Joint Motion

MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA AE 014

UNITED STATES OF AMERICA v. AHMED MOHAMED AHMED HAZA AL DARBI

1.

Joint Motion for Instruction on Sentencing Range, Delay in Sentencing Procedures, and Request for Entry of Proposed Order for Trial Schedule February 18, 2014

Timeliness This Motion is timely filed pursuant to Rule for Military Commissions (R.M.C.) 905(b)

and Military Commissions Trial Judiciary Rule of Court 3.7. 2.

Relief Sought Pursuant to R.M.C. 1005(c) and (e), the parties jointly request that the Military Judge

instruct the members, without informing them of the terms of the pretrial agreement (PTA), that the minimum sentence that can be recommended in this case shall be no less than thirteen (13) years of confinement and the maximum sentence shall be no more than fifteen (15) years of confinement. The parties also request that the Military Judge enter the attached Order for Trial Schedule which will, among other things, set the arraignment, pleas, and providence inquiry for 20 February as well as a date for sentencing three (3) years and six (6) months from the date that the Military Judge accepts the Accused’s guilty plea. Entry of that Order as proposed, or one similar, will grant the requested delay in the Accused’s sentencing proceedings. 3.

Overview The Accused and the Convening Authority agreed to a maximum and minimum

sentencing range as an express term of the PTA and its Appendix. To effect that agreement, the

Government and the Accused agreed to request that the Military Judge defer the sentencing proceedings in this case for a period of three (3) years and six (6) months from the date that the Military Judge accepts the Accused’s guilty plea. To effect the sentencing range and delayed sentencing procedure terms of the PTA, the Government and the Accused further agreed to submit this joint request for an appropriate sentencing range instruction and Trial Scheduling Order from the Military Judge. The requested relief is allowed under the rules applicable to military commissions. The requested sentencing range instruction and request for a delayed sentencing is in line with similar sentencing instructions given at previous military commissions convened and conducted in accordance with the same rules applicable to this Commission, and are valid and enforceable terms of the PTA. 4.

Facts a. On, December 20, 2013, the Accused signed and provided an Offer for Pretrial

Agreement to the Convening Authority seeking to resolve this case via guilty plea. The Convening Authority accepted the offer and entered into the PTA (Attachment B). b. As a negotiated term of the PTA, the Convening Authority agreed that “the approved sentence will not exceed 15 years.” PTA Appendix ¶ 1. c. As an additional negotiated term of the PTA, the Government and the Accused agreed, in order to effectuate the agreed upon sentencing range, to “jointly request the Military Judge to instruct the members, prior to deliberation, that the sentence to confinement must be at least 13 years and may not exceed 15 years[.]” PTA ¶ 8. The parties further agreed that if “[t]he Military Judge fails or refuses to instruct the members that the sentence to confinement…shall be no less than 13 years and no more than 15 years” the agreement in the PTA will be cancelled. PTA ¶ 5(e).

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d. As an additional negotiated term of the PTA, the parties agreed to request “that the Military Judge delay the sentencing proceedings in my case until 3 years and 6 months from the date the Military Judge accepts my guilty plea, in order to allow me to cooperate with the Government.” PTA ¶ 19. As with the sentencing instruction, failure of the military judge to delay the

presentencing provision cancels the agreement. PTA ¶ 5(d). 5.

Discussion The Military Judge has the authority to issue the requested proposed Order for Instruction

on Sentencing Range (Attachment I) and Order for Trial Schedule (Attachment J) as an appropriate means of effectuating two central terms of the PTA and the parties’ intent to resolve this case by guilty plea. An instruction on a range of sentences, as a specifically requested and agreed upon term of the PTA, is consistent with the rules applicable to military commissions and is in line with similar sentencing instructions given by recent military commissions operating under the same statute and rules applicable to this Commission. The requested Order for Trial Schedule is also an appropriate exercise of the Military Judge’s authority to control the case’s schedule. a. The Military Judge has the authority to issue the requested instruction on a sentencing range. Under the rules applicable to military commissions, a sentencing range may be included as a term of the PTA. In its provisions relating to pretrial agreements, R.M.C. 705 authorizes the Convening Authority to enter into a pretrial agreement that includes a promise to: Fulfill such additional terms or conditions requested by the accused, within the power of the convening authority, and not otherwise prohibited under this Manual or chapter 47A of title 10, United States Code.

