MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY CUBA NITED STATES OF AMERICA AE 400N V RULING ABD AL-RAHIM HUSSEIN 7 November 2019 MUHAMMED ABDU AL-NASHIRI 1 Procedural Background a On 16 April 2019 the United States Court of Appeals for the District of Columbia Circuit DC Circuit vacated all all orders issued by Judge Spath on or after November 19 7 1 On 9 July 2019 the Commission issued AB 400 directing the parties to state their preferences with regard to the motions impacted by the DC Circuit ruling b On 8 August 2019 the Government led AE 400G reaf rming many of its motions impacted by the DC Circuit ruling In particular the Government reaf rmed and requested reconsideration of the over 30 000 pages of motions underlying 30 vacated M C R E 505 f rulings These rulings related to Government ex parte requests to provide in discovery various summaries and substitutions in lieu of the underlying classi ed documents The rulings and underlying motions are listed at Attachment A of this ruling On 28 July 2019 the Defense led AB 402 requesting that defense counsel holding the necessary clearances be present at all in camera presentations made pursuant to Military Commission Rule of Evidence That motion remains pending 2 Findings of Fact The Commission makes the following ndings of fact a The Accused Abd A1 Rahim Hussayn Muhammad A1 Nashiri was charged on 15 September 2011 with multiple offenses under the Military Commissions Act of 2009 MCA The 1 In re Al-Nashiri 921 F 3d 224 241 DC Cir 2019 Appellate Exhibit 400N Al-Nashiri Page 1 of 23 as referred to this Commission as a capital case on 28 September 2011 On 9 November 2011 mmission convened for its initial session at which the Government announced they were to proceed to trial on 2 February 2012 but did not object to a Defense request for continuance to no earlier than 9 November 2012 2 b The Defense has objected virtually since the inception of these proceedings to the procedure by which summaries and substitutions have been produced and approved pursuant to M C R E 505 f 2 See AB 024 AB 043 In Appellate Exhibit 024 the Defense argued inter alia that particularly in light of the unique provision of the MCA disallowing Defense requests for reconsideration of orders permitting summaries and substitutions M C R E the Defense should be heard regarding the adequacy of proposed summaries and substitutions prior to the Commission s approval of same While the motion was granted in part 3 the request to further participate in the summary and substitution process was denied as not consistent with the reg ulation or quite frankly the intent of the statute 4 The Defense has availed itself on multiple occasions of the opportunity to present its theory of the case ex parte c The Central Intelligence Agency s Rendition Detention and Interrogation RDI Program has been the subject of extensive litigation before this Commission and of voluminous ex parte requests and corresponding orders under M C R E 505 f See generally the AB 120 series A significant portion of the orders were vacated by the DC Circuit As to those orders the Government has requested the Commission reaffirm them based on the motions as they currently stand 5 The Government did however indicate that they request ex parte oral conferences as to 2 Unof cial Unauthenticated Transcript of the US v Abd al Rahim Hussein Muhammed Abdu al Nashiri Motions Hearing Dated 9 November 2011 at pp 170 171 3 The Defense was permitted to submit an ex parte theory of its case 4 Transcript of 18 January 2012 hearing at pp 517 518 5 AE 400G p 3 Appellate Exhibit 400N Al-Nashiri Page 2 of 23 of those submissions 6 The Government further asserted that they would seek to supplement ery previously provided to the Defense in 2017 7 d A great preponderance of RDI discovery litigation owed from AB 120 a Motion to Compel Discovery led by the Defense on 24 September 2012 The Government replied on 9 October 2012 in AB 120A that the Defense was requesting information that already has been produced ii is not discoverable or is not in the possession custody or control of the US Government 8 The Government went on to aver that it had produced or will produce all statements and treatment-related information of the accused all of the accused s medical records in the possession of the US Government and other discoverable information concluding Indeed the government has complied with its discovery obligations 9 The Commission disagreed with the Government s view of its discovery obligations and issued AE 120C on 14 April 2014 which was revised upon reconsideration on 24 June 2014 in AB 120AA Neither of those orders were vacated by the DC Circuit opinion Since the Government s announcement in 2012 that it had complied with its discovery obligations tens of thousands of pages of documents have passed through the ex parte M C R E 505 f process based on a handful of declarations by various Original Classification Authorities OCAs On 13 November 2017 the Commission found that the Government had met its burden outlined in AB subject to the Government s continuing discovery obligation 10 That ruling was vacated by the DC Circuit opinion e The aforementioned RDI program was the subject of a report of the Senate Select Committee on Intelligence dated 9 December 2014 11 That report included a redacted and declassified Executive Summary consisting of nearly 500 pages and a full report consisting of some 120B Report of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency s Detention and Interrogation