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UNCLASSIFIEDIIFOR PUBLIC RELEASE

AE027

DEFENSE MOTION FOR APPROPRIATE

UNITED STATES OF AMERICA RELIEF:

v. TO ENFORCE AE027K AND ISSUE A

FINDING THAT ATTORNEYS'ABD AL-RAHIM HUSSEIN MUHAMMED NOTEBOOKS, WRITING UTENSILS,

AB DU AL-NAS HIR I EYEGLASSES AND SIMILAR ITEMS

NECESSARY FOR EFFECTIVE

ASSISTANCE OF COUN SEL ARE NOT

PROHIBITED "PHYSICAL

CONTRABAND"

May 2, 20 13

1. Timeliness: Thi s request is fil ed within the timeframe establi shed by Rul e fo r M ili tary

Comm ission (R.M .C.) 905 .

2. Relief Requested : The defense requests that the Commission: l) Issue an ord er

affirm ing AE027 K as the governing authori ty fo r legal meetin gs in thi s case, and 2) Issue an

ord er defining "physica l contraband " for purposes ofl egal visits to permit defense counsel to take

objects in to lega l meet ings such as eyeglasses, wri tin g in strume nts, spiral notebooks and other

items reasonably necessary for effect ive representat ion by cou nsel in a death penalty case.

3. Overview: During lega l visits conducted the week of 15 Ap ril 20 13, between defense

counsel and Mr. al-Nashiri , members of ITF-GTMO staff prohi bited lea rned counsel from

bringin g a wire-spiral bound notebook in to scheduled lega l visits. Th is was the same notebook

learned coun sel had brought to legal visits dat in g back to 2008, without prior prohi bition.

T he issue, accordin g to the ITF-GTMO staff, was with the wire b inding that held the

notebook together. When quest ioned as to why now the spiral notebook was an issue, ITF-

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GTMO staff relied on three separate documents and the definition of "physica l co ntraband "

within those documents. Those documents, notably, were the 27 December 20 II Order

Governing Wr itten Communicat ions Management for Detainees Involved in Military

Commiss ions from ITF-GTMO Commander Adm iral Woods; the 27 December 20 11 Order

Governing Log istics of Defense Counsel Access to Deta in ees Involved in Military Commiss ions;

and the 25 March 20 13 AE I44E In ter im Order Regarding Se izure and In spection of Accused's

Lega l Materials from the United States v. Khalid Shaikh Mohammad, et al. military comm iss ion

case . (Attachments C, D, and E) Interest ingly enough, the one document that was not relied on

was AE027K from this Comm iss ion, which control s legal v isits between counsel and Mr. al-

Nashiri.

On 16 Apr il 2013, counsel was permitted to take the sp iral bou nd notebook in to hi s

meetin g with the accused, but was wa rn ed that the notebook would not be penn itted in

subsequent meetings between accused and counse l. No particu lar justificat ion for this new

proh ibition was provided. On 17 Apr il 20 13, counse l was barred from br in gin g the sp iral bound

notebook that he has brought with him to every court proceedin g and client meet in g s ince hi s

representation of Mr. AI-Nashiri began in 2008 in to the meet in g with his client. See Attachment

A. Accord in g to the relevant offic ials, the decis ion to bar the sp iral notebook fell within the

di scretion personnel. See Attachment B.

However, this wr itten po licy has never been enforced in many significant respects. For

example, desp ite clear language in the written policy prohibiting such items, counsel has never

been proh ibited from br ing ing pens or eyeglasses in to attorn ey c li ent meet ings .

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In li ght of the broad di scret ion the written policy grants toll personn el; the

inco nsistent enforcement of that policy toward Mr. al-Nashiri's counsel; the flagrant indiffere nce

to the past enforcement of the written policy; and because the current enforcement unreasonably

hinders defense counsel's ab ili ty to effect ively perfOI111 its miss ion; the defense turns to the

commiss ion for ass istance.

4. Burden of Proof and Persua sion: The defense bears the burden of persuasion as the

mov in g party on th is motion and the standard is prepond erance of the ev id ence , R.M.C. 905(c).

However, denial of this motion w ill violate the defend ant's ri ghts g uaranteed by the Fifth , Sixth

and Eighth amendments to the Constitution of the Uni ted States of America , the M ili tary

Commiss ion Act of 2009, the Detainee Treatment Act , treaty ob li gat ions of the United States and

fundamental fairness .

