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 Afghanistan 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 United States. 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 torture 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.