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MILITARY COMMISSIONS TRIAL J UDICIARY

GUANTANAMO BA Y, CUBA
UNITED STATES OF AMERICA
v.
KHALID SHAIKH MOHAMMAD;
WALID MUHAMMAD SALIH
MUBARAK BIN ' ATTASH;
RAMZI BINALSHIBH;
ALI ABDUL AZIZ ALI;
MUSTAFA AHMED AL HA WSA WI
1. Timeliness
AE052E
Government Response
To Joint Mot ion to Compel the Product ion
of an Uncl ass ifi ed Summary of AE052
21 November 20 12
This response is fil ed ti mely pursuant to Mili tary Commissions Tri al Judiciary Rul e of
Court 3.7.c( I).
2. Relief Sought
The Prosecution respect fully requests that the Commission deny the defense mot ion to
compel production of an uncl assified sununary of its pleading in AE052.
3. Overview
The Defense's argument that the Prosecut ion cannot refuse to produce an uncl assifi ed
summary without validl y invoking the cl ass ifi ed informat ion pri vil ege is incorrect. The
Defense's argument fail s on several grounds. First, the Prosecut ion has already provided the
Defense with the cl assifi ed pleading. As such, the Prosecut ion is not seeking to withhold the
informat ion from the defense. Second, there is no requirement that the Prosecuti on provide the
Defense with an uncl assifi ed summary of the very cl assified pleading that the Defense has
already received.
4. Burden of proof
As the moving party, the defense must demonstrate by a preponderance of the evidence
that the requested reli ef is warranted. R.M.C. 905(c)( I )-(2).
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5. Facts
On 3 1 May 20 11 and 25 January 20 12, pursuant to the Mili tary Commissions Act of
2009, charges in connect ion with the II September 2001 attacks were sworn against Khalid
Shaikh Mohammad (Mohammad), Walid Muhammad Salih Bin Attash (Bin Attash), Ramzi
Binal shibh (Binal shibh), Ali Abdul Aziz Ali (Ali ), and Mustafa Ahmed Adam a1 Hawsawi
(Hawsawi). These charges were referred jointly to this capital Mili tary Commission on 4 April
20 12. The accused are each charged with Conspiracy, Attack ing Civili ans, Attacking Civili an
Intenti onall y Causing Serious BcxJily Injury, Murder in Violat ion of the Law of War,
Destruction of Property in Violat ion of the Law of War, Hijacking an Aircraft, and Terrorism.
On 10 August 20 12, the Prosecut ion filed a classifi ed plead ing, Government's
Consolidated Not ice Regarding Ex Parte, In Camera Filing and Mot ion for Finding to counsel
for each defendant. See AE052.
On 6 and 13 September 20 12, counsel for Mr. Ali and Mr . Bin Attash, respect ively,
submitted classifi ed requests for product ion of an uncl ass ifi ed summary of AE052. See
AE052D, Attachments Band C.
On 12 October 2012, the Prosecution acknowledged its di scovery obli gat ions, but denied
both requests on the basis that product ion of an unclassif ied vers ion of the stated pleading would
reveal the classif ied informat ion sought to be protected. See AE052D, Attachment D.
6. Law and Argument
I. The Prosecution Has Provided the Defense with the Classified Pleading in AE
052
The Prosecution is not seeking to withhold di sclosure of informat ion subject to M.C.R.E.
505 or 506. Accordingly, the Defense reliance on Rule for Mili tary Commission 70 1(f)( 1) is
inapJXJsite here where the Prosecut ion has already provided the Defense with the class ifi ed
pleading. Further, the pleading at issue is not di scovery subject to R.M.C. 701. Where classifi ed
infonnat ion is not being withheld, there is no invocation of a classifi ed informat ion privil ege.
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There is no requirement , nor has the Defense provided one, that the Prosecution provide
an uncl ass ifi ed summary of a classified pleading fi led under seal. In thi s case, the Prosecution
denied the Defense's request for an uncl ass ifi ed summary because doing so would "reveal[J the
classifi ed informat ion sought to be protected." See AE052D, Attachment D. Although there
may be some instances where it is possible to produce an unclass ifi ed version of a class ifi ed
document, there is no pract ical way to redact or sununarize AE052 to an uncl assified level. The
government is not obli gated to provide an unclassifi ed summary where it would reveal the very
infoI111ation sought to be protected. Furthermore, the "[M] ili tary [J]udge [cannot] order the
release of classifi ed informat ion to any person not authorized to receive such in fonnat ion. " See
M.C.R.E. 505(a)( I). Since the Defense has already received the classified infonnation contained
in the pleading, there is no good faith argument that the Prosecut ion is withholding informat ion.
Not onl y is it di singenuous, it is simply incorrect.
II. The Civil States Secrets Doctrine is Inapplicable
The Defense argues that states secrets case law - namely United States v. Reynolds, 345
U.S. I ( 1963) and Ullited States v. Nixon, 4 18 U.S. 683 ( 1974) - as well as Regu lat ion for Trial
by Mili tary Commission 17-4(c) require the Prosecution to file a declaration invoking the
class ifi ed informat ion privil ege. Again, the Defense's argument fa il s. The Prosecut ion is not
required to file a declaration invok ing a c lass ifi ed informat ion privil ege where it is not seeking to
"delete, withhold, or otherwise obtain relief with respect to the di scovery of or access to any
class ifi ed informat ion. " See AE052D at p. 3. Not onl y are pleadings not considered di scovery,
but the Prosecut ion has provided the classifi ed informat ion at issue to the Defense. In previous
pleadings, the defense has demonstrated their understanding of the concept that classificat ion and
the classifi ed informat ion privilege are two separate questions. See AE 009 Supplement, p. 3.
