IN RE: Encep NURJAMAN (2023)

PUBLISHED OPINION OF THE COURT

Before a military commission, the military judge denied the motion of Petitioner Encep Nurjaman, also known as Hambali,¹ to dismiss charges and specifications. Petitioner now seeks a writ of mandamus and prohibition from this court vacating the military judge's ruling issued on October 6, 2022, App. Ex. 0032.10 (TJ), and directing the military judge to dismiss the referral of his case with prejudice. Pet'r's Br. 1-2 (Nov. 22, 2022); Pet'r's Reply 14 (Jan. 12, 2023). Petitioner argues in his petition that respondent's use of evidence obtained by torture, Pet'r's Br. 1, 17-18, 26, and evidence derived from statements obtained by torture, id. at 16, was unlawful. In his reply, he argues that respondent's use of evidence derived from torture was unlawful. Pet'r's Reply 9-12, 14.

At the military commission level, the defense filed a motion to dismiss, arguing that presentation of certain information to the convening authority with respect to the referral of his case to a trial by military commission, and the convening authority's use of that certain information, violated 10 U.S.C. § 948r(a). Def.’s Mot. to Dismiss 2 (Mar. 14, 2022) (Def. Mot.). He stated that information for his referral came from a nine-page excerpt of the 9/11 Commission Report, and that Report was based on “interrogations [ ] conducted through the use of torture and inhuman, cruel, and degrading treatment.” Id. Before us, petitioner asserts that his referral to trial “was based on evidence elicited by torture or other cruel, inhumane, or degrading treatment in violation of 10 U.S.C. § 948r(a), international law, and the U.S. Constitution.” Pet'r's Br. 2 (emphasis added), 27 (stating same).² We understand this statement to allege that respondent wrongfully and unlawfully used evidence that was derived from statements obtained through the use of torture in the referral binder.

In sum, petitioner asserts that the nine-page excerpt from the 9/11 Commission Report contained information (statements) obtained by torture and/or derived from information obtained by the use of torture, and that the excerpt was improperly included in the referral materials. Pet'r's Br. 3; Pet'r's Reply 10.

Respondent states in its brief to this court that petitioner and respondent “are united in recognition that ‘torture of any kind is legally and morally unacceptable, and that the judicial system of the United States will not permit the taint of torture in its judicial proceedings.’ ” Resp't's Br. 1 (Dec. 30, 2022) (quoting United States v. Abu Ali, 395 F. Supp. 2d 338, 379 (E.D. Va. 2005) (Lee, J.)). Respondent does not address whether evidence derived from information obtained by the use of torture could be considered as part of the basis to refer a case to a military commission trial. Instead, respondent essentially argues that any evidence obtained by the use of torture was cumulative to other information properly before the convening authority. See id. at 19-24.

At the military commission level, the military judge found that “[t]he Government's current position is that [10 U.S.C.] § 948r(a) applies to all stages of a military commission case.” Resp't's App. 529 (Dec. 30, 2022) (App.);³ see also App. 563-64 (Transcript of Oral Argument, In re Al-Nashiri, No. 21-1208 (D.C. Cir. May 4, 2022)⁴ (respondent's counsel arguing “the Government now agrees that Section 948r(a) applies at all stages of a military commission case”). It is unclear whether this concession applies to any information derived from the use of torture included in the convening authority's referral materials for petitioner's case. Respondent's brief did not concede or oppose the proposition that § 948r(a) prohibits evidence derived from torture from being considered in the referral of petitioner's case to trial.

Respondent asserts that any error was harmless and asks the court to dismiss the petition because the petition does not satisfy the three-pronged test in Cheney v. U.S. District Court, 542 U.S. 367, 380 (2004). Resp't's Br. 2. We agree with respondent.

I. FACTS

Petitioner, Mohammed Nazir Bin Lep (Lillie), and Mohammed Farik Bin Amin (Zubair)⁵ are jointly charged with eight charges consisting of fifteen specifications: I. Murder in Violation of the Law of War; II. Attempted Murder in Violation of the Law of War; III. Intentionally Causing Serious Bodily Injury; IV. Terrorism; V. Attacking Civilians; VI. Attacking Civilian Objects; VII. Destruction of Property in Violation of the Law of War; and VIII. Conspiracy to Commit Substantive Offenses Triable by Military Commission, in violation of 10 U.S.C. §§ 950t(15), 950t(28), 950t(13), 950t(24), 950t(2), 950t(3), 950t(16), and 950t(29), respectively. App. 1-101. Lillie and Zubair also are each charged with one specification in Charge IX of Accessory After the Fact, in violation of 10 U.S.C. § 950r. App. 53, 87.

The prosecution sent the sworn charges and a binder of evidence (referral binder) to the convening authority and recommended referral of the charges to trial by military commission. App. 1-2 (Nurjaman Charge Sheet ¶¶ III, V (referred Jan. 21, 2021)). The supporting documents for the charges and their specifications totaled more than 1,300 pages. Resp't's Br. 6, 22-23.⁶ Each charge included a summary cover sheet with relevant quotations from the Manual for Military Commissions, United States (MMC), and citations to various documents. Id. at 6; Def. Mot. 4, ¶ e. For example, the summary for the charge of murder in violation of the law of war referenced twenty-four tabbed documents and provided specific citations to sixty-four segments in eighteen of those tabbed documents. App. 228-30. For the conspiracy charge, the summary listed seven tabs and cited to nine segments in the documents behind those tabs. App. 233.

The summary cover sheets for the petitioner's charges cited the nine-page excerpt of the 9/11 Commission Report (designated as “Tab D” in the referral binder) a combined total of eighteen times. Resp't's Br. 6-7; Def. Mot. 5. Each summary specifically cited all or part of the same three pages from the excerpt, pages 150 through 152. Resp't's Br. 6-7. For example, the citation for the charge of murder in violation of the law of war indicated, “9/11 COMMISSION REPORT PG 151, PG 152, Para. 1 See TAB D.” App. 228. For the conspiracy charge, the germane citation was, “9/11 COMMISSION REPORT PG 150-151 See Tab D.” App. 233. Pages 150 through 152 discussed petitioner's support to and relationships with al Qaeda leaders, operatives, and members, including Khalid Shaikh Mohammad (KSM).⁷ Def. Mot., Attach. D; Resp't's Br. 6-7.

The pretrial advice was issued on January 13, 2021; it did not specifically mention torture or the nine-page excerpt from the 9/11 Commission Report. Def. Mot., Attach. G (filed under seal) (App. Ex. 0032.001 (NUR)). The pretrial advice listed as attachments (i) the charge sheets for Nurjaman and his co-conspirators, Mohammed Nazir Bin Lep (Lillie) and Mohammed Farik Bin Amin (Zubair), (ii) the prosecutor's transmittal memorandum, and (iii) the referral binder. Id.

A. Excerpt from 9/11 Commission Report

The referral binder cited to a nine-page excerpt from the 9/11 Commission Report, pages 145 through 153 of that Report. Def. Mot. 5 & n.12. That excerpt focused on the connection between KSM and petitioner. See Def. Mot. 5, ¶ g & Attach. D; App. 3. Beginning with KSM, pages 150 through 152 of the excerpt (including related notes on page 490) state as follows:⁸

At this point, late 1998 to early 1999, planning for the 9/11 operation began in earnest. Yet while the 9/11 project occupied the bulk of KSM's attention, he continued to consider other possibilities for terrorist attacks. For example, he sent al Qaeda operative Issa al Britani to Kuala Lumpur, Malaysia, to learn about the jihad in Southeast Asia from Hambali. Thereafter, KSM claims, at Bin Ladin's direction in early 2001, he sent Britani to the United States to case potential economic and “Jewish” targets in New York City. Furthermore, during the summer of 2001, KSM approached Bin Ladin with the idea of recruiting a Saudi Arabian air force pilot to commandeer a Saudi fighter jet and attack the Israeli city of Eilat. Bin Ladin reportedly liked this proposal, but he instructed KSM to concentrate on the 9/11 operation first. Similarly, KSM's proposals to [Mohammed] Atef[9] around this same time for attacks in Thailand, Singapore, Indonesia, and the Maldives were never executed, although Hambali's Jemaah Islamiah operatives did some casing of possible targets.10

KSM appears to have been popular among the al Qaeda rank and file. He was reportedly regarded as an effective leader, especially after the 9/11 attacks. Co-workers describe him as an intelligent, efficient, and even-tempered manager who approached his projects with a single-minded dedication that he expected his colleagues to share. Al Qaeda associate Abu Zubaydah has expressed more qualified admiration for KSM's innate creativity, emphasizing instead his ability to incorporate the improvements suggested by others. Nashiri has been similarly measured, observing that although KSM floated many general ideas for attacks, he rarely conceived a specific operation himself.11 Perhaps these estimates reflect a touch of jealousy; in any case, KSM was plainly a capable coordinator, having had years to hone his skills and build relationships.

Hambali

Al Qaeda's success in fostering terrorism in Southeast Asia stems largely from its close relationship with Jemaah Islamiah (JI). In that relationship, Hambali became the key coordinator. Born and educated in Indonesia, Hambali moved to Malaysia in the early 1980s to find work. There he claims to have become a follower of the Islamist extremist teachings of various clerics, including one named Abdullah Sungkar. Sungkar first inspired Hambali to share the vision of establishing a radical Islamist regime in Southeast Asia, then furthered Hambali's instruction in jihad by sending him to Afghanistan in 1986. After undergoing training at Rasul Sayyaf's Sada camp (where KSM would later train), Hambali fought against the Soviets; he eventually returned to Malaysia after 18 months in Afghanistan. By 1998, Hambali would assume responsibility for the Malaysia/Singapore region within Sungkar's newly formed terrorist organization, the JI.12

Also by 1998, Sungkar and JI spiritual leader Abu Bakar Bashir had accepted Bin Ladin's offer to ally JI with al Qaeda in waging war against Christians and Jews.13 Hambali met with KSM in Karachi to arrange for JI members to receive training in Afghanistan at al Qaeda's camps. In addition to his close working relationship with KSM, Hambali soon began dealing with Atef as well. Al Qaeda began funding JI's increasingly ambitious terrorist plans, which Atef and KSM sought to expand. Under this arrangement, JI would perform the necessary casing activities and locate bomb-making materials and other supplies. Al Qaeda would underwrite operations, provide bomb-making expertise, and deliver suicide operatives.14

The al Qaeda-JI partnership yielded a number of proposals that would marry al Qaeda's financial and technical strengths with JI's access to materials and local operatives. Here, Hambali played the critical role of coordinator, as he distributed al Qaeda funds earmarked for the joint operations. In one especially notable example, Atef turned to Hambali when al Qaeda needed a scientist to take over its biological weapons program. Hambali obliged by introducing a U.S.-educated JI member, Yazid Sufaat, to Ayman al Zawahiri in Kandahar. In 2001, Sufaat would spend several months attempting to cultivate anthrax for al Qaeda in a laboratory he helped set up near the Kandahar airport.15

Hambali did not originally orient JI's operations toward attacking the United States, but his involvement with al Qaeda appears to have inspired him to pursue American targets. KSM, in his post-capture interrogations, has taken credit for this shift, claiming to have urged the JI operations chief to concentrate on attacks designed to hurt the U.S. economy.16 Hambali's newfound interest in striking against the United States manifested itself in a spate of terrorist plans. Fortunately, none came to fruition.

In addition to staging actual terrorist attacks in partnership with al Qaeda, Hambali and JI assisted al Qaeda operatives passing through Kuala Lumpur. One important occasion was in December 1999-January 2000. Hambali accommodated KSM's requests to help several veterans whom KSM had just finished training in Karachi. They included Tawfiq bin Attash, also known as Khallad, who later would help bomb the USS Cole, and future 9/11 hijackers Nawaf al Hazmi and Khalid al Mihdhar. Hambali arranged lodging for them and helped them purchase airline tickets for their onward travel. Later that year, Hambali and his crew would provide accommodations and other assistance (including information on flight schools and help in acquiring ammonium nitrate) for Zacarias Moussaoui, an al Qaeda operative sent to Malaysia by Atef and KSM.17

Hambali used Bin Ladin's Afghan facilities as a training ground for JI recruits. Though he had a close relationship with Atef and KSM, he maintained JI's institutional independence from al Qaeda. Hambali insists that he did not discuss operations with Bin Ladin or swear allegiance to him, having already given such a pledge of loyalty to Bashir, Sungkar's successor as JI leader. Thus, like any powerful bureaucrat defending his domain, Hambali objected when al Qaeda leadership tried to assign JI members to terrorist projects without notifying him.18

Def. Mot., Attach. D.

The summary cover sheets for the referred charges cited the three pages from the 9/11 Commission Report excerpt eighteen times. Resp't's’ Br. 6-7; Def. Mot. 5. Seventeen of those citations supported the “hostilities” term in each specification. Resp't's Br. 7. For each of the specifications, the prosecution is required to prove that offenses were “committed in the context of and associated with hostilities.” 10 U.S.C. § 950p(c); MMC, Pt. IV-2, ^ 1(c) (2019). The term “hostilities” is defined as “any conflict subject to the laws of war.” 10 U.S.C. § 948a(9). The 9/11 Commission Report, however, was not the only source cited for the hostilities term—respondent cited twenty-three additional documents. Resp't's Br. 7-8.

The eighteenth citation in the referral binder to the 9/11 Commission Report excerpt related to Element 1 of the specification for the conspiracy charge against petitioner. Id. at 7; App. 19. Apart from that one citation, respondent cited to six other documents to support the conspiracy charge. Resp't's Br. 9-10. The Manual for Military Commissions, Part IV, ¶ 5(29)(b) (2019 ed.), describes Element 1 to conspiracy as follows:

(1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission[.]

The conspiracy specification concerning Element 1 alleged:

Specification: In that Encep Nurjaman, a/k/a Riduan bin Isomudin, a/k/a “HAMBALI,” Mohammed Nazir bin Lep, a/k/a “LILLIE,” and Mohammed Farik bin Amin, a/k/a “ZUBAIR” (see Charge Sheet Appendix A for a list of aliases), persons subject to trial by military commission as alien unprivileged enemy belligerents, did, from on or about August 1996 to on or about August 2003, at multiple locations in or around Afghanistan, Southeast Asia, and elsewhere, in the context of and associated with hostilities, knowingly conspire and agree with the following persons: Usama bin Laden, Khalid Shaikh Mohammad, Abu Bak'r Ba'aysir, Abdullah Sungkar and others, known and unknown (see Charge Sheet Appendix B for a list of known co-conspirators), to commit one or more substantive offenses triable by military commission, to wit: murder in violation of the law of war, attempted murder in violation of the law of war, intentionally causing serious bodily injury, terrorism, attacking civilians, attacking civilian objects, and destruction of property in violation of the law of war. Each of the three accused, knowing the unlawful purposes of the agreement, willfully joined the agreement with the intent to further its unlawful objectives and purposes and, thereafter, knowingly committed one or more overt acts in order to accomplish some objective or purpose of the agreement, with the said conspiracy resulting in the deaths of civilians (see Charge Sheet Appendices C and E for a list of victims killed in the attacks), injuries to civilians (see Charge Sheet Appendices D and F for a list of victims injured in the attacks), and damage to personal property.

App. 19 (Paragraph on re-allegation and incorporation by reference of common overt acts is omitted.)

The 9/11 Commission expressed concerns about the integrity of some of the information relied upon for portions of the 9/11 Commission Report, which included pages 150 through 152 from the nine-page excerpt in the referral binder. The Report included the following caution:

Detainee Interrogation Reports

Chapters 5 and 7 rely heavily on information obtained from captured al Qaeda members. A number of these “detainees” have firsthand knowledge of the 9/11 plot.

Assessing the truth of statements by these witnesses—sworn enemies of the United States—is challenging. Our access to them has been limited to the review of intelligence reports based on communications received from the locations where the actual interrogations take place. We submitted questions for use in the interrogations, but had no control over whether, when, or how questions of particular interest would be asked. Nor were we allowed to talk to the interrogators so that we could better judge the credibility of the detainees and clarify ambiguities in the reporting. We were told that our requests might disrupt the sensitive interrogation process.

We have nonetheless decided to include information from captured 9/11 conspirators and al Qaeda members in our report. We have evaluated their statements carefully and have attempted to corroborate them with documents and statements of others. In this report, we indicate where such statements provide the foundation for our narrative. We have been authorized to identify by name only ten detainees whose custody has been confirmed officially by the U.S. government.19

Def. Mot., Attach. D (9/11 excerpt, at pp. 146, 490) (indention to first paragraph added).

