v. Government Response KHALID SHAIKH MOHAMMAD, · KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH...
Transcript of v. Government Response KHALID SHAIKH MOHAMMAD, · KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH...
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MILITARY COMMISSIONS TRIAL J UDICIARY GUANTANAMO BA Y, CUBA
UNITED STATES OF AMERICA
v.
KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH
MUBARAK BIN ATTASH, RAMZI BINALSHmH, ALI ABDUL AZIZ ALI,
MUSTAFA AHMED ADAM AL HAWSAWI
1. Timeliness
AE057A
Government Response to Motion of Mr. Mohammad, Mr. bin al
Shibh, Mr. al Baluchi , and Mr. al Hawsawi to Recogni ze that the Constitution Governs
the Mili tary Comm iss ions
30 July 20 12
This Response is time ly filed pursuant to M ili tary Commiss ions Tr ial Judiciary Rule of
Court 3.7.c( I).
2. Relief Sought
The Comm iss ion should deny the defense mot ion.
3. Overview
The Comm iss ion should not reach the merits of the defense mot ion but deny it on the
procedural ground that it is unri pe for adjudication. Defendants invite the Commiss ion to issue a
sweeping pronouncement-outside the context of any concrete di spute over a part icular
substantive or procedural issue-that const itut ional ri ghts developed in c ivilian criminal tr ials for
U.S. persons in the Uni ted States during peacet ime also apply to mili tary comm iss ion
proceedings aga inst ali en unpriv il eged enemy belligerents detained at Guantanamo Bay, unless
and until the Govern ment demonstrates that applying a part icular right is " impract icable and
anomalous" under BOlllllediene v. Blish , 553 U.S . 723 (2008). The Supreme Court has
repeatedly held , however , that U.S . tr ibunals should "never antic ipate a quest ion of const itut ional
law in advance of the necess ity of deciding it" and should "never formulate a rule of
const itut ional law broader than is required by the prec ise facts to which it is applied ." Liverpool,
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N. Y. & P.s. s. Co. v. Emigration COII/IIl'rS, 11 3 U.S . 33, 39 ( 1885); accord Wash. State Grange v.
Wash. State Republican Party, 552 U.S . 442, 450-5 1 (2008) . Because deciding the defense
mot ion would require the Commiss ion to contravene both these time-honored canons of
const itut ional adjudicat ion, the defense mot ion is unri pe for deci sion.
Contrary to the defense's assertions, the Supreme Court's deci sion in Boumediene
confinns that the defense motion is premature and unripe. In Boumediene, the Court considered
onl y the li mited quest ion whether "Art. I, § 9, c1. 2 of the Constitution has full effect at
Guantanamo Bay." 553 U.S. at 77 1. The Court's very log ic and approach in consider ing th is
quest ion was to assess a spec ific const itut ional provision in the context of part icular facts . In
doing so, the Court adhered to its deci sions in Livel]JOol, Reid v. Covert, 354 U.S . 1 ( 1957)
(plurali ty op inion), and United States v. Verdugo-Urquidez, 494 U.S. 259 ( 1990), counseling
courts to exam ine the applicabili ty of a specific const itut ional provision in the part icu lar
c ircumstances of a part icular case. Further, the Court affirmed the ob ligat ion of U.S. tribunals to
avo id quest ions of const itutional law unless necessary. The defense argument that Boumediene
supports its mot ion is therefore misgu ided. For these reasons and others expla ined in detail
be low, the Commission should deny the defense mot ion as unri pe for adjud icat ion.
4. Burden of Proof
As the mov ing party, the defense must demonstrate by a preponderance of the evidence
that the requested relief is warranted . R.M.C. 905(c)( I )-(2) .
5. Facts
On II September 2001, a group of AI Qaeda operat ives hijacked four c ivilian airliners in
the Un ited States. After the hijackers killed or incapacitated the a irline pilots, a pilot-h ijacker
deliberately slammed American Airlines Flight II in to the North Tower of the World Trade
Center in New York , New York. A second pilot-h ijacker intentionally flew Uni ted Airlines
Flight 175 in to the South Tower of the World Trade Center. Both towers collapsed soon
thereafter. Hijackers also deliberately slanuned a th ird airliner, American Airlines Flight 77, in to
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the Pentagon in Northern Virg inia. A fourth hijacked a irliner, Un ited Airlines Flight 93, crashed
in to a field in Pennsylvania after passengers and crew fought to reclaim control of the aircraft.