5. Facts:

a. S ince the formation of the attorn ey-client relationship with the accused, learn ed

cou nsel has always taken the same three items in to meet ings with the accused and court

proceed ings before this Comm ission: eyeglasses, writing in struments, and a spiral notebook.

(See Attachment A)

b. The Commander of JTF-GTMO issued two orders on 27 December 20 II , estab li shing,

among other things, gu idelines for defe nse counsels' in teraction with the ir clients during legal

visits and the sending and receiving of ma il. (Attachments C and D).

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c. On 10 February 20 12, the Commiss ion mod ifi ed the ITF-GTMO orders to resolve a

number of issues raised by defense cou nsel relating to the restrictive and ill ogical nature of those

orders . (See AE027) .

d. Until recently, it was clear that both AE027J and AE027K were binding on a111egal

visits between defense counsel and Mr. al-Nashiri.

e. During legal visits conducted the week of 15 Apr il 20 13 and in subsequent email

communi cat ions, ITF-GTMO personnel c ited onl y attachments C, D, and E as authoritat ive ly

governing visits with Mr. al-Nashiri.

f. Relying on the definition of "p hysicaJcontraband" with in attachments C, D, and E,

JTF-GTMO prohib ited counsel from br ing ing a sp iral notebook to a scheduled legal vis it with

M r. AI-Nashiri.

g. Phys ical contraband (as identica ll y defined in Attachments C, 0 , and E as well as

AE027K), "[cJonsists of paper fasteners (includ ing staples, paper clips, and binder clips),

money, stamps, c igarettes, weapons, chemicals, drugs, writing instruments, items of value and

material that may be use d in an escape attempt, or that present a threat to the operation of the

detention fac ili ties or to U.S . Government personn e1. " "Physical Contraband " does not include

wr itten communi cat ions."

h. The wr itten orders also proh ibit anyth ing which, in the discretion of the security

personnel, can be used by a detainee as a weapon-- regardless of whether it is the in tent of

defen se cou nsel to ever provide the detainee with the object or there is any reasonable poss ib ili ty

that the detainee could obta in the item.

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i. During defense cou nse l's inqui ry in to ITF-GTM O's proh ibition aga in st sp iral

notebooks, ITF-GTMO failed to acknowledge AE027J or AE027K and instead, c iting security

and safety concerns, determined that the thin wire sp iral binding of the notebook const ituted

somethin g of a threat.

j. There has never been any past suggest ion that a w ire bound notebook wou ld or

realist ica lly cou ld be di sassembled to prov ide a client with a weapon, but after he was not

allowed to use hi s sp iral notebook, counsel utilized as different notebook with b ind er clips that in

counse l' s op inion cou ld more eas ily be used as a weapon than the sp iral in the sp iral notebook .

k. Both cou nsel and client are regularly permitted to br ing the ir eyeglasses in to meetings .

I. Similarl y, cou nsel ha s always been perm itted pens and penc ils of vary ing composite

materials, sharpness, and lengths in both meet ings with the defendant at the detention facility and

in proceedings before th is comm ission.

m. At no t ime prior to 17 Apr il 20 13, de spite the c lear directive to contrary, ha s counse l

been prohib ited by JTF-GTMO personn el from br inging pens in to attorn ey client meetings .

n. Should counsel allow a client to wr ite with cou nsel's pe n for any length of time during

attorney-cl ient meet ings, the guards in terrupt and require the detainee to use another more

flex ible pe n which, presumably in the opinion of JTF-GTMO, constitutes less of a threat.

o. Add itionally, all attorney-cl ient meetings are at a m ini mum moni tored by vid eo

surveillance with cameras of sufficient precision that notes on paper can be read by JTF

personnel observ ing the meeting. See Unofficial Unauthenticated transcript ofUnited States V.

Khalid Shaikh Mohammad et at. (It remain s unclear as to what extent, if any, aud io

communicat ions are monitored by JTF or other Untied States Government agencies).

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p. Furthennore, the client is shackled to the floor during attorney-cl ient meet ings and has

only li mited mob ility.

