UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT. [The military commission session was opened at 1503, MJ [COL WATKINS]: The commission is called to order.

Transcription

1 0 [The military commission session was opened at 0, October.] MJ [COL WATKINS]: The commission is called to order. All parties, to include the commission members, are present as before. Mr. President, have you reached a sentence? PRES: Yes, Your MJ [COL WATKINS]: Is the sentence reflected on the sentence worksheet? PRES: Yes, Your MJ [COL WATKINS]: Mr. President, please fold that worksheet in half and give it to the bailiff so that I may examine it. I've reviewed the sentence worksheet, and it appears to be in the proper form. Bailiff, please return this to the president. Defense Counsel and Accused, please rise. Mr. President, please announce the sentence. PRES: Shall I stand, Your Honor? MJ [COL WATKINS]: That's fine, just be mindful of where your microphone is so that we can hear you. PRES: Mr. Ahmed Mohammed Ahmed Haza al Darbi, this military commission sentences you to be confined for years.

2 0 MJ [COL WATKINS]: Please be seated. Bailiff, please retrieve all the exhibits from the members. Members of the Commission, before I excuse you, let me advise you of one matter. If you are asked about your service on this military commission, I remind you of the oath that you took. Essentially that oath prevents you from discussing your deliberations with anyone, to include stating any member's opinion or vote, unless ordered to do so by a court. You may, of course, discuss your personal observations in the courtroom and the process of how a military commission functions, but not what was discussed during your deliberations. If you still have any notes or other documents from these proceedings, please leave them in place at your table. Thank you very much for your attendance, your patience and your service in this commission. You are excused. Counsel and accused will remain. [Members withdrew from the courtroom.] MJ [COL WATKINS]: Please be seated. The members have withdrawn from the courtroom. All other parties are present. Mr. al Darbi, we are now going to discuss the operation of your pretrial agreement on the sentence of the commission.

3 0 In accordance with the pretrial agreement, the accused will not be credited for time in law of war detention prior to his guilty pleas. Is that your understanding, counsel? TC [MR. SCHNEIDER]: That's the understanding of the government, Your CDC [MR. KASSEM]: Yes, Your Honor, that is our understanding as well for the defense. MJ [COL WATKINS]: My understanding of the effect of the pretrial agreement on the sentence is that the convening authority may approve the sentence as adjudged. Do you agree with that interpretation? TC [MR. SCHNEIDER]: The government agrees with that, Your CDC [MR. KASSEM]: The defense agrees, Your MJ [COL WATKINS]: And, Mr. al Darbi, do you agree with that interpretation? ACC [MR. AL DARBI]: [Speaking in English] Yes, sir. MJ [COL WATKINS]: Mr. al Darbi, your pretrial agreement also directs that any sentence of confinement approved by the convening authority will run from the date your plea of guilty was accepted by the commission, which was February. Do you agree with that interpretation?

4 0 MJ [COL WATKINS]: Do counsel also agree with that interpretation? TC [MR. SCHNEIDER]: The government agrees, Your CDC [MR. KASSEM]: The defense agrees, Your MJ [COL WATKINS]: Mr. al Darbi, in your pretrial agreement you have offered to testify truthfully as to the facts and circumstances as you know them in the trials of United States v. Nashiri and United States v. Hadi. If you are called as a witness in those cases and either refuse to testify or testify untruthfully, the convening authority will no longer be bound by the sentence limitations or any of the other provisions contained in Appellate Exhibit 00. Do you understand that? ACC [MR. AL DARBI]: [Speaking in English] Yes, I do, Your MJ [COL WATKINS]: Do counsel also agree with that interpretation? TC [MR. SCHNEIDER]: Yes, Your CDC [MR. KASSEM]: Yes, Your MJ [COL WATKINS]: All right. I would like to cover the accused's post-trial and appellate rights at this time. I

