MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY

MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY United States of America v. Noor Uthman Muhammed D- Defense Motion to Exclude Evidence and Testimony - Jurisdictional Hearing 18 August 2010 1. Timeliness: This Motion is timely filed pursuant to the Military Judge s Docketing Order dated 6 August 2010. 2. Relief Sought: The Defense requests that the Commission preclude the Government from introducing the evidence outlined in the Motion and limit the testimony of the Government s witnesses accordingly. 3. Overview: On 21 May 2010, the Commission verbally ordered that the Government provide the Defense and Commission with a list of witnesses and evidence that it intended to offer at the jurisdictional hearing scheduled for September 2010. On 10 June 2010, the Government provided a preliminary witness list. The Government subsequently identified the physical evidence it planned to introduce by Bates number on 16 July 2010. The Defense continues to receive discovery from the Government related to the evidence listed in its notice. In a Rule for Military Commission 802 session conducted at Guantanamo Bay, Cuba. The parties generally discussed the nature of the jurisdictional hearing contemplated by the Military Commissions Act of 2009. The Manual for Military Commissions does not establish which rules of evidence and procedure are applicable at this preliminary hearing. At a minimum, the rules of relevance and additional protections regarding the introduction of statements of the Accused obtained through the use of cruel, inhuman and degrading treatment must apply. Additionally, the Commission should consider excluding evidence that has been the subject of forensic testing where the Defense has not been given equal access to expert assistance to counter the Government s reports and expert conclusions. On these grounds, the Defense moves the Commission to exclude items of physical evidence proffered by the Government and statements of the Accused. 4. Burden of Proof: The Defense bears the burden of establishing any fact necessary for the resolution of this motion by a preponderance of the evidence and also bears the burden of persuasion regarding its entitlement to the requested relief. R.M.C. 905(c)(2)(A). 5. Facts: a. The Government first preferred charges against Noor on 23 May 2008. The current charges were preferred on 5 December 2008. Noor was arraigned on 14 January 2009. 1 1 of 30

Although the Government did not withdraw charges, Noor s case was significantly delayed from January 2009 through November 2009 as President Obama s Administration determined whether he should remain in the Military Commissions system. During this time, the Defense sought to obtain discovery from the Government so that it could use the time to prepare Noor s defense. b. On 19 February 2009, the Defense submitted its initial discovery request. After several months and entry of a discovery order by the Commission, the Government provided the Defense with the referral binder in this case. The referral binder contained some statements from Noor and two other detainees. The binder also contained a series of letters that the Government alleges were authored by Noor. From that date forward, the Defense sought to view the original letters, as well as, the results of any examinations and analysis conducted on the letters. The Defense also requested the opportunity to view and inspect any physical evidence in the custody of the Government. The Government permitted the Defense to inspect a portion of the physical evidence. The Government represented that the remaining physical evidence (145 pieces) was in the process of being analyzed by the FBI Laboratory. The Defense learned that the letters and the bulk of the other physical evidence had not been submitted to the laboratory for testing until April 2009. c. On 21 May 2010, the Commission verbally directed the Prosecution to provide the Defense with a preliminary list of evidence and witnesses that it intended to call at the jurisdictional hearing. On 10 June 2010, the Prosecution provided a list of witnesses and a generic list of physical evidence. The Prosecution s evidentiary list included analytical reports relating to physical evidence described in paragraphs (6) and (7) above, including fingerprint testing, other forensic analysis, and explosive device analysis. The materials referenced included the letters and materials seized from a Faisalabad house the night that Noor was captured. The Prosecution agreed, at the Defense request, to identify with specificity the physical evidence that it intended to introduce so that the Defense could confirm that it had either seen or received photographs of the potential evidence. On 16 July 2010, the Prosecution provided an updated list of witnesses and evidence identified by Bates number. The Prosecution again indicated that it intended to rely on two analytical reports identified as ICE forensic document laboratory report and FBI laboratory explosive device report. The explosive device report was provided to the Defense on 22 July 2010. d. On 22 June 2010, the Defense requested the Convening Authority appoint a fingerprint examiner to the defense team to assist the Defense in analyzing the letters the Government alleges were written by Noor. The Defense also anticipated that it would require the assistance of a forensic document examiner to understand and evaluate the forensic testing conducted by the Government and requested the appointment of a forensic document examiner on that same date. On 13 August 2010, the Defense received some summary reports related to the letters. It appears that there are additional forensic reports relating to the letters that the Defense has not had the opportunity to review or inspect. The Defense also requested that an expert be appointed to view the original letters to determine whether the conclusions and analysis of the Government s experts is supportable. No member of the Defense team has had an opportunity to view the original letters; despite numerous requests by the Defense to do so. On 13 August 2010, a legal advisor to the Convening Authority notified the Defense verbally that the Convening Authority intended to deny the Defense request for a forensic document 2 2 of 30

