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UNCLASSIFIEDIIFOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL J UDICIARY

GUANTANAMO BAY

UN ITED STATES OF AMERICA

v .

ABD AL-RAHIM HUSSEIN MUHAMMED ABDU AL-NAS HIR I

AE082

MOTION TO COMPEL DISCOVERY OF PROSECUTORIAL RESOURCES IN

ADDITION TO DETAILED COUNSEL

12 J UNE 2012

1. Timeliness: Th is mot ion is filed within the timeframe establi shed by Rule for M ili tary

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

2. Relief Requested : The defense requests that the Conun iss ion order the prosecut ion to

di sclose the number and fu nct ions of members of the prosecut ion team in addition to the seven

detailed trial counsel. The defense also requests general informat ion about the agencies

employing these individuals. The defense does not seek names, although if the prosecut ion will

provide names, the defense will keep that in formation confidential.

3. Overview: The prosecut ion has seven detailed defense counse l. The defense knows based

upon its own invest igat ion and vo luntary di sclosures from trial counsel that the prosecut ion has

several other lawyers, paralegals and other sUPlX'rt personnel work ing on its behalf. The defense

has three detailed counsel and one learned counsel. In add ition, the Chief Defense Counsel has

also ass igned one junior officer to sUPlX'rt the defense team. The prosecut ion is seeking to

exclude one of Mr. Nashiri 's detailed counsel. The Convening Authority has denied defense

requests for add itional attorney and support personnel. The Office of the Chief Defense Counsel

(OCDC) lacks the manpower to allocate further resources to the defense team. The derense

suggests that the Convening Author ity is also underfunding the OCDC in a manner that

undennines the defense function. In order to demonstrate the amount of underfunding and the

43439-((() lfLEGALl4089660.l Filed wilh T J 12 June 2012

UNCLASSIFIEDIIFOR PUBLIC RELEASE Appellate Exhibit 082 (Al-Nashiri) of9

UNCLASSIFIEDIIFOR PUBLIC RELEASE

inequali ty of resources, the defense requests general informat ion about the number and function

of the personnel support ing the seven prosecut ion team members.

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

moving party on this mot ion and the standard is preponderance of the ev idence. R.M.C. 905(c).

5. Facts: The prosecut ion has seven detailed defense counsel. The defense knows based upon

volun tary di sclosures from the government that the prosecut ion has severa l other lawyers,

paralegals and other support personnel work ing on its behalf. It is believed that the prosecut ion

can request add itional speciali zed legal and technical assistance from throughout nu merous

government agenc ies without seek ing any financial assistance from the Convening Authority. In

contrast, the defense has onl y three detailed counsel, one learned counsel, and the ass istance of a

junior officer as support counsel; however, the prosecut ion is seek ing to exclude one of Mr.

Nashiri 's detailed counsel. The Convening Authority has denied defense requests for additional

attorney and support personnel. The Convening Authority also has denied requests by OCDC

for add itional translators, and other support personnel. In fact , OCDC is currently so

underfunded that on a recent occasion the office had a shortage of copy paper that almost

prevented a defense team from timely filin g appell ate documents.

The defense requested thi s informat ion from the prosecut ion. The prosecut ion declined to

di sclose th is informat ion unless the defense provided the followin g informat ion:

infonnat ion concerning the defense team , includ ing the number of attorneys and support staff working on the case, whether any of the attorneys are also working on other cases, hours billed against or otherwise spent on th is case versus other duties, whether the defense team is receiving or has received resources or fundin g from organizat ions outside OCDC and the amount of the funding or ass istance (one obvious example would be the John Adams Project, but also pro bono assistance from law firm s, resources from capital defender projects, law clinics and law schools, etc .) .

(See Attachment A). The defense did not agree to th is as it was irrelevant to its underl ying

Filed with T J 12 June 2012

UNCLASSIFIEDIIFOR PUBLIC RELEASE 2

Appellate Exhibit 082 (AI-Nashiri) of9


request.

6. Argument

The defense makes th is mot ion to breathe substance into the bas ic commandment of due

process that the em inent jurist, Learned Hand, sa id was essent ial over sixty years ago. "If we are

to keep our democracy there must be one commandment - Thou shalt not ration justice."

