[00:00:00] Speaker 04:
This honorable court is again in session.

[00:00:02] Speaker 04:
Be seated, please.

[00:00:06] Speaker 04:
Thank you all very much for your exceptional patience with us today.

[00:00:11] Speaker 04:
There were a few revisions.

[00:00:13] Speaker 04:
We want to talk about, either you wanted to, or we want to talk about a little more detail, perhaps.

[00:00:21] Speaker 04:
I would like to ask counsel after this part of the hearing is over,

[00:00:27] Speaker 04:
for whoever you need to confer to determine whether anything actually discussed here needs to remain sealed.

[00:00:35] Speaker 04:
I'm not sure why paragraph 60 is sealed in the hopes that we could unseal this transcript going forward or as much of it as possible in the interests of transparency for the public.

[00:00:49] Speaker 04:
Okay.

[00:00:50] Speaker 04:
The government like to start and so my question about

[00:00:55] Speaker 04:
Paragraph 60, obviously, is that a different stipulation effect than the one they agreed to enter into in six?

[00:01:01] Speaker 04:
Are there multiple stipulations of fact?

[00:01:03] Speaker 04:
There's the stipulation of fact that's attached as addendum A, and then this one clearly sounds like it's going to be written later.

[00:01:10] Speaker 05:
Yes.

[00:01:11] Speaker 05:
These are different stipulations of fact.

[00:01:13] Speaker 05:
The stipulation of fact that was about attachment A was about admissions related to

[00:01:20] Speaker 05:
planning the attacks on 9-11, and as I understand it, certain jurisdictional facts that brought them within the definition of unprivileged enemy belligerent.

[00:01:31] Speaker 05:
The stipulation of fact referred to in paragraph 60 is a different stipulation of fact regarding the background circumstances and consequences of the accused detention since 2003.

[00:01:42] Speaker 05:
I don't believe that there is any contention and my understanding from talking with my colleagues who are part of the prosecution is that there was no

[00:01:50] Speaker 05:
action or performance on this paragraph between July 31st and August 2nd?

[00:01:56] Speaker 05:
Yeah, I'm sure.

[00:01:56] Speaker 04:
That's because this is later in time.

[00:01:59] Speaker 04:
I was just trying to understand if this had any relevance to the agreement to enter into a stipulation of fact.

[00:02:05] Speaker 04:
Short answer is no, Your Honor.

[00:02:08] Speaker 05:
I think there was my only other comment that I noted in rebuttal.

[00:02:11] Speaker 05:
The citations I read to the court are related to paragraph 57 about the scheduling issues.

[00:02:18] Speaker 05:
And I think I was able to give my response fully based on the public record.

[00:02:23] Speaker 05:
But if the court has any more questions, I'm happy to answer them.

[00:02:27] Speaker 04:
And do you have a view on what the meaning of paragraph 5 is, where the accused agrees to waive his rights and offers to plead guilty?

[00:02:38] Speaker 04:
What is in waive his rights?

[00:02:41] Speaker 05:
It means that at the plea colloquy or at the Providence inquiry, as evidenced here by the offers to plead guilty,

[00:02:49] Speaker 05:
He will plead guilty and waive all further rights at that colloquy.

[00:02:54] Speaker 05:
I don't think that he has waived any rights by actions or inactions between July 31st and August 2nd.

[00:03:02] Speaker 05:
As we discussed, the judge made clear that if their decision to not question the witness on August 1st,

[00:03:12] Speaker 05:
If for any reason this deal didn't go forward, and of course there were many reasons this deal might not have gone forward, the judge might not have accepted it, there might have been a disagreement about a material term, that they would then be allowed to come back and question that witness if they had any need to.

[00:03:28] Speaker 05:
So the waiver of rights and the offer to plead guilty happens later.

[00:03:31] Speaker 05:
It happens at the plea colloquy, or the equivalent thereof.

[00:03:37] Speaker 04:
How do we know that?

[00:03:40] Speaker 04:
Because I'm understanding a reading from them, and they'll respond if I've got this wrong, that this actually kicked in upon signing the agreement, their obligation to waive as in not exercise rights, waive rights at hearings, not questioned.

[00:03:57] Speaker 05:
I think a waiver of right is usually not something you can take back.

[00:04:01] Speaker 05:
You're waiving it.

[00:04:01] Speaker 05:
You're foregoing it.

[00:04:02] Speaker 05:
And that happens at the moment you plead guilty.

[00:04:04] Speaker 05:
And that's why it's paired in the sentence with offers to plead guilty.

[00:04:08] Speaker 04:
Any questions on that?