Program S Report 113-288 9 December 2014 hereinafter Report 3 Appellate Exhibit 400N Al-Nashiri Page 3 of 23 pages 12 which was according to the Committee Chairperson based on over six million pages materials 13 The SSCI report was extremely critical of the CIA and contained ndings that the ad inter alia misrepresented the brutality of its interrogations 14 misrepresented the harshness of detainees confinement conditions 15 repeatedly provided inaccurate information to the Department of Justice 16 actively avoided or impeded congressional oversight 17 impeded effective White House oversight 18 and released inaccurate classified information to the media in an attempt to steer public opinion 19 While the CIA filed a response to the report and undoubtedly disputes some if not all of these findings it goes without saying that the report casts the CIA in a negative light such that its reputation has been impacted by the RDI program and the investigations thereof The same SSCI report and the underlying CIA information figured prominently in the litigation surrounding the AB 120 series and many of the M C R E 505 f requests currently before the Commission pursuant to declarations purporting to invoke privilege by CIA officials The Defense has come into possession of several CIA cables recently obtained by the National Security Archive at George Washington University through the Freedom of Information Act the FOIA cables The Defense avers and the Government does not dispute that these same cables were produced to the Defense in the form of summaries and substitutions pursuant to M C R E 505 f the 505 cables Comparison of the FOIA cables and the 505 cables suggests that the M C R E 505 f process has at least on these occasions produced deletions that could fairly be characterized as self-serving and calculated to avoid embarrassment indicative of a minimalist view of what is noncumulative relevant and material and or at best indicative that classification Id at xiixivxvii Appellate Exhibit 400N Al-Nashiri Page 4 of 23 have eased significantly since the original release of the summarized cables to the Defense overy In any event the comparison undermines any contention the redactions are narrowly to a legitimate need to protect national security 20 g The Commission has independently reviewed the declarations underlying the Government s assertion of the classi ed information privilege in this case 21 The declarations range between two and seven years old None contain a particularized showing that access to the redacted information by any particular cleared defense counsel many of whom were not assigned to the case at the time the declarations were made would currently pose a substantial risk to national security Furthermore while the declarations do an admirable job of demonstrating why particular information is classi ed in some instances at the highest levels the bases for withholding said information from cleared defense counsel could fairly be characterized as broad assertions that Defense Counsel have no need to know and therefore whatever risk may be attendant to their access is untenable h Handling and marking guidance for RDI information has changed since this case entered abatement This handling and marking guidance has previously and frequently been cited by the Government among the bases for the Commission to maintain their M C R E 505 f motions ex pane and under seal i The over 30 000 pages of M C R E 505 f summaries and substitutions as to which the Government has requested reconsideration consist generally of motions with attachments consisting of three copies of the subject discovery one of the un-redacted original a second redline version showing the proposed deletions and substitutions and a third version representing the discovery as 20 The Government points out that the FOIA cables relate to M C R E 505 f cables not covered by the DC Circuit s order of vacatur These cables nonetheless indicate the extent to which the ex parte M C R E 505 f process at least as it has been employed to date can undermine con dence that it has been employed in accordance with its underlying purposes 21 AB 022 Attachment AE 120F Attachment 1 AE Attachment AB 374 Attachment B 5 Appellate Exhibit 400N Al-Nashiri Page 5 of 23 sed for disclosure to the Defense The Defense versions are in many instances unattributed d 22 and signi cantly redacted WI a The military judge may specify the time place and manner of discovery and may prescribe such terms and conditions as are necessary to the interests of justice the protection of national security and the safety of witnesses R M C 701 a 3 Upon request the Government is required to permit the Defense to examine several classes of materials which are within the possession custody or control of the Government the eXistence of which is known or by the exercise of due diligence may become known to trial counsel and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial R M C b This materiality standard normally is not a heavy burden rather evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence aiding witness preparation corroborating testimony or assisting impeachment or rebuttal United States v Lloyd 992 F 2d 348 351 DC Cir 1993 quoting United States v Felt 491 F Supp 179 186 DC Cir 1979 internal citations omitted There must be some indication that the pretrial disclosure of the disputed evidence would enable the defendant significantly to alter the quantum of proof in his favor Lloyd 992 F 2d at 351 citing United States v