examiner. The legal advisor reasoned that the Prosecution had not provided the Defense with enough discovery to make the required showing of necessity. The Convening Authority s denials are attached. e. On 22 June 2010, the Defense also requested the appointment of an explosives expert with a specialized understanding of forensic chemistry. The Defense selected this expert based on its lay understanding of the potential forensic testing it anticipated the Government would be conducting on the physical evidence. The Defense received confirmation of some of the forensic testing conducted on 22 July 2010 when it received the explosive device examiner s report. The Explosive Device Examiner did incorporate the testing and analysis of a forensic chemist into his report. The Defense received the forensic chemist s report on 13 August 2010, after requesting that the Government provide all underlying reports. The Convening Authority denied the defense request to have an expert appointed to the defense team in forensic chemistry. The Defense was again notified verbally through a legal advisor that the Convening Authority did not believe that the Defense had made a sufficient showing based on the Prosecution s failure to provide the Defense with discovery that would either allow the Defense to make the necessary showing to justify appointment of a chemist or make a request for an expert in another explosives related field. f. On 17 August 2010, the Defense submitted a request for the appointment of an explosives device examiner. The FBI Laboratory Report proffered by the Government was prepared by Mr. an explosives device examiner. In reaching his conclusions, Mr. relied on analysis conducted by another explosives device examiner who had previously analyzed physical evidence recovered from the Faisalabad house. The original explosives device examiner examined the physical evidence such as tools, electronics components and circuit boards. The second examiner, Mr. analyzed close to 600 pages of written materials recovered from the house. Together these experts attempt to link materials and writings found in the house to the creation of explosive devices. The Government relies on these experts and their findings to explain the significance of the materials found in the house. g. The Government has proffered that it intends to use selected statements taken from the Accused and several other detainees. The Defense has documentation to support that the Accused was interviewed at least 9 times prior to his transfer to Guantanamo Bay, Cuba. Based on summaries provided through the 505 process, Defense estimates that he may have been interviewed as many as 28 times. The Government has failed to produce detention records relating to the Accused s detention prior to his transfer to Guantanamo Bay nor has the Government provided the Defense with the names of the interrogators involved in questioning Noor prior to his transfer to Guantanamo Bay. The Government has also failed to provide similar information for the Guantanamo Bay detainees upon whose statements they intend to rely at the jurisdictional hearing. h. The Government intends to introduce the expert testimony of at the jurisdictional hearing. At the request of the Government, Mr. created a video entitled the Al Qaeda Plan that the Government also intends to introduce. 6. Law and Argument: 3 3 of 30

