Defense Motion To Compel Discovery - 10 October 2014 - Al Iraqi Ae018

UNCLASSIFIED//FOR PUBLIC RELEASE
MILITARY COMMISSIONS TRIAL JUDICIARY

GUANTANAMO BAY, CUBA
UNITED STATES OF AMERICA AE018
v. Defense Motion
To Compel Discovery
ABD AL HADI AL-IRAQI
10 October 2014
1. Timeliness
This Motion is timely filed pursuant to Rule for Military Commission (R.M.C.) 905(b)
and Military Commissions Trial Judiciary Rule of Court (R.C.) 3.7.
2. Relief' Sought
The defense requests the Military Judge compel production of "Any communications
(email or otherwise) between the Office of the Convening Authority and either the Deprutment
of Defense or the Executive branch regru·ding the timing of referral, specifically, but not
exclusively, related to the release of prisoners held at Guantanamo in exchange for SGT Bowe
Bergdahl."
3. Burden of' Proof'
The burdens of proof and persuasion are on the defense as the moving party. R.M.C.
905(c).
4. Facts
a. Chru·ges I- IV in this case were initially preferred on 7 June 2013.
b. On 28 August 2013, chru·ges were re-preferred, adding a third specification to Charge TIL
Filed with TJ Appellate Exhibit 018 (al Hadi}

10 October 14 Page 1 of 38

c. On 3 February, charges were again preferred, adding Charge V. Those charges were
received by the Convening Authority on 10 February 2014.
d. On 31 May 2014, the United States release five Tal iban captives into the custody of Qatar
in exchange for the release of U.S . prisoner-of-war Sgt. Bowe Bergdahl.
e. Charges I-V, along with Common Allegations 1-63 were referred to this Military
Commission on 2 June 2014.
f. On 14 June 2014, the Defense requested from the Government, via discovery request
delivered to trial counsel, production of "Any communications (email or otherwise) between the
Office of the Convening Authority and either the Deprutment of Defense or the Executive
branch regarding the timing of referral, specifically, but not exclusively, related to the release of
prisoners held at Guantanamo in exchange for SGT Bowe Bergdahl." See Attachment 2 pru·a
45.
g. On 14 July 2014, the Government responded to the 11 June request, spec ifically paragraph
45, "Communications regru·ding the timing of referral in this case and the prisoner exchange for
SGT Bowe Bergdahl, to the extent such communications exist, ru·e not relevant or
discoverable."
5. Law and Argument
Upon request under R.M.C. 701 (c)(l ), the defense is entitled to examine and copy
documents within the control of the United States "which ru·e material to the prepru·ation of the
defense." The discussion following pru·agraph (c) indicates that the Militru·y Judge should look
to United States v. Yunis, 867 F.2d 617 (D. C. Cir. 1989) for the definition of "material to the
prepru·ation of the defense." In United States v. Yunis, the court defined "material to the
prepru·ation of the defense" as "helpful to the defense of an accused." Id. at 622. R.M.C.
Filed with TJ Appellate Exhibit 018 (al Hadi)


701(c)(l) is almost identical to R.C.M. 701 (a)(2)(A). "When the defense requests documentary
evidence, it wi11 generally be provided upon a showing that the material is relevant ... and that
the request ... is reasonable." 1

2
"The military system has long been one of open discovery." R.M.C. 701 implements
this tradition of "zealously guarding the right of an accused to prepare his case by open
3
disclosme of the Government's evidence" in the context of the military commissions. The only
material difference between R.M.C. 701(c)(l) and R.C.M. 701 (a)(2)(A) is that the prosecution's
4
responsibility extends beyond items within the "control of mil itary authorities" to those with in
the "control of the Government." Accordingly, the government's responsibil ity to produce
discovery upon request is in fact broader under R.M.C. 701(c)(l) than under R.C.M.
701(a)(2)(A).
The military cowts have repeatedly held that discovery under the analogous p01tion of
R.C.M. 701 is not limited to admissible evidence. 5 Rather, the military rules of discovery "focus
on equal access to evidence to aid the preparation of the defense and enhance the orderly
administration of military justice." 6 The right to discovery includes materials that would assist
7
the defense in formulat ing a defense strategy. The right to discovery also includes information
that would assist in other pretrial issues, such as challenges for cause. 8
1
United States v. VandeMier, 25 MJ. 263, 269 (C.M.A. 1987) (quoting United States v. Toledo, 15 M.J. 255, 256
(C.M.A. 1983)) (ellipses in original).
2
United States v. Czachorowski, 66 M.J. 432, 437 (C.A.A.F. 2008).
3
United States v. Modesto, 43 M.J. 315, 320 (C.A.A.F. 1995).
4
Cf United States v. Simmons, 38 MJ. 376, 381 (C. M.A. 1993) (holding that trial counsel is responsible for items in
the possession of other "military authorities" beyond trial counsel's own office).
5
See United States v. Luke, 69 M.J. 309, 319-20 (C.A.A.F. 2011); United States v. Webb, 66 MJ. 89, 92 (C.A.A.F.
2008); United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004)
6
Roberts, 59 M.J. at 325.
7
Luke, 69 MJ. at 320; Webb, 66 M.J. at 92.
8 United States v. Modesto, 43 M.J. 315, 320 (C.A.A.F. 1995).
Filed with TJ Appellate Exh bit 018 (al Hadi)


The Military Commissions Act of 2009 (MCA) expressly prohibits any person from
unlawfully influencing or coercing the action of a military commission, the convening authority,
and the exercise of professional judgment by trial counsel or defense counsel. See 10 U.S .C. §
949b(a)(2). Each patty is entitled to the production of evidence which is relevant, necessary and
noncumulative. See R.M.C. 703(t). The commentary for this ru le provides that evidence is
necessary when it would contribute to a pa1ty's presentation of the case in some positive way on
a matter in issue.
The requested documents are material to both the defense and the Military Judge's
determination of whether there was any unlawful command influence upon the Convening
Authority regarding whether or not to refer these charges to this Military Commission, and the
timing of that referral. The existence of the information requested by the defense is critical in
determining whether or not there was any unlawful command influence. Given the lengthy
amount oftime that this case remained at the preferral stage, it is certainly reasonable to inquire
into the coincidental timing of referral days after the controversial release of the five Taliban
members from Guantanamo. It is notable that the Government 's response was not that the
records did not exist, but that they were not relevant. Assuming due diligence by the
Government in fulfilling their discovery obligations the existence of any communications
regarding the timing of referral is absolutely relevant. Therefore, the defense requests the
Commission order the production of any evidence responsive to the request for, "Any
communications (email or otherwise) between the Office of the Convening Authority and either
the Department of Defense or the Executive branch regarding the timing of referral, specifically,
but not exclusively, related to the release of prisoners held at Guantanamo in exchange for SGT
Bowe Bergdahl."
Filed with T J Appellate Exh bit 018 (al Hadi)


6. Request for Oral Argument
The Defense requests oral argument.
7. Witnesses
None.
8. Certificate of Conference
The Defense has conferred with the Government on this motion and on 8 October 2014
they indicated that they object to the requested relief and to any further inquiry into this matter.
9. Attachments
A. Certificate of Service, dated 10 Oct 2014
B. Defense Discovery Request, dated 11 June 2014
C. Government Response to Defense Discovery Request, dated 14 July 2014
Respectfully Submitted,
/Is//
THOMAS F. JASPER, Jr., LtCol, USMC
Detailed Defense Counsel
/Is//
ROBERT B. STIRK, Maj, USAF
Assistant Detailed Defense Counsel


ATTACHMENT A


CERTIFICATE OF SERVICE
I certify that on the 10th day of October 2014, I filed AEO 18, the "Defense Motion to
Compel Discovery," with the Office of Military Commissions Trial Judiciary and I served a copy
on counsel of record.
!Is!I
THOMAS F. JASPER, Jr. , LtCol, USMC
Filed with TJ Appellate Exhibit 018 (at Hadi}


ATTACHMENT B


DEPARTMENT OF DEFENSE
OFFICE OF THE CHIEF DEFENSE COUNSEL
1620 DEFENSE PENTAGON
WASHINGTON, DC 20301-1620
June 11, 2014
From: Defense Counsel for Nashwan Abd al-Razzaq Abd a1-Baqi (also called Abd AI Hadi al-
Iraq i) (ISN I 0026)
To: Trial Counsel
Ref: (a) Military Commissions Act, 10 U.S.C. § 949j(a)