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R.M.C. 705(b)(2)(F) (2010). In elaborating what “additional terms or conditions” may be considered at the request of an accused, the Discussion section specifically contemplates including a sentence range term in a PTA: For example, the convening authority may agree to approve no sentence in excess of a specified maximum or outside a specified and agreed upon range, to suspend all or part of a sentence, to defer confinement, or to mitigate certain forms of punishment into less severe forms. R.M.C. 705(b)(2)(F) (Discussion) (2010) (emphasis added). Although this Discussion language is not binding on the Military Judge, it is persuasive authority that indicates the drafters’ intent that a sentencing range be included within those permissible PTA terms authorized for use at military commissions. The intentional inclusion of a sentencing range as an authorized PTA term in military commissions is highlighted by the fact that this broader language allowing for sentencing range terms is unique to the Rules for Military Commissions. Unlike R.M.C. 705, the comparable Rule for Court-Martial (R.C.M.) 705 pertaining to pretrial agreements does not grant the convening authority broader authority to consider such “additional terms or conditions,” nor does its Discussion section specify that sentencing range provisions are permissible. See R.C.M. 705(b) (omitting above-quoted language from R.M.C. 705(b)(2)(F)) and R.C.M. 705(b) (Discussion) (including all of the above Discussion language from R.M.C. 705(b)(2)(F), except the key words, “or outside a specified and agreed upon range”). Since the Rules for Military Commission are generally based on the Rules for Court-Martial, see 10 U.S.C. § 948b(c), any intentional departure from the R.C.M. and accompanying discussion notes should be given substantial weight. The intentional departure of the military commissions rules from court-martial rules in authorizing a sentencing range as a permissible PTA term is further documented in the

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Regulation for Trial by Military Commissions (Regulation) promulgated by the Deputy Secretary of Defense under authority delegated by the Secretary of Defense. Figure 12.1, the sample PTA of the Regulation, specifically envisions a sentencing range as a permissible term of the PTA in paragraph 8: To effect my agreement to a range of confinement, and after full and satisfactory consultation with my defense counsel, I understand and agree that the military judge will instruct the members, prior to deliberation, that the sentence to confinement must be at least____(years)(months) and may not exceed____(years)(months), as reflected in Appendix A. Regulation Figure 12.1 (2011). The Notes that accompany the Sample Appendix A to Offer for Pretrial Agreement state unequivocally that the drafters of the regulations intended that a sentencing range be a permissible PTA term in a military commission: Contrary to limitations imposed by case-law in the court-martial system, the convening authority may approve an accused’s option to plead guilty when the sentence limitation proposed by the accused includes a “range limitation” of confinement. Regulation Figure 12.2, Note 6 (2011). In addition to authorizing a sentencing range as a PTA term, the rules applicable to military commissions also permit the Military Judge to provide an appropriate sentencing range instruction in order to effectuate such a term. Indeed, R.M.C. 1005 provides that “[t]he military judge shall give the members appropriate instructions on sentence,” R.M.C. 1005(a) (2010), and requires that such instructions include “[a] statement of the maximum authorized punishment that may be adjudged and of the mandatory punishment, if any.” R.M.C. 1005(e)(1) (2010) (emphasis added). 1 In the circumstance of a PTA term calling for a range of punishment, it is consistent with these rules for the Military Judge to provide an appropriate instruction to the

1

There are no mandatory punishments for any of the offenses under the Military Commissions Act of 2009 (M.C.A.), thus this language would have no effect if not intended to describe a sentencing range.

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members on the minimum and maximum punishment in accordance with the sentencing range agreed upon in the PTA. Such an instruction is also consistent with R.M.C. 705(b)(2)(F), since the Convening Authority can agree to other terms that are not otherwise prohibited under the Manual for Military Commissions or the Military Commissions Act of 2009 (M.C.A.) or in violation of law and public policy. R.M.C. 705, for example, specifies that certain kinds of terms are prohibited from inclusion in a PTA, such as terms not freely and voluntarily agreed to by the Accused and terms that deprive the Accused of the right to counsel or to other indispensable guarantees. R.M.C. 705(c)(1). Requesting an appropriate sentencing instruction to implement a permissible and agreed upon sentencing range as a term of a PTA does not fall within these or any other prohibition under the Manual for Military Commissions or other applicable authority. Furthermore, the issuance of this instruction is a material term of the PTA in this case and the agreed upon range must become the minimum and maximum sentences, respectively, or else the parties to the PTA lose the benefit of their bargain. Without an appropriate sentencing range instruction, there is simply no other way to effectuate the minimum punishment side of a PTA sentencing range term. While the Convening Authority can always approve less than the members’ sentence, he cannot approve more. If the members were to return a sentence less than the agreed-upon minimum it would void both the plea agreement and the plea, frustrating the purpose of the parties. This situation could not have been the intent of the drafters of the military commission rules, who, as discussed above, specifically inserted language permitting the use of sentencing ranges. The rules should therefore be interpreted to avoid that potential inconsistency, allowing the parties to agree, as they have in this case, that in order to effectuate a sentencing