The Rules of Evidence Regarding Relevance Apply at a Jurisdictional Hearing. 1 The Military Commissions Act of 2009 (hereinafter MCA ) establishes that a military commission is competent to determine whether it has personal jurisdiction over an Accused. The statute and Rules for Military Commission define the jurisdiction of military commissions as extending to alien unprivileged belligerents, which is defined in the MCA. Neither the Manual for Military Commissions nor the statute prescribes the extent to which the rules of evidence are applicable at a jurisdictional hearing. The Military Commission Rules of Evidence reflect the Military Rules of Evidence regarding the determination of preliminary questions. See MCRE 104 and MRE 104. Both rules recognize that there are preliminary determinations that a Judge must make that permit relaxation of the rules of evidence including the qualification of a person to be a witness, the existence of privilege, the admissibility of evidence along with other issues related to witness logistics. The question presented to the Commission, whether it has personal jurisdiction over Noor, is far more significant than the housekeeping matters set forth in MCRE 104. Consequently, the Defense requests that the Commission apply the rules relating to relevance, the MCA s prohibitions regarding statements made by the accused, and a process for determining whether expert testimony and evidence can be introduced. As a baseline matter, the Commission should apply the Rules defining relevant evidence to the jurisdictional hearing; specifically MCRE 401, 402 and 403. The application of these rules will serve to focus and narrow the hearing to appropriate considerations and avoid the unnecessary expenditure of judicial resources. The Government Bears the Burden of Establishing that the Accused s Statements Were not the Product of Torture or Cruel, Inhumane and Degrading Treatment. The MCA establishes that statements obtained by the use of torture or by cruel, inhuman or degrading treatment shall not be admissible in a military commission. This prohibition applies to statements made by both the Accused and other declarants. The statute makes no distinction between pretrial hearings and trial. When the Prosecution proffers a statement made by the Accused, the statute places the burden upon the Government as the proponent of the evidence to introduce sufficient facts to allow the Military Judge to enter findings regarding the reliability and voluntariness of the statement. The Government Bears the Burden of Establishing that Expert Testimony Meets the Requirements of RMC 702. The Military Commission Rules of Evidence mirror the evidentiary rules applicable at courts-martial. Specifically, MCRE 702 places limitations on the type of testimony that can be offered by expert witnesses. The expert witness must possess scientific, technical or other specialized knowledge that will assist the trier of fact. Prior to offering expert testimony, the expert witness qualification must be established and are subject to challenge by the Defense. Here, the Government proposes to rely upon expert testimony to establish personal jurisdiction; requesting that the Commission consider this testimony to determine whether Noor purposefully and materially supported hostilities against the United 1 The Defense uses the term personal jurisdiction in this motion to encompass the two-fold inquiry the Commission must conduct at the jurisdictional hearing: 1) is Noor entitled to the protections of the Geneva Conventions as a privileged belligerent? and 2) does the Commission have jurisdiction over him pursuant to the Military Commission Act? 4 4 of 30

States. In order to consider this testimony, the Commission should apply the evidentiary rules relating to the opinions and qualifications of expert witnesses. Application of Evidentiary Principles to Government s Evidence and Witnesses. Based on the foregoing evidentiary principles, the Defense objects to the introduction of the following categories of evidence and testimony: A., FBI; and, FBI-Statements of Accused. The Defense objects to the introduction of statements taken by FBI agents after Noor s transfer to Guantanamo Bay based upon the Government s failure to provide the Defense with critical information relevant to determining whether these statements were obtained by torture or cruel, inhuman or degrading treatment. The statements taken at Guantanamo Bay are not automatically cured of any taint associated with previous statements, conditions of confinement or interrogation tactics. To date, the Government has failed to produce records documenting the conditions of Noor s confinement and physical health prior to his arrival at Guantanamo Bay. The Defense has also been denied the expert assistance necessary to investigate and corroborate the effect of confinement and interrogation techniques utilized prior to Noor s interactions with the FBI Agents the Government intends to call as witnesses. On 9 July 2010, the Commission ordered the appointment of an expert consultant in the field of clinical psychology to assist the Defense. The Commission provided the Convening Authority the opportunity to appoint a doctor with qualifications similar to the Defense s requested expert, Dr.. The Convening Authority has not appointed an expert consultant to the Defense team ; thus jeopardizing the Defense s ability to prepare to address the Government s introduction of Noor s statements to the FBI Agent witnesses. Rather than further delay the jurisdictional hearing, the Defense requests that the Commission preclude the Prosecution from relying on these witnesses and statements taken from Noor. B. -Expert Testimony Regarding Al Qaeda and Excerpts from Al Qaeda Plan Video. The Defense objects to the presentation of expert testimony of Mr. as an Al Qaeda expert. Mr. has no specialized education, training or experience that warrant the designation of expert. The Defense has significant concerns about Mr. s methodology, which it believes relies heavily on repackaging information available over the internet. The Defense believes that it would be appropriate for the Commission to require a qualification hearing prior to accepting Mr. s testimony or excerpts from the video that he created. Regardless of whether the Commission qualifies Mr. as an expert, the Defense also objects to his testimony on the basis of relevance. The introduction of general information regarding the history and activities of Al Qaeda that has no direct connection to Noor is, consequently, not relevant to the required findings. C. Abu Zubaydah Diaries. The Defense objects to the introduction of the diaries of Abu Zubaydah. The diaries of Abu Zubaydah do not mention Noor and therefore are not relevant in determining whether the Commission has personal jurisdiction over him. 2 On 6 August 2010 the Defense submitted an email request to the Convening Authority s Legal Advisor requesting that Dr. be appointed to the Defense team and that the process for his security clearance begin. The Defense attached the Commission s order on D-023 of 9 July 2010 to that request. 5 5 of 30