B. Additional Referral Materials 20

The charged offenses relate to petitioner's alleged involvement with al Qaeda and Jemaah Islamiyah (sometimes spelled Islamiah) (JI) in the October 12, 2002, bombings of Paddy's Pub and Sari Club in Bali, Indonesia, and the August 5, 2003, bombing of the J.W. Marriott hotel in Jakarta, Indonesia.²¹ App. 3, 9-11; Resp't's Br. 3. The charges state that the bombings resulted in the deaths of 213 people (including 7 Americans) and injuries to 109 people (including 6 Americans). App. 9-1 1, 23-33; Resp't's Br. 3.

The referral binder for the charged offenses included documents in addition to the 9/11 Commission Report, which appear to indicate that petitioner shared the same goals as UBL.²² First, petitioner met with UBL, App. 438, and communicated directly or through intermediaries with KSM, the individual who linked al Qaeda and JI.²³ Second, he journeyed to Afghanistan several times, “received training from Afghans” for operations, and participated in jihad. Id. Third, petitioner received funding from al Qaeda, App. 439-40, and al Qaeda provided military training to his subordinates in JI, e.g., App. 246. The referral materials also included documents indicating that petitioner encouraged subordinates to engage in hostilities with U.S. interests in Southeast Asia by telling JI members that U.S. targets were a priority. E.g., App. 388 (petitioner explaining to JI leader UBL's desire for attacks on U.S. military in Singapore); App. 416 (petitioner instructing JI member and his group to find targets of U.S. interest); App. 389, 391 (petitioner discussing and surveilling U.S. targets in the Philippines with JI members); App. 368 (petitioner discussing with JI members Jewish American servicemembers as targets); see also supra note 22.

To support the conspiracy element, the 1,300-page referral material included, in addition to the 9/11 Commission Report excerpt, ten witness statements. App. 244-79, 341-497. Respondent claims the ten statements were not obtained by the use of torture. See Resp't's Br. 23-24. Respondent has highlighted four of those statements—from Hambali, KSM, Zubair, and Lillie. See App. 233. The ten statements included in the referral binder, summarized below, are from the following individuals: (1) Petitioner Hambali, (2) Zulkifli Marzuki, (3) Zubair, (4) Lillie, (5) KSM, (6) Bafana, (7) Hashim Abbas, (8) Rais, (9) Masran, and (10) Mistooki.

(1) Encep Nurjaman's Statement (Hambali)

Petitioner Hambali was the link between JI and al Qaeda, coordinated movement of al Qaeda funds to JI, secured military training in Afghanistan for operatives, and met UBL.

Petitioner made two statements in 2007, totaling nine pages, to special agents of the Federal Bureau of Investigation (FBI) and Department of Defense Criminal Investigation Task Force (CITF), and an FBI intelligence analyst. App. 437-40 (June 21, 2007); App. 485-89 (Jan. 22-23, 2007). Both statements were included in the referral material. App. 221-22. Abdullah Sungkar, the founder of JI, encouraged petitioner to go to Afghanistan for jihad but apparently petitioner ultimately made that decision based on his own desire. App. at 438. Around 1986, petitioner went to Afghanistan for about eighteen months, received training from Afghans at Sadah Camp, and fought the Russians. Id. He returned to Afghanistan around 2000, and again around 2001. Id. He participated in jihad and met UBL. Id. Petitioner was angry because of the mistreatment of Muslims by Christians in Indonesia and Israel. App. 486. He did not like America because America supports Israel. Id. Petitioner said he is a member of JI, not al Qaida. Id.

Petitioner “considered the Bali bombing a successful operation except for the number of Muslims which were killed. In general, [he] believe[d] too many people were killed in the Bali attack․ [Petitioner] stated it is acceptable to kill civilians in an operation but you should try not to kill other Muslims.” App. 439. In December 2002, Muhktar (KSM) provided funds to petitioner for an operation. App. 440. This was accomplished by delivery of the money to Zubair in Thailand, who then provided the money to petitioner. Id. Petitioner explained that he was like a bank “just passing out the money.” Id. The money he received from KSM was intended for jihad operations, which would result in death and destruction of property. App. 439. While he provided funding for operations, petitioner said he was not in control of operations or aware of the specifics of the operations. App. 439-40.

(2) Zulkifli Bin Marzuki's Statement

Marzuki was the Secretary for JI, worked directly for petitioner, and held key insight into JI's administration.

Zulkifli Bin Marzuki ²⁴ gave a five-page statement in 2009 to special agents or employees of the FBI and Department of Justice (DoJ), which was included in the referral material. App. 499-503 (Sept. 3, 2009); App. 221-22. Marzuki is named a co-conspirator in the common allegations of petitioner's charge sheet for involvement in the 2002 bombings in Bali, Indonesia. App. 9-10. Marzuki joined JI in 1998 and swore bayat (allegiance) to Abdullah Sungkar, JI's founder and leader. App. 499. Marzuki was the JI Secretary and recorded all meetings and tracked al Qaeda visitors and administrative matters. Id. He worked directly for petitioner and was aware of many of petitioner's activities. Id. As “ ‘General’ ” for Abu Bakar Bashir ²⁵ (Sungkar's successor), petitioner “was in charge of the JI in Malaysia.” Id.

The five JI members closest to petitioner served in the following roles: Fathur Rahman Al Ghozi ²⁶ and Dr. Azahari Bin Husin (Dr. Azahari)²⁷ in explosives; Marzuki and Faiz Bafana in finance; and Noordin Top ²⁸ in operations. App. 500. Petitioner told Marzuki that Bandar, also known as Abu Hazem Sharqi, was involved in the plan to attack targets in Singapore, including the United States Navy. App. 500; App. 21 (aliases); see App. 5-6 (common allegations of charge sheet naming Bandar in a Singapore plot). Al-Ghozi and Dr. Azahari also were involved in the Singapore operation. App. 500. “When Bandar needed explosives, [petitioner] arranged for Bandar to meet with Al Ghozi.” Id. Marzuki did not know if petitioner sought Bashir's approval “to carry out the Singapore project.” App. 501. After the 9/11 attacks, Mohammed Jabarah, also known as Amat, a known co-conspirator, gave Marzuki $20,000 to give to Al-Ghozi and Dr. Azahari. Id.; infra note 45 (aliases). Jabarah and petitioner later met, possibly to discuss the Singapore project. App. 502.

At some point, petitioner told Marzuki that the Singapore project was cancelled. Id. After learning this, petitioner generally discussed attacking an Israeli building in Bangkok, an Israeli airline, and a United States Embassy. Id. Later, petitioner asked Dr. Azahari, Top, and Muklas (Muhklas), also known as Ali Ghufron Bin Nurhasyim,²⁹ a JI member, to plan an operation targeting “places where there were many tourists, Embassies or Israeli buildings.” Id.; see App. 375. Petitioner said al Qaeda would fund these projects. App. 502. Petitioner had regular contact with Dr. Azahari, Muklas, and Top and knew general information about the trio's plan. App. 503. Marzuki believed, however, that petitioner did not know where and when the attack would occur as petitioner was a wanted man on the run. Id. Upon learning of the Bali bombings, petitioner expressed surprise to Marzuki about the death toll and used Bashir Bin Lap (Lillie) and Mohammed Bin Amin (Zubair) to provide funds to Indonesians. Id.

(3) Mohammed Farik Bin Amin's Statement (Zubair)

A charged co-conspirator, Zubair (an al Qaeda member) was a martyr volunteer; surveilled targets in Thailand; helped move al Qaeda funds to, and obtained fraudulent documents for, petitioner during petitioner's fugitive status; and was specially trained on how to make bombs.

Mohammed Farik Bin Amin (Zubair) is charged as one of two co-conspirators with petitioner. App. 68-101; App. 20 (alias). Zubair made two statements in 2007 to FBI and CITF special agents, which were summarized in a sixteen-page document and a nine-page document. App. 264-79 (Feb. 1, 2007); App. 475-83 (June 21-22, 2007). Those statements were included in the referral material. App. 221-22.

In around August of 2000, Zubair paid for his own travel from Malaysia to Afghanistan where he received three months of basic al Qaeda military training at Al-Farouq.³⁰ App. 265-66; see App. 476-77. He trained on weapons, explosives, and mines.³¹ App. 266. While initially stating he first met Lillie (a charged co-conspirator) at basic training, id., Zubair later admitted to knowing him before training, App. 475. Zubair first met petitioner in Afghanistan in February 2001. App. 267. He learned that petitioner was the liaison between al Qaeda and JI. App. 267, 272. Petitioner had a leadership role in al Qaeda and “could give orders on behalf of UBL.” App. 267. Zubair described petitioner, in his own words, as “ ‘the leader of the Southeast Asians.’ ” App. 267-68. If petitioner gave an order, Zubair said he “would follow it without question.” App. 267.

Zubair first heard of UBL at Al-Farouq in the fall of 2000 when UBL visited the training camp. App. 266. UBL visited again to emphasize the importance of training, which Zubair understood to mean that he was training for the battlefield. App. 267. Invited by petitioner in about October or November of 2001, Zubair agreed to participate in a martyr operation, along with Lillie, Abdul Aziz, also known as Masran Bin Arshad, and Afifi.³² App. 268; App. 21 (alias). The four volunteers swore bayat to UBL, a condition for participating in a martyr operation. App. 268, 478. When he swore bayat, Zubair “considered UBL to be his spiritual leader” and “agreed to carry out an operation” in which “Americans would die.” App. 478.

Zubair was in “disbelief” yet “pleased” over the World Trade Center attack and “awed” by the planning and training. App. 268. Zubair said the 9/11 attack was “ ‘OK’ ” despite civilian deaths “because the World Trade Center was the economic center of the US and the US economy funds the US military.” App. 267. Civilian deaths were further justified under “strict Islamic law.” Id. Zubair further stated that this war was “between Muslims and Christians”—not Afghanistan and America. App. 267, 272. He believed the 2002 al Qaeda Bali bombing also was legitimate, adding that attacks like in Bali and against the USS COLE “were his duty.” App. 267.

In November 2001, the four martyr volunteers left Afghanistan and Zubair and Lillie eventually arrived in Thailand. App. 269. Initially, Zubair and Lillie believed they were going to engage in a martyr operation under Aziz (Masran). Id. Petitioner, however, led the group after Aziz's arrest in Sri Lanka. See id. Zubair described himself as “a trusted member of [petitioner's] group who took direction from [petitioner].” App. 480. Either Zubair or Lillie were always present in Thailand to be available to petitioner. App. 270. Petitioner told Zubair to surveil the Bangkok International Airport, assess overall airport security, determine guard routines, and survey the Israeli airline El Al lounge and boarding areas “to determine when they would be the most crowded.” App. 480; see also App. 270. Zubair also surveilled on his own the Israeli Embassy in Bangkok as a potential target. App. 480.

While Zubair and Lillie resided in Thailand, there were two transfers of “operational money” in U.S. dollars from al Qaeda to Zubair, who handed the funds over to petitioner. App. 270-72. Petitioner told Zubair the funds were for an “operation” (bombing or an attack), families of the Bali suicide bombers, and expenses. App. 271-72, 480. The first transfer of $50,000 came in two lots of $25,000 each between late 2002 and early 2003. App. 270-71. The second transfer of $49,900 was made in January 2003. App. 271-72. Zubair and Lillie understood that the funds they received from petitioner were from al Qaeda. App. 270. Zubair understood petitioner's group was to use al Qaeda money “for an operation in which people would be killed.” App. 480. Petitioner approved the expenditure of funds used by Zubair to practice making bomb components; Zubair helped Lillie in this endeavor because he had an engineering background. App. 481; see App. 479. Petitioner also provided Zubair and Lillie funds that were used to obtain fake passports and for Lillie to purchase weapons. App. 270. On one occasion, Zubair paid $600 from the funds obtained from al Qaeda for a Spanish passport for petitioner. Id. Additionally, Zubair traveled to find safe locations for petitioner to stay (particularly in Cambodia), purchase weapons, and locate “business opportunities” for living expenses and future operations. App. 478-79.

At the time of his FBI interview in 2007, “Zubair stated that he was still loyal to both [petitioner] and ․ Lillie.” App. 475. He “was still ready and willing to participate in a martyr operation.” App. 270. Zubair also stated he had a “a lifelong obligation” to engage in jihad for al Qaeda and UBL. App. 272.

(4) Mohammed Nazir Bin Lep's Statement (Lillie)

A charged co-conspirator, Lillie was a martyr volunteer, helped move al Qaeda funds to, and obtained fraudulent documents for, petitioner during petitioner's fugitive status, and was specially trained on how to make bombs.

Mohammed Nazir Bin Lep, also known as Lillie,³³ is charged as one of petitioner's co-conspirators. App. 34-67. Lillie made two statements in 2007 to FBI and CITF special agents, which were summarized in a nineteen-page document and a ten-page document and included in the referral material. App. 244-62 (Feb. 3-4, 2007); App. 426-35 (June 22-23, 2007); App. 221-22.

Petitioner taught Lillie about jihad. App. 245. Lillie volunteered “to travel for jihad,” sold his motorcycle, and gave the money to petitioner. Id. Petitioner bought Lillie a plane ticket with that money and arranged for his training in Afghanistan. Id. In June 2000, Lillie and “his friend Zubair” flew to Pakistan and then made their way to an al Qaida training camp in Afghanistan, Al-Farouq. App. 245-46. Lillie met Masran Arshad, also known as Abdul Aziz (Masran), and Afifi at Al-Farouq. App. 246. Lillie and Zubair received training in military tactics, firearms, and rocket-propelled grenades, watched propaganda videos weekly, and discussed martyrdom, America, and Israel. Id. UBL visited the camp and gave an inspiring talk about jihad, grievances, and fighting Americans. Id. After two months, Lillie was sent to Kabul in the fall of 2000 to guard the Arab front lines, where he also learned how to operate Surface-to-Air Missiles (SAM-7). App. 246, 429. Lillie returned to camp Al-Farouq after six months for more training. App. 246; see App. 427-28.

Petitioner “occasionally met” with Lillie in Kandahar, Afghanistan, where Lillie went in about August 2001 for medical treatment. App. 246-47. Lillie stated that petitioner was a leader in a group called JI. App. 248. This group “was separate from UBL's group, but [ ] had the same goals” as al Qaeda. App. 250. Petitioner's group wanted to “send[ ] a message” and continue jihad.³⁴ Id. Lillie explained that petitioner “was a scholar and a leader” who gave advice or issued a “fatwah” on whether an attack should proceed and ensured that attacks were made “within Islamic law.” App. 248. Petitioner taught Lillie that “non-believers should learn and worship Islam” and jihad's purpose was “to defend Islam.” App. 248-49. Petitioner's lessons became Lillie's goals. App. 248. As understood by Lillie, petitioner's group intended to send a message that “jihad would continue in Indonesia ‘forever’ ” to cause all of Southeast Asia to come under Islamic law. Id.; see also App. 250. The “primary target” of petitioner's group was American soldiers; civilians were a second priority. App. 250.

Petitioner “chose future martyrs who were ‘not too young,’ were strongly dedicated to Islam, and who lacked family problems.” App. 247. Lillie was an al Qaeda member and “willing to become a martyr.” Id. Petitioner “chose Lillie to swear bayat to UBL,” along with Zubair, Masran, and Afifi. App. 246-247, 429-430. In about September 2001, the group swore bayat to UBL; Masran was selected leader of their group (although arrested a short time later in Sri Lanka). App. 247-48, 429-30. The group “knew the target [of their mission] was American.” App. 247. Both petitioner and UBL told Lillie the group “would send a message.” App. 249.

Lillie, Zubair, and Afifi headed for Malaysia in 2002 to obtain new passports for easier entry into the United States. App. 247, 430. Lillie and Zubair traveled via Thailand. App. 247-48. Once in Thailand, Lillie maintained contact with petitioner, typically meeting in person. App. 248, 430. Petitioner and Zulkifli Bin Marzuki were “wanted” and living in Cambodia and then in Thailand; when living in Thailand, they went back into Cambodia for fraudulent identification and explosives for “later ‘actions.’ ” App. 248-249. Petitioner did not “task Lillie with a martyr operation in Thailand” although Lillie did whatever petitioner told him to do. App. 253. Lillie and Zubair worked in Thailand for petitioner, acquiring fraudulent passports and identification cards and delivering money. App. 248-49. A fraudulent passport cost about $200, which petitioner funded. App. 248.