As a result of these attacks, 2,976 people were murdered, and numerous other c ivilians and
mili tary personnel were injured.
On 3 1 May 20 II and 25 January 20 12, charges in connect ion with the II September
200 1 attacks were sworn aga inst Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak
Bin Attash, Ramz i Binalshibh , Ali Abdu l Az iz Ali , and Mustafa Ahmed Adam a1 Hawsawi.
These charges were referred jointly to thi s capital Mili tary Commiss ion on 4 Apr il 20 12. The
five co-accused were each charged with Consp iracy, Attack ing C iv ili ans, Attacking Civ ili an
Objects, Intentionall y Causing Serious Booily Injury, Murder in Violat ion of the Law of War,
Destruction of Property in Violat ion of the Law of War, Hijack ing an Aircraft, and Terrorism.
These charges were sworn pursuant to the M ili tary Commiss ions Act of 2009 (M .C.A.) .
In the M .C.A., Congress prov ided accused persons facing trial by mili tary commiss ion with
unprecedented protect ions. Congress guaranteed unpriv il eged enemy belligerents many of the
same procedural and substantive ri ghts the Uniform Code of M ili tary Just ice affords prisoners of
war. I
Notwithstanding these unprecedented protections, Messrs. Mohammad, Binalshibh , al
Baluchi , and al Hawsawi move for a deci s ion that the const itut ional ri ghts developed in c ivili an
criminal trials for U.S . persons in the Uni ted States in peacet ime also apply to military
commission proceedings aga inst ali en unprivileged enemy be lligerents detained at the
I See, e.g., 10 U.S .c. § 949a(b)(2) (granting the accused the right to present evidence in the accused's defense; to be present at a ll appropriate sess ions of the mili tary commiss ion; to counsel, includ ing counselleamed in the applicable law relating to capital cases; to selfrepresentat ion; to suppression of ev idence that is not reliable or probat ive; and to suppress ion of evidence that is undul y prejudic ial); id. § 949c(b) (granting the accused the ri ght to counse l); id. § 949h (granting the accused the right to not be tried tw ice for the same offense); id. § 949j (granting the accused the opportuni ty to obta in witnesses and other evidence); id. § 949s (granting the accused the right against cruel or unusual puni shments); id. § 950g (granting the accused the ri ght to review by the Uni ted States Court of Appeals for the District of Columbia Circu it); id. § 950h (granting the accused the right to appell ate counse l) .
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Guantanamo Bay Naval Stat ion, unless the Government demonstrates that applying a part icu lar
provision to the accused is " impract icable and anomalous" under BOlllllediell e v. Blish, 553 U.S.
723, 759 (2008). Th is mot ion const itutes a sweeping request for an adv isory opinion on
const itut ional1aw. Because the mot ion fa il s to cross the procedura l threshold of ripeness, th is
Commiss ion should decline to reach its merits and deny the mot ion as prudentially unripe.
6. Law and Argument
Ripeness is a quest ion of timing designed to "prevent the courts, through avoidance of
premature adjud icat ion, from entangling themselves in abstract di sagreements." Abbott Labs. v.
Gardl1er, 387 U.S. 136, 148 ( 1967). Like any other U.S .tribunal, the Commiss ion's role is
neither to issue advisory opinions nor to declare ri ghts in hypothetical situations, see Pril1ceton
UI/iv. v. Schmid, 455 U.S. 100, 102 ( 1982), but to adjudicate "a just ic iable case or controversy
between adverse parties." United States v. Chisholm , 59 M.J. 15 1, 152 (C.A.A.F. 2(03) .
Ripeness is a justic iabili ty doctrine "drawn both from Art ic le III li mitat ions on jud ic ial power
and from prudential reasons for refusing to exerc ise jurisd ict ion." Reno v. Catholic Soc. SelVs.,
IIlC. , 509 U.S. 43, 57 n.1 8 (1993). Courts establi shed under Art icle 1 of the Const itut ion, like th is
Commiss ion, generally adhere to the ripeness doctrine "as a prudential matter." Chisholm, 59
MJ. at 152.
