MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA

UNITED STATES OF AMERICA D-024

Government Response to Defense Motion v. to Exclude Evidence and Testimony – Jurisdictional Hearing

NOOR UTHMAN MUHAMMED 25 August 2010

1. Timeliness. This response is timely filed pursuant to Military Commissions Trial

Judiciary Rule of Court 3.6.b. The Defense motion was received on 18 August 2010.

2. Relief Requested. The Defense motion should be denied.

3. Overview. There is no basis in fact or law to exclude the items requested by the Defense from consideration during the Commission’s jurisdictional inquiry. Separate and apart from the preliminary nature of the jurisdictional hearing, to which strict evidentiary rules generally do not apply, every item the Government has submitted for consideration is relevant, probative, and germane to the jurisdictional issue before the Commission. Should the Commission find that the

Government has not been timely in providing discovery or expert assistance to the Defense, the appropriate course is to consider motions to compel or for continuance, not to exclude relevant, probative evidence from consideration on the jurisdictional issue.

4. Burden and Standard of Proof. The Defense as movant bears the burden of proof and persuasion that it is entitled to the requested relief. Rule for Military Commission (R.M.C.)

905(c)(2)(A).

US V. NOOR AE 74-A 1 of 17 5. Facts

a. The Government agrees that the discovery process in this case was initially slowed in connection with the forum selection decision by the new Administration.

b. The Government agrees that it began providing discovery to the Defense in response to the Commission’s discovery orders. Since then, the Defense has not only inspected a portion of the physical evidence, but has also received tens of thousands of pages of discovery, including high-resolution photographs, photocopies, scans, analytical “gists” or summaries, verbatim translations, and analytical reports relating to the physical evidence. The Defense has also received a written accounting of the physical evidence as well as Government evidence and witness lists for both the jurisdictional hearing and the case on the merits. The Government continues to comply with its discovery obligations by searching for, gaining clearance to produce, and releasing additional discovery to the Defense in response to its requests.

c. The Government agrees that over the past several weeks, in compliance with the

Commission’s orders, it has provided the Defense with an increasingly detailed list of witnesses and evidence for use at the jurisdictional hearing, culminating in the list the Government submitted on 13 August 2010 per the Commission’s docketing order. By that date, the Defense had received copies of all the materials the Government identified for use at the jurisdictional hearing, including two forensic reports relating to physical evidence collected in the safehouse where the Accused was captured. One of these reports, prepared by the Forensic Document

Laboratory at the Office of U.S. Immigrations and Customs Enforcement (ICE), finds that several of the passports collected from the safehouse had been tampered with or falsified in some way, such as by photograph substitution or other material alteration. See ICE report at 2-4. The other report, prepared by an explosive device examiner with the Federal Bureau of Investigation

2 US V. NOOR AE 74-A 2 of 17 (FBI) Laboratory’s Explosives Unit, opines that the various tools, electronic components, circuitry, and training materials collected from the safehouse where the Accused was captured could be used for training in the construction of electronic circuits, including switching circuits used to initiate improvised explosive devices (IEDs). See FBI report at 4.

d. The Government agrees that the Defense submitted requests to the Convening

Authority for the appointment of expert consultants in the fields of fingerprint examination and forensic document examination, prior to receiving all the Government’s discovery in those areas, and that on 12 August 2010 the Convening Authority denied the Defense requests. Having still not received a final fingerprint report from the FBI lab, the Government released various interim reports to the Defense and removed any indication from its witness and evidence list for the jurisdictional hearing that it would offer fingerprint evidence for the Commission’s consideration on the jurisdictional issue. After receiving additional discovery materials from the Government, the Defense submitted follow-up requests to the Convening Authority on 23 August 2010 for appointment of the same fingerprint and forensic document experts. The Convening Authority has not yet acted on these follow-up requests.

e. The Government agrees that on 12 August 2010 the Convening Authority denied a Defense request for the appointment of an expert consultant in the field of explosives, specifically, forensic chemistry. While the FBI explosive device examiner’s report identified for use by the Government does touch on the manufacture of chemical explosive materials, it primarily focuses on how electronic components are used to make explosive devices, as opposed to how chemical components are used to make explosive materials. The FBI report, for example, discusses how Casio watches and other electronic circuitry like the materials found in the safehouse can be used to construct electronic timing and power units (TPUs), which can be used