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range term in the PTA, they may further agree to have the military judge provide an appropriate instruction on the minimum and maximum sentence in accordance with that term. Finally, this issue should be considered against the backdrop of recent case precedent supporting the premise that the requested sentencing range instruction is an appropriate means of effectuating the intent of the parties to resolve a military commission case by pretrial agreement. In the military commission cases of United States v. al Qosi (sentenced on 11 August 2010) and United States v. Noor Uthman Muhammed (sentenced on 18 February 2011), the military judge, when confronted with the same issue as outlined herein, provided the requested sentencing range instruction as an appropriate means of effectuating the terms of the pretrial agreement. See United States v. al Qosi, trial transcript at 798 (Attachment C), and United States v. Noor, trial transcript at 557 (Attachment D). Similarly, the military judge in United States v. Khan ruled that a sentencing range would not violate public policy. See United States v. Khan, trial transcript at 9091 (Attachment E). Since the al Qosi, Noor, and Khan commissions were convened and conducted under the same rules applicable to this Commission, the parties request that the Military Judge consider the al Qosi, Noor, and Khan decisions as persuasive authority and adhere to this precedent in resolving this case in accordance with the express intent of the parties. b. The Military Judge has the authority to issue the proposed Order for Trial Schedule. R.M.C. 801 gives the Military Judge the authority to “Determine the time and uniform for each session of a commission” and “Subject to chapter 47A of title 10, United States Code, and this Manual, exercise reasonable control over the proceedings to promote the purposes of these rules and this Manual.” R.M.C. 801(a)(1) and (3) (2010). The discussion section envisions the Military Judge consulting with counsel for both parties throughout the process to ensure that the trial process is orderly and that the needs of the parties are met. The discussion to R.M.C.

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801(a)(1) states that “[t]he military judge should consult with counsel concerning the scheduling of sessions and the uniform to be worn.” The discussion to R.M.C. 801(a)(3) states: The military judge should prevent the unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties’ presentations or the appearance of partiality. The parties are entitled to a reasonable opportunity to properly present and support their contentions on any relevant matter. R.M.C. 801(a)(3) (2010) (Discussion). The deferment of presentencing procedures is not unprecedented, either in military commissions practice or in courts-martial. 2 In al Qosi the military judge conducted the plea inquiry on 7 July 2010. Following the conclusion of that hearing, the military judge recessed the commission until 9 August 2010, at which point the presentencing phase of the case took place. United States v. al Qosi, trial transcript pages 490-491, 497, and 499 (Attachment F). The military judge in the Khan commission found identical language in a PTA to be a valid provision and agreed to recess that case for up to four years before presentencing proceedings. United States v. Khan, trial transcript page 90. Similarly there is precedent for such a delay in the context of courts-martial. In 2009, Gunnery Sergeant Eric Froboese, USMC, pled guilty to several offenses involving the unauthorized disclosure of classified evidence. As part of the PTA in that case, the Convening Authority and the Accused agreed to a delay of up to one year between the date the Military Judge accepted the guilty plea and sentencing. The military judge accepted the PTA in that case. See “Marine reservist pleads guilty to leaking intelligence documents,” Tony Perry, L.A. TIMES June 12, 2009 (Attachment G). 3 See also Pretrial

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The practice of delaying sentencing is very common in federal practice, and the parties urge the Military Judge to consider such practice in deliberating and ruling on this motion. 3

GySgt Froboese received a subjurisdictional sentence, so the case was not subject to direct appeal under Article 66, UCMJ.

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Agreement ICO United States v. GySgt Eric Froboese (accused’s name redacted) at p. 8, ¶ 15(m) (Attachment H). The provision in this case is necessary and meets the intent of the parties. Both the Government and the Defense desire the delay in presentencing proceedings in order to allow the Accused time to cooperate with the Government, as it is likely that other cases potentially calling for the Accused’s cooperation will go to trial during this timeframe. Without such a delay the Government will not be able to evaluate the Accused’s cooperation, nor will the Accused be able to put on a fulsome case in mitigation by highlighting his cooperation with authorities. Such information is relevant to the members in assessing a proper sentence. See United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (cooperation with the government is mitigating factor that should be considered in making a determination on sentence appropriateness). Without a three (3) year and six (6) month delay in sentencing, the intent of the parties will be frustrated. As with the sentencing range instruction, a three (3) year and six (6) month delay in sentencing is a material provision of the PTA, without which the PTA is cancelled. See PTA ¶ 5(d). For the above-stated reasons, the parties request that the Military Judge delay sentencing in this case for a period of three (3) years and six (6) months from the date the Military Judge accepts the Accused’s plea and, upon sentencing, instruct the members in this case that the minimum sentence can be no less than thirteen (13) years of confinement and the maximum sentence can be no more than fifteen (15) years of confinement. The attached proposed order (Attachment J) effects such a delay. It also sets the arraignment, pleas, and providence inquiry for 15 to 17 January.

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6.

Oral Argument The parties do not request oral argument, but are prepared to argue should the

Commission find it helpful. 7.

Certificate of Conference The Defense joins this Motion and joins the Government in seeking the relief within the

proposed orders. 8.

Additional Information None.

9.

Attachments A.

Certificate of Service.

B.

Pretrial Agreement.

C.

United States v. al Qosi, transcript excerpt of sentencing range instruction.

D.

United States v. Noor, transcript excerpt of sentencing range instruction.

E.

United States v. Khan, transcript excerpt from PTA inquiry.

F.

United States v. al Qosi, transcript excerpt of deferment of presentencing procedures.

G.

“Marine reservist pleads guilty to leaking intelligence documents,” Tony Perry, L.A. TIMES June 12, 2009.

H.

United States v. GySgt Eric Froboese (accused’s name redacted).

I.

Proposed Order For Instruction on Sentencing Range.

J.

Proposed Order For Trial Schedule.