Prudential considerat ions restrain courts "from hast il y intervening into matters that may
be best viewed at another time or another setting, espec iall y when the uncertain nature of an
issue might affect a court 's abili ty to decide intelligently." Wyo. Outdoor COllllcil v. U.S Forest
SelV., 165 F.3d 43 , 50 (D.c. Cir. 1999) (i nternal quotation marks and c itat ion omitted) . To
determine whether prudential considerat ions dictate reaching the mer its of the issue presented in
the defense motion, the Commission should "evaluate both the fitness of the issues for judic ial
deci sion and the hardship to the part ies of withholding court considerat ion." Abbott Labs., 387
U.S . at 149. Both prudential considerat ions dictate denial s of the defense mot ion.
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I. The Defense Motion Is Not Fit for Judicial Decision.
The Comm iss ion's " in terests in avo iding unnecessary adjud icat ion of constitutional
questions and deciding issues in a concrete factual sett ing" render the motion unfit for judic ial
decision. Cronill v. F.A.A ., 73 F.3d 11 26, 11 3 1 (D.C. Cir. 1996) (internal quotation marks and
c itat ion om itted) (deferring review of pet itioners' procedural due-process claims) . Two well -
establi shed canons of constitutional adjud icat ion constrain the Comm iss ion's review of the
defense mot ion: "one, never to antic ipate a question of const itu tional1aw in advance of the
necess ity of deciding it; the other, never to formulate a rule of const itut ional law broader than is
required by the prec ise facts to wh ich it is applied." Liverpool, N. Y. & p.s.s. Co. v. Emigratioll
Comm'rs, 11 3 U.S . 33,39 (1885) (instructing courts to "follow [these canons} closely and
carefully"); accord United States v. Ilistruments, S.A., IIl C., 807 F. Supp. 8 11 , 8 15 (D.D.C. 1992)
(concluding that courts must apply the ripeness doctrine in light of const itut ional-avoidance
canons) (c iting Ashwallder v. TVA , 297 U.S. 288, 346 ( 1936)).
First, the defense mot ion is not fit for decision because deciding the motion is
unnecessary at th is time. The defense seeks a generali zed pronouncement that the accused "hold
the same constitutional ri ghts as defendants in other American criminal just ice systems," yet fa ils
to ident ify a single ri ght it will assert in a single specific factual context. AE 057 at 2. Many
ri ghts the accused might assert are already provided by statute.2 The Commission need not
consider whether the Const itut ion guarantees the accused these same rights, or ri ghts that the
accused will never assert. Spector Motor Serv., Ill c. v. McLaughlin, 323 U.S. 10 1, 105 (1944)
("If there is one doctrine more deeply rooted than any other in the process of const itut ional
2 See, e.g ., 10 U.S .c. § 949(b) (granting the accused the right to counsel); id. § 948q (granting the accused the ri ght to be informed of the charges as soon as practicable after the charges and spec ificat ions are referred for tr ial); id. § 949i (granting the accused the presumpt ion of innocence); id. § 949a(b) (granting the accused the right not to testify at trial and to have the opportuni ty to present evidence and cross-exam ine witnesses for the prosecut ion); id. § 949j (granting the accused the ri ght to exculpatory and mitigat ing inFormation known to the prosecut ion or invest igators, with procedures pennitt ing some variance for nat ional security concerns) .
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adjud icat ion, it is that we ought not to pass on questions of constitut ionali ty ... unless such
adjudication is unavoidable.") .
The Supreme Court has routinely avoided quest ions regarding even U.S .
servicemembers' ri ghts under the Const itut ion when deciding such questions was unnecessary.
See, e.g ., Lovillg v. United States, 5 17 U.S. 748, 755 ( 1996) (assuming, w ithout deciding, that the
death-penalty standards delineated in Furman v. Georgia, 408 U.S. 238 ( 1972), applied to the
mili tary); Davis v. United States, 5 12 U.S . 452, 457 ( 1994) (declining to dec ide whether the Fifth
Amend ment privil ege against self-incrimination , or the attendant right to counsel during
custod ial interrogat ion, applies to servicemembers where the Uni form Code of Mili tary Just ice
provided similar ri ghts) . Deferral is part icu larly prudent here because the D. C. Circuit is
currently considering whether the M.C.A. violates the equal protect ion component of the Due
Process Clause of the Fifth Amend ment. See Hamdal1 v, United States, No. 11 -1257 (D.C. Cir.
filed July 11 ,20 II ). Prematurely deciding the defense mot ion would not onl y squander valuable
judicial resources and transform judic ial review into judicial preview, but it wou ld increase the
ri sk of an improvident deci sion on a constitutional quest ion.