3 US V. NOOR AE 74-A 3 of 17 to trigger the high-explosive main charge in an IED. See FBI report at 5.

f. The Government agrees that on 17 August 2010, after receiving the FBI report and additional related discovery from the Government, the Defense submitted a follow-up request to the Convening Authority for appointment of a different expert consultant in the field of explosive devices. The Convening Authority has not yet acted on this follow-up request. The

Government agrees that the FBI explosive device examiner’s report analyzes the tools, electronic components, circuits, and written training materials collected from the safehouse in rendering opinions that are consistent with the Government’s proffer to the Commission—that the safehouse where the Accused was captured was being used as a training facility where, among other things, individuals were being trained on the construction of electronic triggering devices for use in IEDs.

g. The Government agrees that part of its evidence at the jurisdictional hearing consists of statements of the Accused and other detainees at Guantanamo Bay. The Government has produced, and continues to search for, gain clearance to produce, and release any and all discoverable information in its possession that relates to the Accused’s detention, interrogation, and treatment both prior to and since his transfer to Guantanamo Bay, as well as similar discoverable information for other hearsay declarants.

h. The Government agrees that as part of its evidence at the jurisdictional hearing it will introduce testimony from a recognized expert in the field of jihadist organizations in and elsewhere, including but not limited to al Qaeda. Mr.

’s film, entitled “The Al Qaeda Plan,” provides an historical overview of these

Afghanistan-based jihadist groups, including their leadership, structure, and affiliations, as well as their declarations of war on and acts of hostilities against the . Mr.

4 US V. NOOR AE 74-A 4 of 17 has been qualified as an expert and has testified in these and related areas in dozens of cases in

U.S. federal court, U.S. military commissions, and foreign courts.

6. Law and Argument

It is well established that preliminary questions and other threshold determinations generally do not invoke strict application of the rules of evidence. See R.M.C. 104(a); accord

Fed. R. Evid. 104(a). See also Fed. R. Evid. 1101(d) (strict rules of evidence do not apply to grand jury proceedings, extradition proceedings, and preliminary examinations in criminal cases, inter alia) United States v. SLW, 406 F.3d 991, 995 (8th Cir. 2005) (strict rules of evidence do not apply to juvenile transfer proceedings); United States v. De La Fuente, 548 F.2d 528 (5th Cir.

1977) (strict rules of evidence do not apply to suppression hearings); United States v. Lee, 541

F.2d 1145 (5th Cir. 1977) (same).

As the parties have discussed over the course of several R.M.C. 802 conferences, issues of judicial economy warrant that the Commission’s jurisdictional hearing not depart from the above general rule. Otherwise, given the similarities between the jurisdictional elements and the elements of the substantive offenses charged, the Government would essentially be compelled to put on its entire case multiple times, which is unnecessarily and unduly burdensome. The

Government is not seeking to admit into evidence the items it has identified and submitted for the Commission’s consideration on the jurisdictional issue; hence, use of such evidence at trial will still be subject to the same rules for admissibility as all the other evidence.

Per the Commission’s docketing order of 6 August 2010, the Government understands that the Commission’s position regarding statements of the Accused and other witnesses requires some foundation to be offered at this preliminary stage to demonstrate that these statements were not obtained through or cruel, inhuman, or degrading treatment. The Government has

5 US V. NOOR AE 74-A 5 of 17 therefore identified and intends to call foundational witnesses for the statements of the Accused and other hearsay declarants, such that these statements may be considered by the Commission in determining whether it has jurisdiction over the Accused.

The Defense’s request for Daubert hearings or other formal foundations for evidence adduced from Government experts at the jurisdictional hearing is misplaced at this preliminary stage. Military Commission Rule of Evidence (M.C.R.E.) 702 on its face applies to expert testimony or evidence that is offered into evidence before the trier of fact, not submitted for judicial consideration on a preliminary matter. The Government understands that at trial its expert evidence will need to meet the standard requirements for admission, but those requirements should not be used to foreclose such matters from the Commission’s consideration in making a preliminary jurisdictional determination.

With respect to the specific items the Defense requests to be excluded, the Government will address each in turn.

a. Statements of the Accused Taken by FBI Special Agents and Are Properly Considered in the Commission’s Jurisdictional Inquiry.