D. Books, Manuals, Cassettes and Other Training Materials. The Government cannot establish that any of the materials seized in the Faisalabad house belonged to Noor or that he had access to these materials. The chain of custody documents cited by the Government and provided to the Defense have no markings on them that would indicate where, specifically, inside the house the materials were seized. The Government also intends to introduce a report relating to some of the written materials seized in the house. The Defense received this report on 22 July 2010. The Defense previously requested that the Convening Authority appoint an expert in explosives to assist the Defense. At the time of the request, the Defense relied on the Government s general representations regarding the nature of the testing. Consequently, the Defense requested and was denied the assistance of a forensic chemist. After receiving the Government s report, the Defense identified an explosive device examiner to review the report. The Defense requested the appointment of this expert consultant on 16 August 2010. The Defense has received no indication from the Convening Authority regarding their intent with respect to the requested expert. E. Fuses, Wires, Circuit Boards, Etc. The Defense objects to the introduction of this physical evidence based on relevance as well. Again, the Government cannot connect these items to Noor or his living area. Absent such a connection, these materials should not be considered. In fact, the Government s evidence contradicts the position that the materials were connected to Noor. The Pakistani investigator who assisted in leading the raid did not see any of these materials as he passed through the house. The Government intends to attempt to link these materials together with the written materials through expert testimony. As outlined above, the Defense has not had the opportunity to consult with its own independent expert regarding the methodologies and conclusions of the Government s expert. F. Audio and Videotaped Religious and other propaganda material. As outlined above, the Defense objects to the consideration of materials that cannot be connected in some way to Noor. G. Letters Addressed to Abu Khabab. On 13 August 2010, the Defense received what appeared to be portions of reports relating to the forensic testing of these letters. The Defense requested and was denied the expert assistance of a forensic document examiner and a fingerprint examiner. The Defense submitted these requests to the Convening Authority on 22 June 2010. The Defense was notified verbally that the Convening Authority intended to deny the Defense requests; the denials were subsequently reduced to writing. From the information provided, it appears that the FBI report summaries may provide exculpatory information. The Defense has not had the opportunity to develop this information based on the failure to provide the reports in a timely manner and the Convening Authority s failure to provide expert consultants to the Defense. Consequently, the Defense requests the Commission preclude the Government from relying upon these letters. H. Analytical Reports. As outlined above, the Defense received a report prepared by an FBI Explosive Device Examiner on 22 July 2010. The report references and incorporates the analysis of a prior explosive device expert. The Report also refers to two other specialized forensic evaluations that were conducted. After receiving the report, the Defense identified an expert with similar qualifications and sought his appointment. At this time, the Defense lacks 6 6 of 30

the ability to challenge the Government s report, which will assist it in connecting physical evidence and written materials found in the Faisalabad house. 7. Request for Oral Argument: In the event that the Commission declines to rule on the written pleadings, the Defense requests the opportunity to renew its objection should the Government attempt to introduce the evidence at issue. 8. Request for Witnesses and Evidence: None. 9. Conference with Opposing Counsel: The Government opposes the Motion. 10. Additional Information: None. 11. Attachments: A. Defense Request for Expert Assistance-Forensic Document Examiner B. Defense Request for Expert Assistance-Fingerprint Examiner C. Defense Request for Expert Assistance-Explosive Device Examiner D. Defense Request for Expert Assistance-Explosive Device Examiner (Forensic Chemist) Respectfully submitted, BY: //s// Katharine Doxakis CDR, JAGC, USN Christopher Kannady Capt, USMC Office of Military Commissions 1600 Defense Pentagon Washington DC 20301 Detailed Defense Counsel for Noor Uthman Muhammed Amy S. Fitzgibbons MAJ, JA, USAR Howard Ross Cabot Perkins Coie Brown & Bain Defense Counsel for Noor Uthman Muhammed 7 7 of 30