Second, the defense mot ion is not fit for deci sion because the defense seeks a generali zed
pronouncement that all constitutional ri ghts apply in mili tary commission proceed ings without
providing the Comm iss ion any particular ized facts or context in wh ich to consider whether or
how any such const itutional provision might apply. The Commiss ion "should not be forced to
decide these constitutional quest ions in a vacuum ." W.E.B. DuBois Clubs of Am. v. Cla rk, 389
U.S. 309, 3 12 (1967) .3 Nor can it. Even in the case of U.S. c itizens, the quest ion is not merely
whether "these const itut ional guarantees as a totality do or do not 'apply,'" but rather "what
process is 'due' a defendant in the part icu lar c ircumstances of a part icular case." Reid v. Covert,
354 U.S . 1,75 ( 1957) (plurali ty op inion) (Harl an, J ., concurring in re su lt); accord Ul1ited States
v. Verdugo-Urquidez, 494 U.S . 259, 278 ( 1990) (Kennedy, J. , concurring) . In Ex parte Quiril1 ,
3 In Clark, the Court declined to decide " important and difficult constitutional issues" that were "devoid of factual context."
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for example, the Supreme Court held that the g rand and pet it jury clauses in the Fifth and Sixth
Amend ments, re spectively, did not apply to "offenses conunitted by enemy belligerents against
the law of war," recognizing "the trad itional pract ice of try ing those offenses without a jury."
3 17 U.S. 1, 41 (1942) . That inquiry focused on a narrow set of asserted ri ghts that were
spec ifica ll y at issue. Further, in United States v. Ali, Crim. Ap. No. 20080559, at 30 (C.A.A.F.
July 18,20 12), the court decided that an ali en tried outside the United States for a crime
committed outside the Uni ted States was not entitled to the due-process protect ions of the Fifth
and Sixth Amendments . That, too, was a narrow inquiry regarding a spec ific asserted ri ght in a
spec ific context. Thus, even if the Commission were to concl ude that certa in prov isions of the
Const itution apply to the accused, that conclusion wou ld not require that it apply in the same
way it app li es to U.S . c itizens, or even to ali ens within the Uni ted States. See Reid, 354 U.S . at
75 . These are prec isely the prudential considerat ions the ripeness doctrine safeguards.
The more prudent course is to dec ide whether the Constitution guarantees the accused a
specific, art icu lable const itutional ri ght on a case-by-case bas is, in the context of a part icu lar li ve
controversy between the part ies, as the need to decide arises .4 It may be, for example, that the
Commiss ion wou ld not need to decide the app licability of a const itut ional provision because the
M .C.A. itself affords the accused parallel ri ghts or protect ions as a matter of statutory law.
Waiting for a li ve controversy to adjudicate such issues wou ld also enable the Commiss ion to
define, to the extent necessary, the contours of any such ri ght and delineate how it applies in the
context of mili tary commiss ions. Th is approach will "provide the [Comm iss ion} the concrete
factual sett ing that sharpens the deliberative process espec iall y demanded for const itut ional
deci sion." UI/ited States v. UAW, 352 U.S . 567, 59 1 ( 1957) (emphasizing the importance ofa
detail ed factual record upon which a court may li mit, frame, and perhaps avoid constitutional
4 For example, the defense could rai se the applicabili ty of the S ixth Amend ment ri ght to confrontat ion if the prosecut ion were to in troduce test imonial statements of declarants who were not present to test ify, or it could assert a Fifth Amend ment claim if the prosecut ion sought to in troduce a statement the defense contended was not voluntary. Such claims wou ld implicate ~act-spec ific assessments concerning the applicat ion and scope of the constitutional provision at Issue.