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Respectfully submitted, By: ____________//s//_______________ LTC Michael Hosang, JAGC, USAR MAJ Charlotte Emery, JAGC, USA Trial Counsel BG Mark Martins Chief Prosecutor Military Commissions

_________//s//_____________________ Prof. Ramzi Kassem Defense Counsel Main Street Legal Services, Inc. City University of New York School of Law 2 Court Square Long Island City, NY 11101 LT Theresa Champ, JAGC, USN Defense Counsel Office of the Chief Defense Counsel Office of Military Commissions 1620 Defense Pentagon Washington, DC 20301

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Attachment A

CERTIFICATE OF SERVICE We certify that on the 18th day of February 2014, we filed AE 014, the Joint Motion for Instruction on Sentencing Range and Delay in Sentencing Procedures, and Request for Entry of Proposed Order for Trial Schedule, with the Office of Military Commissions Trial Judiciary. _________//s//_____________________ LTC Michael Hosang, JAGC, USAR MAJ Charlotte Emery, JAGC, USA Trial Counsel BG Mark Martins Chief Prosecutor Office of the Chief Prosecutor Office of Military Commissions 1610 Defense Pentagon Washington, DC 20301

_________//s//_____________________ Prof. Ramzi Kassem Defense Counsel Main Street Legal Services, Inc. City University of New York School of Law 2 Court Square Long Island City, NY 11101 LT Theresa Champ, JAGC, USN Defense Counsel Office of the Chief Defense Counsel Office of Military Commissions 1620 Defense Pentagon Washington, DC 20301

Attachment B

UNITED STATES

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AHMED MOHAMMED AHMED HAZA ALDARBI ISN 00768

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U.S. NAVAL STATION GUANTANAMO BAY, CUBA

December 20, 2013

OFFER FOR PRETRIAL AGREEMENT I, AHMED MOHAMMED AHMED HAZA AL DARB I, ISN 00768, am presently the Accused under Military Commission charges, dated December 16, 2013. I have read the charges and specifications alleged against me, and they have been explained to me by my defense counsel, Prof Ramzi Kassem and Lieutenant Theresa Champ, JAGC, U.S. Navy. I understand the charges and specifications against me, and am aware I have a legal and troral right to plead not guilty and to leave the Government with the burden of proving my guilt beyond a reasonable doubt by legal and competent evidence. Understanding the above, and under the conditions set furth below, and in consideration of the agreement by the Convening Authority to approve a sentence in accord with the limitations set furth in Appendix A, I offer to plead guilty to all charges and specifications. The term "Convening Authority'' as used throughout this agreement includes any current or future official so designated by the Secretary of Defense. I understand that this Offer, if accepted by the Convening Authority, constitutes a binding agreement. I assert that I am, in fact, guilty of the offenses to which I am offering to plead guilty. I understand this agreement permits the Government to avon presentation in a Military Commission of sufficient evidence to prove my guilt. I offer to plead guilty because it will be in my best interest that the Convening Authority grant me the reliefset furth above and in Appendix A. I understand that I waive my right to a trial ofthe filets and to be confronted by the witnesses against me, and my right to avoid self-incrimination insofu.r as a plea of guilty will incriminate me. In making this offer, I state that: 1. I am satisfied with my defense counsel, who have advised me with respect to this Offer, and consider them competent to represent me in this Military Commission. 2. No person bas made any attempt to fOrce or coerce me to make this Offer or to p lead guilty. 3. My counsel has fully advised me ofthe nature of the charges against me, my right to deftmd against them, any defense which might apply, and the effect ofthe guilty plea that I am offering to make. I fully understand their advice and the meaning, effect, and consequences ofthis plea.

4. I understand that the Convening Authority's acceptance ofthls Offer, including Appendix A, will transform this Offer into an agreement binding upon me and the Convening Authority. 5. I understand that I may withdraw my guilty plea at any time befure sentence is announced by the Military Commission but not after, and that, if I do withdraw my plea of guilty, the agreement that may result from this Offer is canceled. Any such agreement will also be canceled if any ofthe fOllowing occurs: a. The Military Commission refuses to accept my guilty plea, as set furth above, or either I rmdify or the Military Commission trodifies my plea to not guilty, or to a lesser degree of guilt during the trial b. Either party to the agreement withdraws from the agreement befure my guilty plea is accepted by the Military Judge. c. My failure to agree with the Government on a stipulation of fact as discussed in paragraphs 16 and 17 below. d. The Military Judge fails or refuses to delay the sentencing proceedings in this case until 3 years and 6 m::mths from the date the Military Judge accepts my guilty plea, as set furth in the procedures descnbed in paragraphs 19 and 20 below. e. The Military Judge fails or refuses to instruct the members that the sentence to confinement adjudged fur me shaH be no less than 13 years and no m>re than 15 years, as discussed in paragraph 8 below. 6. I understand the Convening Authority is released from the obligation to approve a punishment as provided in Appendix A to this agreement if: between the announcement of sentence and the Convening Authority's approval of any sentence, I commit any offense under the M.C.A. , or engage in any conduct that, if committed by a member of the U.S. anned furces, would be an offense under Sections 877 through 934 ofTitle 10, United States Code. I understand that this paragraph is subject to the te~ of paragraph I 5 of this Offer. 7. I understand the Convening Authority has no power to affect my status as an alien unprivileged enemy belligerent, and does not purport to do so by the terms of this agreement. 8. To give effect to my agreement to confinement, and after full and satisfactory consultation with my defense counse~ I agree that, in accordance with R.M.C. 705(b)(l ), 705(b)(2)(F), and I 005(e)(I), the Government and I shall jointly request the Military Judge to instruct the members, prior to deliberation, that the sentence to confinement must be at least 13 years and may not exceed I 5 years, consistent with the consideration contained in Appendix A. I fully understand that without such instruction by the Military Judge, the Military Commission members, per R.M.C. 1005(e)(3), could select a sentence that is greater or less than the agreed upon range. The period of any approved sentence to confinement shall run from the date that the Military Judge accepts my guilty plea. 2