(b) Rules for Military Commissions
(c) Military Commissions Rules of Evide nce
(d) U.S . Const., Amend. 5
(e) U.S . Const., Amend. 6
(t) U.S. Const., Amend. 8
(g) Strickland v. Washington, 466 U.S . 668 (1984)
(h) Beck v. Alabama, 447 U.S. 625 (1980)
(i) Lockett v. Ohio, 438 U.S. 586 (1978)
U) Woodson v. North Carolina, 428 U.S. 280 (1976)
(k) Common Article 3 to the Geneva Conventions
(I) Art. 75, Additional Protocol I, to the Geneva Conventions
SUBJ: REQUEST FOR DISCOVERY ICO UNITED STATES v. ABD AL HADI AL-IRAQI
The accused, Nashwan Abd al-Razzaq Abd al-Baqi, by and through his detailed defense
attorney, hereby requests that the government produce and permit the defense to inspect, copy, or
photograph each of the items listed in the sections below. This request includes a demand that
the government preserve all information that may fall within the scope of discovery sought
below but that the government either does not intend to produce or that the government believes
is not discoverable. The defense further request that the government notify the defense in
writing which specific items or requested information or evidence will not be provided and the
reason for denial of discovery.
The specific items listed below are examples, not limitations, of the items requested under a cited
provision. The requested evidence is material to the preparation of the defense and/or is
exculpatory. Defense counsel ca nnot properly provide effective assistance of counsel, nor
prepare for trial, without production of the documents and items requested. The requested
information is known, or should, with the exercise of due diligence, be known to the United
States or its agents. If the government does not intend to provide defense with copies of
documents or tangible objects, then the defense requests reasonable opportunity to inspect,
photograph, and photocopy such documents or objects.
1. The government alleges that my cl ient, Nashwan Abd al-Razzaq Abd al-Baqi is Abd al Hadi
al-Iraqi. To this end, the government preferred charges against the accused on 3 February 2014.
The Convening Authority referred these charges on 2 June 2014. The Charge Sheet with
attachments is enclosed and incorporated into this request (hereinafter, the "Charge Sheet").
Filed with T J Appellate Exhibit 018 {al Hadi)

1 0 October 14 Page 9 of 38
2. Pursuant to references (a) through (1) in paragraph (7), the defense requests the production
of, or the ability to inspect, the following listed items:
3. Potentially Exculpatory Evidence. The defense requests any evidence, information or

material that:
a. Tends to negate the guilt of the accused of an offense charged or reduce the degree of
guilt of the accused with respect to an offense charged;
b. Tends to impeach the credibility of a witness whom the government intends to call at trial
or whom it intends on using hearsay statements from, including, but not li mited to, records of
prior convictions, arrests, nonjudicial punishments, adverse administrative actions or counseling,
detention records, substance abuse issues, mental health issues, past, present, or potential plea
agreements, immunity grants or promises of leniency, payments of any kind and in any form,
assistance to or favorable treatment with respect to any pending civil, criminal, or administrative,
or detention-related dispute between the government and the witness, and any other matters that
could arguably create an interest or bias in the witness in favor of the govemment or against the
defense or act as an inducement to testify to color or shape testimony;
c. May be viewed as mitigation evidence at sentencing.
4. Mandatory R.M.C. 701Cb)(l) disclosw·e. The defense requests:
a. Copies of all papers which accompanied the charges sent to the military commissions
Convening Authority;
b. The convening order and any amending orders;
c. Any sworn or signed statement relating to any offense charged in the case.
5. Mandatory R.M.C. 701Cb)(2) disclosure. The defense requests a written list of the names,
addresses, phone numbers, and synopses of expected testimony for all witnesses the government
intends to call during the case- in-chief or to rebut a defense of alibi or lack of mental
responsibility.
6. Mandatory R.M.C. 701 (b)(3) disclosure. The defense requests any records of prior criminal
convictions of the accused which the government may offer on the merits for any purpose
including impeachment.
7. R.M.C. 701 (c)(l) disclosure. The defense requests the production of, or the ability to
inspect, all books, papers, documents, photographs, or copies or pottions thereof and the
opportunity to inspect tangible objects, buildings, or places that are in the possession, custody, or
control of the govemment, and that 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. In addition to this
general discovery request, the defense specifically requests the production of the following items
under R.M.C. 701 (c)(1):
2
Filed with TJ Appellate Exhibit 018 (at Hadi)

a. The ability to inspect all locations where the accused has been confined;
b. Copies of aU existing photographs of all locations where the accused has been confined,
to include but not limited to, photographs of the accused's current camp that were provided to
defense counsel for Ramzi bin al-Shibh in 2008;
1
c. All items obtained from or belonging to the accused, including, but not limited to,
copies of all legal documents seized from the accused while at Guantanamo Bay, Cuba;
d. All computer hard drives pettaining to the accused, and named and unnamed co-
conspirators, including any hard-drives taken from the accused at his time of capture;
e. All items taken from the accused to include currency, photographs, videos, and
personal mementos, pruticularly at the time of his capture;
f. All items taken from the accused 's family to include cmrency, photographs, videos, and
personal mementos, pruticulru·ly at the time of the accused's captme;
g. All discovery provided by the government in the accused's, and named and unnamed
co-conspirators', habeas corpus cases;
h. All stipulations and admissions made by either side in the accused 's, and named and
unnamed co-conspirators', habeas corpus cases;
i. All correspondence from and to the Office of the Judge Advocate General of the Navy
regru·ding the apperu·ance of militru·y commissions defense counsel in habeas corpus cases;
j. Documentation from all instances in which information provided by the accused has
been used by the United States Government in criminal or habeas corpus proceedings;
k. All discovery provided by the United States Government in federally led criminal
prosecutions, involving a named or unnamed co-conspirator of the accused, including, but not
limited to, militru·y commissions and federal habeas cases;
1. The names of all pruticipants in the Combatant Status Review Tribunal (CSRT)
heru·ings of the accused's, and named and unnamed co-conspirators' , including the President,
Repmter, Recorder, translators, Personal Representative, and Members. This information is
required to determine whether any of the current pruticipants in the accused's militru·y
commission, including members, judge, trial counsel, interpreters, repmters, escorts, clerks,
guru·ds, ru·e disqualified or ineligible fi"om service based on their prior role in, or connection to,
the CSRT;
m. The names of all Criminal Investigative Task Force (CITF) and Office for the
Administrative Review of the Detention of Enemy Combatants (OARDEC) members who
worked on the accused's, and named and unnamed co-conspirators', cases. This information is
1
See Rome Statute Rule 77; R.C.M. 701 (c) (1); F.R.C.P. Rule 16 ( 1) (E) (iii).
3

required to determine whether any of the current pruticipants in the accused's militru·y
commission, including members, judge, trial counsel, interpreters, reporters, esc01ts, clerks,
guards, ru·e disqual ified or ineligible from service based on their prior role with the CITF or
OARDEC;
n. A copy of the entire CSRT, CITF, and OARDEC files pertaining to the accused, and
named and unnamed co-conspirators;
o. The names of all pruticipants in the 2009 Guantanamo Review Task Force who worked
on the accused's, and named and unnamed co-conspirators' cases. This informat ion is required
to determine whether any of the current pruticipants in the accused's militru·y commission, to
include members, judge, trial counsel, interpreters, reporters, escorts, clerks, guru·ds, ru·e
disqual ified or inel igible from service based on their prior role, or connection, with the 2009
Guantanamo Review Task Force;
p. The names of all prosecutors, prosecution staff, interpreters, reporters, esc01ts, clerks,
guru·ds being used in the accused's current mil itary commission. This information is required to
determine whether any of the current pruticipants in the accused's joint militru·y commission ru·e
disqualified or ineligible from service;
q. The names of all personnel who have interacted with the accused during his
confinement, to include, but not to limited to, guru·ds, medical personnel, chaplains, and
interrogators. This information is necessru·y for the defense to interview these personnel to
determine whether they possess information that may be used for the accused's case in
mitigation;
r. All draft reports, final reports, and related agent notes, for any law enforcement or
intelligence reports;
s. All draft reports, final repo1ts, and related agent notes, pe1taining to any law
enforcement or intelligence interviews of the accused, and named and unnamed co-conspirators;
t.Copies of a ll correspondence, evidence, and other information reviewed by law

enforcement officials or agents of the United States prior to their interviews of the accused, and
named and unnamed co-conspirators;
u. All materials relating to the interrogation and debriefing of the accused, and named and
unnamed co-conspirators, at any location, including, but not limited to, all
interrogation/debriefing logs, plans, proposals, authorizations, knowledgeability briefs, cables,
requests for legal opinions, issued legal opinions, summru·y interrogation rep01ts, specific
information requests (SIR), intelligence information reports (IIR), and source directed reports
(SDR);
v. The names, interrogator numbers, and contact information for all personnel
pruticipating in the interrogations or debriefings of the accused, and named and unnamed co-
conspirators, to include translators. If the government invokes some privilege in refusing to
produce this information, please provide the basis of the privilege(s) invoked;
4

w. All information relating adversely to the character or reputation of any government