Judge Learned Hand, 75th Anniversary Address to the Legal Aid Society of New York (Feb. 16,

195 1). The American Bar Assoc iat ion Guidelines for the Appoin tment and Performance of

Defense Counsel in Death Penalty Cases state that in order to fu lfill its const itut ional obligat ion

to provide effect ive legal representation for indi gent people charged with crimes, the "[g]

government has the responsibili ty to fund the fu ll cost of quality legal representat ion. " American

Bar Assoc iat ion, Standards for Cr iminal Justice: Providing Defense Services Standard 5- 1. 6 (3d

ed. 1992).

If the defense is to be competent, there must be at least a mini mal equali ty of arms. As

noted by the American Bar Assoc iat ion, the need for parity applies even more so in death penalty

cases:

As a rough benchmark, jurisdictions should provide funding for defender services that main ta ins parity between the defense and the prosecution with respect to workload, sa laries, and resources necessary to provide quality legal representat ion (includ ing benefits , technology, fac ili ties , legal research , support staff, paralegals, invest igators, mitigation spec iali sts, and access to forensic serv ices and experts) . In doing so, jurisdictions must be mindful that the prosecut ion has access at no cost to many services for which the defense must pay. A prosecution office will not only benefit from the formal resources of its jurisdiction (e.g. , a state crime laboratory) and co-operat ing jurisdictions (e.g., the FBI), but from many informal resources as well .... Yet fundin g for defense serv ices usually lags far beh ind prosecution funding.

American Bar Assoc iat ion, Americall Bar Association Guidelilles for the Appoilltment alld

Performance of DefellSe Coullse! ill Death Penalty Cases, 3 1 Hofstra L. Rev. 913, 1090 (2OD3) .





Ten years ago, the American Bar Assoc iat ion reaffirmed its comm itment to the princ iple

of equal funding, ca lling for a public defense system in wh ich there " is parity between defense

counsel and the prosecut ion with respect to resources and defense counsel is included as an equal

partner in the justice system. There should be par ity of work load, salaries and other resources

(such as benefits, technology, fac ilities, legal research , support staff, paralegals, invest igators,

and access to forensic services and experts) between prosecut ion and public defense." American

Bar Assoc iat ion, Th e Ten Pril1ciples of a Puhlic Defense Delivel)' Systems, Princ iple 8 (2002) .1

These are not simply asp irations. In overhauling the M ili tary Comm iss ions Act in 2009,

Congress made specific f indings that "the fairness and effectiveness of the mili tary comm issions

system ... will depend to a significant degree on the adequacy of defense counsel and assoc iated

resources for individuals accused, part icularl y in the case of capital cases, under such chapter

47 A; and [that} defense counsel in mili tary commiss ion cases, particularly in capital cases, under

such chapter 47 A of title 10, Uni ted States Code (as so amended), should be fully resourced as

provided in such chapter 47A." Military Commiss ions Act of 2009, 123 Stat. 2190 § 1807

(2009) . All the defense asks is that Congress's will be respected and that if Mr. Nashiri is be ing

forced to bring a butter knife to a gunfight, that the defense be able to make a record of that fact.

Knowing the govern ment resources comparat ively made ava ilable to the prosecut ion will

demonstrate to the Convening Authority the enormous inequa li ty of anns that ex ists in th is case,

which in tum will better able him to evaluate defense requests for resources. It will also

substantiate the Convening Authority's systemat ic underfunding of the defense fu nct ion.

Moreover, as this Commiss ion recognized in granting the Defense Mot ion for Discovery of

General Info about the Amount of Resources Expended by the Prosecut ion or Related Agencies

Prior to Referral , AE053 (fil ed 12 March 2012), th is informat ion is mitigat ing because the





members may find that the defense 's system ic underfunding makes the trial fundamentally unfair

and unable to support a sentence of death.

At thi s stage, to better demonstrate the need for add itional support personnel in order to

comply with the requirements of the ABA Guidelines and prov ide fundamental fairness to the

accused, the defense needs to know the duties and capacities of all individuals assigned to

support the seven detailed prosecut ion lawyers . This includes paralegals, lega l secretaries, law

clerks, interns, research assistants, appellate counsel, consu ltants, and any other indiv idual who

provides mater ial support to the prosecution team. The defense also requests general infonnation

about the agenc ies employing these indiv iduals. The defense does not seek the names of these

individuals or other personal identify ing in format ion that wou ld be exempt from public

di sclosu re under the Privacy Act, 5 U.S .c. § 552a. However, if that informat ion is provided, the

defense will protect it from disclosure, consistent with Protective Order #2 .