The Prosecution' s act of filing a classifi ed fi ling wh ich was provided to the defense does not
require an invocat ion of any privil ege.
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Contrary to the defense assert ions, even where the Prosecution does seek to tile a
declarat ion invok ing the classified infonnation privil ege as authorized in M.C.R.E. 505, there is
no requirement that such a declaration be filed publicl y or that it be signed by the head of an
agency. See AE052D at p.3-4. The defense cl aims that the state secrets privil ege is the basis for
the govern ment assert ion of privil ege in CIPA, M.R. E 505 and M.C.R.E. 505. See AE052D at p.
4. The defense however, ignores relevant statutory language in the 2009 Mili tary Commission
Act and fa il s to acknowledge the judicial construction of the Class ified Infonnat ion Procedures
Act, as authoritative in the interpretat ion ofM.CR.E. 505. Although the defense correctly notes
that in United States v. Are/. 533 F.3d. 72, 79-8 1 (2008) , the Second Circuit opined that the most
likely source for the protection of classifi ed infonnation was found in the common-law privil ege
against disclosure of state secrets, it did so in the context of reviewing the Di strict Court's
deci sion to issue a protect ive order under CIPA Sect ion 4 and Federal Rule of Criminal
Procedure 16(d)( I). In the absence of language in CIPA regarding invocat ion of a privil ege, the
Second Circu it required that a department head must agree that di sclosure of classifi ed
informat ion wou ld pose a ri sk to nat ional security. Id. at 80. That procedure is the extent to
which a feder al court has appli ed the civil state secret doctrine in a CIPA case. To be clear, the
Second Circu it did not order that the invocat ion of the privil ege be made in an adversari al
sett ing, nor did it order the government's ex parte submi ssion under CIPA Section 4 be made
avail able to the defense. Id. at 8 1 ("Both CIPA Sect ion 4 and Rule 16(d)( I ) authorize ex parte
submissions."). Further undercutt ing the defense positi on, the Fourth Circu it expressly rejected
the A ref holding in United States v. Rosen, 557 F.3d 192, 198 (2009) . It reasoned that the civil
"state secrets" privil ege, to wh ich the "head of agency" requirement pertains, is inapplicable to
criminal cases and that CIPA imposes no such requirement. See also, H.R. Rep. 96-83 1, pt. I , at
15 n. 12 ("the common law state secrets privil ege is not applicable in the cr iminal arena. ")
Finall y, in enact ing the 2009 Military Commission Act, Congress eli minated any
confus ion between the civil state secrets doctrine and the cr iminal classifi ed infonnation
privil ege. Unlike CIPA which does not provide guidance on the invocat ion ofa privil ege,
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Congress specificall y provided in M.C.R.E. 505(f)( I )(a), that: I) declarations invoking the
United States' classified informat ion privil ege "shall be signed by a knowledgeable Un ited States
official possessing authority to class ify informat ion"; and 2) that such declarations submitted
under M.CR.E. 505(f)(2) may be filed ex parte. See M.CR.E. 505(f)(2)(B).
7. Conclusion
The Prosecut ion is not required to invoke the classifi ed infoI111at ion privil ege when it
files a cl ass ifi ed document. The defense cannot cred ibly argue that the Prosecution has withheld
information when the defense was provided with the classifi ed pleading at issue. The
Prosecut ion provided AE052 to the Defense in a cl ass ifi ed fonnat to protect classifi ed
infoI111at ion the di sclosure of wh ich would be detrimental to the nat ional security. Accordingly,
the defense motion should be denied.
8. Oral Argument
The Prosecution waives oral argument; however , if the Defense has an opportuni ty to
present oral argument, the Prosecution requests an opportunity to be heard.
9. Witnesses and Evidence
The Prosecut ion will not rely on any witnesses or evidence in support of th is mot ion.
10. Attachments
A. Cert ificate of Service dated 2 1 November 2012.
Filed with T J
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Respectfully submitted,
IIsll
LT Kiersten J. Korczynski , JAGC, USN
Ass istant Trial Counsel
Joanna Baltes
Deputy Trial Counsel
Mark Mart ins
Ch ief Prosecutor
Mili tary Commissions
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ATTACHMENT A
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Attachment A
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Appellate Exhibit 052E (KSM et al.)
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CERTIFICATE OF SERVICE
I certify that on the 21 day of November 20 12, I filed AE 052E, the Government's Response to
Joint Motion to Compel the Production of an Unclassified Summary of AE052 with the
Office of Mili tary Commissions Trial Judiciary and I served a copy on counsel of record.
Filed with T J
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IIsll
Joanna Baltes
Deputy Trial Counsel
Office of the Chief Prosecutor
Office of Mili tary Commissions
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Attachment A
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Appellate Exhibit 052E (KSM at al.)
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