witness which would enable the defense to cross-examine said individual more effectively;
x. Copies of the personnel files of all persons participating in the production of evidence
to be used in this case, and those persons involved in the interrogation, interviews, debriefing of
the accused, and named and unnamed co-conspirators;
y. Copies of the personnel files, medical and mental health records, Joint Detainee
Information Management System (JDIMS) file, spec ial projects file, and Detainee Information
Management System (DIMS) records of all persons the prosecution intends on using as in-court
witnesses or out-of-court declarants against the accused;
z. All materials surrounding any prior identifications, misidentifications, or lack of

identifications of the accused, and named and unnamed co-conspirators at a line up, photo line-
up, show up, voice identification or other identification process, including, but not limited to,
interrogations conducted on other detainees at Guantanamo and elsewhere;
aa. Every photograph shown to any individuals who allegedly identified the accused;
bb. Copies of all orders, directives, and correspondence pe1taining to the accused's transfer
and custody from the point of capture until the present time, including, but not limited to, any
orders and directives establishing the accused's current camp and directing that he be transferred
to that camp, custody transfer forms, medical screening forms, property inventory forms, and all
written orders, memoranda, directives, standard operating procedures, or other documents that
purpmt to direct agents of the United States Govemment in the manner in which the accused
should be treated, fed, housed, and given medical attention. This request also includes any
information relating to mistreatment, abuse, inhumane treatment or conditions, degrading
treatment or conditions, cruel or oppressive treatment or conditions, or coercive treatment that
may arguably rise to the level of to1ture, that is known, suspected, or alleged to have occurred
with respect to the accused since the date of his arrest;
cc. All documents and information related to considerations and determinations by the
United States or its agents concerning the accused's "status" as a detainee (i.e., whether the
accused should be g iven the status of prisoner of war, unlawful enemy combatant, unprivileged
enemy belligerent, civilian internee, "high value detainee," etc.);
dd . A copy of final repmts for all investigations conducted for each location where the
accused has been confined since the outset of his detention in U.S . control, including, but not
limited to, prel iminary, Judge Advocate General Manual (JAGMAN) and AR 15/6
investigations;
ee. An unredacted copy of the U.S . Senate Select Committee on Intelligence 's Study of the
Central Intelligence Agency's Detention and Interrogation Program, adopted on 13 December
2012;
5

ff. An unredacted copy of all sources, footnotes and other documents cited in the Senate
Select Committee on Intelligence's report adopted on 13 December 2012, to include recorded
witness interviews;
gg. An unredacted copy of U.S . Senate Armed Services Committee's Report on the Inquiry
into the Treatment of Detainees in U.S . Custody, adopted on 20 November 2008;
hh. An unredacted copy of all sources, footnotes and other documents cited in the Senate
Armed Services Committee's Report on the Inquiry into the Treatment of Detainees in U.S .
Custody adopted on 20 November 2008, to include recorded witness interviews;
ii. An unredacted copy of official CIA, FBI, or other government agency notifications to
the congressional oversight committees regarding the legal status and disposition of the accused,
and named and unnamed co-conspirators under the Authorization for Use of Military Force
auspices;
jj. All data maintained in DIMS, and guard force logbook entries not incorporated into
DIMS, pertaining to the accused while at Guantanamo, including, but not limited to, aU visitor
logs, cell block records, and use-of-force reports;
kk. A11 JDIMS records and special projects files for the accused, and named and unnamed
co-conspirators;
11. Copies of visitor logbook entries purpotting to identify the accused, for all a11eged al
Qaeda or other guesthouses where the accused is a11eged to have stayed;
mm. Copies of intake and evaluation forms from any al Qaeda training camps, including AI
Farook, that the accused is alleged to have attended;
nn. Copies of the contracts, posted job description, and resume for each military
commission Convening Authority;
oo. Copies of the Legal Advisor's written legal advice to the Convening Authority for each
request submitted to the Convening Authority by the accused;
pp. Copies of all prosecution requests submitted to the Convening Authority, the Legal
Advisor's written legal advice to the Convening Authority regarding each such request, and the
Convening Authority's response to each such request;
qq. Copies of all informat ion reviewed by the accused's accuser prior to swearing of the
charges;
IT. Copies of all information reviewed by the Convening Authority prior to making his
referral decision against the accused;
6
Filed with T J Appellate Exhibit 018 (al Hadi)

ss. Copies of all emails and correspondence received by the Convening Authority, his
Legal Advisor, and his Legal Advisor's staff, regarding the preferral, referral, or dismissal of
charges against the accused and including, but not be limited to, emails and correspondence from
the Office of the President, Office of the Attorney General, Office of the Deprutment of Defense
General Counsel, members of Congress, the media, and victim family members;
tt. A copy of the agreement entitled "Determination of Guantanamo Cases Referred for
Prosecution," entered into between the Deprutment of Justice and the Deprutment of Defense;
uu. Copies of all correspondence between the Attorney General and Secretru·y of Defense
discussing whether chru·ges will be brought against the accused, and named and unnamed co-
conspirators;
vv. Copies of all "Reason to Believe" memoranda submitted on the accused, and named
and unnamed co-conspirators, and all responses to those memoranda;
ww. A list of all eyewitnesses to the events forming the basis for the charges;
xx. Any videotape, real-time, or other imagery relating to the events forming the basis for
the charges, including, without limitation, any videotape or other recording of said events;
yy. Any physical evidence seized relating to the alleged overt acts committed in
furtherance of the charges;
zz. Any handwritten statements prepru·ed by the accused, and named and unnamed co-
conspirators;
aaa. Any and all video or audio recordings of the accused, and named and unnamed co-
conspirators, by any person or entity, including, but not limited to, any video or audio tape
recording of interviews by intelligence and law enforcement officials, foreign delegation visits,
International Committee of the Red Cross (ICRC) visits, ICRC phone calls or video conferences,
attorney-client conversations, forced cell extractions, and medical visits. For all responsive
recordings that were obtained by means of electronic surveillance or wiretaps, the defense also
requests a copy of all applicable Foreign Intelligence Surveillance Act (FISA) wru-rants, FISA
wru-rant affidavits, and all documents, memoranda, legal opinions, and orders authorizing a non-
FISA electronic surveillance or wiretap;
bbb. The substance of any relevant oral statements or utterances allegedly made by the
accused, and named and unnamed co-conspirators, including but not limited to repotts,
memoranda, notes or other papers reflecting or relating such oral statements or utterances within
the possession, custody or control of the government;
ccc. All interrogation manuals, directives, instructions, and other policy gu idance issued
by any agency involved in any aspect of the detention, interrogation, or debriefing of the
accused, and named and unnamed co-conspirators, or of any other witness in the case. This
request includes, but is not limited to, any standru·d operating procedures, instructions or manuals
7

employed by any interrogation group or individuals

associated therewith, or by any interrogation team Airfield,
Afghanistan, detention facility;
ddd . All records maintained by Joint Task Force - Guantanamo in the DIMS concerning
any detainee who is expected to testify on behalf of the prosecution or from whom information
has been obtained for use by the government in connection with this case;
eee. A11 medical reports, notes or records regarding the accused generated while he was in
custody at any location, whether at Guantanamo or elsewhere. This request includes a request for
all photographs, video recordings, medications, medical and mental health records regarding the
accused, generated from the time of his captme to the present, as well as a11 reports and notes of
all psychological baseline assessments conducted on him;
fff. All reports of investigation and aU other writings relating to any investigation
regarding the treatment or conditions of confinement of the accused, and named and unnamed
co-conspirators by the U.S . or foreign governments, including, but not limited to, the 2005
Report on Deprutment of Defense Detention Operations and Detainee Interrogation Techniques,
commonly referred to as the Church Report, the 2005 Investigation into FBI Allegations of
Detainee Abuse at Guantanamo Bay, Cuba, Detention Facility, commonly referred to as the
Schmidt-Fmlow Repmt, and reports by the International Committee for the Red Cross;
ggg. All Original Classification Authority (OCA) declru·ations for documents or

information over which the prosecution is asserting the classified information privilege, and
copies of the classification guides the OCA relied upon in issuing such declarations;
hhh. All signed statements from the responsible counsel or official from each concerned
OCA indicating that all potentially relevant information to the prosecution of commissions cases
has been provided to the prosecution and/or, if information has been withheld, identifying the
information and the reasons for withholding;
111. All correspondence between the Deprutment of Defense and the ICRC regru·ding the
accused's, and named and unnamed co-conspirators conditions of confinement;
JJJ. All chain of custody documents and litigation packets generated by any law
enforcement or militru·y agency in conjunction with the taking or testing of evidence during the
investigation of the alleged offenses;
kkk. Reports of a11 Inspector General investigations conducted regarding alleged