Caicedo-Llanos 960 F 2d 158 164 n4 DC Cir 1992 c defendant is entitled to obtain from the Government documents and objects that are within the government s possession custody or control if they are material to preparing the defense or will be used by the Government in its case-in-chief at trial United States v Scully 108 F Supp 3d 59 123 E D N Y 2015 Discovery may only be compelled if the information to be 22 Speci c dates are generally changed to a range of several months such as early 2003 6 Appellate Exhibit 400N Al-Nashiri Page 6 of 23 is both relevant and material in the sense that it is at least helpful to the defense Al Odah 'ted States 559 F 3d 539 544 DC Cir 2009 1 Defense Counsel in a capital case have a duty to make all reasonable efforts to investigate mitigation evidence Wiggins v Smith 539 US 510 538 2003 The Defense is entitled to evidence which might preclude a jury om nding the accused eligible for the death penalty United States v Moussaoui 365 F 3d 292 298 4th Cir 2004 see United States v Moussaoui 382 F 3d 453 4th Cir 2004 The sentencing authority must be given a full opportunity to consider all mitigating circumstances in capital cases Lockett v Ohio 438 US 586 602 1978 see also Brown v Sanders 546 US 212 216-17 2006 Kansas v Marsh 548 US 163 171 2006 Graham v Collins 506 US 461 475 1993 v Maryland 486 US 367 368 1988 Roberts v Louisiana 428 US 325 1976 Loving v United States 68 M J 1 8 9 C A A F 2009 e National Security Privilege Classi ed information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security R M C 7 01 f To withhold disclosure of information otherwise subject to discovery under this rule the military judge must nd that the privilege is properly claimed under Mil Comm R Evid 505 and 506 as applicable R M C 701 i 1 Once such a nding is made the military judge shall authorize to the extent practicable the deletion of speci ed items of classi ed information from documents made available to the defense the substitution of a portion or summary of the information for such classi ed documents the substitution of a statement admitting relevant facts that the classi ed information would tend to prove R M C 701 i 2 emphasis added f In any case before a military commission in which the United States seeks to delete withhold or otherwise obtain other relief with respect to the discovery of or access to any classified information the trial counsel shall submit a declaration invoking the United States classi ed Appellate Exhibit 400N Al-Nashiri Page 7 of 23 ation The declaration shall be signed by a knowledgeable United States official ssing authority to classify information M C R E g Where the Government asserts national security privilege disclosure is inappropriate absent a showing of materiality United States v unis 867 F 2d 617 622 DC Cir 1989 Stated differently an accused becomes entitled to disclosure of classified information upon a showing that the information is relevant and helpful to the defense or is essential to a fair determination of a cause Moussaoui 365 F 3d at 307 08 quoting Roviaro v United States 353 US 53 60 61 1957 see United States v Smith 780 F 2d 1102 1107 10 4th Cir 1985 en banc ' United States v Fernandez 913 F 2d 148 154 4th Cir 1990 explaining that Smith requires the admission of classified information once the defendant has satisfied the Roviaro standard In making this determination the military judge may consider whether access by Defense Counsel would better facilitate review Al Odah 559 F 3d at 545-47 court applying this rule should of course err on the side of protecting the interests of the defendant In some cases a court might legitimately conclude that it is necessary to place a fact in context in order to ensure that the jury is able to give it its full weight For instance it might be appropriate in some circumstances to attribute a statement to its source or to phrase it as a quotation As the Court said in Old Chie syllogism is not a story and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it United States v Rezaq 134 F 3d 1121 1142 DC Cir 1998 citing Old Chiefv United States 519 US 172 189 1997 h Before the Defense has access to any of the evidence they cannot be required to show materiality with the degree of specificity that applies in the ordinary case Moussaoui 365 F 3d at 308 citing United States v Valenzuela Berna 458 US 858 870 71 1982 A plausible showing of materiality is sufficient Id Information that is exculpatory that undermines the reliability of other purportedly inculpatory evidence or that names potential witnesses capable of Appellate Exhibit 400N Al-Nashiri Page 8 of 23 ing material evidence may all be material Al Odah 559 F 3d at 546 The MCA adds the onal requirement that the information be noncumulative 10 U S C i unis the leading case in the DC Circuit on discovery under CIPA noted a possible third step after analyzing relevance and materiality that is the balancing of the defendant s interest in disclosure against the government s need to keep the information 867 F 2d at 625 While recognizing that two other circuits have employed this third criterion and that it was suggested by Roviaro the court s reversal based on its finding that the trial court erred by failing to properly apply the helpful to the defense test obviated the need to decide its applicability j M C R E 505 f provides a mechanism whereby the Government can employ alternative means to provide relevant and material matters to the Defense if a substitution eXists that would provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information Moussaoui 365 F 3d at 313 see United States v Mejia 448 F 3d 436 456 DC Cir 2006 Rezaq 134 F 3d at 1143 Yunis 867 F 2d at 623 k When the unis standard is met it is appropriate for the military judge to order production of the evidence and let the Government choose whether to comply Moussaoui 365 F 3d at 310 If the Government refuses to produce the information at issue as it may properly do the appropriate sanction is that which is least severe while still serving the interests of justice Id at 313 Since the Government which prosecutes an accused also has the duty to see that justice is done it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense Jencks v United States 353 US 657 670 71 1957 The burden is the Government s not to be shifted to the trial judge to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government s possession Moussaoui 365 F 3d at 311 quoting Jencks 353 US at 672 emphasis in original Appellate Exhibit 400N Al-Nashiri Page 9 of 23 l The right to an open public trial is a shared right of the accused and the public the on concern being the assurance of fairness Press-Enter Co v Superior Court 478 US 1 7 Press-Enter II This right extends to pretrial hearings which are an integral part of a criminal prosecution In re Washington Post Co 807 F 2d 383 389 4th Cir 1986 Openness enhances the basic appearance of fairness so essential to public confidence Press-Enter Co v Superior Court 464 US 501 508 1984 Press-Enter I quoting Richmond Newspapers Inc v Virginia 448 US 555 569 571 1980 P ublic proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct Press-Enter I at 508 09 A public trial ensures that judge and prosecutor carry out their duties responsibly United States v Ortiz 66 M J 334 338 C A A F 2008 citing Waller v Georgia 467 US 39 46 1984 m Although the right to a public trial is not absolute there is a strong presumption in its favor as judges lawyers witnesses and jurors will perform their respective functions more responsibly in an open court than in secret proceedings Ortiz 66 M J at 338 Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a at and requires rigorous justification Hicklin Eng L C v Bartel RJ Bartel Assocs 439 F 3d 346 348 7th Cir 2006 n It is settled law that the accused in a court-martial has both statutory and constitutional rights to a public trial See Ortiz 66 M J at 338 In Ali the United States Court of Military Commission Review U S C M C R recognized as to ongoing pretrial military commission hearings a clear and indisputable right to a public trial pursuant to 10 U S C 949d and R M C 806 Abdul-Az 'z Ali v United States _F Supp 3d 2019 WL 3334382 at 3 U S C M CR June 28 2019 military commissions shall be publicly held see also Hamdan v Rumsfeld 548 US 557 2006 The core value at issue is public confidence in and respect for the military commissions Id at 18 10 Appellate Exhibit 400N Al-Nashiri Page 10 of 23 0 Similar reasoning supports limiting the use of ex parte presentations In the context of ex proceedings relating to discovery the Seventh Circuit has held the district court in exercising cretion must bear in mind that ex parte communications are disfavored They should be avoided whenever possible and even when they are appropriate their scope should be kept to a minimum United States v Napue 834 F 2d 1311 1318 7th Cir 1987 The court continued Ex parte communications between the government and the court deprive the defendant of notice of the precise content of the communications and an opportunity to respond These communications thereby can create both the appearance of impropriety and the possibility of actual misconduct Even where the government acts in good faith and diligently attempts to present information fairly during an ex parte proceeding the government s information is likely to be less reliable and the court s ultimate findings less accurate than if the defendant had been permitted to participate Id at 1318-19 citing In re Taylor 567 F 2d 1183 1188 2d Cir 1977 An ex parte communication between the prosecution and the trial judge can only be justi ed and allowed by compelling state interest United States v Barnwell 477 F 3d 844 850 6th Cir 2007 citing United States v Minsky 963 F 2d 870 874 6th Cir 1992 However impartial a prosecutor may mean to be he is an advocate accustomed to stating only one side of the case Haller v Robbins 409 F 2d 857 859 1st Cir 1969 An ex parte proceeding places a substantial burden upon the trial judge to perform what is naturally and properly the function of an advocate Napue 834 F 2d at 1319 citing United States v Solomon 422 F 2d 1110 7th Cir 1970 p The Government s assertion on its own authority and without explanation that the petitioner does not have a need to know information pertaining to individuals other than the detainee cannot end the inquiry Al Odah 559 F 3d at 545 When the Government invokes the national security privilege there is a need to scrutinize closely the government s reasons for wanting to hold a closed session Ali 2019 WL 3334382 at 15 The Government must show a substantial probability of harm to national security Id at 16 citing Press-Enter II 478 US at 14 see also Dhiab v Obama 70 F Supp 3d 465 468 D D C 2014 stating the Government bears 11 Appellate Exhibit 400N Al-Nashiri Page 11 of 23 urden of establishing a substantial probability of prejudice to a compelling interest lation and bare argument are insufficient the Government must provide more than just an ssion of concern to justify closure 2019 