KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATIASH, RAMZIBIN ALSHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM ALHAWSAWI

Defense Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order

Date Filed: 20 March 2014

1. Timeliness:

This filing is timely pursuant to Military Commissions Trial Judiciary Rule of Cowt 3.7(b) and Rule for Military Commissions (R.M.C.) 905. 2. Relief' Sought:

Mr. bin 'Attash requests that the Commission enforceAE018U
3. Overview:

The Commission's Privileged Written Communications Order, AE018U, mandates that the Prosecution, upon defense request, must "provide a duplicate copy of paper discovery materials releasable to the Accused directly to the Privilege Team for del ivery to the Accused." The defense requested paper discovery, triggering the Prosecution's obligation, and the Prosecution refused to comply.

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Instead of complying with the plain and unambiguous language of AE018U, the Prosecution indicated that it would only comply if the defense presented a "compelling and particularized justification." The Prosecution concocted this nonexistent legal standard in order to avoid compliance. In addition to divining a novel legal standard, the Prosecution also suggests that undue burden and the availability of other forms of discovery counsel against compliance with AE018U. However, the Prosecution's pleas are non-persuasive because other formats of discovery do not adequately address counsel's and Mr. bin 'Attash's needs, the Government's burden in compliance is of little impOit in a criminal case, and in any event the Commission specifically ordered that paper discovery be provided upon defense request - a provision of the Privileged Written Communications Order originally suggested by the Prosecution. The Prosecution's demonstrated noncompliance with a specific order of the Commission prejudices both counsel's ability to effectively represent Mr. bin 'Attash and Mr. bin 'Attash's ability to participate meaningfully in his own defense. The Commission should order the Prosecution to comply with AE018U.

4. Burden of Proof: As the moving party, the defense bears the bmden of persuasion; the standard of proof is a preponderance of the evidence. R.M.C. 905(c)(l).

5. Facts: a. On 6 November 2013, the Commission entered AE018U, Privileged Written Communications Order. b. AE018U states at
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UNCLASSIFIED//FOR PUBLIC RELEASE discovery materials releasable to the Accused directly to the Privilege Team for delivery to the Accused." c. The Provision of AE018U requiring the Prosecution, upon defense request, to provide a duplicate paper copy of discovery materials to an accused was suggested by the Prosecution. See AE018, Attachment A at
During a prior iteration of this Commission, Mr. bin 'Attash and his co-accused were permitted to possess and use write-capable laptop computers with business software from approximately June 2008 to January 2010.

g. Mr. bin 'Attash and his co-accused have not been provided with access to functional laptop computers or any word processing capability in the present Commission. In

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UNCLASSIFIED//FOR PUBLIC RELEAS E AE182, all accused sought to resume use of functional laptop computers in order to effectively participate in their own defense. AE182 remains before the Commission. h.

In June 2013, all accused were provided with "e-reader" devices. Almost all functionality of the devices has been disabled. Using an e-reader, an accused cannot,

inter alia, logically group and organize discovery, highlight, annotate, or take notes on discovery, flag impmtant pages of discovery, share annotated discovery with his counsel, or conduct searches within individual files. The Govern ment asserts that e-readers provide discovery in a "searchable manner." Attachment C. However, the search functionality is of minimal usefulness as only file names can be searched.

6. Law and Argument: The Commission entered AE018U at the request of the Government. The Government has championed AE018U and noted that AE018U "reflects a careful balancing of interests that permit counsel and the Accused to effectively communicate matters related to this military commission in a privileged manner while protecting national security." AE018Y at 2. The Govern ment has not shied away from closely examining and attempting to enforce even unclear or non-existent portions of AE018 and other orders of the Commission. See, e.g. AE018Y, AEl 08V. However, when presented with a simple request to fulfill a specific provision of AE018U, the Government has blatantly refused to comply with the Commission's Order. The issue presented requires no fwther review than an examination of the Govern ment's actions and the plain text of the Commission 's order. AE018U '){ 3(e)(2) states that "[i]f requested to do so by the Defense Counsel or ordered to do so by the Military Judge, the Prosecution will provide a duplicate copy of paper discovery materials releasable to the Accused directly to the Privilege Team for delivery to the Accused." The language is clear and