[00:04:17] Speaker 03:
What's the difference between the first sentence in paragraph 23, then?

[00:04:21] Speaker 05:
Turn to it, Your Honor.

[00:04:32] Speaker 05:
I think there, it's a more specific promise to waive all waivable motions.

[00:04:37] Speaker 05:
You could imagine that someone would say, oh, you don't need to separately waive a motion if you've waived the underlying right.

[00:04:44] Speaker 05:
But I think that this paragraph is making clear that that is the moment at which any motion you have out there or any future motion you want to make about rights you've waived is no longer on the table.

[00:05:09] Speaker 03:
All right.

[00:05:09] Speaker 03:
Thank you.

[00:05:11] Speaker 05:
Thank you, Your Honor.

[00:05:11] Speaker 05:
There are no further questions.

[00:05:29] Speaker 04:
Do you have thoughts?

[00:05:31] Speaker 04:
See seven or five.

[00:05:35] Speaker 01:
Um, so specifically, um,

[00:05:37] Speaker 01:
before when I was referencing paragraph five, it does say the accused agrees to waive his rights and offers to plead guilty.

[00:05:47] Speaker 01:
I don't understand, you know, the government is reading words into the text to say agrees to waive his rights at his plea agreement.

[00:05:55] Speaker 01:
I just don't read it that way.

[00:05:56] Speaker 04:
This is a very- It doesn't say the accused waives his rights.

[00:05:59] Speaker 04:
This is a forward agrees to do something at some other time.

[00:06:04] Speaker 01:
Precisely.

[00:06:05] Speaker 04:
It would just say accused waives his rights if it was operative right away, wouldn't it?

[00:06:09] Speaker 01:
I 100% agree and he agrees to waive his rights moving forward once the agreement is accepted, which is... It doesn't say that.

[00:06:16] Speaker 04:
It says he agrees to waive rather than... I'm asking, the agrees to seems to make it for a future event rather than something that happens upon the signing of the agreement.

[00:06:26] Speaker 01:
Well, I think it's a forward-looking promise, to use my friend's formulation.

[00:06:34] Speaker 01:
And so by not asserting rights, by actively refraining, by stating on the record that we are refraining from questioning witnesses, that is a waiver of right.

[00:06:45] Speaker 04:
You're going to show us where Mr. Mohammed or Mr. Hadzawa made those statements.

[00:06:52] Speaker 01:
To be sure.

[00:06:53] Speaker 04:
So again, I... The government made those statements.

[00:06:56] Speaker 01:
So the JA number, I just wanted to correct what I had said before.

[00:07:01] Speaker 01:
I think I said 233.

[00:07:02] Speaker 01:
I meant to say JA 224 is where the government explains its interpretation of the pretrial agreement, where it says, at this point, with the waiver of all motions from the three of the accused, they can't actively continue to participate, et cetera, et cetera.

[00:07:20] Speaker 01:
Moving to Mr. Ruiz's statements, we have begun performance.

[00:07:24] Speaker 01:
We are not going to question this witness.

[00:07:27] Speaker 01:
I'm paraphrasing somewhat, but we deem that to be specific performance, to be binding.

[00:07:32] Speaker 01:
This is certainly acting on an agreement to waive a known right.

[00:07:36] Speaker 01:
This is a witness whose testimony had spanned, who had begun the day before, and for which Mr. Hasawi.

[00:07:43] Speaker 02:
Just so I'm clear, what page are you talking about?

[00:07:46] Speaker 01:
Mr reasons, Mr. Weasley statement is on page 23 sorry 237 J 237.

[00:07:52] Speaker 01:
And.

[00:08:00] Speaker 01:
We are abstaining from that engaging examination of the witness.

[00:08:05] Speaker 01:
We are abstaining from that and we believe that is specific performance on the plea agreement.

[00:08:10] Speaker 01:
And again, this is responding to Mr Trivett's concerns that there might be.

[00:08:14] Speaker 01:
the political blowback frankly that we saw, if that were somehow to revoked, removed, it would be a breach of the agreement as it stands right now.

[00:08:23] Speaker 01:
Mr. McCall says sure, the government obviously does not object to that.

[00:08:27] Speaker 01:
And then we did, I think, speak about Mr. Sowerd's remarks at a page.

[00:08:35] Speaker 04:
It goes to much later.

[00:08:36] Speaker 01:
That was post, correct.

[00:08:38] Speaker 01:
But it was reiterating the earlier understanding.

[00:08:41] Speaker 01:
We can probably get record sites that aren't in the JA, if that would be helpful.