misconduct by the Office of the Convening Authority or the prosecution.
8. R.M.C. 701 (c)(2) disclosure. The defense requests the production of, or the abil ity to
inspect, any results or repmts of physical or mental examinations, and of scientific tests or
experiments, or copies thereof, that ru·e 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 the prosecution, and which ru·e material to the prepru·ation of the defense or ru·e
intended for use by the prosecution as evidence in the prosecution case- in-chief, or were
8
Filed with TJ Appellate Exhibit 018 (at Hadi)

prepared by an expett whom the prosecution intends to ca11 as a witness. The defense requests
notification of testing upon any evidence that may consume the only available samples of the
evidence, and an opportunity to be present at any such testing. The defense further requests an
opportunity to examine all evidence, whether or not it is apparently exculpatory, prior to its
release from the control of a government agency or agents. In addition to this general discovery
request, the defense specifically requests the production of the following items under R.M.C.
701 (c)(2):
a. Copies of the records, to include video, audio, and photographs, of any and all medical
screenings, smgeries, treatments, medications, physicals, examinations, mental health
evaluations, as we11 as notes prepared by any treating physician, physician's assistant, medic,
psychiatrist, psychologist, chaplain, counselor, or other person who has examined the mental or
physical condition of the accused, or spoken to him for the purpose of assessing such condition,
at any time since his capture;
b. All computer forensic repmts pertaining to computer hard drives allegedly belonging to
the accused, and named and unnamed co-conspirators, or hard drives used by the same since
detained;
c. All fingerprint analyses, hand-writing analyses, voiceprints, transponder, and/or pen-

register records.
9. R.M.C. 701 (c)(3) disclosure. The defense requests the production of, or the ability to
inspect, all relevant statements, oral, written, or recorded, which were made by the accused, or
statements made by any named or unnamed co-conspirator that are alleged to have been adopted
by the accused, that 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 the
prosecution, and are material to the preparation of the defense, or are intended for use by trial
counsel as evidence in the prosecution case-in-chief at trial.
10. R.M.C. 701Cd)(l) disclosure. The defense requests the production of, or the ability to
inspect, all written material that will be presented by the prosecution at the presentencing
proceedings.
11. R.M. C. 701 (d)(2) disclosure. The defense requests the production of the names of the
w itnesses the prosecution intends to call at the presentencing proceedings.
12. R.M.C. 703(c) reciprocal discovery disclosure. The defense requests the production of the
names of the witnesses the prosecution intends to call at any stage in this case, including, but not
limited to, their phone numbers, email addresses, mailing addresses, and a synopsis of each
witness' expected testimony that demonstrates how the witness is relevant and necessary for the
prosecution.
13. R.M.C. 707(c) disc losure. The defense requests the production of all requests for pretrial
delay, together with suppmting reasons, submitted to the Convening Authority or military judge,
and any copies of any responses to such requests.
9

14. R.M.C. 914(a) disclosure. The defense requests the production of all oral and written
statements made by a planned in-cou1t witness or out-of-court declarant that relates to the subject
matter for which the witness is called to testify or which their out-of-coUit statements is used.
15. R.M.C. 1004(b)(l) disclosure. The defense requests the production of written notice of
which aggravating factors the prosecution intends to prove.
16. M.C.R.E. 404(b) disclosure. The defense requests the production of all other crimes,
wrongs, or acts of evidence it intends on introducing at trial against the accused.
17. M.C.R.E. 406 disclosure. The defense requests the production of all evidence of the habit
of the accused, and of the routine practice of an organization, to include al Qaeda, which the
prosecution intends on offering at any stage of the legal proceedings.
18. M.C.R.E. 505(h)(2)(A) disclosure. In accordance with 505(h)(2), the defense requests the
production of written notice, before any hearing is conducted pursuant to a request by the trial
counsel under M.C.R.E. 505(h)(l ), of the classified information that is at issue.
19. M.C.R.E. 608 disclosure: Whether the prosecution intends to offer evidence under Rule 608
against the accused, named or unnamed co-conspirators and, if the prosecution so intends, a
specific factual statement describing all such evidence.
20. M.C.R.E. 609(b) disclosure. The defense requests notice of whether the govemment intends
to impeach any witness with a conviction older than ten years.
21. M.C.R.E. 612 disclosure. The defense requests the production of all writings or documents
used by a planned in-comt witness or out-of-coUit declarant to refresh their memory for the
purpose of testifying or generating an out-of-coUit statement.
22. M.C.R.E. 803 disclosure. The defense requests the production of all statements the
prosecution will seek to introduce under M.C.R.E. 803, along with an identification whether the
prosecution will seek to offer the statement as one voluntarily given or one made incident to
lawful conduct during military operations. The defense also requests all information pettaining
to the totality of all the circumstances smrounding the taking of the statement, including the
degree to which the statement is corroborated, the ind icia of reliability within the statement itself,
whether the will of the declarant was overborne, what material fact the statement is offered in
supp01t of, and how the statement is probative of that material fact. If the prosecution seeks to
offer that statement as one made incident to lawful conduct during mil itary operations, the
defense additionally seeks evidence supp01ting that all statements were made incident to lawful
conduct during military operations at the point of captUI·e or during closely related active combat
engagement, and how the interests of justice will best be served by admission of the statement
into evidence.
23. M.C.R.E. 912 disclosure. The defense requests the production of all information pertaining
to the selection of the members of the military commissions, including, but not limited to,
personnel files of each member detailed to the commission; copies of any questionnaires
submitted by trial counsel, the Convening Authority's office, or other agency to prospective
members and each member's response; all written matters considered by the Convening
Authority in selecting members, including information on members the Convening Authority did
10

not select; documents pe1taining to the creation of the Convening Authority's mechanism for
selecting members and for replacing eliminated members; the convening order and all
amending orders; all communications to prospective commission members (whether from the
Convening Authority or any other entity in the members selection process), all requests to be
excused received from commission members and any written documents memorializing the
denial or approval of a ll such requests; the process used to select the pool of potential
commission members; criteria used or excluded in selecting the pool of potential commission
members (e.g., rank, gender, combat experience, existing TS/SCI secw·ity clearance, etc.); any
repo1ts created on potential commission members that agents of the United States participated in
or conducted, including, but not limited to, interview notes; and any other information bearing on
the imprutial ity or bias of commission members.
24. M.C.R.E. 701-706 disclosure. The defense requests the production of the following items
for any expe1t the prosecution intends to call at any stage of the case: the curriculum vitae for
the expert; all publications the expert has authored; the number of times each expe1t has been
qualified as an expe1t witness in a military or civilian cou1t; the types of court each witness has
testified in (civilian or militru·y); the locations (city and state) of each of these comts and the civil
and criminal docket number of each of those cases; the facts or data considered by the expert in
forming their opinion; a complete statement of all opinions the expert will express and the basis
and reasons for them; any exhibits that will be used to summru·ize or suppo1t them; and a
statement of the compensation to be paid for the study and testimony in the case.
25. Assorted and sundry allegations ru·e made in the "Common Allegations" section of the
Chru·ge Sheet. With specificity, identify and provide all information in the govemment's
possession which pertains to each allegation in "Common Allegations" to include allegations
stated in the two opening pru·agraphs and the sixty-three enumerated allegations which follow.
Specifically, provide all inculpatory evidence and exculpatory evidence pettaining to the
allegations.
26. In Charges I - V of the enclosed Chru·ge Sheet, the government makes ass01ted and sundry
allegations against the accused. The defense requests any and all information in the
govemment's possession pertain ing to the govemment's assertion that the accused:
a. Is Abd al Hadi al-haqi;
b. Is subject to trial by militru·y commission;
c. Is an alien unprivileged enemy belligerent. Identify if this classification is based upon

allegedly (i) engaging in hostilities against the United States or its coalition prutners; (ii)
purposefully and materially supporting hostilities against the United States or its coalition
prutners; or (iii) being a prut of al Qaeda at the time of the alleged offense.
d. If it is alleged the accused engaged in hostilities against the United States or its coalition
prutners, identify the date and location hostilities were initiated, and provide a list of the coalition
prutners;
e. If it is alleged the accused purposefully and materially suppotted hostil ities against the
United States or its coalition partners, in addition to identifying the date and location hostilities
were initiated, and providing a list of the coalition prutners, the accused also requests the
11