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9. I have been informed by my counsel of all my post-trial and appellate rights and fully understand those rights. I knowingly, voluntarily, and expressly waive all rights to appeal my conviction, sentence, and confinement except as provided in this paragraph. In particular, and without limitation, I may bring a post-conviction claim if any sentence is imposed in violation of the sentencing limitation provisions contained in this agreement and Appendix A I knowingly, voluntarily, and expressly waive any right to petition the Convening Authority fOr a new trial under R.M.C. 1210. I shall execute whatever documents may be necessary to implement this paragraph and any other provision ofthis agreement and Appendix A, including Military Commissions Form 2330 and any appellate rights statements. I shall sign Military Commissions Form 2330 immediately after the sentence is announced, and then I shall immediately file the signed Military Commissions Form 2330 with the Government. I shall also file the signed Military Commissions Form 2330 with the Convening Authority within 10 days after notice of the action is served on me or my counsel under 10 U.S.C. § 950b(c)(4). I further agree that should I or my counsel fail to sign or file such documents in a timely way and in accordance with 10 U.S.C. § 950c(b), I will not seek to appeal any part of my conviction or sentence or petition ror a new trial 10. I also understand that I may have a right to attack the conviction and/or sentence imposed collaterally on the grounds that it was imposed in violation of the Constitution or laws ofthe United States, that I received ineffective assistance from my counsel, that the Court was without proper jurisdiction, or that the conviction and/or sentence was otherwise subject to collateral attack. I understand such an attack is usual1y brought through a motion pursuant to Title 28, United States Code, Section 2255. I have reviewed Section 2255 with my counsc~ and understand my rights under the statute. Understanding those rights, and having thoroughly discussed those rights with my counse~ I knowingly and voluntarily waive my right to collaterally attack my conviction and/or sentence, except as provided in this agreement. 11. Once my guihy plea is accepted by the Military Commission, I will not initiate any legal claims against the United States Government, any United States Government Agency or official, or any civilian or civilian agency regarding my capture, detention, or confinement conditions prior to my plea. I further agree to withdraw or dismiss without prejudice any pending litigation regarding my capture, detention, confinement conditions, or alien unlawful enemy combatant or alien unlawful enemy belligerent status. Notwithstanding the furegoing or any other provision of this Offer or Appendix A, after I have served any unsuspended portion of an approved sentence to confinement, I retain the right to seek release from the appropriate United States authorities by challenging my continued detention, if any, through a petition fur a writ ofhabeas corpus or other available remedies. 12. I waive my right to any discovery beyond what the Government is obligated to provide pursuant to R.M.C. 701(b)(l) and 70l{d). I additionally waive any request fur furensic or scientific testing of any physical evidence in the Government's possession. The Government may dispose of any physical evidence upon completion of any habeas corpus proceedings or appellate processes not waived by this agreement or otherwise available to me.

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13. I agree to cooperate fully and truthfully with the Goverrunent. This cooperation includes, but is not limited to, providing complete and accurate infurmation in interviews, depositions, and testim:my wherever and whenever requested by prosecutors from the Office ofMilitary Commissions and the United States Department of Justice, and representatives from United States law enfOrcement agencies, the military, and intelligence agencies while I remain in United States custody. I agree that the Government may interview me without the presence of my counsel, provided that my defense counsel has received reasonable notice of the intent ofthe Government to interview me, the opportunity to be present for such an interview, and my defense counsel consents to not being present. The Government will provide my counsel with reasonable notice of: and the opportunity to be present fur, any testiirony by me under oath. 14. I agree not to engage in, or materially support, directly or indirectly, hostilities against the United States or its coalition partners as defined in R.M.C. 103(8), or any other organization that I know engages in hostilities against the United States or its coalition partners. 1S. Should I commit any additional offenses, befure or after the acceptance of my guilty plea, I will be subject to prosecution fur those offenses befure any court or commission having jurisdiction over me. 16. I have entered into a stipulation of fact, including attachments, with the Government (Attachment A). 1 understand that I have an absolute right to refuse to enter into this stipulation of fact; however, I knowingly and voluntarily agree to enter into this stipulation of fact. I understand that I may not ordinarily attack, contradict, or otherwise challenge the stipulation of fact. Ifl do so, on my own or through counse~ the Convening Authority may withdraw from this agreement. I have discussed this decision with my counsel and believe it is in my best interest to enter into this stipulation of fact. 17. I agree that the stipulation of fact and its attachments will be used to determine my guih and to assist in determining my sentence. I have read and fully understand the stipulation of fact and have discussed it with my counseL This stipulation of fact and its attachments are a fair and accurate summary of the facts supporting all charges and specifications to which I am pleading guilty. The facts to which I am stipulating, but of which I do not have firsthand knowledge, are a fair and accurate summary ofthose facts to the best of my knowledge, and I acknowledge the Government could prove those facts beyond a reasonable doubt. The Military Commission may rely on this document to determine my guih and to determine an appropriate sentence, together with all matters presented during the pre-sentencing hearing in this case. The Government and I (through counsel) will offer the stipulation of fact and its attachments, unopposed, to the Military Commission. 18. I knowingly and voluntarily waive the time periods enumerated in R.M.C. 707(a). 19. I shall join the Government in requesting that the Military Judge delay the sentencing proceedings in my case until 3 years and 6 rrontbs from the date the Military Judge accepts my guilty plea, in order to allow me to cooperate with the Government.