WL 3334382 at 17 citing Detroit Free Press v Ashcroft 303 F 3d 681 709 6th Cir 2002 The Government should provide concrete examples of the what and the why underlying its concerns so that the commission can assess the reasons and make the appropriate specific factual findings on whether to take certain testimony in closed session Id T roubled as we are by the risk that disclosure of classified information could endanger the lives of both Americans and their foreign informants we are equally troubled by the notion that the judiciary should abdicate its decision-making responsibility to the executive branch whenever national security concerns are present History teaches us how easily the spectre of a threat to national security may be used to justify a wide variety of repressive government actions A blind acceptance by the courts of the government s insistence on the need for secrecy without notice to others without argument and without a statement of reasons would impermissibly compromise the independence of the judiciary and open the door to possible abuse In re Wash Post C0 807 F 2d at 391 92 4 Analysis a The Government s various requests under M C R E 505 f raise several questions Some overriding observations serve to place these questions in the proper context First among these is that the information as to which the Government seeks relief has come into the possession of the Prosecution in the course of their efforts to fulfill their discovery obligations and has been identified by the Prosecution as containing discoverable information Secondly Defense Counsel have been granted security clearances at the highest levels Third the Government s choice to employ the M C R E 505 f process has consumed countless man-hours and contributed significantly to the years of delay in bringing this case to trial Finally the information the Government seeks to protect is generally between ten and fifteen years old if not older 12 Appellate Exhibit 400N Al-Nashiri Page 12 of 23 b The seminal questions that ow from these observations are whether the relief requested st on the massive scale on which the process has been employed and is proposed to be re- yed is 1 required by statute and or applicable rules 2 necessary to protect national security and or 3 a prudent reconciliation of the competing needs to conduct a fair trial and to protect national security For the reasons which follow the Commission answers all three in the negative Required by Statute 0r Rule c As R M C 702 a 3 states the Commission generally has discretion to manage the discovery process in order to serve the interests of justice the protection of national security and the safety of witnesses The breadth of this grant is similar to that of a Federal District Court which enjoys in addition to the authorities contained in Federal Rule of Criminal Procedure 16 inherent authority to manage pretrial discovery 23 d Accepting the general proposition then that the Commission has broad discretion in managing discovery the question becomes whether and how the hybrid CIPA implementation limits that discretion In making this interpretation the Commission is mindful that In the absence of a clear indication whether eXpress or implied the Supreme Court has resolve d ambiguities in the statute or rule at issue in favor of that interpretation which affords a full opportunity for courts to act in accordance with their traditional practices v Guccione 470 F 3d 89 102 2d Cir 2006 Congress may intervene and guide or control the exercise of the courts discretion but we do not assume that Congress has intended to depart from established principles Weinberger v Romero-Barcelo 456 US 305 313 1982 e Thus looking to the statutory regulatory scheme at play several factors weigh in favor of the Commission retaining its broad discretion First R M C 701 f requires the military judge to determine whether the privilege is properly claimed and only provides for the exercise of the 23 See United States v Grace 526 F 3d 499 516 9th Cir 2008 13 Appellate Exhibit 400N Al-Nashiri Page 13 of 23 E 505 f substitution process to the extent practicable This is consistent with the ssive may found in the rst sentence of CIPA 424 and imported into MCA 2926 other hand MCA appears to limit discretion with a may not and paragraph states that the military judge shall grant the request of the trial counsel to substitute but the shall only becomes operative if the military judge nds that the summary would provide the accused with substantially the same The Commission does not nd this seemingly random mixture of the permissive the mandatory and the prohibitory as a clear repudiation of the Commission s authority to manage the discovery process In fact in light of the legislative history indicating that a chief aim of the 2009 MCA amendments was to incorporate the relatively well- settled body of CIPA case law 27 it would seem Congress left undisturbed the conclusion that leaves the precise conditions under which the defense may obtain access to discoverable information to the informed discretion of the trial court In re Terrorist Bombings of the US Embassies in East Africa v Odeh 552 F 3d 93 122 2d Cir 2008 In the Terrorist Bombings case 28 as in El Mezain29 and Moussaoui 3O the trial court struck the balance by requiring disclosure only to individuals including Defense Counsel with an appropriate security clearance On the other hand the Commission is mindful that There are too 24 The court upon a suf cient showing may authorize the United States to 25 The