In an effort to condense the evidence identified for use at the jurisdictional hearing from the total evidence identified for use in its case-in-chief, the Government has identified specific statements by the Accused that are relevant and probative to the jurisdictional inquiry. As outlined above, the Government is bringing foundational witnesses for these statements so that the Commission may consider them on the jurisdictional issue. The Government has produced and is in the process of searching for, gaining clearance to produce, and releasing to the Defense any and all information in its possession relating to the Accused’s detention and interrogation, both prior to and since his arrival at Guantanamo Bay, Cuba. Moreover, as of 19 August 2010,

6 US V. NOOR AE 74-A 6 of 17 the Defense’s requested expert psychologist, Dr. has been appointed as an expert consultant to assist in reviewing this information.

The Government is mindful, however, that the jurisdictional hearing does not constitute a full-blown suppression hearing, nor should it take the place of one. Contrary to what the

Defense motion appears to suggest, the Commission need not consider the facts and circumstances surrounding every custodial statement ever made by the Accused before considering the subset of statements that the Government is offering for purposes of establishing that the Commission has personal jurisdiction over the Accused. If the Defense wishes to present evidence to challenge the voluntariness of this subset of statements at the jurisdictional hearing, it certainly has the power to do so; however, the broader consideration of the admissibility of the Accused’s statements in toto is more appropriately taken up at the suppression hearing, which will consider the larger group of statements of the Accused that the

Government has identified for use in its case-in-chief. Taking up this broader inquiry now is well beyond the scope of a preliminary jurisdictional hearing.1

b. The Testimony of Is Properly Considered in the Commission’s Jurisdictional Inquiry.

As with the other items submitted for the Commission’s consideration, at this stage the

Government is not seeking to admit any expert testimony or reports into evidence, but offers them solely for consideration on the preliminary jurisdictional issue. The Government understands and intends to comply with the requirements under M.C.R.E. 702 prior to seeking the admission of such expert testimony or other evidence at trial. The Commission should therefore consider such the testimony and opinions of experts like Mr. at this stage

1 Should the Commission’s view on this issue differ from the Government’s, the Government requests notice of the Commission’s position sufficiently in advance of the jurisdictional hearing, so that it may assess whether to move the Commission to hold the suppression hearing prior to the jurisdictional hearing.

7 US V. NOOR AE 74-A 7 of 17 without requiring the more formal evidentiary foundations appropriately taken up in conjunction with trial on the merits.

As for the relevance and probity of Mr. s testimony, it goes to the very heart of the jurisdictional issue before the Commission. As Mr. will explain, during its history of declaring war on and conducting terrorist attacks against the United States, al Qaeda did not act alone. There was, and is, a network of jihadist terrorist organizations acting in concert with, and in support of, al Qaeda’s hostilities against the United States. At the time the

Accused was on staff there, the Khaldan camp was one of the jihadist organizations in

Afghanistan that supported hostilities by al Qaeda and its affiliates against the United States by, among other things, training jihadist recruits to become members of operational cells and actually carry out the terrorist attacks that were orchestrated by al Qaeda and its affiliates.

c. Physical Evidence Collected from the Safehouse Where the Accused Was Captured Is Properly Considered in the Commission’s Jurisdictional Inquiry.

The Commission may properly consider evidence collected from the safehouse where the

Accused was captured, including but not limited to: ’s diary; books, manuals, cassettes, and other training materials; fuses, wires, circuit boards, and other electronic components; and audio and videotaped propaganda materials. The jurisdictional issues before the Commission are fundamentally whether (1) the Accused was purposefully and materially supporting hostilities against the United States as (2) a member of a group of belligerents that acted in compliance with the rules regarding privileged belligerency under the laws of war.

Evidence, therefore, indicating that the Accused was indeed a member of a group preparing for or otherwise purposefully and materially supporting hostilities against the United States is relevant and probative to the Commission’s jurisdictional inquiry, as is evidence indicating

8 US V. NOOR AE 74-A 8 of 17 whether the group the Accused was a member of did or did not comply with the requirements for privileged belligerency under the laws of war.

(1) Zubaydah diary

The Zubaydah diary (805450), covering the time period from late 2001 to early 2002, is relevant and probative because it demonstrates that the Accused was a member of, and was residing with, a group of belligerents led by Abu Zubaydah at the safehouse in Faisalabad,

Pakistan, where the group was captured in March 2002. In the diary, Zubaydah indicates that he and his group were traveling house by house from Lahore to Faisalabad in March 2002, avoiding detection by Pakistani authorities while Zubaydah searched for a suitable location to arrange for special programs. Other entries indicate that Zubaydah believed the time was right to wage a war against America, that he had chosen a cadre of “brothers” for military matters, especially for making explosives and explosive devices, and that, like Noah, he had pulled two individuals from each military science to form the nucleus of his future work. Zubaydah states in the diary that he was starting from zero again, with some brothers, including some of the instructors from

Khaldan. He also indicates in entries from January 2002 that some of the brothers were remaining in Afghanistan, while he was leaving to smuggle others into Pakistan, and that no matter how long it took there would be retaliation for the brothers, Taliban, and Afghan people who were killed in Afghanistan. As the diary further describes, and other evidence will corroborate, what was causing the deaths in Afghanistan for which Zubaydah sought retaliation was the bombardment and invasion of U.S. and coalition forces.