Petitioner asked Dr. Azahari, an “expert bomb maker” wanted in Malaysia, to train Lillie and Zubair in bomb-making and made the introduction in Bangkok in 2002. App. 249, 430. Lillie, Zubair, and Dr. Azahari discussed potential targets in Thailand, including U.S. and Israeli Embassies, the Bangkok airport, and American businesses. App. 430-31. Lillie considered Dr. Azahari “to be a genius.” App. 430. He told Dr. Azahari that he wanted to learn how to make bombs. App. 249. Lillie wanted this knowledge to later carry out an attack. Id. Doctor Azahari trained Lillie and Zubair “on several occasions.” Id. Instruction included “sketching directions on paper for them in both English and Malay,” construction of electronic components, how to detonate a bomb, construction of a “vehicle bomb,” use of explosive material, and demonstrations using wire and metal. App. 430-31. Petitioner gave Lillie printed material on how to construct bombs, although Lillie admitted to not having studied the material. App. 432; see App. 255 (item 6A). Petitioner also approved funds for the purchase of material used by Lillie and Zubair in their construction of a basic ignition. App. 432.

Lillie believed it was likely that Dr. Azahari was involved in the Indonesian bombings. App. 249. Lillie denied knowledge of Dr. Azahari asking petitioner for funding for operations, App. 252, but stated that Dr. Azahari had requested funding for operations, App. 431. Lillie asked petitioner for money on Dr. Azahari's behalf and exchanged emails with Dr. Azahari about these money transfers. App. 431. He thought Dr. Azahari had similar communications with Zubair. Id. Petitioner told Lillie that one batch of money Lillie gave to an intermediary “was intended for Doctor Azahari.” App. 252. Lillie thought some of that money was used for bombings in Indonesia “and felt proud.” Id. Petitioner wanted attacks against the U.S. government and military and American companies. App. 431; see App. 250. Yet, he “permitted Azahari to plan and carry out an attack” on his own because of petitioner and Dr. Azahari's mutual trust. App. 431. Petitioner had no expectation of Dr. Azahari executing an immediate attack after receipt of funds. Id.

In 2002 and early 2003, Lillie received three deliveries of $100 bills in U.S. currency from “ ‘UBL,’ ‘the Arabs,’ or ‘Al Qa'ida.’ ” App. 250, 253. Each time, petitioner informed Lillie the delivery was coming and petitioner's brother, Hadi,³⁵ confirmed by email the delivery. App. 250. In the first transaction, petitioner told Lillie to meet an Arab called “Mansour” and gave Lillie's telephone number to Mansour's contact. Id. Mansour delivered the money in a plastic bag to Lillie in Thailand. Id. Once Lillie returned to his apartment, he looked into the bag to confirm receipt of money. Id. The other two transactions were similar, except Zubair met the al Qaeda courier. App. 251. Petitioner told Lillie and Zubair to exchange the money and they did so several times into regional currencies. Id.

Petitioner gave Lillie $10,000 from the three al Qaeda deliveries for Lillie and Zubair's expenses and tasks, which Lillie stored in his and Zubair's apartment.³⁶ Id. The remaining money from these al Qaeda funds also was kept in Lillie and Zubair's apartment until petitioner retrieved it or until he told Lillie or Zubair to deliver it somewhere. Id. A portion of this al Qaeda money was kept in Lillie and Zubair's apartment for about one year. Id. There is no indication in the record that the al Qaeda money stored in Lillie and Zubair's apartment was replenished by al Qaeda from time to time.

This al Qaeda money was “for savings, passports, and visas” and “intended for the mujahidin brothers in Indonesia and the Philippines.” Id. Petitioner visited the apartment periodically to retrieve some of the al Qaeda money, and Lillie or Zubair delivered other portions of this money to members of petitioner's group when petitioner told them to do so. Id. As instructed by petitioner, Lillie secured the transfer of about $10,000 (which petitioner had placed in a biscuit box) to someone in Indonesia. App. 251-52. Lillie used Johan, also known as Muhammad Nazir bin Ismail, an old schoolmate who Lillie said was not a JI member, to act as an intermediary; petitioner and Zubair later told Lillie that Dr. Azahari had been the recipient. App. 252, 434; App. 21 (alias). Lillie similarly transferred some of this al Qaeda money to Zulkifli abd Hir (Marzuki)³⁷ in the Philippines, again using Johan. App. 252, 434. In these transactions, Lillie provided to Johan a contact telephone number provided by petitioner. App. 252.

After Zubair's arrest in the summer of 2003, Lillie shared an apartment with petitioner and maintained email contact with petitioner's brother (Hadi) and Marzuki. App. 253, 431-32. During this time frame, Lillie continued to obtain false identification for petitioner and Marzuki and obtained some for himself. App. 433-34. Lillie summarized his relationships with petitioner and UBL, stating that petitioner gave Lillie “more specific guidance on a daily basis” but UBL “strengthened his belief in jihad.” App. 434. Lillie believed he still owed bayat to UBL in 2007 and, if ordered by UBL, would carry out a martyr operation as his duty. App. 253.

(5) Khalid Shaikh Mohammad's Statement (KSM)

KSM forged the al Qaeda/JI link, sent funds and operatives to petitioner for JI operations, provided funding for al Qaeda's anthrax program, and played a key role in the 9/11 attacks.

Khalid Shaikh Mohammad (KSM), also known as Muhktar, made statements in 2007 to special agents of the FBI and CITF and to an FBI intelligence analyst. App. 442-73 (Jan. 12, 13, 14, and 16, 2007); App. 21 (alias). His statements were summarized in a thirty-two-page document and included in the referral material. App. 442-73; App. 221-22. KSM is identified as a co-conspirator in the common allegations of petitioner's charge sheet for his involvement in Southeast Asian and Australian plots, a post-9/11 plot targeting civilians in the United States, and the 2003 bombing of the Marriott hotel in Jakarta, Indonesia. App. 5-8, 10. KSM “was responsible for linking Al Qaeda and JI in Southeast Asia.” App. 458. He played a key role in the attacks on September 11, 2001. See, e.g., App. 446-47. After his studies, including in the United States, KSM traveled to Afghanistan and Pakistan and was unconcerned about America; the Russian defeat in Afghanistan, however, inspired him. App. 444-45. “The reason for fighting America was simple. America was a friend of their enemies, Israel and corrupt regimes in Arab countries, America was also their enemy.” App. 444. KSM pledged bayat to Mullah Omar in Afghanistan, Abu Hafs al-Masri (Abu Hafs), and UBL. App. 470; supra note 9 (aliases). KSM explained that persons holding leadership positions in al Qaeda had to give bayat to UBL. App. 470.

KSM first met with UBL in 1996. App. 447, 456. After this meeting, KSM flew to Thailand, Indonesia, and Malaysia to visit JI members. App. 456-57. In Malaysia he met with JI leaders Abu Bakar Ba'aysir (Bashir), Abdullah Sungkar, and Muhklas (Muklas). App. 457. KSM convinced Bashir and Sungkar to visit UBL in Afghanistan and facilitated that travel, which occurred at a later date. Id. On the return home from their UBL visit, Bashir and Sungkar told KSM that UBL told them to “acquire a world view” and join al Qaeda in its fight. Id.

In 1999, while preparing for the 9/11 attacks, “KSM began training people for activities in Southeast Asia, and started sending people to the area.” App. 458. Moussaoui, also known as John, was one of the many operatives KSM sent to Southeast Asia. App. 450; App. 387 (alias). Petitioner or his people in JI, including Yazid Sufaat, infra, were responsible for providing operatives a place to stay and how they were “taken care of.” App. 450-51; see also App. 400. When petitioner relocated to Afghanistan after the Indonesian church bombings in December 2000, JI “started sending people to Afghanistan for training.” App. 458.³⁸ It was at this time that petitioner met KSM for the first time. App. 457. KSM had some direct contact with petitioner, but generally relied upon intermediaries, including petitioner's brother. Id.

“KSM suggested to UBL that there were nightclubs in Southeast Asia for American and British visitors, and they could use JI for an operation to target these clubs. Once UBL agreed, it was KSM's responsibility to conduct the operation.” App. 458. UBL sent operatives to KSM and KSM “would decide how to use them,” with occasional input from UBL. App. 459. KSM was aware of a big upcoming Southeast Asian operation; he did not know the target and date, but petitioner did. App. 457. Members of JI sent to KSM videos of clubs in Thailand as possible targets. App. 458. KSM also received reports from Abu Hazem Sharqi (Bandar) about “possible targets and the availability of explosives in Southeast Asia.” Id. The upcoming operation apparently was the 2002 Bali bombing. See App. 457, ¶¶ 5-6. After the Bali operation, KSM transferred $50,000 through intermediaries to petitioner for the next operation because he knew petitioner “could carry out an operation” and to help the families of those arrested in Bali. App. 457, 460-61.³⁹

KSM knew that Yazid Sufaat, “a biologist from the JI in Southeast Asia,” was involved in Al Qaeda's anthrax program. App. 456. Upon Abu Hafs’ death, KSM was responsible for maintaining this program and provided funding until Sufaat was arrested. Id.

Regarding his particular role in the 9/11 attacks, KSM first discussed “flying planes into buildings” with Ramzi Yousef ⁴⁰ and then with Abu Hafs in the Sudan in 1995. App. 446. Abu Hafs said he would discuss the idea with UBL. Id. In 1996 in Afghanistan, during their first meeting, KSM “discussed his idea of crashing planes into buildings directly with UBL.” App. 447; see also App. 456. UBL agreed with KSM's concept. App. 447. UBL realized the value of KSM's proposal after an EgyptAir plane crash. Id. “So much time, effort, and money, was put into the East Africa bombings and only a small number of Americans were killed, but when the pilot crashed the Egypt Air plane, hundreds were killed.” Id. UBL looked to the Oklahoma City bombing as a model for success. Id. KSM, UBL, and Abu Hafs agreed that the World Trade Center in New York City was the “biggest possible economic target.” Id.

“UBL selected the hijackers and sent them to KSM so KSM could prepare them for travel to the U.S.” Id. “KSM had contact with all four of the [9/11] hijacker pilots,” met three of them, and personally trained Mohammed Atta and Marwan Al Shehi,⁴¹ id., two of the hijacker pilots. “Atta was the leader of the 9/11 group in the U.S.” App. 451; see App. 452. KSM's 9/11 preparations included studying airport security and instructing hijackers on what they needed, identifying the steps for a successful entry and assimilation into the United States, and planning for a successful completion of the mission once a plane was hijacked (including “how to slit throats” by practicing on animals). App. 447-50.

(6) Faiz Abu Bakar Bafana's Statement (Bafana)

Bafana worked in JI's treasury section, surveilled potential U.S. targets in Singapore, and submitted his written proposal for an attack on a bus to Abu Hafs al Masri, al Qaeda's second in command, and watched his surveillance video with Abu Hafs.

Faiz Abu Bakar Bafana ⁴² made statements in 2002 to FBI special agents and DoJ employees, which were summarized in a forty-one-page document and included in the referral material. App. 373-413 (May 16-20, 2002); App. 221-22. Bafana is named in the common allegations of petitioner's charge sheet as a co-conspirator in plots against Singapore and the Philippines. App. 5-7. In 1987, he met Sungkar (the leader of JI) and Bashir (his deputy), joined JI, and pledged bayat to Sungkar.⁴³ App. 375. Bafana stated one goal of JI was an Islamic state with jihad “impos[ing] Islamic law.” App. 378. He trained in Afghanistan in 1991. App. 376.

Bafana and petitioner became “close associates” in the mid-1990s, although they met in about 1989. App. 377. He stated petitioner was “close” with Bashir but “not very close” with Sungkar. App. 379. Bafana had a business with Zulkifli Ismail ⁴⁴ in this time frame, which contributed money to JI. App. 373-74. In 1998, petitioner moved Bafana from the economy section of JI into the treasury section, and Bafana attended JI training in the Philippines. App 381, 405.

After training, Bafana and petitioner went to Pakistan and Afghanistan for two weeks. App. 381-82. They met Muhktar (KSM) at a bus station in Pakistan, the only time Bafana saw KSM. Id. Petitioner “spoke of Muhktar very often” and Bafana believed that petitioner was the link between JI and UBL. App. 382. Petitioner obtained maps on this trip that showed the American and foreign presence in the Middle East. Id. He told Bafana that “the Americans were coming after Muslim land” and Israel and America were the same. Id.

In 1999, petitioner gave Bafana “a map and videotape of the Yishan MRT [Mass Rapid Transit] station in Singapore,” and asked for a proposal on how to conduct an attack. Id. Bafana saw this effort as “an attempt by JI to follow the course set by UBL.” Id. He scouted the MRT station, which was near U.S. military housing. Id. Bafana and a JI associate presented to petitioner in May 1999 “a proposal for a pickup truck loaded with explosives to hit the bus that carries U.S. military personnel.” App. 383. Petitioner then told Bafana to go to Afghanistan and gave him Muhktar's (KSM's) telephone number. Id.

Unable to reach Muhktar by phone, Bafana continued to Afghanistan and delivered the information about the Singapore target to an unknown person, along with a letter from petitioner. Id. A few days later, he watched his video with Abu Hafs al Masri, “the number two man in al Qaida.” App. 384; see also App. 402. Abu Hafs agreed to “provide the money and suicide bombers” for the operation, but Bafana had to provide explosives and a transportation route for the explosives. App. 384. Bafana replied “that he would inform” petitioner. Id. Abu Hafs later provided $20,000 to petitioner. Id.

Around mid-2000, petitioner held a meeting attended by some Arabs from UBL's group “to discuss the operation targeting the Churches in Indonesia, and the Singapore operation against the U.S. Embassy.” App. 387. Petitioner argued churches should be attacked for causing unrest in Ambon, Indonesia. App. 387-88. Petitioner discussed his proposal with Bashir (JI's leader) and also told Bashir that UBL wanted to attack U.S. military targets in Singapore. App. 388. Bafana did not help plan the church attacks, but petitioner informed him of them. Id.

In about December 2000, Bandar (who Bafana thought was sent to follow up on Bafana's bus attack proposal) asked Bafana for information on American warships in Singapore. App. 390. Bafana went to Singapore to coordinate a response; a video was made (funded by JI) and a shipping schedule and maps were obtained. App. 390-91. Petitioner was on the run in February 2001, but still wanted reports on Bandar's program. App. 391. JI paid for the TNT. App. 392. In May 2001, Bafana and Zulkifli obtained photos of American ships in Singapore, id., and Bafana tracked a transportation route to move explosives into Singapore, App. 393. Bafana returned to Malaysia and provided a written plan and a $160,000 cost estimate to Bandar. App. 393. This proposed operation for an attack on American ships was not executed, Bandar left Malaysia in mid-summer 2001, and Bafana never saw him again. App. 393-94.

Bafana frequently sent JI money to various people on behalf of petitioner. App. 493. In 1998, for example, he sent about 20,000 Malaysian Ringgits (MRs) from JI funds to support a training camp in Mindanao in the Philippines. Id. Sometimes Bafana gave money to people to hand-carry to the Philippines to support JI. Id. Bafana also occasionally sent MRs in amounts of about 10,000 to Sulieman bin Abbas in Cebu, an island of the Philippines. Id. Petitioner authorized $2,000 of JI money for John (Moussaoui) to seek out flight training, which money Bafana personally handed to John. App. 494. Petitioner mistakenly spent about $5,000 of the $20,000 brought by KSM (Muhktar) from Afghanistan on fertilizer, ammonium nitrate, and aluminum powder for John and on expenses for Fathur Ghozi (Saad). App. 385, 394-95, 493.

In about late summer 2001, petitioner sent two Arabs, Amat (Jabarah) and his associate, to Bafana and they, along with Zulkifli, discussed available funds. App. 394. Amat, who likely was in communication with Muhktar (KSM), then visited the Philippines; later, the group discussed targets in the Philippines and Singapore and explosive requirements. App. 395-96. Ultimately, a Singapore target was selected with the understanding that it would be an American target. App. 396-97.