military judge in assessing the accused s discovery of or access to classi ed information under this section may 26 Upon the submission of a declaration under paragraph 1 the military judge may not authorize the discovery of or access to such classi ed information unless the military judge determines that such classi ed information would be noncumulative relevant and helpful 27 See generally Legal Issues Regarding Military Commissions and the Trial of Detainees for Violations of the Law ofWar S 111 90 July 1 2009 28 We now hold that CIPA authorizes district courts to limit access to classi ed information to persons with a security Id at 122 29 The defendants themselves had access to declassi ed summaries of thousands of the intercepted calls that were pertinent to the intelligence investigation all of the calls that the government intended to use at trial and the entire contents of four of the FISA intercepts The calls to which the defendants lacked access were available to defense counsel United States v El Mezain 664 F 3d 467 523 5th Cir 2011 30 T he Government produced the evidence in accordance with the Protective Order to defense United States v Moussaoui 591 F 3d 263 287 4th Cir 2010 as amended Feb 9 2010 14 Appellate Exhibit 400N Al-Nashiri Page 14 of 23 leaks of classi ed information too much carelessness and irresponsibility in the handling of nformation to allow automatic access to holders of the applicable security clearances United v Daoud 755 F 3d 479 494 7th Cir 2014 In other words Defense Counsel are not automatically entitled to classified information by virtue of their clearances Instead the Commission should be mindful of its responsibility to employ its discretion to appropriately balance the interests of national security and a fair trial g Thus the Commission reads the permissive may in consistent with to the extent practicable in R M C 701 f to vest the Commission with discretion in deciding whether and on what scale to allow the Government to employ the summary and substitution process The prohibitory may not in is not raised by the present motions because the present motions deal with documents the Prosecution has already identified as discoverable i e noncumulative relevant and helpful Finally the mandatory shall in section is in the first instance not triggered until and unless the Commission determines that the Government may employ the summary and substitution process and in the second instance not truly mandatory in that it is predicated upon a discretionary finding that the materials place the Defense in substantially the same position as the originals This interpretation gives full effect to the words Congress chose without limiting the Commission s ability to effectively manage discovery with the ultimate aim of bringing the case to trial within a reasonable time h The first predicate to the use of the M C R E 505 f process is a valid assertion of privilege The Commission finds the stale declarations used to support the Government s assertion of privilege in many instances pre-dating the Government s motions purporting to assert privilege by years insufficient to assert the National Security Privilege 31 The present tense requirement of a declaration by an individual possessing original classification authority is simply not met The 31 In many instances the authors of the declarations some of whom are widely known to no longer be employed by the US Government no longer exercise original classi cation authority 15 Appellate Exhibit 400N Al-Nashiri Page 15 of 23 ission does not see how a general declaration predating a proposed disclosure can meet the ement of setting forth the damage to the national security that the discovery of or access to 'nformatz on reasonably could be expected to cause M C R E 505 f l A emphasis added The clear import of the M C R E 505 f scheme seems to be an assertion of privilege by a designated OCA as to the specific information the Government seeks to protect not broad classes of information the trial counsel may subsequently decide is not non-cumulative relevant or necessary Furthermore in light of the passage of time the changes in personnel and the Government s ongoing obligation pursuant to M C R E 505 a 3 to continually seek to declassify information to the greatest extent possible the motions underlying the vacated M C R E 505 f orders simply cannot stand as a valid assertion of privilege i Additionally the Government s intention to submit supplemental requests based on ongoing declassification efforts represents a wholly inefficient and impracticable approach Clearly the Government does not require the Commission s blessing to provide the Defense with the summaries they already have The Commission therefore declines to review voluminous submissions now to only be required to revisit them at some unspecified future date when the Government or their equity partners decide more can be released Necessary to Protect National Security j Should the Government choose to reassert privilege as to these matters any declaration should contain specific information as to why access to the particular Defense team or some subset thereof presents something more than a theoretical threat to national security While it is laudable that members of the intelligence community have an expansive understanding of all of the ways in which adversaries could make use of classified information that potential for abuse does not equate to a reasonable expectation that these particular Defense Counsel would so use it or