[00:08:46] Speaker 04:
For Mr. Muhammad?

[00:08:48] Speaker 01:
For Mr. Muhammad.

[00:08:49] Speaker 04:
Making similar statements?

[00:08:51] Speaker 01:
I can't represent that to the court because I don't have the transcript in front.

[00:08:55] Speaker 01:
But we will file a 28J with whatever we find on that score from the August 1st hearing, if that would be helpful to the court.

[00:09:05] Speaker 04:
Do you agree with the government's reading of 60?

[00:09:09] Speaker 01:
If you give me a moment, that it is a second stipulation effect.

[00:09:16] Speaker 04:
No, 60.

[00:09:17] Speaker 01:
Yeah, the conference of stipulation effect concerning the accused detention since 2003.

[00:09:22] Speaker 01:
Yes, that is a forward looking promise.

[00:09:26] Speaker 04:
Prior references to stipulation effect don't include both addendum A and this one.

[00:09:30] Speaker 04:
They only included end of May.

[00:09:31] Speaker 01:
That's correct.

[00:09:32] Speaker 01:
So as I understand it, and I will be tackled to the ground, this is a term that is also specific to Mr. Muhammad's agreement, but is essentially a stipulation of fact, as I understand it.

[00:09:46] Speaker 01:
will be to the ground, dealing with his detention in the black sites by the Central Intelligence Agency.

[00:09:52] Speaker 01:
And so the government wanted to essentially get a stipulated statement of facts, both for, primarily for national security purposes.

[00:10:00] Speaker 01:
So that's what that's looking forward to.

[00:10:04] Speaker 01:
So certainly in combination with

[00:10:08] Speaker 04:
And then their argument about, by the way, again, if we can know whether 60, 57 and five have to remain sealed, seems important.

[00:10:16] Speaker 04:
Paragraph 57, did Mr. Muhammad or Mr. Al-Hazawi, and then council can talk about Mr. Binatash, did they, is there transcript sites where they asked, they joined and asked in the military commission to, you know,

[00:10:38] Speaker 04:
step on the gas on scheduling these hearings.

[00:10:40] Speaker 01:
Um, this was a joint request made by the government pursuant to this term.

[00:10:45] Speaker 01:
Um, they certainly did not object and I believe where does this?

[00:10:49] Speaker 04:
Did you say it was a joint request?

[00:10:50] Speaker 04:
That's I'm just trying to they made a point about them.

[00:10:54] Speaker 04:
Not not against request for expeditions.

[00:10:57] Speaker 04:
But if you're saying that somewhere where he said I'm speaking for everybody,

[00:11:03] Speaker 01:
I will have to get back to you just on a specific record site in terms of just identifying if and when the parties agreed or consented to that representation by the government.

[00:11:18] Speaker 01:
Again, our understanding and our operation has been that that was a joint statement of reflecting paragraph 57.

[00:11:24] Speaker 01:
The defense certainly joined in on that and the colloquies that follow all support the

[00:11:28] Speaker 01:
Let's get everything scheduled by Wednesday.

[00:11:31] Speaker 01:
And I know Mr. Sauer has talked about that.

[00:11:34] Speaker 01:
I just don't know that it's in the joint appendix.

[00:11:35] Speaker 01:
And I don't want to mislead the court by accident.

[00:11:37] Speaker 04:
That's absolutely fine.

[00:11:38] Speaker 04:
And then just, again, because this is a sealed proceeding, we're going to trust attorneys to follow up without us having to issue an order.

[00:11:43] Speaker 04:
Otherwise, we have to do a sealed order.

[00:11:46] Speaker 04:
And that's just less and less transparency for the public.

[00:11:49] Speaker 01:
Absolutely.

[00:11:50] Speaker 01:
And we have no objection to the unsealing of any of the parts.

[00:11:54] Speaker 04:
I see that you want to make a comment, but I first want to let Mr. Benatache answer my questions.

[00:12:00] Speaker 04:
Thank you.

[00:12:15] Speaker 00:
This will be very brief, Your Honor.

[00:12:16] Speaker 00:
I don't have any closed argument to make.

[00:12:18] Speaker 00:
I just wanted to say to the court that I do have some concern about some sort of basic timeline things that I might have been able to clear up that I didn't in terms of when the witness testified, when documents were signed, those sorts of things.

[00:12:32] Speaker 00:
I'm not trying to get outside of what we're supposed to be doing in closed session.

[00:12:35] Speaker 00:
I just wanted to say that.

[00:12:37] Speaker 00:
I had hoped to do more of that when I was at the podium, and I didn't.