Bafana, along with others, met with petitioner three times in late 2001 in Thailand and Malaysia, before Bafana's arrest in mid-December 2001.⁴⁵ App. 396. In these meetings, petitioner managed JI expenditures. He delayed funding for Indonesian church operations, directed that funding for the flight training of Zaini ⁴⁶ (someone under UBL) remain untouched, and told Bafana to transfer all JI money to a person called “Amran” and “lie low.” App. 397-99; see App. 402-04. The group also discussed the Singapore operation.⁴⁷ App. 399. On December 15, 2001, the day after the third meeting, “Bafana knew he had a problem” because officials questioned Bafana when he visited his brother, who had been arrested. App. 399-400.

Bafana believed that “JI must help any way they can” based on UBL's fatwas. App. 389. He added, “JI supported UBL's fight and JI members were aware of the fatwahs issued by UBL ․ The members of JI were happy to work with UBL for Islam because UBL Sheikh had many resources such as training, which were free.” Id. Petitioner “coordinated relationships with the foreign groups, and JI was happy about [petitioner's] link to the Sheik [UBL] because they obtained training.” App. 402.

(7) Hashim Abbas’ Statement

Hashim Abbas was in a “Special Group” that surveilled and reported on potential U.S. targets in Singapore and in another group where he placed a bomb in a church in Batam, Indonesia, which was detonated.

Hashim Abbas made statements in 2004 to three FBI special agents in a meeting attended by a DoJ employee. App. 415-24 (Oct. 19, 2004). The statement was summarized in a ten-page document and included in the referral material. Id.; App. 221-22. Abbas is named a co-conspirator in the common allegations of petitioner's charge sheet for his involvement in the Christmas Eve 2000 church bombings in Batam, Indonesia. App. 6-7. Abbas pledged bayat to Abdullah Sungkar, the Emir of Darul Islam (DI, later known as JI). App. 415. He met Abu Bakar Bashir in about 1991 or 1992. App. 416. Abbas watched a taped version of UBL's 1998 Fatwa in Singapore with Haji Ibrahim Maidin, Ja'afar Bin Mistooki, and others in his JI training group, and Abbas concluded that UBL's fatwa was justified. Id.

After the 1998 fatwa, petitioner told Abbas and his training group to find targets of U.S. interest. Id. Abbas next met petitioner and Mas Salamat in Johor, Malaysia, and a “Special Group” was formed for operations against the United States. Id. This group included Abbas, Mohamed Kalim Bin Jafaar, Salamat as leader, and later Mistooki. App. 416-17. Orders to the group came only from petitioner and Muhklas (Muklas), App. 417, who was a brother-in-law of Abbas, App. 415. Around 1998 or 1999, the Special Group conducted surveillance in Singapore of an MRT bus station, the Eagle Club, the Sembawang Wharf, and United States Navy ships at the wharf, and obtained from garbage the names and schedules of persons associated with the U.S. Embassy for possible targets. App. 417. Abbas edited and narrated a video of the bus stop and wharf. Id. The Special Group chose the bus station, wharf, and club as targets for petitioner to consider and provided petitioner the surveillance information. Id. Petitioner asked if the group wanted to do the operation themselves, and Abbas told petitioner that an “outside group” should be used. App. 417-18. In 2000, Muhklas told the Special Group that the Arabs had rejected the proposed targets. App. 418.

When Sungkar died in 1999, petitioner told Abbas there was no need to give bayat to Bashir, the new Emir of JI. Id. Bashir had spoken many times in Singapore and, in 2000, he gave a lecture at Abbas’ home and stayed over one night. Id. In a 2000 meeting in Kuala Lumpur, Malaysia, Bashir told his audience that “JI must now participate in ‘dawah’ and ‘jihad’ at the same time.”⁴⁸ Id. Abbas understood this to mean that “JI was to actively recruit more members, while undertaking terrorist operations against their enemies.” Id. Petitioner then spoke to the audience to reinforce Bashir's statements. Id. A short time later, petitioner started a new group “that would be ‘operations ready.’ ” App. 419. Abbas was elevated to a leadership position in this group and appointed to train in tactics. Id.

In October 2000, Abbas, Mistooki, and Abu Rahim met petitioner at petitioner's home in Kuala Lumpur, and petitioner introduced the Batam operation to the group. Id. Petitioner explained that “Christians were planning to attack Muslims in Indonesia, and they had to counter such an attack.” Id. Petitioner designated Samudra as leader of the group and told the group to meet Samudra in Indonesia. Id. When the trio arrived in Batam, Samudra “provided a house and a motorcycle” for them. Id. Each member of the group separately conducted surveillance of different churches; Samudra “ultimately chose the targets.” Id. Abbas purchased ingredients for seven bombs and helped prepare those ingredients. Id. Samudra and an Indonesian named Muktib “actually built the bombs.” Id. Samudra “coordinated the timing of the attacks with an unknown person or group.” Id. In December of 2000 after three weeks of preparations, the bombs were planted in several churches. Id. The day after the bombings, Abbas, Mistooki, and Abu Rahim fled from Indonesia to Singapore without Samudra and Muktib. App. 420. They heard that the bombs exploded from the news and radio. Id.

After the Batam bombings, Abbas gained employment with a company that required significant traveling, which could later help Muhklas with computer hacking. Id. In 2000, Abbas and Muhklas attended an explosives course that concerned basic training in chemicals. App. 421. Later, Abbas attended a course on circuitry in explosive devices taught by Dr. Azahari at Dr. Azahari's residence in Malaysia. App. 422. Abbas was rejected for training in Afghanistan and the Philippines, which he attributed to his inability to pay for a plane ticket and his importance in the Wakalah.⁴⁹ App. 421. In 2001, Abbas participated in the surveillance of marine police in Singapore for a couple of hours. App. 420. On another occasion, Abbas traveled to Kalantan, Malaysia, on behalf of Salamat to deliver a message to petitioner; Abbas was met by Samudra, who took the message as the new leader of the Mantiqi. App. 420-21.

(8) Muhammad Rais’ Statement

Rais picked up and delivered over 200 kilograms of explosive material to JI members for use against U.S. targets.

Muhammad Rais made a statement in 2006 over three sessions to an employee of the DoJ, with a United States Department of State translator in attendance. App. 341-353 (Feb. 23-27, 2006). His statement was summarized in a thirteen-page document and included in the referral material. Id.; App. 221-22. Rais is named in the common allegations of petitioner's charge sheet as a Southeast Asian who traveled to Afghanistan “to train for and practice jihad.” App. 4. Rais was introduced to petitioner in 1998 at a communal prayer in Malaysia. App. 343. Rais heard of the struggle in Afghanistan from “the media.” Id. “He knew about Al Qaeda from the American Embassy bombings in Africa.” App. 344; see App. 466. Rais learned the United States was the “main enemy” from UBL's 1998 fatwa against the United States, which petitioner also discussed with him. App. 344. While Rais was teaching at the Lukmanul Hakim School in Malaysia, petitioner and Bafana asked Rais if he was interested in going to Afghanistan. App. 342-43. Petitioner gave Rais six months to make money for the trip, a passport, and a visa. App. 343. Rais quit teaching to make more money at a factory. Id. “[I]t was his ‘dream’ to work and train with Al Qaeda” and Rais was “very happy” when he was informed by petitioner that he (Rais) “would join with Al Qaeda in Afghanistan.” App. 344. Rais “never considered” volunteering to be a martyr or suicide bomber because he was “not ready.” App. 352. He instead described himself, in his own words, as a “ ‘foot soldier’ ” following the orders of his superiors. App. 343, 352.

In about October 1999, Rais and someone called Harus met with petitioner and Bafana at the Kuala Lumpur International Airport in Malaysia. App. 343. Petitioner told Rais that Bafana was his guide to Afghanistan. Id. Rais, Bafana, and Harus then flew to Karachi, Pakistan, and made their way to Kandahar, Afghanistan. App. 344. During this period, Rais and petitioner contacted each other frequently in Kandahar. App. 348. Rais spent two years at camp Al-Farouq from 1999 until 2001, in training, as an instructor, and as a soldier. App. 345-46. He trained on light weapons, urban warfare, grenades, improvised explosive devices, and poisons. Id. Rais stated that “it was only after he went to Afghanistan that he learned how to kill Americans.” App. 342. UBL visited the camp frequently, and Rais attended the wedding of UBL's son. App. 345, 347. Rais never met KSM. App. 347.

In September 2001, Rais returned home to Indonesia. App. 348-50. In January or February of 2003, he picked up about 200 kilograms of “aluminum powder and black powder mixed together” and detonation cord from one or more homes. App. 351. Rais gave this material to a bus agent for delivery via a bus to Noordin Top. Id. Top was Rais’ brother-in-law and had taught at the Lukmanul Hakim School with Rais, and Top and petitioner were “associates.” App. 342-43. About one week later, Rais delivered more explosives in person to a boarding house where Dr. Azahari and Top were staying. App. 351. Rais was arrested in April 2003 shortly after delivering the explosives. App. 350-51. “[T]he ultimate goal was to use the explosives against an American target.” App. 351. Rais “did not know how TOP and AZAHARI got enough funding to conduct the Marriott attack.” Id. He believed the explosives he transported to Top were used in the Marriott hotel bombing. App. 352-53. Tohir (a former classmate of Rais) and Ismail (a former student of Rais and later a teacher at Lukmanul Hakim School)⁵⁰ admitted to Rais that they were involved in the bombing of the Marriott. App. 350, 352. Ismail told Rais “that the Marriott bombing was done by ‘our group[ ]’.” App. 352.

(9) Masran Bin Arshad's Statement

Masran met with KSM to deliver funds to petitioner in Bangkok, Thailand, but was arrested with those funds in Sri Lanka before delivery.

Masran Bin Arshad, also known as Abdul Aziz (Masran), made a statement in 2009 to two FBI special agents in a meeting attended by DoJ employees. App. 355-59 (Sept. 2, 2009); App. 21 (alias). His statement was summarized in a five-page document and included in the referral material. App. 355-59; App. 221-22. Masran is a named co-conspirator in the common allegations of petitioner's charge sheet for his involvement in a post-9/11 plot targeting civilians in the United States. App. 7-8. In 2000, Masran left Malaysia for military training in Afghanistan, where he first briefly stayed in a guest house for Malaysians. App. 355-56. The guest house was run by petitioner, who also arranged Masran's training. App. 356. Masran received three months of basic training on weapons and bombs at camp Al-Farook (Al-Farouq). App. 355-56. He swore bayat to UBL on two separate occasions and agreed to fight for Islam. App. 356-57. Petitioner helped arrange Masran's second meeting with UBL; petitioner was in charge and “gave the orders,” which were followed. App. 357. Masran stated that “UBL was their overall spiritual leader, but they [took] their specific orders” from petitioner or Mukhtar (KSM). Id.

Regarding KSM, petitioner arranged a meeting between Masran and KSM, telling Masran that KSM would provide him with money and instructions. Id. Masran stayed at KSM's house in Afghanistan for a few days. Id. KSM told Masran to expect receipt of funds for delivery to petitioner in Bangkok, which required Masran to travel through several countries. Id. KSM provided the funds to Masran, and Masran was arrested in Sri Lanka with the money intended for petitioner. App. 357-58. KSM also told Masran during their meeting that there was “another 9/11/01 operation plan for California,” App. 357, but later informed Masran that the operation had been cancelled due to some arrests in America, App. 358. Masran attended about ten UBL sermons prior to his arrest. App. 358.

(10) Ja'afar Bin Mistooki's Statement

Mistooki was on the Singapore Shurah Committee, surveilled and reported on potential U.S. targets in Singapore, delivered JI letters to al Qaeda leadership, and was group leader for church bombings in Batam, Indonesia.

Ja'afar Bin Mistooki made a statement in 2004 to three FBI special agents and a DoJ employee. App. 361-71 (Oct. 18, 2004). This statement was summarized in an eleven-page document and included in the referral material. Id.; App. 221-22. Mistooki is named a co-conspirator in the common allegations of petitioner's charge sheet for his involvement in the Christmas Eve 2000 church bombings in Batam, Indonesia. App. 6-7. In 1989, Mistooki joined JI and pledged bayat to Abdullah Sungkar, the JI leader. App. 361. He was placed in a Singapore cell and in 1991 was asked to go to Afghanistan. Id. Mistooki personally paid for his airline ticket, flew from Malaysia to Karachi, Pakistan, and then traveled on to Afghanistan with others, including Fathi Bafana.⁵¹ App. 362. He received six months of military training, to include training with explosives. Id. Mistooki then returned home to Singapore and his former cell. App. 362-63. Mistooki first met petitioner in 1993 during a training session in Malaysia. App. 365.

In late 1993 or early 1994, Mistooki was assigned to a JI military cell in Singapore to train others. App. 363. After about three years, he was assigned to the Singapore Shurah committee, which read UBL's fatwa on targeting the U.S. military. Id. In about 1997, Mistooki went to Malaysia to the home of Muhklas (Muklas). Id. Mistooki, Khalim bin Ja'afar, and Hashim Abbas met Muhklas, who gave Mistooki an order from petitioner to pick U.S. targets. Id. Upon return to Singapore, Mistooki, Hashim Abbas, and others picked the Sembawang Wharf, the Yishun MRT (a transit stop frequented by U.S. military personnel), and other sites. Id. They took pictures, observed bus patterns, videotaped the potential targets and bus routes, and discussed ways to attack. App. 363-64. Ja'afar prepared a report and presumably passed all information to Muhklas. App. 364.

In 1998, Mistooki accompanied Mas Salamat to Kandahar, Afghanistan, and together they delivered letters from JI leadership to UBL and Ayman Zawahiri.⁵² Id. A Pakistani paid for the airline tickets in exchange for transporting his belongings to Afghanistan. Id. The purpose of this trip was to deliver the letters but once there, Mistooki and Salamat then traveled to Jalalabad, Afghanistan, and “asked for training.” Id. They were unable to obtain training due to their lack of time and returned to Singapore. App. 364-65. In 2000, petitioner chose Mistooki to return to Afghanistan and JI paid for the travel expenses. App. 365. “Mistooki was given the [airline] ticket by Hambali [petitioner].” Id. Mistooki received two weeks of chemical explosive training and four weeks of artillery training. App. 365-66. In October 2000, petitioner chose Mistooki, Ja'afar, Hashim Abbas, and Abdul Rahim to participate in the 2000 Batam church bombing operation in Indonesia on Christmas Eve. App. 366. Mistooki remarked in his interview that it would cost a large amount of money to conduct the church bombings. App. 369. At his home in Kuala Lumpur, Malaysia, petitioner personally briefed Mistooki, Abbas, and Abdul Rahim about the Batam operation, and Mistooki was designated the leader of the group. App. 366.

Mistooki and his group went to Batam in late November of 2000; upon arrival they called petitioner, who instructed them to wait. Id. Imam Sumudra (Qudama) arrived a few days later and “gave a briefing consisting of a plan [to] place bombs in churches.” Id. Each group member picked a main target, attended Sunday services at their target church, conducted surveillance, made sketches, and determined a good place to leave a bomb. Id. The group, including Mistooki, assisted in construction of the bombs. Id. Doctor Azahari and Sumudra assembled the circuits for the bombs. App. 367. The bombs were disguised as Christmas presents. Id. Mistooki and each person in his group set the timers for their bombs, placed the bombs in their assigned church, and left the targeted sites. Id. Mistooki placed his bomb under his seat in the church, but it failed to explode when detonated. Id. Mistooki and his group left Batam the next day, and Mistooki returned to Singapore. Id. Petitioner and KSM visited Batam “to give moral support for the Batam operation.” Id.

In about January 2001, Mistooki attended an after-action meeting with petitioner, Muhklas, Bafana, Sumudra, and others to discuss the church bombing operation. App. 369. After this meeting, petitioner went to Singapore to discuss the targeting of Jews. Id. About two months after the church bombings, Mistooki and his cell began planning an attack on the Singapore Army Headquarters and a Singapore/Malaysian pipeline. App. 367. Surveillance was similar to prior surveillance by Mistooki of potential targets, discussed supra. See App. 368. The group also entered the Army Headquarters by ruse for observations. Id. In mid-2001, Mistooki, petitioner, the Singapore military cell, and others met in Singapore and discussed the possibility of targeting Jewish American military personnel but decided this was not feasible. Id.