that they would somehow unwittingly enable others to do so To the extent the Government seeks to pursue an argument that every person to whom the information in question is disclosed presents an additional 16 Appellate Exhibit 400N Al-Nashiri Page 16 of 23 ble risk the Government should be prepared to document how many Government attorneys gals and support staff have had to access the information in order for the Government to the voluminous redactions and summaries submitted to the Commission to date and articulate why their access is less of a threat than that by a handful of Defense Counsel Balancing of Interests k Should the Government so choose and thereafter succeed in invoking the privilege the question must turn to whether employment of the M C R E 505 f process is practicable and if so on what scale This requirement brings to mind the balancing contemplated in unis between the Government s interest in protecting the information and the Defense s need for it While the test has not been formally adopted in the DC Circuit its application by the trial court judge in unis was not repudiated and the unis court specifically acknowledged that it seems to be called for by Roviaro This Commission finds the application of the test necessary as the only framework within which to afford appropriate weight to the interests of the Accused and his alleged victims in ultimately seeing justice done as the second decade since occurrence of the offenses draws to a close In that context the words of Chief Justice Roberts albeit in a different context ring true If judicial review is to be more than an empty ritual it must demand something better than the eXplanation offered for the action taken in this case DOC v New York 139 S Ct 2551 2576 2019 1 Several factors are relevant to the question of the necessity to protect classified information 1 Clearance of counsel Moussaouz demonstrates the viability of involving cleared defense counsel in pretrial discovery matters subject to a protective order preventing them from disclosing classified information to their client The Government has eXpended significant resources to investigate counsel and has granted them clearances based on a determination of trustworthiness to hold some of the nation s most closely- guarded secrets Furthermore as a prerequisite to obtaining any classified information all parties have signed non-disclosure agreements clearly 17 Appellate Exhibit 400N Al-Nashiri Page 17 of 23 eating the grave criminal and civil penalties associated with any unauthorized disclosure One certainly anticipate as well that an attorney who outed a protective order would have to er to her licensing authority Given these factors at a minimum it would seem incumbent upon the Government to articulate a substantial probability that Defense Counsel will abandon their professional integrity and risk their livelihood their assets and their freedom by ignoring the terms of their non-disclosure agreements and any protective orders the Commission may fashion 2 Impact on speedy trial As stated above in determining practicability as guided by the balancing test contemplated in unis one consideration would have to be the significant cost relative to the values enshrined in the speedy trial right While other factors have also contributed to the pace of litigation in this case the Government s decision to pass tens of thousands of pages of discovery through the M C R E 505 f process has impacted the shared interests of the Accused the victims and their family members and the public in a swift resolution of these charges While the M C R E 505 f process is well-suited to consideration of minimal redactions or revisions of certain highly-sensitive documents at present scale it becomes unwieldy especially in light of the facts that the materials can only be viewed in in a Secured Compartmentalized Information Facility in either the National Capital Region NCR or aboard NSGB by a Military Judge is not assigned to the NCR The time required for one person to travel to the NCR and review binder upon binder of redactions produced by teams of prosecutors and their paralegals working seven days a week for over two years32 seems inconsistent with any notion of a speedy trial 3 Sensitivity of the information Certainly some classified matters are more sensitive than others as evidenced by the different classification levels employed Arguments that every additional person with access represents an unacceptable risk ring hollow with respect to 32 Martins Since June of 2014 we have been working seven days a week to try to comply with the ten categories in the commission s order and we have done that including all holidays and have been treating it in our of ce as if it's a deployment Transcript of 9 September 2016 hearing at p 6 495 18 Appellate Exhibit 400N Al-Nashiri Page 18 of 23 ments classified at lower levels and or transmitted to stakeholders across the intelligence and tional communities Furthermore while non-cumulativeness is a statutory prerequisite to the mission s ability to order access to discovery the cumulativeness standard is nebulous and subject to abuse and or misapplication depending on one s view of what is cumulative It is in this context that the perspective of the prosecutor and that of the defense attorney probably differ most starkly rendering the caution from Napue and cases cited therein most salient While a prosecutor may consider one account of a particular fact or incident to render all further evidence on the topic cumulative a