You are on page 1of 32

i ,.

. " UNCLASSIFIEDIIFOR PUBLIC RELEASE

PREFATORY INSTRUCTIONS

Members of the Commission, when you close to deliberate and vote on the
[trililngs, each of you must resolve the ultimate question of whether the
accused is guilty or not guilty based upon the evidence presented before the
Commission and upon the instructions which I will give you.

My duty is to instruct you on the law. Your duty is to determine the facts,
apply the law to the facts, and determine the guilt or innocence of the '
accused. The law presumes the accused to be innocent of the charges
against him.

You will hear an exposition of the facts by counsel as the counsel view
them. Bear in mind that the arguments of counsel are not evidence.
Argument may assist you in understanding and evaluating the evidence, but
you must base the detennination of the issues in the case on the evidence as
you remember it and apply the law as I instruct you.

During the trial some of you took notes. You may take your notes with
you into the deliberation room. However, your notes are not a
substitute for the record of trial.
,
I will advise you of the elements of each offense alleged.

There are two (2) elements COlnmon to all the offenses: the government must
prove, beyond a reasonable doubt, that the accused was an alien unlawful
enemy combatant and that the alleged conduct occurred in the context of and
waS associated with an armed conflict.

ALIEN UNLAWFUL ENEMY COMBATANT

There is a requirement that, for each Charge, the government prove beyond
reasonable doubt that Mr al Bahlul was an alien unlawful enemy combatant.

Fot your purposes the Government must prove to you, beyond a reasonable
doubt, that Mr. al Bablul:

(1) was an alien


(2)engaged in hostilities or purposefully and materially supported
hostilities against the United States or its co-belligerents

APPElLATE EXHIBIT. 1!t"f~J


PAGE I OF _ 32.
= 1
AE 71 (al Bahlul)
Page 1 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE

(3)was not a lawful enemy combatant

The tenn "alien" means a person who is not a citizen of the United States.
1I
Th~ tenn "unlawful enemy combatant" means a person who has engaged in
hostilities or who has purposefully and materially supported hostilities
ag'finst the United States or its co-belligerents who is not a lawful enemy
cpIpbatant. An unlawful enemy combatant includes a person who is part of
t~d Tali ban, al Qaeda, or associated forces.
: ,i
A '! l ~wful enemy combatant" means a person who is -
, ,' ,.

:, (A) a member of the regular forces of a State party engaged in


hostilities
, against the United States;

(B) a member of a militia, volunteer corps, or organized resistance


m~vement belonging to a State party engaged in such hostilities, which are
under responsible command, wear a fixed distinctive sign recognizable at a
disj:ance, carry their arms openly, and abide by the law of war; or

(C) a member of a regular anned force who professes allegiance to a


government
, engaged in such hostilities, but not recognized by the United
States
. , .

IN THE CONTEXT OF ARMED CONFLICT

Wi):!)
, respect to each of the offenses listed as objects in the specifications of
Charges, the government must prove beyond a reasonable doubt that the
~f~el).se took place in the context of, and was associated with, armed conflict.
In detennining whether an armed conflict existed between the United States
"11<1 al Qaeda, and when it began, you should consider the length, duration .
an4 intensity of hostilities between the parties; whether there was protracted
a\-med violence between governmental authorities and organized armed
grQups; whether and when the United States decided (0 employ the combat
capabilities of its anned force s to meet the al Qaeda threat; the number of
peisons killed or wounded on each side; the amount of property damage on
eaqh side; statements of the leaders of either side indicating their perceptions
regarding the existence of an anned conflict, including the presence or
absence of a declaration to that effect; and any other facts and circumstances
yo\, consider relevant to the existence of armed conflict. The parties may

APPElLATE EXlUBIT 11 2
PAGE 2 OF ~ ~E. 71 (al Bahlul)
Page 2 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE

,
argu,e the existence of other facts and circumstances from which you might
reac" your determination regarding this issue.
! 1
111 d~termining whether the alleged offenses "took place in the context of,
and was associated with," an armed conflict, you should consider whether it
o,cCurred during the period of an armed conflict, as defined above; was
int~nded or performed while the accused acted on behalf of or under the
a~t;hbrity of a party to the armed conflict; and whether it constituted, or was
cldsely
, , and substantially related to, hostilities occurring during the armed
cbnflict, and other facts and circumstances you consider relevant to the
issue.
, Conduct of the accused that occurs at a distance from the area of
cpIiflict or prior to the start of the conflict can still be "in the context of and
a$sopiated with armed conflict" as long as it was closely and substantially
rd~t~d
, . to the hostilities that comprised the conflict.
; 1 SPECIFICATION OF CHARGE I: CONSPIRACY
'j
In !he specification of Charge I, the accused is charged with the offense of
Conspiracy. In order to find the accused guilty of this offense, you must be
cbrtvinced by legal and competent evidence of each of the following
e)ef1ents, beyond a reasonable doubt:
, I.
(!)ithat Mr. al Bahlul was an alien unlawful enemy combatant

(2) that between about February of 1999 and about December 2001, Mr. al
Bahlul entered into an agreement with Usarna bin Laden, Saif al Ad~l and
olber various other members of the al Qaeda organization, known or
Jnknown,
,, to commit one or more of the following substantive offenses
n;i~l:i1e by military commission: (l)murder of protected persons, (2)attacking
civiilians, (3)attacking civilian objects, (4) murder in violation of the law of
waf,i(5) destruction of property in violation of the law of war, (6) terrorism,
1
an9 (7) providing material support for terrorism.
:1
(3):
, ,that Mr. al Bahlul knew the unlawful purpose of the agreement and
joil'~d in it willingly, with the intent to further the unlawful purpose; and
,
, i

(4)!tj1at while this agreement continued to exist, and while Mr. al Baltlul
r~",~ined a party to the agreement, Mr. al Baltlul knowingly committed at
least one of the following overt acts for the purpose of bringing about one of
tb~ ~bjects of the agreement:
,! ;
APPELLATE EXHIBIT .::r- 1 1
PAGE ~ OF ~ (al B'ahIUI)
UNCLASSIFIEDIIFOR PUBLIC RELEASE P'9,30132
, UNCLASSIFIEDIIFOR PUBLIC RELEASE
I
,I ,
I i
I '
I :
.j
,!I ' a. traveled to Afgh'lIlistan with the purpose and intent of joining al
. .I : Qaeda;
1 :

" b. met with Saif al 'Adl, the head of the al Qaeda Security Committee,
I i as a step toward joining the al Qaeda organization;
,i '
c. underwent military-type training at an al Qaeda sponsored training
camp then located in Afgh'lIlistan near Mes Aynak;
! i i
:: I d, pledged fealty, or "bayat," to the leaderofal Qaeda, Usama bin
i' I Laden, joined a! Qaeda, and provided personal services in support of
I :1 i al Qaeda;
I '
;I IIii
i