II. LAW AND ANALYSIS

This court has jurisdiction over mandamus petitions for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a). See In re Al-Nashiri (Al-Nashiri III), 921 F.3d 224, 227, 233 (D.C. Cir. 2019). A writ of mandamus may only be granted when a petitioner meets the following three-pronged test:

First, the party seeking mandamus must have “no other adequate means to attain the relief he desires.” [In re Al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015)] (quoting Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004)). Second, he must show that “his right to issuance of the writ is clear and indisputable.” Id. (quoting Cheney, 542 U.S. at 381). And even if the first two conditions are satisfied, the court must believe “the writ is appropriate under the circumstances.” Id.

In re Al-Nashiri (Al-Nashiri II), 835 F.3d 110, 136 (D.C. Cir. 2016) (parallel citations omitted).

Mandamus “is a drastic and extraordinary remedy reserved for really extraordinary causes.” In re Hawsawi, 955 F.3d 152, 157 (D.C. Cir. 2020) (citation omitted). The remedy is only justified in “exceptional circumstances amounting to a judicial ‘usurpation of power’ ” or for a “clear abuse of discretion.” Cheney, 542 U.S. at 380 (some quotation marks omitted) (first quoting Will v. United States, 3 89 U.S. 90, 95 (1967); and then quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)). The United States Supreme Court has recognized a “policy against piecemeal appellate review”—a policy generally undermined by granting mandamus. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam); see also In re Papandreou, 139 F.3d 247, 250 (D.C. Cir. 1998) (concluding lax approach to mandamus petitions undermines final judgment rule and “would lead to piecemeal appellate litigation”). Petitions for writs of mandamus “will be denied where another adequate remedy is available.” United States v. Poindexter, 859 F.2d 216, 222 (D.C. Cir. 1988) (per curiam).

“Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.” In re Al-Nashiri (Al-Nashiri I), 791 F.3d 71, 78 (D.C. Cir. 2015). This means petitioner “must identify some ‘irreparable’ injury that will go unredressed if he does not secure mandamus relief.” Id. at 79 (quoting Banks v. Office of Senate Sergeant-At-Arms & Doorkeeper of U.S. Senate, 471 F.3d 1341, 1350 (D.C. Cir. 2006)). The fact that petitioner might have to wait until after his trial to obtain relief does not, in and of itself, warrant interlocutory interference with ongoing lower proceedings. See Parr v. United States, 351 U.S. 513, 519-20 (1956).

“[I]t is established that the extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial.” In re Flynn, 973 F.3d 74, 79 (D.C. Cir. 2020) (en banc) (per curiam) (quoting Bankers, 346 U.S. at 383). The enormity of the burdens imposed on petitioner “without more, generally do not suffice to bring a case within mandamus's ambit.” Id. at 79-80.

This court must guard against issuing advisory mandamus opinions. See Al-Nashiri I, 791 F.3d at 81 (citing United States v. Hubbard, 650 F.2d 293, 309-10 n.62 (D.C. Cir. 1980); Banks, 471 F.3d at 1350).

A. Standards for Referral to Trial by Military Commission

Rule for Military Commissions (R.M.C.) 406(a), MMC, specifies that “[b]efore any charge may be referred for trial by a military commission, it shall be referred to the legal advisor of the convening authority for consideration and advice.” Rule 406(b) describes the contents of the pretrial legal advice as follows:

(b) Contents. The advice of the legal advisor shall include a written and signed statement which sets forth that person's:

(1) Conclusion with respect to whether each specification alleges an offense made punishable under chapter 47A of title 10, United States Code;

(2) Conclusion with respect to whether the allegation of each offense is warranted by the evidence indicated in the report of investigation (if there is such a report);

(3) Conclusion with respect to whether a military commission would have jurisdiction over the accused and the offense;

(4) Conclusion, after consultation with the Office of the Director of National Intelligence and appropriate intelligence agencies, with respect to whether trial of the charges would be harmful to national security; and

(5) Recommendation of the action to be taken by the convening authority.

Rule 406 does not specify that the referral material must include documentary evidence supporting the charges. The Discussion to Rule 406 provides:

The advice need not set forth the underlying analysis or rationale for its conclusions. Ordinarily, the charging document is forwarded with the pretrial advice. In addition, the pretrial advice should include when appropriate: a brief summary of the evidence; and discussion of significant aggravating, extenuating, or mitigating factors. Whatever matters are included in the advice, whether or not they are required, should be accurate. Information which is incorrect or so incomplete as to be misleading may result in a determination that the advice is defective. The standard of proof to be applied in R.M.C. 406(b)(2) is probable cause. See R.M.C. 601(d). Defects in the pretrial advice are not jurisdictional and are raised by pretrial motion.

In petitioner's case, the legal advisor to the convening authority provided the requisite pretrial advice, in which he made general references to the charges and the referral binder; however, he did not include any meaningful summary of the evidence. His pretrial advice did not mention the 9/11 Commission Report or torture. Def. Mot., Attach. G (App. Ex. 0032.001 (NUR)). It also did not include a discussion of the aggravating, extenuating, or mitigating factors.

Rule for Military Commissions 601(d)(1) does not address how or if information derived from torture can be included in the pretrial advice or referral materials for a military commission trial. The rule, however, explicitly states the convening authority and legal advisor “may consider information from any source.” The standard for referral of charges to trial by military commission at Rule 601(d) is as follows:

(1) If the convening authority finds, or is advised by a legal advisor that there are reasonable grounds to believe that an offense triable by a military commission has been committed and that the accused committed it, and that the specification alleges an offense, the convening authority may refer the charge and specification to a military commission for trial. The finding may be based on hearsay in whole or in part. The convening authority or legal advisor may consider information from any source and shall not be limited to the information reviewed by any previous authority, but a case may not be referred to a military commission except in compliance with R.M.C. 406. The convening authority or legal advisor shall not be required before charges are referred to resolve legal issues, including objections to evidence, which may arise at trial.

B. Admissibility of Evidence Derived from Torture

Title 10, section 948r(a) of the United States Code, states:

(a) Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment. No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made.

The Detainee Treatment Act of 2005 states:

(d) Cruel, inhuman, or degrading treatment or punishment defined. In this section, the term “cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

42 U.S.C. § 2000dd(d) (citing Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (ratified Oct. 21, 1994) [hereinafter CAT]).

The CAT provides for application of an exclusionary rule when a state seeks to use evidence obtained from torture in legal proceedings. CAT art. 15; see also In re Al-Nashiri (Al-Nashiri IV), 47 F.4th 820, 823 (D.C. Cir. 2022) (citing International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Rep. 102-23, 999 U.N.T.S. 175; Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948)). Article 15 of the CAT states, “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

Admissibility of evidence in the Manual for Military Commissions is not mentioned outside of Part III, Military Commission Rules of Evidence, which concerns admissibility of evidence at trial. See, e.g., Mil. Comm. R. Evid., MMC, 304(a)(1) (“Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.”).

C. Litigation on Use of Evidence Derived from Torture in In re Al-Nashiri

Before this court, in In re Al-Nashiri, No. 21-001, the government offered two of Al-Nashiri's statements as exhibits during pretrial discovery litigation. Ord. Dismissing Pet. 2 (CMCR Sept. 20, 2021). Al-Nashiri's two statements were made “while he was in the former Rendition, Detention, and Interrogation (‘RDI’) Program.” Id. (citation omitted). The RDI Program employed “harsh interrogation techniques to obtain information from detainees, including petitioner [Al-Nashiri].” Id. This court dismissed Al-Nashiri's writ as moot because the prosecution moved to withdraw the evidence. Id. at 5. We noted, however, that the military judge had said, “[T]he Commission makes no ruling on the question of whether it will consider similar statements on other interlocutory issues or how much weight it would give such statements in resolving any future disputed factual issue raised in motion practice.” Id. at 2 (alteration in original; citation omitted). This court said:

Respondent has not indicated whether [Al-Nashiri's] statements obtained during the RDI program will be proffered on interlocutory matters. The admissibility of such statements is not a moot issue. Compare Porup v. CIA, 997 F.3d 1224 (D.C. Cir. 2021) (strong assurances from agency about future practices mooted complaint about prior practices) with Payne Enters., Inc. v. United States, 837 F.2d 486, 492 (D.C. Cir. 1988) (finding “weak assurance” about the likelihood of recurrence of the agency policies and poor history insufficient to moot challenge). See also Trinity Lutheran Church of Colum., Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (stating that “voluntary cessation of a challenged practice does not moot a case unless ‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ ” (alteration in original) (quoting Friends, 528 U.S. at 189)).

․ If [the military judge] used such evidence to support an interlocutory decision, then this admissibility issue would not be moot, and it would be ripe.

Id. at 4-5.

Respondent provided clarification regarding the government's use of statements obtained from harsh interrogation techniques during oral argument in Al-Nashiri IV, 47 F.4th at 822. App. 570. Respondent stated “that the Government's position with respect to Section 948r(a) is that statements obtained through torture of anyone, whether it is the defendant or the -- or a third party, are inadmissible under Section 948r(a) at any stage of the proceedings.” Id. Respondent also said the government has not “yet established a position” on the admissibility of evidence derived from torture. Id. at 571. Respondent added that derivative evidence from torture includes statements not “directly obtained” from the torture of a person. Id.

Upon appeal from our September 20, 2021, ruling, the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) concluded that oral argument and subsequent letters from the government, submitted pursuant to Fed. R. App. P. 28(j), had provided the Court, “with ‘strong’ and ‘sufficient’ assurances that the Government ha[d] changed its practice regarding the use of these statements in pretrial proceedings.” Al-Nashiri IV, 47 F.4th at 825. The Court noted that respondent “withdr[ew] the statements identified to have been made under torture” and assured the Court that “it will not offer any statements obtained by the torture of anyone at any stage in the proceedings.” Id. Based on this assurance, the D.C. Circuit concluded “[t]here is simply no remaining case or controversy with respect to the identified statements obtained by Al-Nashiri's torture” and dismissed petitioner's interlocutory appeal as moot. Id.

D. Pretrial Litigation at the Military Commission

Before the military commission, petitioner asserted that: (i) the CIA tortured him and several other detainees and the resulting intelligence interrogation reports provided the basis for the 9/11 Commission Report excerpt; (ii) information obtained by or derived from tortured detainees was included in the 9/11 Commission Report; (iii) evidence obtained by or derived from torture is inadmissible under 10 U.S.C. § 948r(a), international law, and constitutional law; and (iv) the excerpt from the 9/11 Commission Report was used as a basis to refer petitioner's charges to a military commission for trial. Pet'r's Br. 2-5; see also Def. Mot. 1-3.

Admittedly, for some portion of Chapter 5 of the 9/11 Commission Report (from which the excerpt was drawn), the 9/11 Commission relied “heavily” on intelligence reports derived from interrogations over which it essentially had “no control.” Def. Mot., Attach. D (p. 146 of 9/11 excerpt). Yet, it remains unclear which of the many statements in the 9/11 excerpt petitioner finds objectionable. Petitioner did not present witness testimony or documentary evidence to the military commission specifying the particular statements in the excerpt he believed to be based on statements resulting from enhanced interrogation techniques under the RDI program. He did not present testimony or documents on whether there was evidence in the referral binder not derived from torture that supported the conclusions of the excerpt. He did not address the extent to which any such other evidence supported referral of his case.

Petitioner moved to have the military judge dismiss the charges with prejudice because the use of information obtained by and derived from torture was illegal and highly prejudicial. Pet'r's Br. 5-6 (citing App. Ex. 0032.001 (NUR), at 27 (Def. Mot.)); Def. Mot. 2, 23. In the alternative, petitioner proposed that the military judge dismiss the charges without prejudice and disqualify the entire offices of the chief prosecutor and the convening authority from further involvement in his case. Def. Mot. 23, 26-27. Petitioner did not renew this alternative remedy before us. See Pet'r's Br. 1-2.

Respondent did not take a position on whether the information in the excerpt from the 9/11 Commission Report resulted from torture. Instead, respondent assumed for purposes of resolving the petition “that the 9/11 Commission Report relied on statements obtained by torture,” Resp't's Br. 22, and urged denial of the petition “because ‘there was sufficient evidence other than the nine-page excerpt [at issue] to support the referral decision of the’ Convening Authority,” id. at 24 (alteration in original) (quoting App. 530 (military judge's ruling)). Respondent contended that there was sufficient independent evidence to support the referral of charges, and the information in the 9/11 Commission Report excerpt was cumulative. Id. at 23, 24 & n.122.

The military judge found for purposes of resolving the defense motion that the 9/11 Commission Report “in the referral binder contained citations to statements which were obtained by the use of torture or by cruel, inhuman or degrading treatment.” App. 527; see App. 208 (government response on April 21, 2022, making argument based on assumption that “inclusion of the 9/11 Commission Report excerpt was in error”); App. 210 (referencing same assumption). The military judge suggested “a plain reading of [section 948r(a)] does not support [petitioner's] argument” that inclusion of the 9/11 Commission Report in the referral binder violates the statute. App. 527. He explained this is so because § 948r(a) is limited to admissibility of statements in a military commission trial. Id. The military judge added, however, that the term “admissible” in § 948r(a) is nonetheless “instructive on how” evidence obtained by torture “may be utilized in other ways, to include the referral process.” Id. (emphasis added).

The military judge acknowledged a concession by the government about the applicability of § 948r(a) made before the D.C. Circuit in a different military commission case, Al-Nashiri IV, 47 F.4th 820. App. 528-29. That case involved a petition for a writ of mandamus and prohibition. The government said in its Al-Nashiri opposition brief, filed on January 31, 2022, that it “will not seek admission, at any stage of the proceedings, of any of petitioner's statements while he was in CIA custody.” Resp't's Opp. Br. 4, Al-Nashiri IV, No. 21-1208 (D C. Cir. Jan. 31, 2022) (Def. Mot. 12, Attach. F); App. 529 (military judge quoting same in his ruling); see also Al-Nashiri IV, 47 F.4th at 824 (noting government concession that “statements obtained by torture” are inadmissible in “pre-trial discovery stages”), and at 825 (noting similar). In Al-Nashiri IV, the government's concession resulted in the D.C. Circuit dismissing the mandamus petition for mootness, inter alia. 47 F.4th at 828; see App. 529; supra Part II.C (discussing In re Al-Nashiri).

On January 21, 2021, the Nurjaman charges were referred to trial. App. 1-2. On January 31, 2022, the government made assurances in Al-Nashiri IV that it would not seek to admit “at any stage of the proceedings” statements made by Al-Nashiri when he was in CIA custody. Def. Mot., Attach. F, at p.12 of 37. The military judge in the case before us noted that the new government policy announced in Al-Nashiri was not retroactive. App. 529. He assumed, however, that the new policy applied retroactively to the referral in petitioner's case to determine if the referral was defective. Id. Alternatively, the military judge concluded as follows:

Even with a finding that the inclusion of the SSCI Report[53] [and consequently the 9/11 Commission Report] in the referral binder was a violation of § 948r(a), the Accused is not entitled to the relief sought. When faced with challenges to charging decisions that may have been based on impermissible or improper evidence, courts have concluded the charging decision is valid as long as “there was sufficient other [evidence] to support” the decision.

Id. (last alteration in original) (quoting Coppedge v. United States, 311 F.2d 128, 131 (D.C. Cir. 1962)). In his analysis of prejudice, the military judge said:

[M]ilitary courts require a showing that the defect “materially prejudiced the substantial rights of an accused.”54 The M.C.A. [Military Commissions Act] § 950a(a) expresses the same test as used by the military courts and thus, this Commission will use it in evaluating the alleged deficiency in referral. While the Defense claims “[t]he prejudice resulting from the use of information obtained by torture when referring charges in this case is clear and apparent”55, the Defense does not convincingly provide concrete examples of the “clear and apparent” prejudice.

Id. at 530 (last alteration in original).

E. Merits of Petitioner's Arguments

1. “Admissible in a military commission” Refers to Evidence at Trial

We agree with the military judge's interpretation of the word “admissible” in 10 U.S.C. § 948r(a). The term “admissible” is a legal term of art, typically associated with the admission of evidence during a trial or in a preliminary hearing. Petitioner cites no authority for extending the word “admissible” to matters considered during the referral decision process—a decision which Rule for Military Commission 601(d)(1) explains may be based on “information from any source.” Instead, he relies on a definition of “admissible” from Black's Law Dictionary, which includes, inter alia, “[c]apable of being legally admitted.” Pet'r's Br. 13 (alteration in original).⁵⁶ Petitioner seeks to bolster this argument by pointing to the fact that 10 U.S.C. § 948r(a) falls under the subchapter titled, “Pre-Trial Procedure,” arguing this placement indicates the statute is tied to pretrial matters. Id. at 14. Petitioner urges the court to broadly construe 10 U.S.C. § 948r(a)’s reference to evidence “admissible in a military commission” so that it reaches every stage of a commission proceeding, including stages occurring before, or at least contemporaneous with, the formation of a commission. Id. at 14-15.