prosecution identify how the accused allegedly, purposely, and materia11y supported such
hostilities;
f. If it is alleged the accused was a prut of al Qaeda at the time of the alleged offense,
identify how the accused was considered to be a member of al Qaeda, and the date and location
he is alleged to have joined al Qaeda.
27. For each allegation, provide evidence identifying all known co-conspirators the accused is
alleged to have participated with in the common plan and agreement.
28. For each a11egation, provide evidence identifying the common plan and agreement the
accused allegedly entered into.
29. For each allegation, provide evidence identifying whether the accused is alleged to have
aided, abetted, counseled, commanded, or procw-ed the commission of the offenses alleged.
30. For each allegation, provide evidence identifying the nature of the superior commander
position the accused is alleged to have held, and the dates he is alleged to have held this position.
31 . For each allegation, provide evidence identifying whether the accused actually knew, or
should have known, that an alleged subordinate was going to commit an offense.
32. For each allegation, provide evidence identifying how the accused knew, or should have
known, that an alleged subordinate was going to commit an offense.
33. For each allegation, provide evidence identifying the necessru·y and reasonable measures
the accused should have taken to prevent such alleged acts and to punish the perpetrators
thereof.
34. Chru·ge I of the enclosed Charge Sheet alleges the accused violated 10 U.S.C. § 950t(6),
Denying Quarter. The defense requests any and all information in the government's possession
pertaining to the govemment's assertion that the accused:
a. Did, from in or about 2003 to in or about 2004, at multiple locations in and ru·ound
Afghanistan and Pakistan, in the context of and associated with hostilities, was in position of
effective command and control over subordinate forces;
b. Declru·ed, ordered, and otherwise indicated to those forces that there shall be no
survivors, when it was foreseeable that circumstances would be such that a practicable and
reasonable ability to accept surrender would exist;
c. Intended to conduct hostilities such that there would be no survivors;
d. Identify all individuals who were denied quruter.
35. For Charge I identify the position of effective command and control the accused is
alleged to have had, the manner in which he allegedly declru·ed, ordered, or otherwise
indicated that there should be no survi vors, whether this order was ever received by
subordinate forces, and whether this order was ever carried out by subordinate forces. Also
12

UNCLASSIFI ED//FOR PUBLIC RELEAS E
identify the adversary this order was directed at, and whether this order was ever
communicated to that adversary.
36. Charge II of the enclosed Charge Sheet alleges that the accused violated 10 U.S .C. §
950t(4), Attacking Protected Propetty. The defense requests any and a11 information in the
government's possession pertaining to the government's assertion that:
a. The accused did, on or about 29 September 2003, at or near Shkin, Afghanistan, in the
context of and associated with hostilities, intentionally attack a military medical helicopter;
b. The military helicopter was protected property under the laws of war as a military
medical aircraft bearing the emblem and distinctive sign of the Medical Service of armed forces,
to wit: the red cross on a white ground;
c. The accused fu·ed at said helicopter;
d. The military medical helicopter was attempting to evacuate a United States military
casualty from the battlefield at the time the accused f1red at it;
e. The military medical helicopter was the object of the accused's attack;
f. The accused knew or should have known of the factual circumstances that established the
military medical helicopter's protected status.
37. Charge II alleges the accused is liable for the charged offense as a principal and a co-
conspirator, and as a pruticipant in a common plan. Identify the manner in which the accused
aided, abetted, counseled, commanded, or procured the commission of the offense as it pertains
to the targeting of this pruticulru· helicopter. Also, with respect to the tru·geting of this pa1ticulru·
helicopter, identify the alleged co-conspirators, the nature of the common plan and conspiracy,
when this common plan or conspiracy was created, and the accused's knowledge and role in this
common plan or conspiracy.
38. Charge III, Specification 1, of the enclosed Chru·ge Sheet alleges that the accused violated
10 U.S .C. § 950t(17), Using Treachery or Perfidy. The defense requests any and a11 information
in the government's possession pettaining to the government's assettion that:
a. The accused did, on or about 7 June 2003, at or near Kabul, Afghanistan, in the context
of and associated with hostilities, invite the confidence and belief of at least one person;
b. The accused invited this confidence through the use of a vehicle, that apperu·ed to be a
civilian vehicle;
c. The accused intended the use of this vehicle to betray that confidence and belief;
d. The accused did make use of that confidence and belief by detonating explosives;
13
UNCLASSIFIED//FOR PUBLIC RELEAS E

e. The above-referenced detonation occurred alongside a bus carrying German military

members, resulting in death and injury to at least one person;
f. Identify and provide contact information for any and all people, whose confidence was
obtained;
g. Identify and provide contact information for any and all people, who were injured;
h. Identify any and all people whose death was caused.
39. Charge Ill, Specification 2, of the enclosed Charge Sheet alleges that the accused violated 10
U.S.C. § 950t(17), Using Treachery or Perfidy. The defense requests any and all information in
the government's possession pertaining to the government's assettion that:
a. The accused did, on or about 27 January 2004, at or near Kabul, Afghanistan, in the
context of and associated with hostilities, invite the confidence and belief of at least one person;
b. The accused invited this confidence through the use of a vehicle, that appeared to be a
civilian vehicle;
e. The above-referenced detonation occurred alongside a coalition convoy carrying

Canadian military members, resulting in death and injury to at least one person;
obtained;
g. Identify and provide contact information for any and all people, who were injured;
40. Charge III, Specification 3, of the enclosed Charge Sheet alleges that the accused violated 10
U.S .C. § 950t( 17), Using Treachery or Perfidy. The defense requests any and all information in
the government's possession pertaining to the government's assertion that:
a. The accused did, on or about 28 January 2004, at or near Kabul, Afghanistan, in the
context of and associated with hostilities, invite the confidence and belief of at least one
person;
b. The accused invited this confidence through the use of a vehicle, that appeared to be a
civilian vehicle;
14

e. The above-referenced detonation occurred alongside a coalition convoy carrying British

and Estonian military members, resulting in death and injury to at least one person;
obtained;
g. Identify and provide contact information for any and all people, who were injmed;
41. Charge IV of the enclosed Charge Sheet alleges that the accused violated 10 U.S .C. §
950t(28), Attempted Use of Treachery or Perfidy. The defense requests any and all information
in the government's possession pe1taining to the government's asse1tion that:
a. The accused did, on or about 29 March 2004, at or near Jalalabad, Afghanistan, in the
context of and associated with hostilities;
b. with the specific intent to commit the offense of Using Treachery or Perfidy (10 U.S .C. §
950t(17));
c. The accused invited this confidence through the use of a vehicle, that appeared to be a
civilian vehicle;
d. The accused intended the use of this vehicle to betray that confidence and belief;
e. The accused did make use of that confidence and belief by attempting to detonate
explosives;
f. The above-referenced detonation occw-red alongside a coalition convoy carrying United

States military members, with the intent to kill and inj ure at least one person;
g. Identify and provide contact information for any and all people, whose confidence was
obtained;
h. Identify and provide contact information for any and all people, who were injmed or
killed.
42. Charges Til and IV allege the accused is liable for the charged offense as a principal and a co-
conspirator, and as a participant in a common plan. Identify the manner in which the accused
aided, abetted, counseled, commanded, or procw-ed the commission of the offenses alleged.
Also, with respect to the attacks alleged, identify the alleged co-conspirators, the nature of the
common plan and conspiracy, when this common plan or conspiracy was created, and the
accused's knowledge and role in this common plan or conspiracy.
15

43. Charges II through IV state the following: ''The Accused is liable for the above alleged
offense as a principal, a co-conspirator, and a participant in a common plan, as set f01th in the
section entitled "Co mmon Allegations" which is hereby re-a11eged and incorporated by reference
as if set fotth fully herein." With specificity, identify and provide all information in the
government's possession pettaining the above-alleged conspiracy and common plan.
44. Charge V alleges that the accused violated 10 U.S .C. § 950t(29), Conspiracy. The defense
requests any and all information in the govemment's possession pertaining to this alleged
conspiracy and the incorporated 63 "Common Allegations." Futthermore, the defense requests
the government's theory ofliabil ity in light of the D.C. Circuit decisions in al-Bahlul and
Hamdan//.
45. Any communications (email or otherwise) between the Office of the Convening Authority
and either the Deprutment of Defense or the Executive branch regru·ding the timing of referral,
specifically, but not exclusively, related to the release of prisoners held at Guantanamo in
exchange for SGT Bowe Bergdahl.
46. This discovery request is continuing, and shall apply to any additional chru·ges or
specifications that may be preferred after this request for discovery is served upon the
government. The defense reserves the right to supplement this request for discovery at any time,
as new information becomes available.
47. If any of the above requested items have been lost or destroyed, the defense requests a list
and description of the destroyed records; all su mmru·ies, transcripts, reconstructions, and
memoranda regru·ding the destroyed records; the names and contact information for aU persons
who read or viewed the records before they were destroyed; the date and reason for their loss or
destruction; and copies of any investigations pertaining to their loss or destruction. This request
includes aU said information relative to the 92 videotapes of CIA interrogations that the
government has conceded were destroyed.
48. The defense reserves the right to make additional discovery requests.
Respectfully Submitted,
!Is!I
CHRIS F. CALLEN, Lieutenant Colonel, USAR
!Is!I
ROBERT B. STIRK, Major, USAF
Assistant Detailed Defense Counsel
16
Filed with TJ Appellate Exhibit 018 {al Hadi)

