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1 MILITARY COMMISSIONS TRIAL JUDICIARY GUANT ANAl\10 BAY, CUBA UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN ATTASH, RAMZI BINALSHIDH, ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI. AE 018T/AE 032PP/AE 049B/AE 144W RULING Privileged Written Communications 6 November The Government filed a motion (AE 0 18) for a "Privileged Written Communications Order" requesting the issuance of an order establishing procedures controlling privileged written communications between Defense Counsel and their clients. The Accused filed a joint "Response of the Accused to Government's Motion for Privileged Written Communications Order" (AE Ol8C) requesting the Government's order be dened. Subsequently, they filed a "Joint ~efense Submission of Proposed Written Order Regarding Privileged Writt.en Communications" (AE 013M). 2. The Defense filed a "Joint Defense Motion for Appropriate Relief to Protect Right to CounSel by Barring Invasion of Privileged Attorney-Client Communications" (AE 032) objecting to orders governing written Communications issued by the Joint Task Force, Guantanamo Bay (JTF-GTMO), and requested ''the institution of unfettered lawyer-client communications." The Government response (AE 032A) requested the Commission deny the.defense motion and enter the previously proposed privileged written communications order (AE 018) citing the failure of the Defense to provide any remedy other than "unfettered access." 1 Appelljlte Exhibit01< T (l<sn\ t.--f Ci-1,) J>age _t_ of~ -

2 The Government filed a "Renewed Motion for Privileged Written Communications" (AE 049) requesting the Commission issue an interim order governing written ''communications" between the Accused and their counsej pending fuji Jitigation on the proposed order. Mr Hawsawi.filed a response (AE 049A (WAH)) objecting to the Governments's request and citing the filing of the "Joint Defense Motion for Appropriate Relief to Protect Right to Counsel by Barring Invasion of Privileged Attorney-Client Communications" (AE 032) ~ Messer's Mohammad, Aziz Ali, and Ramzi bin al Shlbh filed a joint response (AE 049A (KSM, AAA, RBS)) requesting the Commission deny the motion in its entirety as it reprised arguments preyiously made in ~upport of AE 018, to which the Accused previously responded. 4. As an interim measure, pending issuance of an Order by the Commisison, the Accused filed a "Proposed Interim Order Regardirig Seizure and Inspection of Detainee Legal Materials" (AE 144A). The Prosecution offered their own proposed interim order (AE 144B), and the Commission issued an order on 25 March 2013 (AE 144E), which established an interim procedure for inspection of the legal bins of the Accused. 5. The Commission has considered the written submissions and oral arguments of the parties, the testimony of the witnesses presented by both parties, and all ancillary filings and submissions by the parties. 6. The JTF-GTMO Comniander is responsible for maintaining safety and security within JTF- GTMO detention facilities. The Commission is not in the business of overseeing the daily operations of the detention facility and will generally defer decisions relating to executing responsibility for the facility to the Commander.. However, the Commission is responsible to ensure appropriate legal protections for the Accused and will intervene when it is established the 2 Appellate Exhibit~ (~ -t.-t' ~\:) Page ').. of~.

3 daily operations of the detention facility adversely impact the Commission's ability to proceed or the Accused's rights. 7. All Defense Counsel who have made an appearance before the Commission possess Top Seeret-Sensitive Compartmental Information clearances and have executed associated acknowledgements required before being granted a clearance. As such 1 Defense Counsel have a statutory and ethical responsibility not to improperly disclose classified information. This responsibility covers both written and verbal communications with the Accused. In essence, JTF- GTMO must trust the Defense Counsel not to violate their non~disclosure responsibilities when orally communicating with the Accused. The Commission fmds no reason similar trust should not be accorded Defense Counsel in their written communications with the Accused. 8. The Order proposed by the Government has as its foundation both the "PROTECTIVE ORDER AND PROCEDURES FOR COUNSEL ACCESS TO DETAINEES AT THE UNITED STATES NAVAL BASE IN GUANT ANAMO BAY, CUBA" (2008) issued by the United States District Court for the District of Columbia 1 and the special administrative measures used by the Federal Bureau of Prisons in terrorism related cases (28 CFR 501.3( d) - Prevention of acts of violence and terrorism). 9. A Privilege Review Team (PRT) is an appropriate mechanism to serve as the conduit of mail from Defense Counsel to the Accused and vice versa. Although contracted for by the 1 IN RE: GUANTANAMO BAY DETAINEE LITIGATION Misc. No (TFH) Civil Action Nos. 02-cv-0828, 04-cv-1136, 04-cv-1164, 04-cv-1 194, 04-cv-1254, 04-cv-1937, 04-cv-2022, 04-cv-2035, 04-cv-2046, 04-cv-2215, 05-cv-0023, 05-cv- 0247, 05-cv-0270, 05-cv-0280, 05-cv-0329, 05-cv-0359, 05-cv-0392, 05-cv-0492, 05-cv-0520, 05-cv-0526, 05-cv-0569, 05-cv-0634, 05-cv-0748, 05-cv-0763, 05-cv-0764, 05-cv-0877, 05-cv-0883, 05-cv-0889, 05-cv-0892, 05-cv-0993, 05-cv-0994, 05-cv-0998, 05-cv-0999, 05-cv-1048, 05-cv-1189, 05-cv-1220, 05-cv-1244, 05-cv-1347, 05-cv-1353, 05-cv-1429, 05-cv-1457, 05-cv-1458, 05-cv-1 487, 05-cv-1490, 05-cv-1497, 05-cv-1504, 05-cv-1505, 05-cv-1506, 05-cv-1509, 05-cv-1555, 05-cv-1592, 05-cv-1601, 05-cv-1602, 05-cv-1607, 05-cv-1623, 05-cv-1638, 05-cv-1639, 05-cv-1645, 05-cv-1646, 05-cv-1678, 05-cv-1704, 05-cv-1971, 05-cv-1983, 05-cv-2010, 05-cv-2088,'05-cv-1104, 05-cv-2185, 05-cv-2186, 05-cv-2199, 05-cv-2249, 05-cv-2349, 05-cv-2367, 05-cv-2370, 05-cv-2371, 05-cv-2378, 05-cv-2379, 05-cv-2380, 05-cv-2381, OS-cv-2384, 05-cv-2385, 05-cv-2386, 05-cv-2387, 05-cv-2398, 05-cv-2444, 05-cv-2479, 06-cv-0618, 06-cv-1668, 06-cv-1684, 06-cv-1758, 06-cv-1759, 06-cv-1761, 06-cv-1765, 06-cv-1766, 06-cv-1767, 07-cv-1710, 07-cv-2337, 07-cv-2338, 08-cv-0987, 08-cv-1101, 08-cv-1104, 08-cv-1153, 08-cv-1185, 08-cv-1221, 08-cv-1223, 08-cv-1224, 08-cv-1227, 08 cv-1228, 08-cv-1229, 08-cv-1230, 08-cv-1231, 08-cv-1232, 08-cv-1233, 08-cv-1235, 08-cv-1236, 08-cv-1237, 08-cv-1238, 08:.cv-1310, 08-cv Appellate Exhibit 0\fO\ (~ d "-.\ ) Page..:S_ of j,q -