5 0 have been provided by the court reporter with Appellate Exhibit 0, which is a written Military Commission Post-Trial and Appellate Rights Advice form. Do you have a copy of this, Mr. al Darbi? MJ [COL WATKINS]: I see several sets of the initials AD, and I see a signature above your signature block. Are those your initials and your signature? MJ [COL WATKINS]: Defense Counsel, is that your signature on Appellate Exhibit 0? CDC [MR. KASSEM]: Yes, Your MJ [COL WATKINS]: Mr. al Darbi, did your defense counsel explain your post-trial and appellate rights to you? MJ [COL WATKINS]: Did your defense counsel explain to you what matters you may submit to the convening authority for his consideration under R.M.C. 0? ACC [MR. AL DARBI]: [Speaking in English] Yes, they do. MJ [COL WATKINS]: Did your defense counsel explain to you 00

6 0 that under R.M.C. 0 you may submit any matters to the convening authority to include, but not limited to, a personal letter and documents, letters and documents from any other person and any other matter you desire for the convening authority to consider before taking action on your case? MJ [COL WATKINS]: Do you understand that it is your responsibility to keep in contact with your defense counsel and to let them know your desires in this regard? ACC [MR. AL DARBI]: [Speaking in English] Yes, I do. MJ [COL WATKINS]: Mr. al Darbi, in your pretrial agreement, you have expressed an intention to waive your appellate rights by submitting a signed appellate waiver within ten days after you or your counsel is served with a copy of the convening authority's action under R.M.C. 0. Is this still your intention? MJ [COL WATKINS]: The Military Commissions Act of 0 at 0 U.S.C. 0c(b)() and () requires that a waiver shall be signed by both you and your counsel and then it must be filed within ten days after notice of the convening authority's 0

7 0 action in your case, served on either you or your defense counsel. That statutory provision goes on to say that the convening authority may, for good cause, extend the period for such filing by not more than 0 days. As waiver of your appeal is a material term of your pretrial agreement, if you fail to submit your signed appellate rights waiver as required in your pretrial agreement within the time period required under the statute, the government and the convening authority may no longer be bound by the sentence limitations or any of the other provisions contained in Appellate Exhibit 00. Do you understand this? MJ [COL WATKINS]: Do you understand that it is your responsibility to keep in contact with your defense counsel and let them know your desires in this regard? ACC [MR. AL DARBI]: [Speaking in English] Yes, I do. MJ [COL WATKINS]: In other words, if you fail to submit the agreed-upon and properly executed waiver within the time period required, the government and the convening authority will no longer be bound by the sentence limitations or any of the other provisions contained in Appellate Exhibit 00. Do you understand that? 0

8 0 MJ [COL WATKINS]: Do you accept that? ACC [MR. AL DARBI]: [Speaking in English] Yes, I do. MJ [COL WATKINS]: It is also important that you understand that it is your responsibility to keep in contact with your defense counsel to let them know about your desires about submitting matters to the convening authority. Do you understand that? ACC [MR. AL DARBI]: [Speaking in English] Yes, I do, Your MJ [COL WATKINS]: Mr. al Darbi, do you have any questions about your post-trial and appellate rights? ACC [MR. AL DARBI]: [Speaking in English] No, Your MJ [COL WATKINS]: Which defense counsel will be responsible for post-trial actions in this case, and upon whom is the convening authority's legal advisor's post-trial recommendation to be served? CDC [MR. KASSEM]: That would be me, Your MJ [COL WATKINS]: Thank you, Professor Kassem. Now, do counsel for either side have any questions regarding Mr. al Darbi's post-trial and appellate rights or 0

9 0 their related responsibilities? TC [MR. SCHNEIDER]: I have no questions, Your CDC [MR. KASSEM]: None here, Your MJ [COL WATKINS]: Counsel for either side have any other matters to take up before this commission adjourns? TC [MR. SCHNEIDER]: Nothing from the government, Your CDC [MR. KASSEM]: Nothing for the defense, Your MJ [COL WATKINS]: This commission is adjourned. Counsel, thank you very much. [The military commission session adjourned at, October.] [END OF PAGE] 0