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deci s ions); Cronil1, 73 F.3d at 11 32 (declining to consider a due-process challenge to certa in
regulat ions until the court is "faced with a concrete factual sett ing with in wh ich to evaluate the
due process requirements") . Ult imately, the Commiss ion 's appra isal will "stand on a much su rer
footing in the context ofa spec ific applicat ion" of the ri ght than with in the generali zed
framework the defense proposes. See Toilet Goods ASS'I1, Ill c. v. Gardner, 387 U.S. 158, 163-64
( 1967)
BOlllllediene v. Blish does not suggest a contrary result. The defense relies on
BOlllllediene in argu ing that a ll constitutional rights apply in extraterritorial proceedings, unless
and until the Govern ment demonstrates that applying a particular ri ght is " impract icable and
anomalous." AE 057 at 2 . The defense reliance on Boulllediene is misgu ided For several
reasons.
First, Boumediene did not cast doubt on the Supreme Court's deci s ions in Reid, Verdugo-
Urquidez, and Quiril1 counseling courts to base the ir assessments of constitutional guarantees on
the process '''due' a deFendant in the particular c ircumstances of a part icu lar case." Reid, 354
U.S . at 75; accord Verdugo-Urquidez, 494 U.S . at 278; Quiril1, 3 17 U.S. at 4 1. Rather, the very
logic and approach of Boumediene was to assess a spec ific const itut iona l prov is ion in the context
of particular facts. In doing so, the Court exp lic itly li mited its deci sion:
Our deci s ion today holds ollly that pet itioners before us are entitl ed to seek the writ ; that the [Detainee Treatment Act] review procedures are an inadequate subst itute For habeas corpus; and that pet itioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with the ir habeas act ions in the District Court.
Boulllediene, 553 U.S. at 795 (emphasis added). The Court reached its deci s ion onl y after an
exhaust ive survey of the Great Writ's hi story, the Court's precedents o n the scope of habeas
corpus jurisdiction , and the pract ical considerat ions in extending the Writ to Guantanamo.
Further, BOlllllediene did not overru le Quirin, which recognized an except ion to the
Const itut ion's jury clauses in the Fifth and S ixth Amend ments for "ofFenses committed by
enemy belligerents against the law of war," and held that mili tary comm iss ion proceedings are
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"not deemed to be with in Art icle nt, § 2 or the provisions of the Fifth and Sixth Amendme nts
rel ating to 'crimes' and 'criminal prosecut ions.'" Quirill , 3 17 U.S . at 40-4 1.
Second , the defense argument is foreclosed by precedent binding on th is Comm iss ion. In
United States v. Hamdall , the U.S . Court of Mili tary Comm iss ion Rev iew rejected the argument
that, under BOlllllediene, all the "const itutional due process and equal protections must apply to
[h is] mili tary commiss ion." 80 I F. Supp. 2d 1247, 13 16 (C.M.C.R. 20 II ). Instead, the court
held that "read[ing] the BOlllllediene opinion to extend Fifth Amend ment equal protect ion ri ghts
to [a li en unlawful enemy combatants] tried before mili tary commiss ions wou ld be an
except ionall y broad and incaut ious expansion of constitut ional ri ghts." Id. at 13 18; see AI-
Bihani v. Ohama, 590 F.3d 866, 876 (D.C. Cir . 20 10) (Equating a ri ght to habeas corpus "w ith
all the accoutrements of ... domestic criminal defendants is highly suspect."), cert. denied, 13 1
S.O. 18 14 (2011 ).
Third, to the extent any doubt remained about the canons of constitutional avo idance,
BOlllllediell e provides the deFense no comfort. Boumedielle afFinned courts' obligat ion to "avoid
[constitutional} problems if it is fairly poss ible to do so." BOlllllediene, 553 U.S . at 787 (internal
quotation marks and c itat ion omitted; alteration in original) (applying a const itut ional-avoidance
canon in construing the Detainee Treatment Act) . The Supreme Court's precedents have long
counseled courts to adhere to the ord inary course by avo iding deci sion on such hypothetical
quest ions of const itut ional law.
n. Withholding Decision on the Merits of the Defense Motion Will Not Cause the Accused Immediate or Significant Hardship.