These and other statements in Zubaydah’s diary implicate the Accused as a member of

Zubaydah’s group, since based on other evidence the Accused was indeed one of the instructors from Khaldan who was fleeing with Zubaydah’s group into Pakistan. The Accused, for example,

9 US V. NOOR AE 74-A 9 of 17 admitted at his Combatant Status Review Tribunal (CSRT) hearing in 2004 that Zubaydah was the second man in charge of the Khaldan camp in Afghanistan, when the Accused was on staff there, and also that Zubaydah was in charge of the safehouse where the Accused resided and was eventually captured. See CSRT transcript at 11-12.

Zubaydah’s diary entries are further corroborated by another diary found at the same safehouse (805360), written by another member of Zubaydah’s group named Abu Kamil al Suri.

Abu Kamil’s diary also discusses traveling with a group of “brothers,” some of them in disguise, avoiding checkpoints as they made their way into Pakistan in early 2002. The diary specifically refers to a Khaldan camp commander named Akramah as being a member of this group, who at times during their travels was disguised in women’s clothing. Entries from March 2002 make reference to future revenge against America led by Usama bin Laden, Zubaydah, and all the brothers. The diary also discusses that “Tariq” (which through other evidence the Government will show is a kunya, or alias, of Zubaydah) was staying with the group in March 2002. Abu

Kamil describes Tariq (Zubaydah) as the emir or commander of the group of brothers, which included both himself and Akramah, among others. Abu Kamil also writes that a training schedule had been started, with some brothers serving as teachers for the other brothers, for development in military, civilian, electronics, computers, internet, and English language. Abu

Kamil also makes reference to attacks against America using remote control bombs and states that the goal was to reach the peak of strength and knowledge in order to annihilate the enemies of Allah (Jews and Americans).

These diaries’ descriptions of a hostile group residing and training at the safehouse are also corroborated by other evidence the Government will submit for consideration, including statements by Inspector , who was in charge of the Pakistani police forces who

10 US V. NOOR AE 74-A 10 of 17 raided the safehouse in March 2002. During interviews by the Criminal Investigative Task Force

(CITF), Inspector stated that during the raid, the safehouse residents violently resisted, as a group under the leadership of Zubaydah, their apprehension by the Pakistani authorities. Other testimony corroborates that a firefight ensued at the time the safehouse was raided, resulting in the death or injury of several members of the safehouse group as well as Pakistani authorities.

In sum, the Zubaydah diary is relevant and probative to the jurisdictional issues before the Commission and as such should not be excluded from consideration.

(2) Book, manuals, cassettes, and other training materials

Given that the diaries described above shed light on the activities engaged in by

Zubaydah’s group, which included the Accused, at the safehouse in Faisalabad, the training materials collected from the house are also relevant and probative in corroborating those activities. These training materials directly corroborate the diaries’ descriptions of internet training (804815), computer training (804832), electronics and detonator training (805202,

805210, 805209), English language instruction (805252), and other military instruction, including explosives and poisons (805211, 805437, 805383).

These training materials are also relevant and probative to another jurisdictional issue squarely before the Commission, which is whether this group of belligerents, of which the

Accused was a member, was privileged to conduct operations in accordance with the laws and customs of war. Some of the tactics manuals collected from the safehouse are particularly instructive in this regard, as they provide instruction on activities that specifically are not in accordance with the laws and customs of war. One manual (805244), for example, discusses topics that are per se violations of the law of war, such as kidnapping and plane hijacking.

Another manual (805264) discusses other unlawful topics such as taking hostages and falsifying

11 US V. NOOR AE 74-A 11 of 17 passports and visa stamps. Another manual (805240) discusses targets which, if attacked, would be in violation of the law of war, such as targeting Jews and Christians, economic and police officials, tourists, companies, and banks.