[00:12:40] Speaker 00:
So if there's anything I can do to be helpful to the court, I just wanted to express that.

[00:12:45] Speaker 04:
You don't have any views on the paragraphs you've talked about.

[00:12:48] Speaker 00:
I don't have anything to add on the particular paragraphs.

[00:12:51] Speaker 00:
No, we're not relying on those paragraphs.

[00:12:53] Speaker 04:
OK.

[00:12:53] Speaker 04:
Thank you.

[00:12:54] Speaker 00:
Thank you.

[00:12:56] Speaker 04:
One minute.

[00:12:59] Speaker 05:
Thank you, Your Honor.

[00:13:00] Speaker 05:
I just want to make sure that I have the order of operations for things that I want to submit to the court.

[00:13:05] Speaker 05:
Things I have said I will submit to the court, potentially under seal, are the signed stipulations for each of the respondents and the three citations that I read to the court during my rebuttal.

[00:13:14] Speaker 05:
I suspect we are not going to reach an agreement to unseal the stipulations.

[00:13:18] Speaker 05:
So unless the court objects, I'm going to file them under seal today.

[00:13:22] Speaker 05:
The three remaining citations I listed, I may be able to file them publicly.

[00:13:29] Speaker 05:
But if we can't reach agreement on that, because they're not technically sealed, they're just not cleared, would the court prefer that I file them sooner under seal or wait a few days and then file them publicly?

[00:13:41] Speaker 04:
Is a few days really just a few days?

[00:13:44] Speaker 05:
I hope so, Your Honor.

[00:13:47] Speaker 05:
I can do whatever is most convenient to the court, whether I file them promptly and under seal and then try to get them unsealed as quickly as possible or wait a little bit.

[00:13:56] Speaker 05:
I think if there are already going to be other things that may be unsealed, maybe just file everything promptly.

[00:14:01] Speaker 05:
Oh, file everything promptly.

[00:14:04] Speaker 04:
I don't know.

[00:14:04] Speaker 04:
OK.

[00:14:04] Speaker 04:
I took it.

[00:14:05] Speaker 04:
But please press forward so that if you can then file it publicly by the end of the week or something or early next week, that would be valuable.

[00:14:12] Speaker 05:
Absolutely, Your Honor.

[00:14:13] Speaker 05:
And then just to... Go on, both friends.

[00:14:15] Speaker 04:
We want it both.

[00:14:15] Speaker 04:
We want it all.

[00:14:17] Speaker 05:
I understand.

[00:14:17] Speaker 05:
And then the final question I had was, I took Judge Millett your instruction to try to unseal as much as possible of the paragraphs that were discussed in closed session today.

[00:14:28] Speaker 05:
I think since we have not discussed the specifics of things like the stipulations or the sentences, I am hopeful that we can go ahead and get an agreement and get the military commission.

[00:14:38] Speaker 05:
We can certainly ask

[00:14:39] Speaker 05:
him to unseal.

[00:14:41] Speaker 05:
I just wanted to clarify that's going to come separately from the things that I will get to you under seal today.

[00:14:44] Speaker 04:
I know that will take a little bit of a little bit of time, but we will try.

[00:14:48] Speaker 04:
We'll do our very best someone ceiling of some paragraphs and frankly.

[00:14:52] Speaker 04:
Again, these are the ones we've talked about, so it's important.

[00:14:55] Speaker 04:
I understand but it seems like an awful lot of this I understand about the sentences but understand there's a lot of other language on here that that's blacked out from the public but I'm not sure why is sealed right and as soon as so maybe worth a healthy second look but what we talked about today so we could unseal this transcript would are most pressing.

[00:15:14] Speaker 05:
Right.

[00:15:15] Speaker 05:
And we are concerned about violating a lower tribunal seal under Rule 47.1.

[00:15:20] Speaker 05:
So we just want to make sure we go through the military judge.

[00:15:23] Speaker 05:
And we're not asking you not to do that at all.

[00:15:26] Speaker 05:
Thank you for the clarification, Your Honor.

[00:15:27] Speaker 04:
All right.

[00:15:28] Speaker 04:
With that, the case is submitted.

[00:15:30] Speaker 04:
We're incredibly grateful to all the attorneys for your extended arguments and fast work on this.

[00:15:39] Speaker 04:
It's really important and helpful to me, at least I'm sure to my colleagues, for our deliberations in this case.

[00:15:45] Speaker 04:
So we're incredibly grateful and we're sorry for having taken over most of your day.

[00:15:49] Speaker 04:
The case is submitted.