UNCLASSIFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL J UDICIARY

GUANTANAMO BAY
UNlTED STATES OF AMERICA
v.
KHALID SHAIKH MOHAMMAD,
WALID MUHAMMAD SALIH MUBARAK
BIN 'ATTASH,
RAMZI BIN AL SHAIBAH, AMAR AL
BALUCHI ("ALI ABDUL AZIZ ALI"),
MUSTAFA AHMED ADAM
ALHAWSAWI
AE052-3(MAH)
Defense Motion
for Appropriate Relief to Continue
the Filing Deadline for Mr. Hawsawi's
Response to AE-OS2, Government
Motion for Finding
Fil ed: 12 September 2012
I. Timeliness: Thj s mot ion for appropri ate relief is timely fil ed pursuant to RMC 906(b)( I).
2. Relief Sought: Mr. Hawsawi requests a continuance of the deadline for filing a response to
the Government's AE-052, until October 26
111
, 20 12, or two weeks after requested di scovery has
been provided, wh ichever is later.
3. Burden of Proof: As the moving party, the defense bears the burden on th is motion. See
R.M.C. 905(c); 906(b)(I).
4. Over view: Detail ed learned defense counsel for Mr. Hawsawi seeks a continuance of the
deadline to respond to AE-052 until October 26
th
, or two weeks after di scovery that has been
requested has been turned over to the Defense, whjchever date is later.
The response is currently due September 13
th
, 2012. Defense counsel and Mr. Hawsawi's
mitigation expert need to di scuss certain sensitive issues with Mr. Hawsawi in order to prepare
the response to AE-052. Due to the cancell at ion of aM ili tary Commissions fli ght scheduled to
take defense counsel to Guantanamo for client meet ings the week of September loth, counsel is
now unable to travel until the week of September lih, 20 12; the mitigat ion speciali st is not
avail able to travel until October 9
th
. Mr. Hawsawi, along with co-defendants' counsel, has also
submitted three requests for di scovery pert inent to AE-052.
Filed with T J
12 September 2012
UNCLASSIFIEDIIFOR PUBLIC RELEASE
Appellate Exhibit 052-3 (ConI. Ext) (MAH)
Page 1 of 5
UNCLASSIFIEDIIFOR PUBLIC RELEASE
The requested continuance will all ow counsel and the mitigation expert to meet with Mr.
Hawsawi to di scuss the sensiti ve issues in quest ion, and then adequately respond to AE-052; it
will also permit review of discovery relevant to the response.
5. Facts:
a. The Government filed AE-052 with the defense on August 10, 20 12.
b. Ruling on ajoint defense mot ion for a continuance, th is commission agreed to delay the
filing of a response until September 13, 20 12, due to hearings in th is case that had been set to
take place during the time a response would have been prepared.
c. The week of September 3rd, 20 12, in preparing the response to AE-052, defense counsel
for Mr. Hawsawi recogni zed that certain sensitive issues needed to be discussed with Mr.
Hawsawi. To aid in writing the response therefore, defense counsel planned to travel to
Guantanamo the week of September 10th, along with Mr. Hawsawi's mitigat ion expert, in order
to di scuss these sensitive issues with Mr. Hawsawi. The afternoon of Friday September ih,
however, counsel were informed that the scheduled Military Commissions fli ght was canceled.
Counsel were told that the onl y remaining fli ght to Guantanamo that week would require counsel
and supporting personnel to leave that evening, September ih, in order to catch a rotator fli ght
out of Jacksonvill e, Flor ida, the next morn ing. Counsel and supporting personnel were not able
to make alternat ive arrangements on such short notice. Additionall y, Mr. Hawsawi's mitigat ion
expert, who does not reside in Wash ington, DC, had been due to fly into Washington D.C. on
Sunday afternoon, so as to leave on the planned Monday September l Oth; he could not make the
earli er, Saturday rotator fli ght to Guantanamo out of Jacksonvill e. Counsel requested for the
team to fly commerciall y to Guantanamo on Monday September 10th, 2012, but were informed
that no fli ghts were avail able. Counsel also indicated that they would be willing to travel on a
mili tary aircraft. This opt ion was denied as well.
d. Defense counsel anticipates taking the next schedu led Mili tary Commissions fli ght to
Guantanamo, the week of September 17, 2012. However, Mr. Guastafarro, Mr. Hawsawi's
miti gat ion expert, is not avail able to travel to Guantanamo Bay until 09 October 20 12.
e. The Defense has filed three joint requests for di scovery. These requests were filed August
30, 2012 (classifi ed), and two were submitted on September 6, 20 12.
f. The next commission hearing in this case is set for October 15- 19, 20 12.