Last ly, the prosecut ion is robustly sta ffed and aided by the enormous purse of the Uni ted

States government. Thus, it does not need to go with hat in hand and ask for char itable

ass istance. If it seeks ass istance in certa in fields, it need onl y call upon the vast resou rces of th is

government. As an example, the prosecut ion has detailed two Department of Just ice attorneys,

one with spec iali zed skill in C IPA cases . Conversely, if the defense needed an attorney with

similar CIPA experience it must seek those resou rces from the CA's office. Furthermore, in

order for the defense to obtain the bas ic requirement of an attorney with spec iali zed skill in death

penalty cases , it li terall y needed an act of Congress for th is to occur. 10 U.S.c. § 949a. Prior to

the enactment of the learned counsel provis ion, the defense did not have the aid of an

experienced capita l counsel when the charges were first referred in 2008 . But s ince the

prosecut ion was able to solic it ass istance from the Department of Just ice in 2008 and today, they





have always had the benefit of a prosecutor experienced in cap ital cases. Thus, s ince the

prosecut ion has the overwhelming ass istance of the Uni ted States in th is case, its requirement

that the defense provide infonnation relating to any pm bO/w ass istance or other voluntary

ass istance as a condi tion to di sclosing thi s informat ion is misp laced.

Denial of thi s mot ion will v iolate the accused's ri ghts guaranteed by the Fifth, S ixth and

Eighth Amendments to the Constitution of the United States, the Mili tary Commiss ion Act of

2009, the Detainee Treatment Act of 2005, treaty obligat ions of the Uni ted States and

fundamental fa irness.

7. Oral Argument: Requested.

8. Witnesses: None.

9. Conference with Opposing Counsel: The prosecut ion objects to th is mot ion.

10. List of Attachments:

A. E-mail communicat ions between defense counsel and trial counsel.


Iisil RICHARD KAMMEN Civilian Leamed COlllISel

Iisil STEPHEN C. REYES LCDR, JAGC, USN Detailed De/elISe COIlIlsel

Iisil ALLISON C. DANELS , Maj, USAF Assistant Detailed De/elISe COllllsel

Iisil MICHEL PARADIS Assistal11 Detailed De/elISe COII/Hel




CERTIFICATE OF SERVICE

I cert ify that on Jul y I i ll, I electronicall y filed the forgo ing document with the Clerk of the Court and served the forgoing on all counsel of record bye-mail.

Filed with T J 12 June 20 12

IIsil STEPI-fEN C. REYES Lieutenant Commander l AGe, US Navy Detai led Defense Counsel



From • • Subject: Date:

Rick,


Cur position is that the information you request is not relevant, given the different obligations of the parties.

That having been said, we may nevertheless be willing to engage in a reciprocal exchange of information. Rease advise whether you are willing to provide similar information concerning the defense team, including the number of attorneys and support staff working on the case, whether any of the attorneys are also working on other cases, hours billed against or otherwise spent on this case versus other duties, whether the defense team is receiving or has received resources or funding from organizations outside CXDC and the amount of the funding or assistance (one obvious example would be the John Mams but also pro bono assistance from law firms, resources from capital defender projects, law clinics and law schools, etc.).

I look forward to hearing from you.

Tony

Tony

I n light of the recent detailing memo adding additional counsel to the prosecution team, and in anticipation of additional requests for resources will you please advise how many additional lawyers are working on the Nashiri case. We are not interested in their names just the number and the agency for which they work (DOO,DOJ etc.)

Will you also please identify the number of paralegals and other support staff working on the Nashiri case. Rease also include the agency for which the paralegals and support staff work.

Thank you for your cooperation

Rick Kammen


UNCLASSIFIEDIIFOR PUBLIC RELEASE Attachment A Page1af2

Appellate Exhibit 082 (AI-Nashiri) af9


This transmission is subject to the attorney client privilege. Slould it be erroneously transmitted or received, such transmission or receipt does not constitute a waiver of the attorney client privilege.


UNCLASSIFIEDIIFOR PUBLIC RELEASE Attachment A Page2of2


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