defense attorney may seek to understand or eXploit subtle differences among varying accounts In terms of protecting classified information cumulativeness and necessity analytically pull in opposite directions If evidence is cumulative the proverbial cat is out of the bag the necessity to withhold subsequent iterations of it would diminish unless the subsequent iterations added some additional indicia of credibility in which case they would not be truly cumulative Any other reading would nullify the required end state that the Defense be in substantially the same position they would have occupied had the original discovery been provided So conceived the non-cumulative requirement is best understood as relieving the Government of the obligation to provide information the provision of which would be unduly onerous in light of its minimal tendency to be helpful to the Defense To employ the even-more-onerous M C R E 505 f process on the basis of cumulativeness seems counter-intuitive especially as to portions of documents the Government has themselves identified as discoverable Substantially Same Position m Having reviewed the Government s proposed summaries the Commission registers concerns that many of the summaries are so significantly altered that they seem insufficient to meet the requirement that they place the defense in substantially the same position as would discovery of the underlying documents While limited redactions of certainly highly-sensitive information may make sense wholesale paraphrasing and obfuscation is not only extraordinarily onerous it impacts l9 Appellate Exhibit 400N Al-Nashiri Page 19 of 23 ility and usability The wholesale use of syllogism and naked proposition as Rezaq ned could eliminate necessary context Similarly the boiling down of accounts produced in me and transmitted through prescribed systems to identifiable addressees into desiccated statements of material fact not only deprives the defense of narrative integrity but renders the documents largely useless as a basis for follow-on investigation for impeaching or refreshing recollection of a witness or even for satisfying such basic pre-requisites of authentication as when the statements were made by whom to whom and for what purpose The Government should be prepared to specifically justify modifications that alter the structure and nature of the underlying discovery to the detriment of these uses Relevance Helpfulness 11 Relevance and helpfulness are often in the of the beholder As Al Odah points out the universe of matters helpful to the Defense is not limited to that which could be used at trial but includes such matters as the names of potential witnesses to interview Also the Prosecution s limited understanding of the Defense s theory presents a multi-faceted danger First the likelihood that the Prosecution will simply miss discoverable information is heightened second any corrective action dictated by the Commission will tend to reveal a part of the ex parte theory third at the scale of tens of thousands of pages the chance that the Prosecution and the Commission may both miss something increases and finally any shift in the Defense theory could necessitate a wholesale reevaluation of matters considered to date This reality overlaid with the extraordinarily broad scope of capital discovery and the entreaty to err on the side of disclosure one would expect to render the universe of information unavailable to the Defense small and the bases for their exclusion rare 5 Markings According to guidance provided by the Government many of the documents are no longer properly marked That the documents have re-entered the working environment and are no longer at rest would seem self-evident based on the Government s request that they be reconsidered and subjected to additional review and comment by the Commission 20 Appellate Exhibit 400N Al-Nashiri Page 20 of 23 ling Considering the factors listed above the Commission finds the Government has failed to ately assert the Classi ed Information privilege While the Government is free to reassert ge the Commission expects that any subsequent submission address the concerns stated herein As to the matters listed in Attachment A the Government s underlying motions are DENIED 7 List of Attachment A Listing of Motions at Issue So ORDERED this 7th day of November 2019 LANNY J ACOSTA JR COL JA USA Military Judge 21 Appellate Exhibit 400N Al-Nashiri Page 21 of 23 Attachment A 22 Appellate Exhibit 400N Al-Nashiri Page 22 of 23 092W 120U Amend 120MANVVMANVV 275A 303A 363D 374A 374C 382B 382C Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order Order 1-Sep-16 28-Mar-17 28-Mar-17 7-Apr-17 10-Apr-17 24-Apr-17 4-May-17 17-May-17 18-May-17 24-May-17 30-May-17 22-Jun-17 7-Aug-17 11-Aug-17 11-Aug-17 24-Aug-17 24-Aug-17 24-Aug-17 24-Aug-17 7-Sep-17 7-Sep-17 26-Oct-17 27-Oct-17 19-Nov-15 11-Aug-17 14-Nov-17 30-Mar-17 26-May-17 31-Aug-17 15-Nov-17 Attachment A Listing of Motions at Issue AE 092T AE AE Amend AE AE AE AE Amend Amend AE AE Amend AE AE AE AE AE Amend AE 2nd Amend AE 3rd Amend AE AE AE AE 12000 AE IZOQQ Amend AE Amend AE 120CC AE AE AE Amend AE 275 AE 303 AE 303A AE 363C AE 374 AE AE 3743 Amend AE 382A AE 382 33 The underlying motion related to AE was mistakenly documented by the Commission in AB 400 as AE when in fact it was AE This error was carried forward by the Government in AB 400A The actual underlying order however was clearly understood notwithstanding this typographical error 23 Appellate Exhibit 400N Al-Nashiri Page 23 of 23