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unambiguous and the use of the term "will" provides the Government with no room for discretion. The language is in keeping with the Military Judge's authority to "specify the time, place and manner of making discovery" and "prescribe such terms and conditions as are just." R.M.C. 701(1)( 1). Upon defense counsel's request, the Prosecution must provide the Privilege Team with paper discovery for delivery to Mr. bin 'Attash. The Commission's use of the term "duplicate copy" indicates that this requirement exists independent of any other means by which the Government may choose to provide discovery. On 6 March 2014, Mr. bin 'Attash triggered the Government's paper discovery obligation by specifically making a request for paper discovery to the Prosecution. Attachment B. The Prosecution refused to comply, instead concocting the novel legal test that it would not comply with the Commission's Order absent a "compelling and particularized justification." Although the Government has not defined what might constitute a "compelling and particularized justification," Mr. bin 'Attash need not provide any further justification. The defense, not only the Government, should receive the benefit of faithful compliance with the Commission's orders. In addition to requiring counsel to submit a "compelling and particularized justification" for compliance with the Commission's Order, the Government complains that it has provided Mr. bin 'Attash with an e-reader to examine discovery and suggests that it would be overburdened by having to provide "more than 51 boxes of paper stacked high onto more than one pallet." Attachment C. The Government's argument with respect to thee-reader is not persuasive. As the Government notes, thee-reader devices were provided to Mr. bin 'Attash and his co-accused in June 2013. The Commission 's Privileged Written Communications Order, containing the paper discovery provision, was entered in November 2013. The Commission therefore had opportunity to consider the adequacy of thee-reader devices and determined that

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the accused were nevettheless absolutely entitled to a duplicate copy of paper discovery upon request. Amongst the factors that may have informed the Commission's decision to provide for paper discovery, functionally-limited e-reader devices present barriers to representation because an accused cannot use thee-reader to separate and organize discovery, tag discovery, highlight discovery, annotate discovery, share discovery back and forth with counsel, or search the actual text of discovery. Also not persuasive is the Government's suggestion that it might be overburdened by compliance with the Commission's order. In civil discovery, a patty may ask the cowt for relief from its discovery obligations in order to protect itself from "annoyance, embru-rassment, oppression, or undue burden or expense ... " Fed. R. Civ. P. 26(c)( 1). However, the analogous portions of the criminal discovery rules in both federal coutts and militru·y commissions contain no exclusion from compliance due to undue burden. See Fed. R. Crim. P. 16(d)(l); R.M.C. 701 (1)(2). As one court accurately observed in response to the Government's plea that responding to a criminal discovery request would require "nearly 30 hours in searching for, listening to and recording the calls requested," in the criminal discovery context, "[t]he Government's burden is measured in hours; the Defendant' s in yeru·s." United States v. Poulin, 592 F.Supp.2d 137, 145 n.8 (D.Me. 2008). The Government was undoubtedly awru·e of the paper discovery requirement when it initially proposed the requirement to the Commission, and having brought the instant case involving voluminous quantities of discovery against Mr. bin 'Attash, it should now be estopped from claiming that providing paper discovery would present an undue burden to the vast resources of the United States Government. Notwithstanding the fact that the only basis the Commission requires to take action upon the instant motion is the Government's demonstrated noncompliance with the plain language of a

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clear and specific order, the Government's noncompliance is also impeding the effective assistance of counsel and Mr. bin 'Attash's ability to participate meaningfully in his own defense. Mr. bin 'Attash and his co-accused have a statutory and constitutional right to counsel before this capital Military Commission. See, e.g. 10 U.S.C. § 948k; 10 U.S.C. § 949c; Strickland v. Washington, 466 U.S. 668 ( 1984). The right to counsel is the right to the effective

assistance of counsel. See, e.g. Glasser v. United States, 315 U.S. 60 (1942); McMann v. Richardson, 397 U.S. 759 (1970); Reece v. Georgia, 350 U.S. 85 (1955). As a corollary to the

right to counsel, Mr. bin 'Attash also has a constitutional right to participate personally in his own defense. Faretta v.

Cal~fornia,

422 U.S. 806, 819 (1975) ("[t] he Sixth Amendment does not

provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense."); see also Milton v. Morris, 767 F.2d 1443 (9th Cir. 1985). In fact, "one of the most serious deprivations suffered by a pretrial detainee is the cmtailment of his ability to assist in his own defense." Wo(fish v. Levi, 573 F.2d 118, 133 (1978), rev'd on other grounds by Bell v. Wo(fish, 441 U.S. 520 (1 979).

In order for an accused to participate in his own defense, he must have the ability to "provide needed information to his lawyer and to pruticipate in the making of decisions on his own behalf." Riggins v. Nevada, 504 U.S. 127, 144 (1992) (Kennedy, J., concurring). In order to effectively participate in the making of decisions, the accused must have a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and must have "rational as well as factual understanding of the proceedings against him. " Dusky v. United States, 362 U.S. 402 (1960) (per curiam).