The plain language of the statute, however, does not compel such an interpretation, or even provide much support for it. Indeed, the more straightforward reading of the statute is that Congress has prohibited the admission of statements obtained by torture into evidence in a trial by military commission.

In his brief, petitioner has demonstrated the government's position in Al-Nashiri IV as being that the government would not offer evidence obtained by torture in that case during pretrial litigation. Id. at 6-7. Petitioner, however, has not advanced any theory—much less identified any controlling authority—for concluding that the government's position before the D.C. Circuit in Al-Nashiri IV is the law in this case. Even if the government's position in one case binds the government in every other commission case, it is unclear whether application of the new position to “stage[s] of the proceedings” and “pretrial phases of a military commission case” reach the referral process, which occurs before a commission has been convened. Id.

An expansive reading of the meaning of the phrase “admissible in a military commission” in 10 U.S.C. § 948r(a) would operate to prohibit the government from ever using evidence obtained by torture or torture-derived evidence with respect to a person being considered for trial by a commission, when the case is in a pre-referral status. An at least equally plausible reading—especially given the post-referral motions stage of trial at which the Al-Nashiri IV matter was raised—is that evidence obtained by the use of torture or torture-derived evidence may not be introduced in a military commission, which encompasses motions practice, trial on the merits, and presentencing proceedings.

In light of this rational, and more direct interpretation of the government's position in Al-Nashiri IV on the meaning of “admissible in a military commission,” petitioner has not established a “clear and indisputable” right to relief. Cheney, 542 U.S. at 381 (citation omitted). This is so even if we were to conclude that respondent is bound in the case now before this court by a position it has taken in another case before a different commission. Notably, petitioner also has not reconciled an internal inconsistency lying within his suggestion that the government's position in Al-Nashiri IV is binding in his case. The government apparently made a change in its position on admissibility after the convening authority decided to refer petitioner's case. Thus, at the time of petitioner's referral, the government's stated position was that torture-derived evidence could be used during motions (and presumably during all other pretrial points in the commission process). The government's new position raises the question of retroactivity—yet another aspect of petitioner's request that fails to reveal a clear wrong. See App. 529; supra Part II.D.

2. The Constitution's Due Process Clauses Are Not Applicable

In this section, we make three assumptions. First, we assume without deciding that, under 10 U.S.C. § 948r(a), evidence obtained by and derived from torture is inadmissible as part of the basis for a referral decision. Second, we assume that such information was erroneously included in the referral materials the convening authority considered before referring petitioner's charges to trial by military commission. Third, we assume without deciding that the Fifth Amendment Due Process Clause is implicated in this case. We need not decide, however, the nature and scope of any constitutional violation or constitutional error because, assuming a violation, the controlling issue is the remedy. See Al-Hela v. Biden, 66 F.4th 217, 221 (D.C. Cir. 2023) (en banc). In that case, the Court stated:

We hold that we need not decide whether due process protections apply to Guantanamo detainees, because even assuming the Due Process Clause applies, we find that the procedures employed by the District Court to adjudicate Mr. al-Hela's habeas petition satisfy procedural due process.

Id. at 222; see generally, e.g., Qosi v. United States, 462 F. Supp. 3d 1181, 1188-89, 1191 n.10, 1193 (CMCR 2020) (discussing application of Due Process Clause for an accused tried by a military commission). Here and in subpart 4 infra, we consider further the issue of remedy.

Petitioner contends that inclusion of information obtained by or derived from torture in the referral material warrants automatic dismissal of the charges with prejudice because this “government conduct ‘strikes at the fundamental values of our judicial system and our society as a whole.’ ” Pet'r's Br. 20-21 (quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979)); see id. at 23 n.8, 26. Petitioner asks us to dismiss the charges with prejudice because torture applied deliberately by the United States Government is a constitutional violation “so serious that it must never be treated as harmless by a reviewing court.” Id. at 19; see id. at 16-19.

In support of his argument, petitioner cites five Supreme Court cases discussing application of the constitutional guarantee of due process. Id. at 16-22 (citing County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998) (tort case indicating police chase resulting in a death does not violate Fourteenth Amendment's substantive Due Process Clause in absence of “arbitrary conduct shocking to the conscience”); Arizona v. Fulminante, 499 U.S. 279, 295-302 (1991) (applying harmless error analysis in case involving Fourteenth Amendment Due Process and erroneous admission of coerced confession at trial); United States v. Lovasco, 431 U.S. 783, 795-96 (1977) (holding that prosecution after investigative delay does not deprive defendant of due process under Fifth Amendment); Rochin v. California, 342 U.S. 165, 166, 168, 174 (1952) (concluding admission at trial of evidence pumped from defendant's stomach violated Fourteenth Amendment Due Process Clause); Brown v. Mississippi, 297 U.S. 278, 279, 287 (1936) (stating admission at trial of confession obtained by brutality violated Fourteenth Amendment Due Process Clause)); see also Payne v. Arkansas, 356 U.S. 560, 568 (1958) (holding admission of coerced confession where “general verdict is returned” violated Due Process Clause of Fourteenth Amendment, even where other evidence may have supported conviction).

Petitioner has not clearly established that he has due process rights under the Fourteenth Amendment. That amendment states, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ․” Lewis, Fulminante, Rochin, and Brown concerned due process under the Fourteenth Amendment. As such, they are inapplicable to petitioner's case, as no State is involved in the military commission process. Petitioner's cited cases also are factually distinguishable. Lewis involved a civil tort action and Fulminante, Rochin, and Brown concerned evidence improperly admitted at trial.

Lovasco, also cited by petitioner, concerned whether there was a Fifth Amendment Due Process violation because of a long investigation before indictment. 431 U.S. at 795-96. Assuming without deciding that the Fifth Amendment is implicated in this case, petitioner has received all the process that was due based on the record before us. “ ‘[R]emedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” ’ ” United States v. Knight, 981 F.3d 1095, 1107 (D.C. Cir. 2020) (quoting Lafler v. Cooper, 566 U.S. 156, 170 (2012)). Determining whether there was sufficient support for the charges after excising the information in the 9/11 Commission Report is a sufficient and appropriate remedy.

In petitioner's case, we are able to conclude that petitioner was not prejudiced by inclusion of the excerpt from the 9/11 Commission Report in the referral materials. The record before the convening authority (referral binder) was more than sufficient to sustain the charges had the nine-page excerpt been excluded from the referral binder. Infra Subpart 3.b. Moreover, under jurisprudence involving analogous grand jury proceedings, any error in charging is corrected in the merits adjudication because the military commission judge will not be relying on the tainted material. See, e.g., United States v. Mechanik, 475 U.S. 66, 70 (1986) (holding that “[m]easured by the petit jury's verdict, [ ] any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt”); United States v. Robinson, 367 F.3d 278, 289 (5th Cir. 2004) (stating “petit jury's unanimous finding” was “at a minimum, persuasive evidence of how a grand jury would find” (citing Mechanik)); United States v. Borda, 905 F. Supp. 2d 201, 204 (D.D.C. 2012) (stating petit jury's guilty verdict “after a full trial on the merits renders harmless any non-constitutional error in the grand jury's charging decision” (citing Mechanik)). Lovasco also is distinguishable because that case did not involve the admission of evidence.

In sum, petitioner has not clearly established that his due process rights were violated. Four of the five United States Supreme Court cases he cites are inapposite because they concern the Fourteenth Amendment, which does not apply to Guantanamo Bay detainees. Like the defendant in Lovasco, discussing the Fifth Amendment, petitioner received all the due process due to him during the referral process. The five cases also are distinguishable on their facts. Accordingly, we find no support for petitioner's position in his cited authority.

3. Any Error Was Harmless Beyond a Reasonable Doubt

When addressing a military commission issue of first impression we consider whether and how that issue was addressed in an appeal of a military court-martial. See 10 U.S.C. § 948b(c) (“The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial ․”). In courts-martial jurisprudence, the Court of Criminal Appeals may not hold “[a] finding or sentence of a court-martial ․ incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” 10 U.S.C. § 859(a). Similarly, this court is not permitted to set aside a finding “unless the error materially prejudices the substantial rights of the accused.” 10 U.S.C. § 950a; see Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); United States v. Lustig, 830 F.3d 1075, 1086 (9th Cir. 2016) (“[G]enerally, constitutional errors in criminal proceedings must be disregarded if the government can prove that they are harmless ‘beyond a reasonable doubt.’ ” (quoting Neder v. United States, 527 U.S. 1, 7 (1999))).

In a criminal trial, a constitutional error requires the appellate court to be satisfied beyond a reasonable doubt that the error was harmless. See Harrington v. California, 395 U.S. 250, 254 (1969) (stating evidence from two confessions by co-accused “was of course cumulative” and “apart from them the case against Harrington was so overwhelming that ․ this violation of [his right to confrontation] was harmless beyond a reasonable doubt”); United States v. Burden, 934 F.3d 675, 689 (D.C. Cir. 2019) (concluding that admission of deposition of available witness was not harmless error); United States v. Moore, 651 F.3d 30, 58, 62-63, 64, 74, 76 (D.C. Cir. 2011) (per curiam) (finding harmless (i) cumulative effect of any prosecutorial misconduct given overwhelming evidence and limiting instructions, (ii) any Sixth Amendment violation, and (iii) any improper admission of uncharged conduct and witness testimony on religious faith); United States v. Slough, 641 F.3d 544, 555 (D.C. Cir. 2011) (stating harmless error standard is required for assessment of improperly admitted evidence in grand jury proceeding); Marshall v. United States, 436 F.2d 155, 160 (D.C. Cir. 1970) (finding “two identifications made at the trial,” if improper, were harmless error given extent of other admissible evidence).

a. Pretrial advice in a court-martial

Article 34(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 834(a), and Rule for Courts-Martial (R.C.M.) 406(b), Manual for Courts-Martial, United States (2019 ed.), require the staff judge advocate (SJA), the convening authority's legal advisor, to provide written legal advice to the convening authority regarding his or her proposal on whether court-martial charges should be referred to a general court-martial. That advice need only provide conclusions on whether: the “specification alleges an offense under the UCMJ”; “there is probable cause to believe that the accused committed” the alleged offense; and the “court-martial would have jurisdiction over the accused and the offense.” R.C.M. 406(b)(1)-(3). The SJA also must provide a recommendation on the action to be taken by the convening authority “in the interest of justice and discipline.” R.C.M. 406(b)(4). The SJA may, but is not required to, provide a brief summary of the evidence and “failure to do so is not error.” R.C.M. 406(b), Discussion.

In the military justice system, if a court concludes that the pretrial advice omitted important information or included improper information, that court determines whether the accused was prejudiced. In that analysis, military courts generally inquire whether the convening authority would have disposed of the charges differently had he or she been presented with a correct pretrial advice. See, e.g., United States v. Foley, 37 M.J. 822, *17-21 (A.F.C.M.R. 1993) (applying factors in United States v. Murray, 25 M.J. 445 (U.S.C.M.A. 1988), in analysis for prejudice, and finding harmless error where non-mandatory pretrial advice on subordinate commander's recommendations was incorrect); United States v. Rivera, 20 U.S.C.M.A. 6, 7, 42 C.M.R. 198, 199 (1970) (stating “substantial rights” of accused may be prejudiced when SJA's advice to convening authority is “erroneous, inadequate, or misleading,” and reversing and remanding for new post-trial review and action by convening authority because pretrial and post-trial advice failed to include unit commander's favorable recommendation); United States v. Foti, 12 U.S.C.M.A. 303, 304, 30 C.M.R. 303, 304 (1961) (stating factors having “a substantial influence” on convening authority's decision “should be furnished,” and affirming decision to reassess sentence where pretrial advice did not include such favorable information).

A referral to court-martial may be defective under some circumstances, which are not present in this case. See, e.g., United States v. Boyce, 76 M.J. 242, 252 (C.A.A.F. 2017) (stating “particularly troubling and egregious” unlawful command influence over referral decision warranted new referral); United States v. Youngman, 48 M.J. 123, 128 (C.A.A.F. 1998) (stating “appellant's immunized statements caused or played a substantial role in referral of remaining offenses against him to a general court-martial,” which resulted in a defective referral); United States v. Mercier, 75 M.J. 643, 646 (C.G. Ct. Crim. App. 2016) (concluding pretrial advice was defective for relying on anticipated evidence instead of evidence from Article 32, UCMJ, Pretrial Investigation).

We find this body of law “instructive,” MMC, Pt. I, pmbl, ¶ 1(a), but also look to grand jury decisions as more relevant to our analysis.

b. Grand jury process

Grand jury decisions are the decisions most closely analogous to a referral decision. Although the procedures are distinct, we find the grand jury process and military commission referral process to be functionally equivalent in that both serve to inform the charging decision. Based upon our review of the law, harmless error analysis is appropriate regarding defects in the grand jury process, unless the structural integrity of that process is undermined. E.g., United States v. Perez, 246 Fed. App'x 140, 143-44 (3d Cir. 2007) (where allegation of improper evidence before grand jury was non-structural, applying harmless error review). Here, the question of what information was presented to the convening authority is a procedural, not structural, matter. In petitioner's case, the convening authority is alleged to have considered materials that he should not have; this fact scenario is akin to improper evidence being placed before a grand jury, a procedural matter. See Robinson, 367 F.3d at 285-86 (finding lack of aggravating factor to justify death penalty in indictment is a non-structural error and reviewing for harmless error). Petitioner has failed to adequately allege an error that undercuts the structural integrity of the referral process, as occurred in the grand jury indictments of Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986), and Rose, 443 U.S. at 556, discussed infra. Thus, we will test the alleged error for harm and prejudice.

In Coppedge, the trial judge reviewed the remaining evidence presented to the grand jury after “exclusion of the alleged perjurious testimony of the codefendant” and concluded “that there was sufficient competent evidence to support the indictment herein challenged.” 311 F.2d at 130 (citation omitted). The trial judge “held that in a Grand Jury proceeding the government need only produce some evidence which would support the indictment and that the presence of other evidence, incompetent or inadmissible for some reason, including its reliability, did not vitiate the indictment.” Id. at 131. The D.C. Circuit agreed with the trial judge and held “that there is some competent evidence to sustain the charge issued by the Grand Jury even though other evidence before it is incompetent or irrelevant in an evidentiary sense or even false.” Id. at 132; see also United States v. Laughlin, 226 F. Supp. 112, 114 (D.D.C. 1964) (stating “an indictment will not be dismissed if there is some incompetent evidence before the grand jury, as long as there is sufficient competent evidence to sustain it”).

Petitioner states, however, that “even under a harmless error standard of review, there was insufficient untainted evidence to show beyond a reasonable doubt that the inclusion of the torture evidence was harmless.” Pet'r's Br. 19. Petitioner does not discuss why the remaining evidence is insufficient to meet the harmless error standard.

Setting aside the nine-page 9/11 Commission Report excerpt, the remaining referral materials clearly establish that petitioner went to Afghanistan, met with UBL, and acted as the liaison between al Qaeda and JI. App. 267, 272, 382, 438. Inter alia, petitioner encouraged JI members to bomb multiple Christian churches in Indonesia that resulted in the deaths of civilians. E.g., App. 366-67, 387-88, 419. He obtained and coordinated the providing of money from al Qaeda to the families of suicide bombers and those arrested for the Bali bombings (also resulting in civilian deaths), other operatives, and fugitives from the law, and he coordinated support for fugitives. E.g., App. 248-52, 270-72, 460-61, 478-480. Petitioner secured al Qaeda money to support operations and surveillance activities, e.g., App. 419, 439-40, 460, 480, and provided al Qaeda money to purchase explosives and make bombs, e.g., App. 249, 385, 392, 419. Petitioner also was responsible for the lodging and well-being of operatives in Southeast Asia, App. 450-51, and arranged for military training in, and travel to, Afghanistan, e.g., App. 245, 343, 365.