ATTACHMENT C


MILITARY COMMISSIONS TRIAL JUDICIARY

GUANTANAMOBAY, CUBA
UNITED STATES OF AMERICA GOVERNMENT RESPONSE
TO DEFENSE REQUEST FOR

v. DISCOVERY DATED
JUNE 11, 2014
ABD AL HADI AL-IRAQI 14 July 2014
1. The Government received the Defense Request for Discovery dated 11 June 2014
("Defense Request") and responds below in numbered paragraphs corresponding with the
numbered paragraphs of the Defense Request:
2. The Government will produce, or make available for inspection, materials in the
Government's possession that are discoverable pursuant to the Military Commissions Act of
2009 ("M.C.A. "), 10 U.S .C. §§ 948a et seq., and Rule for Military Commissions ("R.M.C.") 701
("Rule 701 ").
In addition to the materials specifically itemized at R.M.C. 701, the Government must
disclose materials that are "material to the preparation of the defense." R.M.C. 70l(c)(l)-(3).
Such materials are only s ubject to disclos ure if they are actually relevant and helpful, not merely
theoretically relevant. See R.M.C. 701, Discussion (citing United States v. Yunis, 867 F.2d 617
(D.C. Cir. 1989) as authoritative). Futther, to the extent discoverable materials are classified,
they are onl y discoverable if "noncumulative, relevant, and helpful to a legally cognizable
defense, rebuttal for the prosecution's case, or sentencing." 10 U.S .C. § 949-p.
Finally, on 7 and 9 July 2014 respectively, the Government filed motions for protective
orders governing classified information (AE 013) and sensitive but unclassified information (AE
014). To the extent any discoverable materials are subject to the privileges found at Mil itary
Commissions Rule of Evidence ("M.C.R.E .") 505 or 506, or otherwise subject to the protective
orders the Government has requested, the Government will file a pleading with the Commission
to avail itself of the remedies of M.C.R.E. 505 or 506 when appropriate. It will not disclose
materials s ubject to either rule prior to the Commission entering appropriate protective orders.
3. Potentially Exculpatory Evidence.
a. The Government will produce discoverable materials in a timely manner.
b. The Government will produce discoverable materials in a timely manner.
c. The Government will produce discoverable materials in a timely manner.


4. Mandatory R.M.C. 701Cb)(l) disclosure.
a. Copies of all papers which accompanied the charges sent to the military
commissions Convening Authority are contained in the Referral Binders. The
Referral Binders will be produced in both electronic and hard copy versions,
exactly duplicating the version provided to the Convening Authority.
b. The convening order has already been produced.
c. The Government will produce discoverable materials.
5. Mandatory R.M.C. 701(b)(2) disclosure. The Government will produce the names of the
witnesses it intends to call in a timely manner.
6. Mandatory R.M.C. 701(b)(3) disclosure. The Government is presently unaware of any

prior convictions of the Accused, and does not intend to offer any such evidence. Should
the Government become aware of any prior convictions of the Accused it intends to offer,
it will timely produce those to the Defense.
7. Mandatory R.M.C. 701(c)(l) disclosure. The Government will produce or make

available for inspection all discoverable books, papers, documents, photographs, or
copies or portions thereof and the oppo1tunity to inspect tangible objects, buildings, or
places. Additional items determined to be "material to the preparation of the defense"
will be produced on an on-going basis in accordance with the Government' s discovery
obligations. With respect to the items specifically requested:
a. The Government will produce discoverable information relating to the locations

where the Accused has been confined that are within the control of the U.S .
Government;
b. The Government will produce copies of discoverable photographs of all locations

where the Accused has been confined that are within the control of the U.S .
Government. Photographs provided to another defense counsel in another
prosecution are not relevant to, or discoverable in , this prosecution;
c. The Government will make available for inspection or provide photographs of

discoverable items, should any exist;
d. The Government will provide or make available discoverable items for

inspection, should any exist;
e. The Government will make available for inspection or provide photographs of all
discoverable items within the Government's possession that were taken from the
Accused at the time he entered U.S. custody, should any exist;


f. The Government will make available for inspection or provide photographs of all
discoverable items within the Government's possession that were taken from the
Accused's family at the time of the Accused's entering U.S. custody, should any
exist;
g. The discovery produced in another proceeding is not relevant to this prosecution

or discoverable;
h. The stipulations and admissions made by other parties in another proceeding are
not relevant to this prosecution or discoverable;
1. The correspondence from and to the Office of the Judge Advocate General of the
Navy regarding the appearance of military commissions defense counsel in
habeas corpus cases is not relevant or discoverable;
J. The Government will produce information relevant to mitigation in sentencing in

a timely manner, to include documentation from all instances in which
information provided by the Accused has been used by the United States
Government in criminal or habeas corpus proceedings, if any such documentation
exists;
k. The discovery produced in another proceeding is not relevant to this prosecution

or discoverable;
1. The names of all participants in the Combatant Status Review Tribunal (CSRT)
hearings of the Accused's, and named and unnamed co-conspirators', including
the President, Rep01ter, Recorder, translators, Personal Representative, and
Members is not discoverable. Defense counsel will have opportunity to
appropriately challenge potential panel members for bias in the voir dire process;
m. The names of all Criminal Investigative Task Force (CITF) and Office for the
Administrative Review of the Detention of Enemy Combatants (OARDEC)
members who worked on the Accused's, and his co-conspirators', cases is not
discoverable. Defense counsel will have opportunity to appropriately challenge
potential panel members for bias in the voir dire process;
n. The Government will produce any discoverable materials contained in the CSRT,
CITF, or OARDEC files pe1taining to the Accused and his co-conspirators;
o. The names of all pruticipants in the 2009 Guantanamo Review Task Force who
worked on the Accused's and his co-conspirators' cases is not discoverable.
Defense counsel will have opportunity to appropriately challenge potential panel
members for bias in the voir dire process;
p. The Defense is awru·e of detailed Trial Counsel and relevant commission

personnel. The names of all prosecutors, prosecution staff, interpreters, reporters,


escotts, clerks, guards being used in the Accused's current military commission
are not discoverable;
q. This request is overbroad. Please provide a name or a description of, and a

relevant timeframe for, particular personnel who interacted with the Accused
during his confinement that the Accused believes may be actually relevant and
helpful;
r. The Government will produce any discoverable law enforcement or intelligence

repotts and/or agent notes;
s. The Government will produce any discoverable law enforcement and/or

intelligence interview rep01ts and related agent notes from interviews of the
Accused and his co-conspirators;
t. The Government will produce any discoverable correspondence, evidence, and

other information reviewed by law enforcement officials or agents of the United
States prior to their interviews of the Accused and his co-conspirators;
u. The Government will produce any discoverable materials relating to the

interrogation and debriefing of the Accused and his co-conspirators;
v. The Government will produce discoverable information to the extent it exists, or

file for appropriate relief with the military commission pursuant to M.C.R.E 505
or 506;
w. The Government will produce all proper witness impeachment information as

required by M.C.R.E. 701(e)(2);
x. The Government will produce all proper witness impeachment information as

y. The Government will produce all proper witness impeachment information as

z. The Government will produce any discoverable materials regarding

identifications of the Accused;
aa. The Government will produce any discoverable photographs shown to any
witness;
bb. The Government will produce any discoverable materials related to the Accused
entering into U.S . custody and treatment since that time;
cc. The Accused's "status" as determined by the United States or its agents in other
contexts is not relevant to this prosecution or discoverable;


dd. To the extent final reports of investigations conducted for locations where the
Accused has been confined in U.S . custody exist, the Government will review
them and produce discoverable information, should any exist;
ee. The Government will attempt to obtain the requested information and review it
for discoverable information;
ff. The Government will attempt to obtain the requested information and review it
for discoverable information ;
gg. The Government will attempt to obtain the requested information and review it
hh. The Government will attempt to obtain the requested information and review it
11. The Accused's or his co-conspirators' status as determined by other United States
government agencies in other contexts is not relevant to this prosecution or
discoverable;
JJ. The Government will produce any discoverable information;
kk. The Government will produce any discoverable information;
11. The Government will produce any discoverable information;
mm. The Government will produce any discoverable information;
nn. To the Government's knowledge, the Convening Authority is not subject to a

contract. The Convening Authority's posted job description and
resume/biography are available in open source materials. Materials related to
prior, or other, Convening Authorities are not relevant to this military commission
and are not discoverable;
oo. The Government will produce the Legal Advisor's written legal advice to the
Convening Authority for the charges referred on 2 June 2014 in the Referral
Binder;
pp. Prosecution requests submitted to the Convening Authority, the Legal Advisor's
written legal advice to the Convening Authority regarding each such request, and
the Convening Authority's response to each such request are not discoverable;
qq. The Government will produce all discoverable information reviewed by the
Accused's accuser prior to swearing of the charges. All such materials are
contained in the Referral Binder;