4 Department of Defense, the PRT is more independent from JTF-GTMO and members of the Prosecution than a member of the JTF-GTMO Office of the Staff Judge Advocate. 10. As directed in the implementing Order, review of written material by the PRT will be limited to review for appropriate markings and scanning for any classification markings. Permitting the PRT to review materials for "plain view" violations of the contraband prohibition could require a further, more intrusive, reading of the document potentially violating attorney-client privilege. 11. The implementing Order strikes an appropriate balance between JTF-GTMO's security concerns and the necessary protection of privileged communication critical to the attorney-client relationship. FINDINGS: 1. When the Commission's Order is tested against the reasonableness standard 2 for reviewing "legitimate penological interests," (See Turner v. Safley, 482 U.S. 78 (1987)) the Commission finds: a. There is "a valid, rational connection" between the implementing Order and the "legitimate government interest" of protecting both national security and the safety of guards and other personnel who are assigned to work in the detention facility. b. The implementing Order is the best alternative to insuring the sanctity of the attorneyclient privilege while still respecting the req~ernents of security. 2 The Court set out a four part test for detennining the reasonableness of a prison regulation (Sqjky, 482 U.S. at 89-90): ~l) 711erc must be a 'valid, rational eomection' between the prison regulation and the legitimate governmental interest put forward to justi!y ~.. ;.. (2) "[W)hether there are alternative means of exercising the right that remain open to prison inmates... " (3) "[T)he impact accommodation of the asserted constitutional right wm have on guards and other inmates, and on the allocation of prison resources generally... " ( 4) "[T)the absence of ready alternatives is evidence of the reasonableness of a prison regulation... '' 4 ' ( Appellate Exhibit 0\0\ (~ <-*" u. \.) Page~ of...ll2

5 c. The.use of a PRT is a reasonable means of balancing the interests of the attorney-client privilege against the security of the detention facility, the safety of the guards, other employees, and detainees, and the general allocation of prison resources. d. After conducting a balancing test, no better alternative than the implementing Order exists to facilitate written communications between the Defense Counsel and their clients. 2. The Commission specifically finds these procedures ensure the safety and security of the detention facility and do not conflict with the obligations of an attorney to preserve the confidences of his client. See Bismullah v. Gates, 501 F.3d 178 (D.C. Cir. 2007), vacated on other grounds, 554 U.S. 913 (2008). 3. The Office of Military Commissions will establish a PRT in coordination with JTF-GTMO. and in consultation with the Chief Security Officer of the Office of Special Security. 4. Except as specified in the attached Order, JTF-GTMO will implement the appropriate logistical mechanisms (e.g., place of delivery of mail, timing of delivery; etc.) to ensure compliance with the order released in conjunction with this Ruling. 5. Prosecution Motion for "Privileged Written Communications Order'' (AE 018) is GRANTED as modified by the Order released in conjunction with this Ruling. 6. The Commission's Interim "Order Regarding Seizure and Inspection of Accused's Legal Materials" (AE 144E), 25 March 2013, is RESCINDED. 7. "Joint Defense Submission of Proposed Written Order Regarding Privileged Written Communications" (AE 013M) is DENIED 8. Joint Defense Motion for "Appropriate Reliefto Protect Right to Counsel by Barring Invasion of Privileged Attorney-Client Communications" (AE 032) is GRANTED.in part.as to the orders 5 Appe1!9.te Exhibit OtfOT (~SA!\ -L+ "-\,) Page..!2_ of~

6 ~ governing written communications that had been issued by JTF-GTMO and is DENIED as to the request for ''unfettered access." 9. Prosecution's "Renewed Motion for Privileged Written Communications" (AE 049) is DENIED An order will be issued in conjunction with this Ruling.. So ORDERED this 6th day ofnovember 2013 ~d-k JAMES L. POHL COL,JA, USA Military Judge 6 Appellate Exhibit 0 I COT (~SM <+(J 1.) Page.iQ of 1a_ -