The parties have not cited any court-martial appellate cases involving a convening authority's consideration of improper evidence when making a referral decision. As discussed, the closest analogy to a referral decision outside of the military justice system is a grand jury decision to indict a criminal defendant. “[A]s a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” Bank of Nova Scotia, 487 U.S. at 254 (1988). The United States Supreme Court has concluded that dismissal “is appropriate only ‘if it is established that the violation substantially influenced the grand jury's decision to indict,’ or if there is ‘grave doubt’ that the decision to indict was free from [such] substantial influence.” Id. at 256. A presumption of prejudice exists in some cases, however, as when “the structural protections of the grand jury have been so compromised [rendering] the proceedings fundamentally unfair.” Id. at 257.

To support his argument for a presumption of prejudice in his case, petitioner cites to Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986) (stating racial discrimination in grand jury membership “undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review”), and Rose, 443 U.S. at 556 (stating similar in case having similar fact scenario concerning grand jury selection). Pet'r's Br. 21; see also Bank of Nova Scotia, 487 U.S. at 257 (stating exclusion of women from grand jury results in a presumption of prejudice (citing Ballard v. United States, 329 U.S. 187 (1946))). We are not confronted, however, with a situation comparable to an improper grand jury selection. See Mechanik, 475 U.S. at 70 n.1 (1986) (remarking that considerations underlying remedy of automatic reversal for racism in grand jury selection “have little force outside” cases involving grand jury composition based on racism). The alleged error in petitioner's case concerns improper evidence in the referral binder submitted to the convening authority, not improper convening authority selection. Instead of Vasquez and Rose, we thus look to the Tenth Circuit for persuasive authority.

In United States v. Thompson, 287 F.3d 1244 (10th Cir. 2002), the Tenth Circuit considered an interlocutory appeal regarding an improperly sealed indictment. The government argued that the harmless-error analysis should be made only after trial, citing Bank of Nova Scotia. Id. at 1253. The Tenth Circuit Court disagreed, noting that the government's own authority, Bank of Nova Scotia, conducted the harmless-error review pretrial. Id. The court remarked that the improper sealing of the indictment could have “harmed the defendants’ ability to defend against the charges even before the commencement of trial.” Id. On the standard for assessment of harmless error, the Tenth Circuit stated the court “is to consider the sealing error in context and determine whether it substantially influenced a defendant's ability to defend against the charges” and that this assessment “may be properly conducted before trial.” Id. at 1254.

For purposes of the analysis in this section, we will assume without deciding that any consideration by the convening authority of evidence obtained by or derived from torture against petitioner implicates the Constitution. An appellate court must be satisfied that a constitutional error in a criminal trial is harmless beyond a reasonable doubt. See, e.g., Harrington, 395 U.S. at 254. Establishing harmless error beyond a reasonable doubt is a difficult, but not an insurmountable burden. The harmless error “test is stringent”—“[t]he core of the inquiry is the strength of the government's residual case” after excluding the inadmissible evidence. United States v. Stock, 948 F.2d 1299, 1302 (D.C. Cir. 1991) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

Petitioner's claim is rooted in the notion that the convening authority referenced the 9/11 Commission Report excerpt to conclude that petitioner participated in “hostilities” and conspired with others to commit offenses such as murder in violation of the law of war, terrorism, and destruction of property in violation of the law of war. Setting aside the excerpt, the additional referral materials before the convening authority covered these same matters in detail, discussed supra Part I.B. We see nothing that would indicate that the convening authority was improperly swayed by the nine-page excerpt. We see no persuasive argument that the convening authority would have declined referral of the charges against petitioner but for the excerpt. Even assuming it was error for the convening authority to consider the excerpt, we are convinced, beyond a reasonable doubt, that this error was harmless, and petitioner would be facing the same charges in the absence of the error.

4. Failure to Allege a Mandamus Claim

This court may make an exception to the restrictions on issuance of a writ of mandamus in Cheney if “the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice.” Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975) (citing Schlagenhauf v. Holder, 379 U.S. 104 (1964)); see In re Clinton, 973 F.3d 106, 118, 121 (D.C. Cir. 2020) (granting mandamus request in a “discovery context where necessary to correct an error with potentially far-reaching consequences” (citing In re Kellogg Brown & Root, Inc., 756 F.3d 754, 763 (D.C. Cir. 2014))). Admittedly, the government's current position—that it “will not seek [the] admission, at any stage of the proceedings,” of statements obtained by torture—was made in a case where the issue presented itself in the litigation phase (during discovery). Resp't's Opp. Br. 4, Al-Nashiri IV, No. 21-1208 (D.C. Cir. Jan. 31, 2022) (Def. Mot. 12, Attach. F). Nonetheless, there is no evidence before us indicating that the government intends to take a different position in the referral stage of a future case. Declining to speculate about the government's future intent, as we must, we remain unconvinced that future referrals to trial by a military commission will include the 9/11 Commission Report or excerpts from that report. Given the burdens this controversy has placed on the prosecution of petitioner's case and on petitioner having his day in court, it seems rather more likely to us that the government will refrain from using the 9/11 Commission Report, or excerpts, in future referrals.

Moreover, proper referral to a military commission is a right that can be vindicated on direct appeal to this court and the D.C. Circuit, as recently commented on again by our Superior Court in Al-Nashiri IV.

“[M]andamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.” In re Al-Nashiri, 791 F.3d 71, 78, 416 U S. App. D.C. 248 (D.C. Cir. 2015). The “MCA empowers this Court to review all ‘matters of law’ once a military commission issues a final judgment and both the convening authority and the [USCMCR] review it.” Id. at 79 (citing 10 U.S.C. § 950g(a), (d)). Thus, Al-Nashiri again has adequate means to attain the relief he desires for this issue; namely, a direct appeal to this Court from any final judgment of the Commission with which he disagrees.

47 F.4th at 827 (second brackets in original). The D.C. Circuit noted the government's promises in Al-Nashiri to not use evidence from torture in pretrial litigation. Id. at 825. “If the Government abandons this promise and the Commission relies on any such statements, Al-Nashiri can directly appeal the Commission's final judgment to this Court.” Id. at 827-28. The Court stated that consideration of evidence from torture is an issue for direct appeal from final judgment, as opposed to interlocutory appeal. See id. at 827. There has not been a final judgment in petitioner's case.

Petitioner has not shown that issuance of a writ of mandamus is appropriate in his case. At its foundation, petitioner's argument is that the consideration of any information obtained by torture or derived from torture during the referral decision process irreparably taints the referral decision, no matter what the information is or what role it played in the referral decision. Petitioner makes no effort to explain the significance of the information in the 9/11 Commission Report excerpt. He does not explain why he believes the remaining evidence after exclusion of the excerpt would be insufficient for the convening authority to have the factual basis necessary to conclude that referral was appropriate. Nor does he attempt to refute respondent's well-grounded explanation that the elements of petitioner's alleged offenses are supported by a variety of other documents in the referral binder.

Instead, petitioner simply argues that we should not ask whether any error was harmless here, under the theory that prejudice is inherent in the employment of information obtained by or derived from torture for any purpose. See Pet'r's Br. 18-19. Yet, when inappropriate evidence is presented in grand jury proceedings, the result is not to automatically set aside the indictment, but rather to assess whether the other evidence presented is adequate to support the indictment. Coppedge, 311 F.2d at 131-32. Similarly, when a coerced confession is admitted at trial, that error is tested for harmlessness. Fulminante, 499 U.S. at 310.

Respondent maintains that if the 9/11 Commission Report excerpt were excised from the referral binder, adequate other information in the binder supported referral. We adopt this position based upon respondent's demonstration that the nine-page excerpt was, at most, cumulative to the fair amount of other information that was presented to the convening authority. Petitioner makes no effort to refute this argument. Nor does petitioner explain why information from a well-known and publicly available document is so absolutely corrosive as to render the entire referral decision invalid. Instead, petitioner merely stands on the premise that any consideration of any information obtained by torture or derived from torture renders the referral void.

Petitioner similarly has not demonstrated that he has no other adequate means to attain his requested relief, which is dismissal of the referral with prejudice. Petitioner's requested relief has shifted since he raised the matter before the commission. There, petitioner asked the military judge to dismiss the charges with prejudice. Def. Mot. 25-27. In the event the military judge chose not to dismiss the charges with prejudice, petitioner asked the military judge to dismiss the charges without prejudice “and disqualify the Office of the Convening Authority and the Office of the Chief Prosecutor from taking any further action on these charges.” Def. Mot. 26-27. Petitioner does not explain what the substantive effect of dismissing the charges “without prejudice” would be in this case. A new convening authority presumably would find sufficient evidence to refer the charges again without reference to the 9/11 excerpt. See Part I.B (discussing other evidence in referral binder).

In any case, petitioner now asks this court to “dismiss the referral with prejudice because it was based on and irrevocably tainted by torture-derived information,” Pet'r's Reply 14 (emphasis added), and for use of statements obtained by torture, e.g., Pet'r's Br. 17-18. Petitioner is effectively asking this court to leave his preferred charges intact but dissolve the current commission, thereby returning his case to the pre-referral stage. He does not explain why respondent's removal of the 9/11 Commission Report excerpt from the referral binder and a request for reconsideration of his referral decision by the convening authority—a remedy akin to the one found to be acceptable by the D.C. Circuit in Al-Nashiri IV, 47 F.4th at 823—would be inadequate here.

Petitioner also contends we should grant the interlocutory relief he seeks now, before the matter of the 9/11 Commission Report excerpt “can metastasize into the rest of the proceedings.” Pet'r's Reply 6. Notably, however, petitioner does not explain how or why consideration of the excerpt during the referral process would be a consideration in his trial, much less how it might take on a degree of outsized significance. Truly, it is difficult to understand how the referral decision-making process would ever be an issue for such fact-finder's consideration.

If petitioner is ultimately convicted, he will have the opportunity on direct appeal to challenge the military judge's ruling denying his trial-level motion for dismissal. “Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.” Al-Nashiri I, 791 F.3d at 78 (citing Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 27-28 (1943)). Admittedly, this would require petitioner to first be tried, but that is true of anyone suffering an adverse ruling during pretrial motions practice. Being tried hardly amounts to an irreparable injury warranting extraordinary mandamus relief at this stage. See Parr, 351 U.S. at 519-20. Petitioner points to no other injury that will go unredressed. Furthermore, on direct appeal, this court will have a much clearer picture of what impact, if any, inclusion of the 9/11 Commission Report excerpt in the referral material had on the outcome of the trial.

Finally, petitioner does not cite any cases where a referral was dismissed due to inadmissible evidence being included in the materials provided to the convening authority who referred the case to a court-martial or military commission. “[A] petitioner's right to relief is ‘clear and indisputable’ where he or she can point to ‘cases in which a federal court has held that’ relief is warranted ‘in a matter involving like issues and comparable circumstances.’ ” In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (quoting Doe v. Exxon Mobil Corp., 473 F.3d 345, 355 (D.C. Cir. 2007)). Petitioner has failed to “demonstrate a ‘clear and indisputable’ right to the writ.” Al-Nashiri I, 791 F.3d at 82 (quoting Cheney, 542 U.S. at 381). “Given its ‘exceptional’ nature, we cannot use mandamus to remedy anything less than a ‘clear abuse of discretion or usurpation of judicial power.’ ” Id. (quoting Bankers, 346 U.S. at 383).

III. CONCLUSION

Petitioner has failed to satisfy the requirements for a writ of mandamus and prohibition. See Al-Nashiri II, 835 F.3d at 136 (citing Cheney, 542 U.S. at 380-81). Therefore, it is hereby

ORDERED that the unopposed motion for leave to file an amicus brief of the Center for Victims of Torture, amicus curiae, is GRANTED; and it is

FURTHER ORDERED that the transmittal letter for forwarding charges, App. Ex. 0032.001 (NUR), Attach. E (Oct. 8, 2019), and the legal review constituting the pretrial advice, App. Ex. 0032.001 (NUR), Attach. G (Jan. 13, 2021), are UNSEALED; and it is

FURTHER ORDERED that the petition for a writ of mandamus and prohibition seeking vacatur of the military judge's ruling issued on October 6, 2022, and dismissal of the referral with prejudice is DENIED.

FOOTNOTES

1.   Petitioner Encep Nurjaman is also known as Riduan Isomudin and Riduan Isamuddin. App. 3, 20; Def. Mot. to Dismiss, Attach D (p. 145 of 9/11 excerpt) (Mar. 14, 2022) (Def. Mot.).

2.   See Pet'r's Reply 2 (characterizing military judge ruling as permitting “use of torture-derived evidence” in referral), 10 (arguing respondent seeks to use “torture-derived evidence to obtain referral”); cf. Pet'r's Br. 16 (stating “fruits of” information obtained from coercion cannot be used in prosecution of that detainee (citation omitted)).

3.   Respondent's Appendix, filed on December 30, 2022, hereinafter is referred to as “App.”

4.   Case No. 21-1208 was ultimately decided in In re Al-Nashiri (Al-Nashiri IV), 47 F.4th 820 (D.C. Cir. 2022).

5.   Supra note 1; infra note 33; App. 20 (discussing aliases).

6.   The parties did not submit to this court the complete referral binder, consisting of over 1,300 pages. Resp't's Br. 6, 22-23 (Dec. 30, 2022). We received statements from 10 witnesses, which were from the referral binder. Those 10 statements are detailed in this decision, infra.

7.   “Khalid Shaikh Mohammad” (KSM) is the spelling used in the common allegations of Nurjaman's referred charge sheet. E.g., Resp't's App. 3 (Dec. 30, 2022) (App.). The 9/11 Commission Report used the “Khalid Sheikh Mohammed” spelling in its report. See, e.g., Def. Mot., Attach. D. KSM is also known as Muhktar. App. 422. Regarding al Qaeda, this word is also sometimes spelled as al Qaida.

8.   Notes 10 through 19, infra, are quotations from notes in the 9/11 Commission Report, which are included in petitioner's motion to dismiss. Def. Mot., Attach. D. The content of notes 10 through 19 were not included in the materials provided to the convening authority. See Resp't's Br. 7 n.35.

9.   Mohammed Atef, also known as Abu Hafs al Masri, was the chief of operations for Usama Bin Laden (UBL), also known as Osama Bin Laden. Def. Mot., Attach. D (p. 145 of 9/11 excerpt); App. 384, 423. The “second in charge of al Qaida,” App. 402, Abu Hafs was al Qaida's “military chief,” App. 347. See also App. 402 (Bafana stating “Abu Hafs was UBL's right-hand man”); App. 446-47, 470 (indicating Abu Hafs’ senior al Qaeda position given role in planning 9/11 with UBL and KSM's bayat to him).

10.   Note 18 in 9/11 excerpt, at p. 490, stating:On a possible Southeast Asian operation, see Intelligence report, interrogation of Hambali, Sept. 4, 2003. On a possible U.S. operation, see Intelligence reports, interrogations of KSM, June 27, 2003; July 14, 2003. On a possible Israeli operation, see Intelligence report, interrogation of KSM, June 30, 2003. On other possible targets discussed with Atef, see Intelligence report, interrogation of Hambali, Sept. 4, 2003 (Thailand); Intelligence report, interrogation of KSM, Apr. 4, 2004 (Singapore, Indonesia, Maldives).

11.   Note 19 in 9/11 excerpt stating: “For an example of KSM's popularity, see Intelligence report, interrogation of al Qaeda facilitator, Oct. 11, 2002. See also Intelligence report, interrogation of Abu Zubaydah, Nov. 7, 2002; Intelligence report, interrogation of Nashiri, Feb. 10, 2003.”

12.   Note 20 in 9/11 excerpt citing: “Intelligence reports, interrogations of Hambali, Jan. 14, 2003; Mar. 5, 2004.”

13.   Note 21 in 9/11 excerpt citing: “Rohan Gunaratna, Inside Al Qaeda: Global Network of Terror (Columbia Univ. Press, 2002), pp. 187, 199.”

14.   Note 22 in 9/11 excerpt stating:On the trip to Karachi, see Intelligence report, interrogation of Hambali, Sept. 12, 2003. On Hambali's relationship with Atef and receipt of al Qaeda funds, see Intelligence report, interrogation of Hambali, Mar. 5, 2004. Al Qaeda began providing funds to JI for terrorist operations as early as 1999. Intelligence report, interrogation of detainee, Mar. 3, 2004.