Similarly, several of the cassettes found in the safehouse also support that the group in which the Accused was captured was not a group of privileged belligerents operating in accordance with the laws of war. One cassette (805190), for example, discusses avoiding detection by the authorities, using aliases, and not getting caught with more than one passport.

Another cassette (805193) discusses operational security, warning against using a hierarchical or pyramid type of organizational structure in favor of operating in small cells that are harder to catch. Another cassette (805194) discusses sabotage, security measures used at American embassies (which are not lawful targets under the law of war) in Muslim countries, and using fake names to rent safehouses.

Taken together, these and other training materials are relevant and probative in demonstrating that the Zubaydah group, in which the Accused was captured, was a group of jihadist terrorists, as opposed to a group of privileged belligerents following the requirements of the Geneva Convention. As such, these materials should not be excluded from the

Commission’s consideration in its jurisdictional inquiry.

(3) Fuses, wires, circuit boards, other electronic components and materials

The electronic components and other electronic materials collected from the safehouse are also relevant and probative on the jurisdictional issues, particularly in light of the context provided by the diaries and the training materials, as discussed above. Whether or not the electronics can be directly linked to the Accused, they corroborate the sort of ongoing training activities that were taking place in the safehouse, which, as explained in the diaries, consisted of

12 US V. NOOR AE 74-A 12 of 17 Zubaydah’s group of jihadists. In conjunction with the other evidence, these materials are probative, circumstantial evidence that the Accused, as well as the Zubaydah group to which he belonged, were purposefully and materially supporting jihadist training, which was designed to prepare safehouse residents to conduct hostilities against the United States or its coalition partners.

Contrary to the Defense’s position, the Government does not have to prove the Accused himself was receiving or giving the electronic detonator device training in order to rely on such circumstantial evidence to demonstrate his complicity in this and the other terrorist training occurring in the safehouse. See 10 U.S.C. § 950q(1) (extending criminal responsibility under the

Military Commissions Act to aiding, abetting, counseling, commanding, or otherwise procuring commission of an offense). Moreover, it is well established that mere presence on the premises where criminal activity is occurring is a factor that can properly be taken into consideration when assessing criminal responsibility. See United States v. Gamboa, 166 F.3d 1327, 1332 (11th Cir.

1999) (“Although mere presence is inadequate to establish guilt, we have held that it is material, highly probative, and not to be discounted.”) (internal quotation and citations omitted) (emphasis added). Finally, since one of the jurisdictional issues the Commission must determine is whether the Accused’s group was privileged to conduct hostilities under the Geneva Convention, see 10

U.S.C. § 948a(6), the Commission can properly take into consideration testimony and evidence relating to the group of belligerents of which the Accused was a member.

(4) Audio and videotaped religious and other propaganda materials

Finally, as with the other evidence collected from the safehouse, the audio and videotaped propaganda materials are relevant and probative to the connection between the

Zubaydah group, which included the Accused, and the ongoing hostilities by al Qaeda and its

13 US V. NOOR AE 74-A 13 of 17 associates against the United States and its coalition partners. These materials also support that

Zubaydah’s group was not operating in accordance with the laws and customs of war.

Among these materials is a videotape of Abu Zubaydah himself (804692), in which he goes to some length to describe his efforts in conjunction with Sheikh Usama bin Laden. He states,

We and the sheikh are one. We have been working together for almost 10 years, but we were hoping to keep this work secret . . . hidden. We began in 1991, or almost 1992. In 2000 or 2001, the matter lost its secrecy. We were forced to make ourselves known because of what took place in Afghanistan and thereafter.

Zubaydah then describes several of Usama bin Laden’s attacks against the United States, including the U.S. embassy bombings in Kenya and Tanzania, the USS COLE bombing, and the

9/11 attacks, stating that he supports them wholeheartedly. While not specifying what role his group played in carryout out these particular attacks, Zubaydah does state,

We ask God Almighty to accept us for any support we gave, whether financial, strategic, or through implementation. And we ask him to accept those of our brothers who did them.

He later states that “our enemy should know why we do what we do: the Jews, the

Christians, America and all who ally with her. . . . [W]e are extracting revenge for every

Muslim male and every Muslim female.” Zubaydah then states, more directly,

We are fighting the enemies of God including the Jews, the Christians, and America and its Arab allies and their apostate rulers including European, African, Hindus, or Islamic countries ruled by apostate rulers who do not apply Shari’a law.