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20. The Government, in its discretion, may request that the Military Judge schedule my sentencing proceedings fur a date sooner than 3 years and 6 100nths from the date the Military Judge accepts my guilty plea. Should the Government seek to accelerate the date of my sentencing proceedings in this manner, the Government will notify my counsel at least 90 days in advance of the proposed date fur the pre-sentencing proceeding. 21. I understand that the panel of members ofthe Military Commission, and not the Convening Authority, will determine the sentence in accordance with paragraph 8. I also understand that the offenses to which I am pleading guihy carry the fullowing maximum penalties, in the absence of this agreement: Charge I:

Confinement fur life;

Charge II:

Confinement fur 20 years;

Charge III:

Confinement fur life;

Charge IV:

Confinement fur life;

Charge V:

Confinement fOr 20 years per specification.

22. At the pre-sentencing proceedings, both the Government and the defense may call live witnesses and present evidence, subject to any rulings by the Military Judge, regarding matters in aggravation and in extenuation and mitigation. 23. I agree not to offer the live testiiOOny of any detainee held at United States Naval Station, GuantanaiOO Bay, Cuba, and understand that the Government will similarly not offer such live tcstirmny. 24. I agree not to seek to retain or present at a pre-sentencing hearing IOOre than two expert consultants or witnesses at Government expense, a limitation that will also bind the Government. The Convening Authority will consider any request by me fur an expert consultant or witness in accordance with the Rules fur Military Conunissions. 25. At the pre-sentencing hearing, I may submit a statement, sworn or unsworn, orally or in writing, or in some combination thereof 26. Should I or the Government seek to introduce classified evidence during my pre-sentencing hearing, M.C.R.E. 505 and 506 will apply. 27. Once this Offer is accepted, and as a continuing obligation after the Military Judge accepts my guilty plea, I agree that I will not disclose, in any furm, in any manner, or by any means, any infOrmation that I am reasonably on notice as being classified United States Government

5

AD

information, except to my cleared defense counsel during the course of their representation of me, or to the Military Commission as ini:mnation in mitigation at sentencing as provided in paragraphs 22 and 25 above. I further understand and acknowledge that if I do make any such disclosure, it will constitute a material breacb of the conditions of the plea agreement and the Convening Authority will be free to pursue the remedies tOr such breach as set fi>rth in this agreement. 28. Pursuant to the Regulation fi>r Trial by Military Commission, Chapter 12, Section 12-7(c), the Convening Authority agrees to recommend to the Commander, Joint Task Force, Guantanarm Bay (JTF-GTMO) that, between the time that I plead guihy and the time that I am sentenced and fi>r as long as I am fully and truthfully cooperating with the Government as required by this agreement, as determined by the Convening Authority, 1 continue to be detained under conditions appropriate fi>r law ofwar detainees and no rmre austere than the conditions under which I am presently held. The fuilure of Commander, JTF-OTMO to act in accordance with this recommendation will not render the pre-trial agreement voidable and is not grounds fi>r me to withdraw from the pre-trial agreement; the Convening Authority will have fulfilled his obligation under this provision by making the request to Commander, JTF-GTMO. I understand that the Convening Authority has no power to control the local ion or conditions of my detention or confinement, to release me from military or civilian detent ion or confinement, or to compel the United States Government to release me from detentxm as an alien unprivileged enemy belligerent. 29. As a condition precedent to my entry of a plea at my arraignment, the United States will have provitcd me a copy of the diplomatic notes exchanged between the United States and the Kingdom of Saudi Arabia These notes constitute a written agreerrx::nt between the United States and the Kingdom ofSaudi Arabia concerning the support ofboth Governments i>r my transfer to Saudi Arabia to serve the remainder of my approved sentence ifl comply with the terms ofthis agreement and I request such transfer effective after completing rour years in United States custody fOllowing the acceptance of my plea. I understand that my transfer to Saudi Arabia is contingent upon the consent ofthe IUngdom of Saudi Arabia and that this plea agreement does not and cannot bind the Kingdom of Saudi Arabia to consent to my prisoner transfer request. I further understand that any prisoner transfer request may not be acted upon until I actually submit such a request, and any prisoner transfer request is completely separate from this pre-trial agreement that I am entering into with the Convening Authority. I understand that, if the Kingdom of Saudi Arabia ultimately denies my prisoner transfer request, that denial wou1d have no impact on this agreement, and I woukl remain bound by this agreement. I understand that the continued service of my sentence will be under the conditions, laws and procedures as established by the Kingdom of Saudi Arabia. No other inducements have been made by the Convening Authority, or any other person, which affect my offer to plead guilty. 30. I have taken into account that other U.S. Government agencies have indicated willingness to positively endorse a request by me, through the Office ofthe Chief Prosecutor, fi>r repatriation to Saudi Arabia after I have served fi>ur years of confinement in United States custody from the date the Military Judge accepts my guihy plea, ifi have met all the conditions herein and the Convening Authority has approved my sentence. However, I recognize that the decision to