15.   Note 23 in 9/11 excerpt stating:On Hambali's role as coordinator, see Intelligence report, interrogation of detainee, Mar. 4, 2004. On [Yazid] Sufaat, see Intelligence report, interrogation of KSM, Apr. 12, 2003; Intelligence report, interrogation of detainee, Apr. 30, 2003. In 1987, Sufaat received a bachelor's degree in biological sciences, with a minor in chemistry, from California State University, Sacramento. Sufaat did not start on the al Qaeda biological weapons program until after JI's December 2000 church bombings in Indonesia, in which he was involved. Intelligence report, interrogation of Hambali, Sept. 8, 2003. On Sufaat's schooling, see Intelligence report, interrogation of detainee, Dec. 14, 2001.

16.   Note 24 in 9/11 excerpt stating: “Intelligence report, interrogation of KSM, June 9, 2003. KSM also maintains that he persuaded Hambali to focus on ‘soft’ targets in Singapore, such as oil tankers, the U.S. and Israeli embassies, and Western airlines. Intelligence report, interrogation of KSM, June 24, 2003.”

17.   Note 25 in 9/11 excerpt stating:As discussed in greater detail in section 5.2, Khallad [also known as Tawfiq bin Attash] was sent by Bin Ladin to Kuala Lumpur to case U.S. airline flights in the Far East for possible future attacks there, whereas [Nawaf al] Hazmi and [Khalid al] Mihdhar [future 9/11 hijackers] were on the first leg of their travel from Karachi to Los Angeles, where they would arrive on January 15, 2000. Intelligence report, interrogation of KSM, July 31, 2003. On Hambali's assistance at KSM's request, see Intelligence report, interrogation of KSM, July 31, 2003; Intelligence report, interrogation of Khallad, Aug. 8, 2003. On assistance to [Zacarias] Moussaoui, see Intelligence report, interrogation of KSM, Mar. 24, 2003; Intelligence report, interrogation of detainee, Apr. 9, 2002. According to statements attributed to Hambali and Sufaat, in each of these instances the al Qaeda guests were lodged at Sufaat's condominium, an apartment on the outskirts of Kuala Lumpur. Intelligence report, interrogation of detainee, Jan. 22, 2002; Intelligence reports, interrogations of Hambali, Sept. 8, 2003; Sept. 12, 2003.

18.   Note 26 in 9/11 excerpt stating:On Hambali's relationship with Bin Ladin, see Intelligence reports, interrogations of Hambali, Aug. 29, 2003; Sept. 5, 2003 (in which Hambali also explains his relationship with al Qaeda as follows: he received his marching orders from JI, but al Qaeda would lead any joint operation involving members of both organizations). On Hambali's objections, see Intelligence report, interrogation of KSM, July 8, 2003. On KSM's coordination with Hambali, see Intelligence report, interrogation of KSM, Apr. 17, 2003. On KSM's recognition of Hambali's domain, see Intelligence report, interrogation of KSM, Aug. 18, 2003. According to KSM, his close relationship with Hambali prompted criticism from Bashir, the JI leader, who thought Hambali should focus more directly on Indonesia and Malaysia instead of involving himself in al Qaeda's broader terrorist program. Indeed, KSM describes Hambali as an al Qaeda member working in Malaysia. Intelligence report, interrogation of KSM, Aug. 18, 2003. Nashiri observes that al Qaeda's standard security practice dictated that no senior member could manage terrorist activities in a location where another senior member was operating. Intelligence report, interrogation of Nashiri, Jan. 14, 2003. Yet al Qaeda's deference to Hambali's turf apparently had limits. Khallad says he and Hambali never discussed the intended Southeast Asia portion of the original 9/11 plan. Intelligence report, interrogation of Khallad, Apr. 27, 2004.

19.   Note 2 in 9/11 excerpt stating:Those detainees are Khalid Sheikh Mohammed, Abu Zubaydah, Riduan Isamuddin (also known as Hambali), Abd al Rahim al Nashiri, Tawfiq bin Attash (also known as Khallad), Ramzi Binalshibh, Mohamed al Kahtani, Ahmad Khalil Ibrahim Samir al Ani, Ali Abd al Rahman al Faqasi al Ghamdi (also known as Abu Bakr al Azdi), and Hassan Ghul.

21.   Nothing in this decision should be interpreted to indicate the court has concluded that the referral binder or the assertions in respondent's brief establish petitioner's guilt of any offense beyond a reasonable doubt. At trial, petitioner will have the opportunity to contest the information in the referral binder and in respondent's brief.

22.   The exhortations of UBL to attack and kill U.S. military and civilian personnel served as a recruiting tool for JI. See App. 281-339 (including (i) UBL message, “Declaration of Holy War Against the Americans Who are Occupying the Land of the Two Holy Places” (Aug. 23, 1996); (ii) UBL CNN interview (televised May 10, 1997); (iii) UBL et al. message, “The International Islamic Front for Jihad against the Jews and the Crusaders: A Legal Fatwa” (Feb. 12, 1998); (iv) UBL ABC interview (televised June 10, 1998); (v) UBL ABC videotaped interview by John Miller (May 1998); (vi) UBL message, The World Islamic Front Communique #2, “The Islamic Nuclear Bomb” (May 29, 1998)); see also, e.g., App. 246 (UBL telling military trainees about jihad and fighting Americans). Some interviewees stated petitioner advocated goals similar to those of UBL. E.g., App. 250, 431 (Lillie stating petitioner's group targeted the U.S. government, Americans, and American soldiers and companies); App. 344 (Rais stating petitioner discussed UBL's 1998 fatwa with him); App. 368 (Mistooki stating he, petitioner, and others discussed targeting Jewish American military members); App. 382 (Bafana stating petitioner obtained maps of American presence in the Middle East); App. 389 (Bafana stating he and petitioner scouted U.S. and Israeli Embassies in the Philippines as potential targets); App. 416, 418 (Hashim Abbas stating that after UBL's 1998 fatwa, petitioner instructed him to find targets of U.S. interest and urged JI members to participate in jihad).

23.   See, e.g., App. 458 (KSM stating he linked al Qaida and JI); App. 379 (Bafana stating petitioner led the JI division covering Malaysia and Singapore); see infra note 43 (Bafana explaining structure of JI).

24.   The investigation report on Marzuki uses Zukepli Bin Marzuki and Zulkifli. App. 499-503; see also App. 21. Marzuki is also known as Moussa, Marzooki, and Azam. App. 249, 370, 394.

25.   Abu Bakar Bashir is also known as Abu Bakr Bashir, Abu Bakar Ba'aysir, Abu Bakar Baysir, and Abdus Samad. E.g., App. 357, 416. Petitioner's charge sheet uses Abu Bak'r Ba'aysir. App. 3.

26.   Fathur Rahman Al Ghozi was also known as Fathur Abd al Rahman al Ghozi, Sa'ad, and Saad. App. 21, 411.

27.   Doctor Azahari Bin Husin is also known as Professor Azahari. E.g., App. 4, 367, 480. He is named in the common allegations of the charge sheet as a co-conspirator in the bombing of two clubs in Bali, Indonesia, and the J.W. Marriott hotel in Jakarta, Indonesia. App. 9, 11. Doctor Azahari was an expert in bomb making and explosives and involved in planning and carrying out operations. See, e.g., App. 367, 422, 430-31, 481.

28.   Noordin Top was also known as Nordin Bin Mat Mahd Top, App. 21, Noordin Mat Top, App. 258, Muhammad Tarmizi Bin Noordin, App. 349, and Dr. Tarmizi, App. 351. Nurdin may be another spelling of Noordin, as both Nurdin and Noordin Bin Top were close to petitioner and part of the JI operational group. App. 399, 401, 500; see App. 343; infra note 45 (discussing Nurdin). Noordin Top was an associate of Dr. Azahari and involved in the movement of explosives in Southeast Asia. App. 350-51. He was named in the common allegations for having participated in the 2002 bombings in Bali, Indonesia, and the 2003 bombing of the J.W. Marriott Hotel in Jakarta, Indonesia. App. 4, 9, 11.

29.   The name Muklas appears to have two additional spellings, Muhklas and Mukhlas. These two names have the same alias, Ali Ghufron. App. 363, 370; see App. 21 (providing Ali Ghufron Bin Nurhasyim for Mukhlas); App. 274 (providing Ali Gufron for Mukhlas). Muklas is also spelled as Mukilis. App. 503. Muklas’ first name may be Feril. See App. 375. Muklas took petitioner's place in JI as the leader of Mantiqi #1 when petitioner went on the run after the December 2000 church bombings in Indonesia. App. 343, 391, 404; see infra note 43 (Bafana explaining petitioner's place in Mantiqi #1).

30.   Al-Farouq is also known as Al-Farook and Al-Farooq. App. 355.

31.   Zubair attended a second training course in 2001 in tactics at a small camp within walking distance from Al-Farouq. App. 476, 478.

32.   Afifi, also known as Nik Amran bin Mustafa, is a named co-conspirator in the common allegations of the charge sheet for involvement in a post-9/11 plot targeting civilians in the United States. App. 7-8; App. 21 (alias).

33.   Mohammed Nazir Bin Lep (Lillie) is identified as Bashir Bin Lap in his February 2007 interview. App. 244; see also App. 20. He is also known as Ali, Mohd Nazir Bin Lep, Mohammed Nazir, Mohammad Bashir Bin Lap, Bashir, and Daoud. E.g., App. 244, 258, 426.

34.   While petitioner did “not participate[ ] in the Bali bombing,” his group “carried out” that attack. App. 250. Imam Samudra and Amrozi participated in the Bali bombing in Indonesia. Id. Lillie understood the Bali bombing as messaging that jihad would be used to defend Islam. App. 249. He added that petitioner “was not involved in personally carrying out operations in Thailand, Malaysia, or Cambodia.” App. 248. Lillie also “had no personal knowledge about [petitioner's] alleged involvement in the Christmas Eve bombings in Indonesia.” Id.Appendix B to the charge sheet identifies Amrozi Bin Nurhasyim and Ali Ghufron Bin Nurhasyim (also known as Mukhlas) as two different known co-conspirators. App. 21. The common allegations to the charge sheet state that Amrozi bin Nurhasyim was involved in the bombing of churches in Indonesia, using also the shortened form “Amrozi” for that name in those allegations. App. 6. The common allegations also identify “Amrozi” as being involved in the Bali bombings. App. 9.

35.   Petitioner's brother, Hadi, is also known as Rusman “Gun Gun” Gunawan. App. 250.

36.   In early 2002, petitioner tasked Lillie to surveil an Israeli airline counter at the Bangkok Airport for a possible attack and Lillie did so, twice visiting to make the observations and obtain flight schedules. App. 252, 432. Lillie also reported to petitioner as a possible target the number of Israeli air passengers who boarded a VIP bus. Id. Neither the Israeli airline nor the bus was attacked. App. 252. In 2002 and 2003, Lillie traveled on his own initiative to Laos, Myanmar, and the Vietnam border for information about explosives, which he said would be “ ‘stand-by’ ” for a future martyr operation. App. 432-33. On another occasion, he assessed security at the U.S. Embassy in Bangkok several times from a bus. App. 253.

37.   Lillie's interview report uses both Zulkifli abd Hir and Zulkipli in discussing a shipment of money to someone in the Philippines. App. 434. The Zulkipli name spelling was not located elsewhere in the government appendix.

38.   See infra Statements (7) and (10) for discussion on church bombings.

39.   Other potential targets considered by KSM, before and/or after September 11, 2001, included commercial and military targets in Singapore, commercial and civilian targets in the United States, U.S. military personnel in Kuwait, transportation hubs in England, the Djerba Synagogue in Tunisia, an embassy in Australia (with some funds to be provided by petitioner), a cargo plane perhaps in Hong Kong, and bridges. App. 458, 460-62, 464.

40.   See App. 444 (identifying Yousef's first name as “Ramzi”).

41.   Marwan Al Shehi is also known as Marwan al Shehhi. App. 408.

42.   The investigative report of Faiz Abu Bakar Bafana's interview uses Faiz Abu Baker Bafana. App. 382. Other aliases include Abu Bak'r Ba'aysir, Faiz Bin Abu Bakar Bafana, and Mahmoud. App. 3, 343, 373.

43.   Bafana explained the structure of JI. The Shura council at the top “dealt with religious issues,” App. 380, and provided guidelines for JI, App. 401. Mantiqi sections covered different regions under JI influence. App. 379. Mantiqi #1 covered Malaysia and Singapore and was led by petitioner with Zulkifli Bin Marzuki as secretary and Bafana as treasurer. Id. Each Mantiqi was further divided into Wakalahs, which were divided into cells. App. 380.

44.   No other references to Zulkifli Ismail were located in the government appendix. Based on the same first name, Zulkifli Ismail and Zulkifli Marzuki may be the same person or perhaps related.

45.   Petitioner and Bafana attended each of the three meetings. App. 396, 398-399. Others present for at least one of the meetings included Zulkifli (Marzuki), Muklas (Muhklas), Qudama (also known as Imam Samudra and Sumudra, App. 250, 366, 370), Amran, Nurdin, and Ismail Lutfe (leader of the Abdul Fateh Thai group). App. 396, 398-399. Samudra (Qudama) was involved in the Batam church bombings and apparently the Bali bombings. App. 250, 366-67; App. 370 (alias). Nurdin, who may be Noordin Bin Top, held a meeting at his home that was attended by petitioner and KSM. App. 399; see supra note 28 (discussing Noordin Bin Top). Petitioner also may have met and discussed targets with Amat, an alleged al Qaeda associate and known co-conspirator, also known as Mohammed Jabarah, Ahmad, and Sammy. App. 21, 397-98; supra Statement (2) (discussing Amat).

46.   Bafana took Zaini to a flight school in early 2000; Zaini later completed a twin-seater course. App. 403; see also App. 394 (Bafana stating 23,000 Malaysian Ringgits in funds was set aside for Zaini's flight school). Zaini may be Zaini Zakaria. See App. 274 (item 1U).

47.   Bafana also was involved in the planning of other JI operations from about mid-2000 up to the December 2000 Indonesian church bombings. Bafana's efforts included (i) obtaining $2,000 from petitioner for Zacarias Moussaoui (John) (convicted of conspiracy in the al Qaeda 9/11 attacks against America), App. 385-87; United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010), (ii) providing his home as a meeting space for petitioner's discussion in support of attacks in Medan, Indonesia, App. 388-89, and (iii) assessing with petitioner the American and Israeli Embassies in the Philippines as potential targets, App. 389-91.

48.   Dawah is “the practice or policy of conveying the message of Islam to non-Muslims.” https://www.collinsdictionary.com/us/dictionary/english/dawah (last visited Mar. 6, 2023).

49.   Also spelled as “Wakallah,” App. 421, the Wakalah is a level within the JI organization. In the statement of Ja'afar Bin Mistooki, he explains that instructions for a cell “would originate with the Shurah committee, then the Mantiqi, the Wakalah, and ending with the cell.” App. 361; see also supra note 43 (Bafana explaining structure of JI).

50.   Tohir is also known as Masrizal Bin Ali Umar, and Ismail is also known as Mohammed Ikhwan, Muhammed Ikwan, and Agus. App. 11, 21.

51.   Fathi Bafana is also known as Fateh Bafana. App. 4. Fathi is the brother of Faiz Abu Bakr Bafana (Bafana), discussed supra at Statement (6). App. 6, 399.

52.   Ayman Zawahiri officially joined al Qaeda in July 2001 as head of al Qaeda's media committee; he had a long history of challenging corruption in the Egyptian regime. App. 444-45, 467.

53.   Senate Report No. 113-288, Report of the Senate Select Committee on Intelligence: Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (Dec. 9, 2014), reported on enhanced interrogation techniques that “were used in interrogations conducted during the time period of the cited intelligence reports in the 9/11 Commission Report.” App. 526. “Some of these techniques allegedly constituted torture under United States and international law.” Al-Nashiri IV, 47 F.4th at 823; App. 526 (military judge ruling quoting same text).

54.   Note 27 in App. 530 (quoting Art. 59, Uniform Code of Military Justice, 10 U.S.C. § 859).

55.   Note 28 in App. 530 (quoting App. Ex. 0032.001 (NUR), at 20 (Def. Mot. 20)).

56.   Black's Law Dictionary (11th ed.) includes the same definition of admissible as quoted by petitioner.

Schenck, Chief Judge:

Opinion for the court filed by Schenck, Presiding Judge.