rr. The Government will produce all discoverable information reviewed by the
Conven ing Authority prior to making his referral decision against the Accused.
All such materials are contained in the Referral Binder;
ss. The Government will produce all discoverable information reviewed by the
Convening Authority prior to making his referral decision against the Accused.
All such materials are contained in the Referral Binder;
tt. The Government will not produce a copy of the agreement entitled
"Determination of Guantanamo Cases Referred for Prosecution," entered into
between the Department of Justice and the Department of Defense, as that
document is not discoverable;
uu. Correspondence between the Attorney General and Secretary of Defense

discussing whether charges will be brought against the Accused and his co-
conspirators is not discoverable;
vv. The Government will produce all discoverable materials, should any exist;
ww. The Government will provide a list of witnesses as required under R.M.C.
701 (b)(2) in a timely manner;
xx. The Government will produce any discoverable materials;
yy. The Government will make available for inspection, or provide photographs of,
any discoverable physical evidence seized relating to the alleged overt acts
committed in furtherance of the charges;
zz. The Government will produce any discoverable handwritten statements prepared
by the Accused and his co-conspirators;
aaa. The Government will produce any discoverable video or audio recordings of the
Accused and his co-conspirators;
bbb. The Government will produce any discoverable oral statements or utterances
allegedly made by the Accused and his co-conspirators while in the custody of the
U.S . Government;
ccc. The Government will produce any discoverable materials related to the Accused,
his co-conspirators, or other witnesses related to their treatment after entering into
U.S . custody;
ddd. The Government will produce all proper witness impeachment information as


eee. The Government will produce all discoverable medical reports, notes, or records
regarding the Accused generated while he was in U.S custody;
fff. The Government will produce any discoverable materials related to the Accused's
and his co-conspirators' treatment after entering into U.S . custody;
ggg. Original Classification Authority (OCA) declarations for documents or

information over which the prosecution is asserting the classified information
privilege, and copies of the classification guides the OCA relied upon in issuing
such declarations, are not discoverable;
hhh. Signed statements from the responsible counsel or officials from each concerned
OCA indicating that all potentially relevant information to the prosecution of
commissions cases has been produced to the prosecution and/or, if information
has been withheld, identifying the information and the reasons for withholding is
not discoverable;
111. Conespondence between the Department of Defense and the ICRC regarding the
Accused's and his co-conspirators' conditions of confinement is not discoverable;
JJJ. The Government will produce all discoverable chain-of-custody documents and
litigation packets generated by any law enforcement or military agency in
conjunction with the taking or testing of evidence during the investigation of the
alleged offenses;
kkk. The Government is unaware of any Inspector General investigations conducted

regarding alleged misconduct by the Office of the Convening Authority or the
prosecution. Should the Government become aware of any such investigation, it
will seek to review it and produce any discoverable materials.
8. R.M.C. 701 (c)(2) disclosure. The Government will produce copies of, or make available
for inspection, any discoverable results or reports of physical or mental examinations, and
of scientific tests or experiments, or copies thereof, that 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 the prosecution, and which are material to the
preparation of the defense or are intended for use by the prosecution as evidence in the
prosecution case-in-chief, or were prepared by an expert whom the prosecution intends to
call as a witness. The Government specifically responds to the Defense's specific
requests the for production pursuant to R.M.C. 701(c)(2) as follows:
a. The Government will produce copies of discoverable records of any and all
medical screenings, surgeries, treatments, medications, physicals, examinations,
mental health evaluations, as well as discoverable notes prepared by any treating
physician, physician's assistant, medic, psychiatrist, psychologist, chaplain,
counselor, or other person who has examined the mental or physical condition of
the Accused, or spoken to him for the purpose of assessing such condition, at any
time since entering into U.S . custody;
Filed with T J Appellate Exhibit 018 {al Hadi)


b. The Government will produce all discoverable computer forensic rep01ts

pe1taining to computer hard drives belonging to the Accused and his co-
conspirators;
c. The Government will produce any discoverable materials.
9. R.M .C. 701 (c)(3) disclosure. The Govemment will produce copies of, or make available
for inspection, all relevant statements, oral, written, or recorded, which were made by the
Accused, and any discoverable statements made his co-conspirators that have been
adopted by the Accused, that 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 the prosecution, and are material to the preparation of the defense, or
are intended for use by trial counsel as evidence in the prosecution case-in-chief at trial.
10. R.M.C. 701(d)(l) disclosure. The Government will produce copies of, or make available
for inspection, all discoverable written material that will be presented by the prosecution
at the presentencing proceedings. The Government will do so in a timely manner.
11 . R.M.C. 701 (d)(2) disclosure. The Govemment will produce the names of the witnesses
the prosecution intends to call at the presentencing proceedings. The Government will do
so in a timely manner.
12. R.M.C. 703(c) reciprocal discovery disclosure. The Government will respond as required
under R.M.C. 701 (b)(2).
13. R.M.C. 707(c) disclosure. The Government is unaware of any present request for pretrial
delay. The Government understands that the Defense may make such a request in the
near term.
14. R.M.C. 914(a) disclosure. The Government will produce discoverable oral and written
statements made by a planned in-comt witness or out-of-comt declarant that relates to the
subject matter for which the witness is called to testify or which their out-of-court
statements is used .
15. R.M.C. 1004(b)(l) disclosure. This request is not applicable in this case, as it was
referred non-capital.
16. M.C.R.E. 404(b) disclosure. The Government will produce timely written notice of all
evidence of other crimes, wrongs, or acts of the Accused it intends to introduce at trial.
17. M.C.R.E. 406 disclosme. The Government will produce all discoverable evidence of the
habit of the Accused, and of the routine practice of an organization, to include al Qaeda,
which the prosecution intends to offer at any stage of the legal proceedings.
18. M .C.R.E. 505(h)(2)(A) disclosme. In accord with 505(h)(2), before any hearing is
conducted pmsuant to a request by the trial counsel under M.C.R.E. 505(h)(l), the
Government will provide written notice to the Defense of the classified information at
issue.


19. M .C.R.E. 608 disclosure: The Govemment will provide timely written notice to the
Defense of any evidence it intends to offer against the Accused under Rule 608.
20. M .C.R.E. 609(b) disclosure. The Govemment will provide timely written notice to the
Defense should it intend to impeach any witness with a conviction older than ten years.
21 . M .C.R.E. 612 disclosure. Should the Govemment seek to refresh a witness' memory
with a writing, the Govemment will produce the writing consistent with M.C.RE. 612.
22. M .C.R.E. 803 disclosure. The Government will comply in a timely manner with the
requirements of M.C.R.E. 803.
23. M.C.R.E. 912 disclosure. The Government will comply with the requirements of R.M.C.
912(a)(2).
24. M .C.R.E. 701-706 disclosure. The Government will produce the curriculum vitae for any
expett it intends to call as a witness, a statement of the opinion(s) the expett will express
and the basis for them, and any exhibits that will be used to summarize or support them.
25. The Government will produce all discoverable evidence pettaining to the sixty-three
common allegations.
26. Related to Charges I-V, the Government will produce discoverable information related
to:
a. The Accused being Abd al Hadi al-lraqi;
b. The Accused being subject to trial by military commission;
c. The Accused being an alien unprivileged enemy belligerent;
d. The Accused's engagement in hostilities against the United States and its
coalition partners;
e. The Accused's support of hostil ities against the United States and its coalition
partners;
f. The Accused's membership in al Qaeda.
27. The Government will produce discoverable information.
9

34. With respect to Charge I, the Govemment will produce discoverable information in its
possession relating to the underlying facts, specifically:
a. That from in or about 2003 to in or about 2004, at multiple locations in and

around Afghanistan and Pakistan, in the context of and associated with hostilities,
the Accused was in position of effective command and control over subordinate
forces;
b. That the Accused declared, ordered, and otherwise indicated to those forces that
there shall be no survivors, when it was foreseeable that circumstances would be
such that a practicable and reasonable ability to accept surrender would exist;
c. That the Accused intended to conduct hostilities such that there would be no
smvivors; and
d. To the extent there were instances in which the Accused and/or his subordinates
denied quarter to an individual, the Govemment will produce discoverable
materials.
35. For Charge I, the Government wi11 produce discoverable information regarding the
position of effective command and control the Accused had; the manner in which he
declared, ordered, or otherwise indicated that there should be no s urvivors; whether
this order was received by subordinate forces; and whether this order was carried out
by s ubordinate forces.
36. With respect to Charge II, the Govemment will produce discoverable information in its
a. The Accused's and his co-conspirators' actions on or about 29 September 2003, at

or near Shkin, Afghanistan, relating to the unlawful attack on a military medical
helicopter;
b. Information relating to the military helicopter's status as protected propetty under

the laws of war as a military medical aircraft bearing the emblem and distinctive
sign of the Medical Service of armed forces, to wit: the red cross on a white
ground (to the extent the request seeks privileged legal analysis, such information
is not discoverable);
c. That the Accused's and his co-conspirators' fired at said helicopter;
d. That the Accused and his co-conspirators fired at the military medical helicopter
as it attempted to evacuate a Un ited States military casualty from the battlefield;
e. That the military medical helicopter was the object of the Accused's and his co-
conspirators' attack; and
f. That the Accused's and his co-conspirator' s knew or reasonably should have
known of the factual circumstances that established the military medical
helicopter's protected status.
10
Filed with TJ Appellate Exh bit 018 {al Hadi)