6

accept my transfer is ultimately made by the Kingdom of Saudi Arabia, and this agreement cannot and does not obligate the Kingdom of Saudi Arabia to grant my request fur transfer. No other inducements have been made by the Convening Authority, or any other person, which affect my offer to plead guilty. 31. In further consideration fur the benefit that I am receiving under this pretrial agreement, I also agree, after I am transferred to Saudi Arabian custody, never to enter the United States of America, her territories, possessions, military installations, airspace, consulates, or embassies. If I enter into any such area, the remaining portion of any approved sentence, if any, shall be carried out in United States custody, explicitly revoking the provisions of paragraph 28 and Appendix A of this agreement. I understand and agree that I will also waive any legal actions that may be brought at that time, in any fOrum, as a result of my violation oft his agreement. 32. If this Offer is not accepted by the Convening Authority, if the Convening Authority or I withdraw :from this agreement, or ifthe Convening Authority terminates this agreement, then this Offer, the Appendix thereto, the stipulation of fact, and my providence inquiry cannot be used to establish my guilt concerning anyofthe offenses with which I have been charged in this case. 33. Befure the Military Judge accepts my guilty plea, I may change or withdraw that plea fur any reason. After the Military Judge accepts my guihy plea, but befure sentence is announced, I may seek permission :from the Military Judge to change or withdraw any portion of my plea, and the Military Judge, in his or her discretion, may permit me to do so. lfl change or withdraw my guilty plea, the Convening Authority may terminate this agreement. 34. The statements contained in this Offer and Appendix A contain all the tenus, conditions, and other provisions of my Offer and represent the entire agreement with the Convening Authority. There are no other inducements that are not expressly contained in this agreement that affect my offer to plead guilty. Any rrodification of this agreement shall be effective only if made in writing and signed by the Convening Authority and me. 35. The Govenunent agrees that, after the announcement of my sentence by the Military Commission, no further criminal charges will be brought against me pursuant to the Military Commissions Act of2009 fur my conduct in the offenses described in the stipulation of fact that I have entered into with the Government (Attachment A). 36. 1 understand that, if any agreement resulting :from this Offer is canceled fur any reason stated above, then this Offer, the Appendix thereto, the stipulation of fact, and my providence inquiry cannot be used to establish my guilt concerning any of the offenses with which I have been charged in this case.

7

This document and Appendix A include all of the terms of this offer to plead guiliy and no other inducements have been made by the Convening Authority or any other person that affect my offer to plead guiliy.

Dee- 2@1, 2c t] Date

AHa eAHMEDHAZA AL DAABI

We certify we gave the accused the advice referred to above, we exp1ained to him the elements ofthe offense(s), and we witnessed his voluntary signature to this offer fur a pretrial agreement.

v

(b_. Zc'l7

Date

Prof. Ramzi Kassem Member of the Bar of the State ofNew York

ctt> lli' ( \'?> Date

_k~~ LT Theresa Champ, JAG~ USN Certified under Article 27(b) UCMJ 7

I recommend (acceptance) ~r~ject ioBt of this offer.

'{ (es ~~ Date

~l~i~.QLegal Advisor to the Convening Authority

The foregoing instrument, including Appendix~ dated December 20, 2013, is r~t~ (Fejected):" ~

fEB 0 5 2014 Date

PaulL. Oostburg Sanz Convening Authority

8

UNITED STATES V.