6. Argument: The defense ack now ledges, as does the Commission , that ITF-GTMO has a

continuing ob ligat ion to ensu re the secu rity of cou nsel, clients, and ITF-GTMO personn el. The

defense also acknowledges, as does the Comm ission2

, that security must be balanced

appropriately and reasonably with legal protections for the accused.

When security ob ligat ions become arbitrary, both in terms of definition and sou rce of

authority, the balance between secu rity and Mr . al-Nashiri's right to effective ass istance counsel

becomes impossible. There must be consistency, predictab ili ty, and rationality in order to assure

effective representat ion. Not every potential secur ity ri sk that an offic ial im ag ines can morph

into a threat that can be used to just ify and unreasonab ly limit counsel's abili ty to represent hi s

client. The threat mu st be reali st ic, both with re spect to the behavior of the accused with hi s

cou nsel and in view of the already oppress ive c ircumstances under which the attorney-cl ient

meetin gs occur. 3 As it stands, orders, polic ies, and definitions are arbitrarily enforced or

modified at the wh im of the offic ials who rotate in and out ofGuantanamo every six, nine, or

twelve months and appear to be based upon the most far-fetched assessment of poss ible ri sk.

Here, reason and common sense can eas ily dictate. At any t im e a client could eas ily grab

a pen from counsel and stab him or her. Yet even the most re strictive, secu re vis itat ion fac ili ties

in GTMO peI111it defense counsel pens during atto rn ey-cl ient meet in gs desp ite be ing bann ed by

I AE027K12a

2 AE027K12b

l This is especially important here as the current commandcr of . has never run a detention facility for pretrial

detainees who face capital charges, have frequent visits from counsel and support personnel, and who are sufferingfrom chronic , long-term untreated PTSD inllicted upon them by their captors.

Filed with TJ





ITF-GTMO's current wr itten policy , so long as the client has a hi story of non-violent interact ion

with cou nsel. In the case of pens, reason and common sense seemin gly preva il as cou nsel have

not been bann ed from bringin g the ir pens in to meet with Mr. AI-Nashiri , yet. Eyeg lasses could

also (in theory)be

a weapon; but conce ivably, no one would want func tionall

y blind lawyers or

clients in the meetin gs. Aga in , with re gard to eyeglasses, reason and common se nse prevail.

Belts and shoelaces or shoes themse lves could also be used as weapons, or more importantly,

me ans by wh ich an accused cou ld harm himse lf. Yet, no ja il , federal, mili tary or otherwise - to

cou nsel's knowledge - require beltless or shoeless lawyers to meet with the ir clients.

As the commiss ion is aware , all meet ings a re visua ll y moni tored. The natu re and extent

of this monitoring is still unknown to the defense, as it is st ill attempt ing, w ith resistance from

the Govern ment, to conduct an invest igation. (See AE I49). Any assau lts on cou nsel or

untoward actions by counsel would be observed, and presumably, promptly reacted to. The

moni tors can ensu re that the client does not overpower cou nsel, co-counsel, and a lingui st - grab

the notebook - di smantle it - take the w ire sp iral out of it - hide the w ire - and evade the

mu lti ple searches that he no doubt endures prior to returning to hi s place of confinement. If JTF-

GTMO personn el are minima ll y competent, as cou nsel be li eves, they can ensu re th at spiral

notebooks that go in to client meet in gs come out unmoo ifi ed.

Lea rn ed counse l's first client visit at Guantanamo was in 2008. For every subse quent

client visit s ince then he has use d the same sp iral notebook. For every court appearance and

client visit s ince the comm ission was conve ned, cou nsel has used the sa me sp iral notebook. Th is

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prov id es an efficient and sequential way to organi ze notes, thoughts, and impress ions that relate

to trial strategy, extenuat ion and mitigat ion. Without not ice , JTF-GTMO's in terpretat ions of the

vis itat ion po licy changed for Mr . AI-Nashiri and hi s counse l. It is uncl ear i f th is change would

require that counsel change the way he prepares for and takes notes in court. Also uncl ear is the

extent to wh ich future changes will occur. Will pens be next? What about eyeglasses, shoe s, and

belts?