The deFense nonetheless urges the Comm iss ion to abandon this ordinary and prudent
course, apparently due to the asserted gravity of the constitut ional issues presented and the need
to "know how to shape" the ir legal pos itions. AE 057 at 1-2. In assess ing prudential ripeness
concerns, the second factor the Comm iss ion considers is the hardship to the part ies resulting
from withholding a deci sion on the issue presented . Ahhott Labs., 387 U.S . at 148 . To
overcome the compelling precedents requiring denial of the defense mot ion as premature, the
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defense must show that the hardships it wou ld suffer are " immediate and significant." See Alii.
Petroleum Illst. v. E.P.A. , _ F.3d _. 20 12 WL 2053572, at *6 (D.C. C ir. June 8, 20 12); see also
Toilet Goods, 387 U.S. at 166 (deferring review where "no irremediab le adverse consequences
fl ow" from deferral). The defense mot ion fa ll s short of sat isfyin g th is standard for at least three
reasons.
First, in its motion, the defense fail s to identify a s ingle const itutional ri ght it will assert
at trial. See generally AE 057 . And, as explained above, many ri ghts are already provided by
statute. Until a li ve di spute has arisen , the defense's hardship is neither immediate nor
s igni f icant; it is hypothetical. See Spector Motor SelV., 323 U.S . at 105 ("Our precedents have
long counseled us to avo id dec iding such hypothetical questions of constitutional law .").
Second , mere legal uncertainty is insufficient to just ify premature review. If legal
uncerta in ty were sufficient , requests for what would amount to advi sory opinions wou ld
overwhelm the Commiss ion. Indeed, dec iding the defense mot ion now could generate more
legal uncertainty tha n it would resolve. Even if the Commission were to decide that all
const itut ional ri ghts apply in these proceedings, because the Comm iss ion lacks spec ific factual
context w ith in wh ich to consider those ri ghts, it could not decide the scope of the ri ghts or the
applicat ion of a constitut ional ri ght to a part icu lar defendant in the part icular c ircumstances of
hi s case. This uncertainty illustrates the inherent dange r in deciding constitut ional quest ions in a
vacuum. See W.E.B. DuBois Clubs, 389 U.S . at 3 12; see also Abbott Labs., 387 U.S. at 148
(cautioning courts about "entangling themselves in abstract di sagreements") .
Third, by declining to rule on the merits of the defense mot ion, the Commiss ion does not
foreclose the defense from argu ing that a specific ri ght should apply in the part icular
c ircumstances that might be presented in the future in the case; it merely defers decision until the
defense rai ses ajust ic iable issue in a concrete context. See Toilet Goods, 387 U.S . at 166
(deferring review where " no irremediable adverse consequences flow" from deferral ) . The
defense's onl y hardship then becomes the burden of having to file another mot ion. But such a
procedura l consequence is a routine feature of the adjud icat ing process and is not a s ignificant
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cogni zable hardship, and it cannot, in any event, outweigh the prudential considerat ions that
dictate deferring review. See Cronill , 73 F.3d at 11 33 (concl ud ing that the burden of f iling
another su it did not outweigh the court's in terests in deferring review). The defense's hardship,
if any, is neither immediate nor significant; therefore, th is Comm iss ion should deny the defense
motion.
7. Conclusion
Because the defense mot ion is unfi t for judic ial deci s ion and because deferring deci s ion
wou ld not cause the defense s ignificant or immed iate hardship outweighing the we ighty in terests
in not deciding the merits of the motion at this time, the Comm iss ion should deny the mot ion as
prudentiall y unri pe.
8. Oral Argument
The prosecut ion requests oral argument.
9. Witnesses and Evidence
No witnesses or evidence are necessary to resolve thi s mot ion.
10. Additional Information
The prosecut ion has no additional infoI111at ion.
11. Attachments
A. Cert ificate of Service, dated 30 July 20 12.
Respectfully submitted ,
Clay Tr ivett Trial Counsel
IIsll
Mark Mart ins Ch ief Prosecutor M ili tary Comm iss ions
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CERTIFICATE OF SERVICE
I certify that on the 30th day of July 2012, 1 fil ed AE057A, the Government Response to Joint Defense Mot ion to Recognize that the Const itut ion Governs the M ilj tary Comm iss ions with the Office of Mili tary Commissions Trial Judiciary and I served a copy on counsel of record.
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IIsll Clay Trivett Deputy Trial Counsel Office of the Ch ief Prosecutor Office of M ili tary Commissions
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