) ) )

AHMED MOHAMMED AHMED HAZA ALDARBI ISN 00768

) ) ) ) )

U.S. NAVAL STATION GUANTANAMO BAY, CUBA

December 20, 2013

APPENDIX A TO OFFER FOR PRETRIAL AGREEMENT As consideration for the offer ofthe accused to plead guilty as set forth in the Offer for Pretrial Agreement, dated December 20, 2013, the Convening Authority will undertake that: 1. The Convening Authority will not approve a sentence of confinement of more than fifteen (15) years. 2. Upon sentencing, if the Office of the Chief Prosecutor, in consultation with prosecutors from the Department of Justice and appropriate representatives from United States law enforcement, the military, and intelligence agencies, represents to the Convening Authority that I have provided full and truthful cooperation amounting to substantial assistance to the Government as required under Paragraph 13 ofthe Offer for Pretrial Agreement, the Convening Authority will recommend to JTF-GTMO that I continue to be detained under conditions appropriate for law of war detainees, per paragraph 28 of the Offer for Pretrial Agreement. Substantial assistance does not require that my cooperation directly result in an arrest, prosecution, or conviction. 3. As required by R.M.C. 1105, 1106, and 1107, the Convening Authority will consider matters submitted by the accused and defense counsel for the accused. In approving a sentence, the Convening Authority further agrees to consider any arguments that I may submit in mitigation, including without limitation, arguments concerning the nature of my capture, detention, and confinement. 4. In the event that I am repatriated to the Kingdom of Saudi Arabia in accordance with paragraphs 29 and 30 ofthe Offer for Pretrial Agreement, after five (5) years having lapsed since the repatriation, at my request, the Convening Authority will consider suspending a portion of the sentence as the Convening Authority determines to be appropriate. Among the factors that the Convening Authority will consider in w hether to suspend shall be the representations of the Offic.e of the Chief Prosecutor that I have fulfilled the tenns of the Offer for Pretrial Agreement and the representations of the Kingdom of Saudi Arabia that I have cooperated fully with the terms of my repatriation. Should the Convening Authority, in his sole discretion under R.M.C. 11 08, determine that I have provided full cooperation to United States and Saudi Arabian authorities, the Convening Authority will suspend confinement that exceeds 9 years from the date that the Military Judge accepted my plea The period of suspension shall run for a period equivalent to the length of the approved sentence, at the conclusion ofwhich time, unless sooner vacated, the suspended portion will be remitted.

5. Except as provided in my Offer for Pretrial Agreement, I waive any right to assert a claim for any day-for-day credit against my sentence to confinement based on any capture, detention or confinement prior to the date that the Military Judge accepts my plea.

(This is the original Appendix A submitted with the Offer for Pretrial Agreement.)

2::>Cec2.al3 Date

~ AMMED

AH ALDARBl

AHMED HAZA

I certify I advised the accused ofthe effect of the foregoing and I witnessed his voluntary signature to this Appendix A.

Member of the Bar of the State ofNew York

ao "'tlt.~ ~

Date

~~~~

LT Theresa Champ, JAG , USN

I recommend (acceptance) ~ejestig~ of this Appendix A.

~i~·~ Legal Advisor to the Convening Authority The foregoing Appendix A is approved in conjunction with the Pretrial Agreement, dated December 20, 2013.

FEB 0 5 2014 Date

Paul L. Oostburg Sanz Convening Authority

A.D 2

Attachment C

1

bear in mind that the accused is to be sentenced only for the

2

offenses of which he has been found guilty.

3

Some of you may have prior experience with courts-martial

4

wherein an accused is given credit for confinement that was served

5

prior to trial.

6

confinement credit will be given the accused; however, you must not

7

adjudge an excessive sentence in reliance upon any possible credit

8

for the accused’s detention prior to today’s session.

9

however, consider, when you are deliberating on an appropriate

That is not the case here, as no pretrial

You may,

10

sentence, the duration of the accused’s pretrial detention, which is

11

from 15 December 2001 to today, that is 8 years, 7 months, and 27

12

days, when determining an appropriate sentence.

13

You must not adjudge an excessive sentence in reliance upon

14

any possible mitigating action by the convening authority or some

15

other authority.

16

offenses of which the accused has been found guilty.

17

must be individualized to this accused.

18

Qosi only for the offenses to which he has pled and been found

19

guilty.

20

others.

21

A single sentence shall be adjudged for both of the Your sentence

You must sentence Mr. al

You may not sentence him for the offenses or the acts of

The minimum sentence that may be adjudged in this case is

22

confinement for no less than 12 years.

23

be adjudged in this case is confinement for no more than 15 years. 798

The maximum sentence that may

Attachment D

------ - -UNCLASSIFIEDI/FOR:PUBLIC RELEAS'E

·3

individualized ·to~ this a:ccu's~tl .

:4

those of·fenses to· w·h i-ch he. ha's pled gui lty· and .been found ·guilt,y,

11

who viola;t,e ·the la·w.

l2

W,z;opgdoe~ ;. •S,e-C.¢.nQ., ~UI't'iS[Iment

13

Sl)ciet:y f .r ,om the :w.;t0ng_cto;e·: t; and fourth , de:tet:rence: :o:f .t he wrongdoer

}4

a·nd those ·who .kno.w of his · crime. and ': Sentence front committ;:tttg- .t her s:am-e

1:5

o:f .fens:e or· sfrtiila:i:' 'Offenses .

16

those reasons; along with a.l l the .
17

ce:ts~,

You must .serr:tence .Nooa- ?nly fo:t

'11 heqr .:Ln'c lu~e·:

or

first. , JTehab:iJitat.ion of th~:

the .W:tongdQ~p.; t}1i.td, p:rto.te;e,t,·ial'Y: OI

Th'e weight t0 be giv