All these statements support the Government’s contention that Zubaydah and his group, which included the Accused as far back as his work at Khaldan from 1996 to 2000, were engaged in supporting hostilities against the United States by Usama bin Laden’s group, al Qaeda, or other jihadist organizations.

14 US V. NOOR AE 74-A 14 of 17 The audiotapes collected from the safehouse are similarly probative of both the jihadist character of the group residing in the safehouse, which included the Accused, and also the inability of this group to claim privileged belligerency under the laws of war. Dozens of these cassettes are religious recitations, many of which praise violence and martyrdom for the cause of jihad. The speaker on one cassette (804758), when asked about appropriate targets for jihadist attacks, states that, so long as advance warning is given, it is allowable to blow up civilian

“crusader” targets such as night clubs and movie theaters. Such actions, if undertaken, would be in violation of the law of war.

As the above materials are relevant and probative on the jurisdictional issues, they are properly taken into consideration by the Commission.

d. Letters Addressed to Abu Khabab Are Properly Considered in the Commission’s Jurisdictional Inquiry.

As with the evidence collected from the safehouse in Faisalabad, the letters addressed to

Abu Khabab, collected in Afghanistan, are also relevant and probative in explaining how the terrorist training pipeline in Afghanistan operated, particularly how trainees were transferred from one training camp to another. These letters demonstrate that the Khaldan group’s leaders, including Abu Zubaydah, Ibn Sheikh al Libi, and the Accused, were in a position to recommend

Khaldan camp trainees for follow-on training at other training camps in Afghanistan— specifically, the Derunta explosives and poisons training camp run by a chemist named Abu

Khabab. As the Government will show through other evidence, the interconnection between the training camps is significant because this was the means by which promising terrorist operatives were passed along from Khaldan to receive more specialized training, until they had enough knowledge and expertise to go out and engage in actual operations, or terrorist attacks, against the United States or other countries. In addition, the Government will show that, upon his death,

15 US V. NOOR AE 74-A 15 of 17 Abu Khabab was eulogized by an al Qaeda leader, Ayman Zawahiri, which further corroborates the interconnectedness between Khaldan and other training camps with the jihadist organizations to which they were supplying trained terrorist operatives, including al Qaeda.

To the extent that the Defense is claiming a lack of expert assistance regarding the submission of these letters for consideration, the Government has two responses. First, with respect to this evidence, the expert assistance issue is not relevant, as the Government has not identified that it will be submitting any expert evidence related to these letters at the jurisdictional hearing. Second, to the extent the Commission believes that expert assistance is relevant to these letters, the appropriate remedy to address any deficiency in providing expert assistance is to entertain motions to compel that assistance or to continue the proceedings, not to exclude this probative evidence from the Commission’s consideration.

e. Analytical Reports Relating to Passports and Electronics Collected from the Safehouse Where the Accused Was Captured Are Properly Considered in the Commission’s Jurisdictional Inquiry.

Finally, the Commission should not exclude from its consideration cogent forensic reports relating to the passports and electronic materials collected from the safehouse in

Faisalabad. As outlined above, the ICE forensic report finds significant alterations in many of the passports found in the safehouse. The FBI explosive device examiner’s report opines that the electronics and related materials found in the safehouse were consistent with training being conducted on the construction of electronic detonation devices for IEDs. Together with the other evidence collected from the safehouse, these reports support that the group in the safehouse, which included the Accused, were belligerents engaged in training for and supporting hostilities against the United States or its coalition partners, under the leadership of Abu Zubaydah, and

16 US V. NOOR AE 74-A 16 of 17 that they did not satisfy the requirements under the Geneva Convention to be privileged belligerents.

To the extent that the Defense is claiming lack of expert assistance regarding the submission of these reports, the remedy to address any deficiency in providing such expert assistance is to entertain motions to compel that assistance or to continue the proceedings, not to exclude this relevant, probative evidence from the Commission’s consideration.

7. Oral Argument. The Government respectfully requests oral argument.

8. Witnesses and Evidence. None on this motion

9. Additional Information. None

10. Attachments. None, although reference is made to materials previously submitted to the

Commission for consideration in its jurisdictional inquiry.

Respectfully submitted,

By: ______//s//______Maj James Weirick, USMC LCDR Arthur L. Gaston III, JAGC, USN Lt Col Kenneth W. Sachs, USAF Capt Scott Jansen, USAF Trial Counsel Office of the Chief Prosecutor Office of Military Commissions 1610 Defense Pentagon Washington, DC 20301

17 US V. NOOR AE 74-A 17 of 17