Filed with T J
12 September 2012
PUBLIC RELEASE
Appellate Exhibit 052-3 (ConI. Ext) (MAH)
Page 2 of 5
UNCLASSIFIEDIIFOR PUBLIC RELEASE
6. Law and Argument:
The discussion to Rule for Mili tary Commission 906(b) states that "[t]he mili tary judge
should, upon a showing of reasonable cause, grant a continuance to any party for as long and as
often as isj ust." R.M.C. 906(b)( J)(Discussion). The Regulat ions for Trial by Mili tary
Commission also recogni ze the statutory requirement that the defense must have a reasonable
opportuni ty for access to evidence. RTMC 17-3(a)("Pursuant to Chapter 47 A of Titl e 10 U.S.c.
949j , the defense counsel in a mili tary commission shall have a reasonable opportunity to
obtain witnesses and other evidence as provided by R.M.C. 70 1-703.")
In order to file an adequate response to AE-052, defense counsel and the mitigat ion expert
need to di scuss certain sensitive matters with Mr. Hawsawi. Counsel has been unable to do so,
given the timing of the f iling of AE-052, and the mili tary commissions fli ght schedule. The
unant icipated cancell at ion of the Mili tary Commissions fli ght to Guantanamo the week of
September l Oth has resulted in counsel having to cancel meet ings with Mr. Hawsawi. Meet ings
with the case mitigat ion expert, Mr. Guastaferro, will now not take place until after October 9,
20 12, since Mr. Guastaferro is not be avail able to travel to Guantanamo until that date. Given the
interference with scheduled fli ghts and the current hearing schedule, there is good cause for the
requested delay to f il e a response here, and granting this request is in the interests of just ice. See
R.M.C. 906(b)( I )(discussion). This brief delay, moreover, will give defense counsel reasonable
opportuni ty to obtain evidence requested of the prosecution that is relevant to an adequate
response to AE-052. See 10 U.S.C 949j; R.M.C. 70 1, 703; R.T.M.C. 17-3(a).
The requested del ay will have no impact on this Mili tary Commission's current schedule,
since AE-052 is not docketed for the next scheduled hearing week of October 14
111
,20 12.
Accord ingly, Mr. Hawsawi seeks a continuance until October 26
111
, or two weeks after di scovery
that has been requested has been turned over to the Defense, whichever date is later.
7. Conference: The Prosecut ion indicated on 12 September 20 12 that the Government opposes
this mot ion.
8. Request for Oral Argument: None.
Filed witll T J
12 September 2012
UNCLASSIFIEDIIFOIJ PUBLIC RELEASE
Appellate Exhibit 052-3 (ConI. Ext) (MAH)
Page 3 of 5
UNCLASSIFIEDIIFOR PUBLIC RELEASE
9. Request for Witnesses and Evidence: None.
10. Additional Information: None.
II. Attachments:
A. Certificate of Service.
IIsil
WALTER B. RUIZ
CDR, JAGC, USN
Detailed Defense Counsel
PUBLIC RELEASE
Filed with T J
12 September 2012
Appellate Exhibit 052-3 (Cont. Ext) (MAH)
Page 4 of 5
UNCLASSIFIEDIIFOR PUBLIC RELEASE
CERTIFICATE OF SERVICE
1 certify that on the 12 day of September, 2012, 1 electronicall y filed the Defense Motion
for Appropriate Relief to Continue the Filing Deadline for Mr. HawsawPs Response to
AE-OS2, Government Motion for Finding with the Clerk of the Court and served the fore going
on all counsel of record bye-mail.
Filed with T J
12 September 2012
IIsil
WALTER B. RUIZ
CDR, JAGC, USN
Detailed Defense Counsel
UNCLASSIFIEDIIFOR PUBLIC RELEASE
Attachment A
Page 1 of 1
Appellate Exhibit 052-3 (Cont. Ext) (MAH)
Page 5 of 5