Without the paper discovery material specifically provided for by the Commission, Mr. bin 'Attash simply cannot work with, organize, and digest the voluminous discovery in this case

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UNCLASSIFIED//FOR PUBLIC RELEASE sufficient to develop a "rational as well as factual understanding" of the allegations against him. Such lack of understanding presents issues not only for Mr. bin 'Attash's right to participate in his own defense but also for his right to the effective assistance of counsel, because counsel's ability is impaired when counsel cannot engage with an informed and prepared client due to the Government's actions. For the foregoing reasons, Mr. bin 'Attash requests that the Commission enforce AE018U «ll 3(e)(2) and order the Government to provide a duplicate copy of all paper discovery materials releasable to Mr. bin 'Attash directly to the Privilege Team for delivery to Mr. bin 'Attash. 7. Oral Argument: The defense requests oral argument. 8. Witnesses: None at this time. 9. Conference with Opposing Counsel: The Government opposes the relief sought herein, asserting the same position as stated in Attachment C.

10. Attachments: A. Certificate of Service B. Request for Paper Discovery Pursuant to AE18U dtd 6 Mar 14 C. Prosecution Response to 6 March 2014 Request for Paper Discovery dtd 11 Mar 14

/Is!I

/Is// JAMES D. HATCHER LCDR, USN Defense Counsel

CHERYL T. BORMANN Learned Counsel

/Is!I MICHAEL A. SCHWARTZ Capt, USAF Defense Counsel

/Is// TODD M. SWENSEN Capt, USAF Defense Counsel

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UNCLASSIFIED//FOR PUBLIC RELEASE CERTIFICATE OF SERVICE I certify that on 20 March 2014, I electronically filed the attached Defense Motion to Compel Paper Discovery in Accordance with Privileged Written Communications Order with the Trial Judiciary and served it on all counsel of record by e-mail.

/Is// CHERYL BORMANN Learned Counsel

Attachment A

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ATTACHMENT B

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OSD-OGC-OCDC

6 March 2014

MEMORANDUM FOR Office of the Chief Prosecutor, Office of Military Commissions SUBJECf: Request for Paper Discovery Pursuant to AE18U

1. Pursuant Judge PoW's order in AE18U paragraph 3e(2), counsel for Mr. bin 'Attash request that the prosecution provide a copy of an paper discovery materials releasable to Mr. bin 'Attash directly to the Privilege Team for delivery to Mr. bin 'Attash. This request applies to an discovery materials previously provided to counsel and those materials tendered going forward.

2. If you believe you require fUither information, please contact us at MLADDOMCDefenseTeamBinAttas~

/Is// CHERYL T. BORMANN Learned Counsel

/Is// JAMES D. HATCHER LCDR,USN Defense Counsel

!Is!I MICHAEL A. SCHWARTZ Capt, USAF

!Is!I TODD M. SWENSEN Capt, USAF

Defense Counsel

Defense Counsel

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ATTACHMENT C

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DEPARTMENT OF DEFENSE OFFICE OF THE CHIEF PROSECUTOR OF MILITARY COMMISSIONS 1610 DEFENSE PENTAGON WASHINGTON, DC 20301-1610

OFFICE OF THE CHIEF PROSECUTOR

1 1 March 20 14 MEMORANDUM FOR Defense Counsel fo r Wa l id Bin ' At t ash SUBJECT:

Prosecut i on Response to 6 March 20 1 4 Request f or Paper Discovery

1. The Pr osecut i on rece i ved t he De fense reques t on 6 March 2 0 14. The Prosecut i on hereby responds to the Defense reques t . 2. The De fense i n i ts memorandum on 6 March 2014 r equests "that t he p r osecut i on p r ovide a copy of a l l p aper d i scovery materials releasable to Mr. bin ' Attash d irectly to the Pri v i lege Team fo r deliver y to Mr . bin ' Attash . This reques t a ppl i es to all discovery materia ls p r ev i ous l y p r ov i ded t o counsel and those materia l s t endered go ing forward." The Pr osecut i on r esponds as f o l lows . Since June 2013, the Accused has been provided access to an e-reader device. The e-reader contains materials releasable to the Accused in an organized and searchable manner that are pre-cleared and do not have to go through the privilege team. The Accused is permitted to bring his e-reader to his attorney meetings and to court. The Prosecution will continue to update the e-reader with additional materials that are releasable to the Accused as this case moves forward. To date, there are 256,884 pages of material releasable to Mr. Bin 'Attash. Producing the same material in paper format to Mr. Bin 'Attash would require more than 51 boxes of paper stacked high onto more than one pallet. Absent a compelling and particularized justification as to why a paper copy is required, the Prosecution has more than satisfied its obligations with the e-readers. The material subject to the Defense request has been, or will continue to be, released to the Accused through the e-readers. As such, the Prosecution respectfully declines to produce the same discovery in two formats . To the extent the Defense request is seeking discovery deemed not releasable to the Accused, the Prosecution Appellate Exhibit 018BB (WBA) Page 13 of 14

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res pec tfully declines to produce such material to the Ac cused.

Respectfully submitted ,

/Is// Mi chael J . Lebowitz Captain , JA , USA Ass i stant Trial Counse l

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