37. With respect to Charge ll, the Government wili produce discoverable information in
its possession regarding the manner in which the Accused aided, abetted, counseled,
commanded, or procured the commission of the offense. With respect to the targeting of
this particular helicopter, the Government wili produce discoverable information
regarding the identity of the alieged co-conspirators, the nature of the common plan and
conspiracy, when this common plan or conspiracy was created, and the Accused's
knowledge and role in this common plan or conspiracy.
38. With respect to Charge Ill, Specification 1, the Government wili produce discoverable
information in its possession relating the underlying facts, specificaliy:
a. The Accused's and his co-conspirators' actions on or about 7 June 2003, at or

near Kabul, Afghanistan, relating to the unlawful use of treachery or perfidy;
b. That the Accused and his co-conspirators invited th is confidence through the use
of a vehicle that appeared to be a civilian vehicle;
c. That the Accused and his co-conspirators used this vehicle to intentionally betray
that confidence and belief;
d. That the Accused and his co-conspirators made use of that confidence and belief
to detonate explosives;
e. That the above-referenced detonation occurred alongside a bus carrying German

military members, resulting in death and injury to at least one person;
f. The identity of all known persons whose confidence was obtained;
g. The identity of all known persons who were injured; and
h. The identity of all known persons who were killed.
39. With respect to Charge Ill, Specification 2, the Government wili produce discoverable
information in its possession relating the underlying facts, specificaliy:
a. The Accused's and his co-conspirators' actions on or about 27 January 2004, at or

b. That the Accused and his co-conspirators invited this confidence through the use
of a hidden suicide vest;
c. That the Accused and his co-conspirators used this hidden suicide vest to
intentionaliy betray that confidence and belief;
e. That the above-referenced detonation occmred alongside a coalition convoy

carrying Canadian military members, resulting in death and injury to at least one
person;
11


g. The identity of all known persons who were injw·ed; and
40. With respect to Charge ill, Specification 3, the Govemment will produce discoverable
information in its possession relating the underlying facts, specifically:
a. The Accused's and his co-conspirators' actions on or about 28 January 2004, at or

b. That the Accused and his co-conspirators invited this confidence through the use
c. That the Accused and his co-conspirators used this vehicle to intentionally betray
e. That the above-referenced detonation occurred alongside a coalition convoy

carrying British and Estonian military members, resulting in death and injury to at
least one person;
g. The identity of all known persons who were injured; and
41 . With respect to charge IV, the Government will produce discoverable information in its
a. The Accused's and his co-conspirators' actions, on or about 29 March 2004, at or

near Jalalabad, Afghanistan, relating to the unlawful use of treachery or perfidy;
b. The Accused's and his co-conspirators' intent to commit the offense of Using
Treachery or Perfidy (10 U.S .C. § 950t(17));
c. That the Accused and his co-conspirators invited this confidence through the use
d. That the Accused and his co-conspirators used this vehicle to intentionally betray
e. That the Accused and his co-conspirators made use of that confidence and belief
by attempting to detonate explosives;
f. That the Accused and his co-conspirators intended to kill and injure at least one
person in a coalition convoy carrying United States militruy members;
12


g. The identity of all known persons whose confidence was obtained; and
h. The identity of an known persons who were injured or killed.
42. The Govemment will produce discoverable information.
43. In support of charges ll through IV, the Government will produce an discoverable
information regarding the Accused as a principal (as defined at 10 U.S .C. § 950q), a co-
conspirator, and a pruticipant in the common plan, as set forth in the section entitled
"Common Allegations."
44. In support of charge V, the Government will produce all discoverable materials in
supp01t of the conspiracy chru·ge and the 63 "Common Allegations." To the extent this
request seeks the Govemment's legal analysis or other privileged information, such
information is not discoverable.
45. Communications regarding the timing of referral in this case and the prisoner exchange
for SGT Bowe Bergdahl, to the extent such communications exist, ru·e not relevant or
discoverable.
46. The Govemment acknowledges the on-going natw-e of its discovery obligation.
47. To the extent it is required by the applicable statutes, rules, or other governing
authorities, the Govemment will provide notice of any items that have been lost or
destroyed that would have otherwise been discoverable in th is prosecution.
Finally, the Govemment requests reciprocal discovery from the defense in accordance with
R.C.M. 70l(g).
/Is//
Mikeal M. Clayton
Trial Counsel
David J. Long, LTC, USA
Assistant Trial Counsel
Office of the Chief Prosecutor
Militru·y Commissions
13


Defense Motion To Compel Discovery - 10 October 2014 - Al Iraqi Ae018

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Defense Motion To Compel Discovery - 10 October 2014 - Al Iraqi Ae018

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UNCLASSIFIED//FOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL JUDICIARY

UNITED STATES OF AMERICA AE018

and Military Commissions Trial Judiciary Rule of Court (R.C.) 3.7.

3. Burden of' Proof'

a. Chru·ges I- IV in this case were initially preferred on 7 June 2013.

Filed with TJ Appellate Exhibit 018 (al Hadi}

UNCLASSIFIED//FOR PUBLIC RELEASE

received by the Convening Authority on 10 February 2014.

in exchange for the release of U.S . prisoner-of-war Sgt. Bowe Bergdahl.

Commission on 2 June 2014.

5. Law and Argument

Filed with TJ Appellate Exhibit 018 (al Hadi)

UNCLASSIFIED//FOR PUBLIC RELEASE

the request ... is reasonable." 1

Filed with TJ Appellate Exh bit 018 (al Hadi)

UNCLASSIFIED//FOR PUBLIC RELEASE

Government in fulfilling their discovery obligations the existence of any communications

Filed with T J Appellate Exh bit 018 (al Hadi)

UNCLASSIFIED//FOR PUBLIC RELEASE

6. Request for Oral Argument

The Defense requests oral argument.

A. Certificate of Service, dated 10 Oct 2014

B. Defense Discovery Request, dated 11 June 2014

C. Government Response to Defense Discovery Request, dated 14 July 2014

Filed with T J Appellate Exh bit 018 (al Hadi)

UNCLASSIFIED//FOR PUBLIC RELEASE

Filed with TJ Appellate Exhibit 018 (al Hadi)

UNCLASSIFIED//FOR PUBLIC RELEASE

Filed with TJ Appellate Exhibit 018 (at Hadi}

UNCLASSIFIED//FOR PUBLIC RELEASE

Filed with TJ Appellate Exhibit 018 (al Hadi)

UNCLASSIFIED//FOR PUBLIC RELEASE

June 11, 2014

To: Trial Counsel

Ref: (a) Military Commissions Act, 10 U.S.C. § 949j(a)

Filed with T J Appellate Exhibit 018 {al Hadi)

3. Potentially Exculpatory Evidence. The defense requests any evidence, information or

c. May be viewed as mitigation evidence at sentencing.

4. Mandatory R.M.C. 701Cb)(l) disclosw·e. The defense requests:

b. The convening order and any amending orders;

UNCLASSIFIED//FOR PUBLIC RELEASE

UNCLASSIFIED//FOR PUBLIC RELEASE

t.Copies of a ll correspondence, evidence, and other information reviewed by law

UNCLASSIFIED//FOR PUBLIC RELEASE

w. All information relating adversely to the character or reputation of any government

z. All materials surrounding any prior identifications, misidentifications, or lack of

UNCLASSIFIED//FOR PUBLIC RELEASE

UNCLASSIFIED//FOR PUBLIC RELEASE

UNCLASSIFIED//FOR PUBLIC RELEASE

employed by any interrogation group or individuals

ggg. All Original Classification Authority (OCA) declru·ations for documents or

kkk. Reports of a11 Inspector General investigations conducted regarding alleged

UNCLASSIFIED//FOR PUBLIC RELEASE

c. All fingerprint analyses, hand-writing analyses, voiceprints, transponder, and/or pen-

UNCLASSIFIED//FOR PUBLIC RELEASE

UNCLASSIFIED//FOR PUBLIC RELEASE

a. Is Abd al Hadi al-haqi;