This co ncern is realist ic given that IT F-GTMO personnel seemin gly invoke whatever

authority it is they have at hand to define the bound aries of attorney-cl ient v isits at the detention

fac ility. What is most troubling and perhaps indicat ive of a larger systemic problem is that JTF-

GTMO personnel c ited three authorities, none of wh ich are orders from th is commiss ion for thi s

case, in defining what is and is not perm iss ible for meet ings between Mr. AI-Nashiri and hi s

counsel. Th is ultimately raises the issue of whom and what is the actua l controlling author it y for

Mr. AI-Nashiri 's meet in gs and commu nicat ions with hi s legal counse l. Are the orders and the

judge of the Military Commiss ion the authority? Or, is it up to the current personnel at JTF-

GTMO who are the final say in wh ich polic ies to apply and how they apply.

Unt il th is issue came up, it seemed clear to the defense that AE027K of 10 February

20 12, was the gu iding document for counse l in the ir communicat ion and visitat ion with Mr . AI-

Nashiri and that any issue cou ld be resolved by the military judge . However, as of April 2013, it

appears that JTF-GTMO personnel are the author ity for determining which po licy app lies to

meetings

between accused andcou

nsel, and whatthe

termsof

that part icu lar policy

mean.

The

exact same definition of physica l co ntraband is found in Attachments C, D, and E as in AE027K,

Appel late Exh bit 027L (AI-Nashiri)UNCLASSIFIEDIIFOR PUBLIC RELEASE P.g. 8 0158



UNCLASS IFIEDIIFOR PUBLIC RELEASE

yet the reliance of ITF-GTMO personn el on the former three as opposed to the order of th is

commiss ion raises concerns about future policy enforcement.

The current JTF-GTMO policy is a new in terpretation based upon unreali st ic not ions of

potential ri sk. In li ght of the broad discretion the written definition of physical contraband

prov ides to JTF personnel; the increas in g focus upon unrealist ic notions of potential ri sk;

indifference to the enforcement hi story of the policy; and because the current enforcement is

unreasonable and hinders the ab ili ty of the defense to effect ively perfonn its mission, the defense

tu rns to the commiss ion for ass istance. The defense seeks onl y consistent, rational, and

predictable rules that govern what they can (and cannot) take in to attorn ey-cl ient meetings and

court proceedin gs rather than thead hoc

ever-chang ing, whimsical procedures presently in place .

7. Oral Argument: For purposes of persuasion and appellate review the defense requests

an ev id entiary hearing on thi s mot ion.

8. Witnesses: CAPT Thomas Walsh (USN)

Co l. John Bogdan (USA)

LCDR George Massucco (USN)

9. Conference with Opposing Counsel : The Defense has conferred with the prosecution

which opposes th is mot ion

10. List of Attachments:

A. Photo of proh ibited sp iral notebook showing the "dangerous" sp iral (u ndated) (3 pages) .

B. Photo of perm issible notebook showing b ind ers that can be potentiall y be used as weapons

(u nd ated)

C. Order Governin g Written Conununi cations Management for Detain ees Involved in M ili taryCommissions issued by ITF-GTMO Commander Admiral Woods, dated 27 December 20 11 (22

pages) .

Appel late Exh bit 027L (AI-Nashiri)UNCLASS IFIEDIIFOR PUBLIC RELEASE P.g. g 0158



UNCLASS IFIEDIIFOR PUBLIC RELEASE

D. Order Governing Logist ics of Defense Counsel Access to Detainees Involved in M ili tary

Commiss ions issued by ITF-GTMO Commander Admiral Woods, dated 27 December 20 II (14

pages)

E. AE I44E INTERIM ORDER: Regarding Se izure and Inspect ion of Accused Legal

Materials, UI/ited States v. Khalid Shaikh Moha mlllad, et aI., dated 25 March 20 13 (3 pages)

Is/Allison Danels

ALLISON C. DANE LS. Maj .. USAF

Detailed Defense COUIISel

lsI Richard Kammen

RICHARD KAMMEN

DOD Appoillfed Leamed COllnsel

CERTIFICATE OF SERVICE

I certify that on the day of filing I e lec tronically fil ed the forgo in g docu ment with the

Clerk of the Court and served th e forgoi ng on all coun sel of reco rd on the date of filing.

IslRichard Kammen

Richard Kammen 1#5064-49

KAMMEN MARYAN & MOUDY

135 North Pennsylvani a St.Suite 11 75

Indianapo li s, IN 46204

(3 17) 236-()400

Richard @kammenlaw.com

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