e. prepared and assisted in the preparation of various propaganda


products, including the video "The Destruction of the American
i :! I Destroyer US.S. Cole," to solicit materia! support for a! Qaeda, to
: ' recruit and indoctrinate personnel to the organization and objectives
,I
I ' of al Qaeda, and to solicit, incite and advise persons to commit
i, , Terrorism;
,i ;, f. acted as personal secretary and media secretary of Usama bin Laden
'I, '
:1 I in support of al Qaeda;
I
I .'
,
g. arranged for Muhammed Atta, also known as Abu Abdul Rahman
'I 1
1 : al Masri, and Ziad al Jarrah, also known as Abu a! Qa'qa a! Lubnani,
! I to pledge fealty, or "baya!," to Usama bin Laden;
I'
II h. prepared the propaganda declarations styled as martyr wills of
I , i
Muhammed Atta and Ziad al Jarrah in preparation for the acts of
:, '1 !
, I terrorism perpetrated by the said Muhammed Arta, Ziad a! Jarrah and
! I others at various locations in the United States on September 11,2001;
I, ,I
!:
i i. at the direction ofUsama bin Laden, researched the economic effect
I of the September II, 2001 attacks on the United States, and provided
I the result of that research to Usama bin Laden;
'\ '
i j. operated and maintained data processing equipment and media
I ' communications equipment for the benefit ofUsama bin Laden and
, :!
:i I
other members of the al Qaeda leadership, ~
!I k!.
,
: ! APPElLA'WEXHlBIT ] ( 4
PAGE OF!;l- Ali 71 (al Bah lul)
Page 4 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
,
!
I
'! I
I '
iI :I
, 'i I
I! k. armed himself with an explosive belt, rifle, and grenades to protect
I'! and prevent the capture ofUsama bin Laden; and

(~) ~at this ~onduct occurred in the context of and was associated with an
, ~d conflict.
I
I

1'~
' 'q or more persons are required in order to have a conspiracy. Knowledge
of Ie identity of co-conspirators and their particular connection with the
a" efment~f eBI8f1'rise need not be establ!shed. A person may be guilty of
~p,1'jPrracy although mcapable of commlttmg the mtended offense: The
JCj>'tu:ng of another consp,rator after the conspIracy has been establIshed does
~ou create a new conspiracy or affect the status of the other conspirators.
I!I '
, I' ,

'Uhf 'agreement er cfltelfJrise must, at least in part, involve the commission or


+iMded commission of one or more substantive offenses triable by military
CO~
I
' II ission. A single conspiracy may embrace mUltiple criminal objectives.
1f~, ' /igreement need not include knowledge that any relevant offense is in
f~~t ['triable by military commission." Although the accused must be subject
to \he Military Commissions Act, other co-conspirators need not be subject
, 'I I
t9 ,~e Act.

;r4Jf that the offen.'e o~ (~). murder of protected persons, (2) attacking
ClvtJ.lt' ans, (3) attacking clVllIan objects, (4) murder 10 vIOlatIOn of the law of
~~~, (5) destruction of property in violation ?fthe law of war, (6) terrorism,
an4 7) provldmg matenal support for terronsm actually occurred IS not
r~9ulred. However, it must be proved beyond a reasonable doubt that the
agijeement intended every element of at least one of the offenses that the
Go\rllITUnent has alleged as objects of the conspiracy.
I 'I I

4('~Jast six (6) of the nine (9) members must agree on the same object of the
Cf~~sriracy to find that the conspiracy existed.

1hj ' ~greement in a conspiracy does not have to be in any particular form or
ek rssed in formal words. It is sufficient if the minds of the parties reach a
CFTfnon understanding to accomplish the. object of the conspiracy, and this
IDWibe proved by the conduct of the partIes. The agreement does not have
t~J~press the manner in which the conspiracy is to be carried out or what
paJ;t fOach conspirator is to play.
I ,

M'PELLA1Jl EXHIBIT
PAGE.5 OF:L ~:~"~ sl.h"')
5 132
0
UNCLASSIFIEDIIFOR PUBLIC REt.:EASE
, UNCLASSIFIEDIIFOR PUBLIC RELEASE
~ i

" .
, .1
'IIi overt act required for this offense does not have to be a criminal act, but
it ' ~'st be a clear indication that the conspiracy is being carried out.
I 1
1hJ, I Iol vert act may be done in preparation for, during or after the time of the
a~~eFment.
,I il
1[Ijrlbvert act must clearly be independent of the agreement itself; that is, it
,*~s .be more than merely the act of entering into the agreement or an act
~eadssary to reach the agreement.

~ 'UWili note that more than one overt act has been li sted in the
s flfication. You may find Mr. al Bahlul guilty of Conspiracy only if you
ar: '4l'nvinced beyond a reasonable doubt that he personally committed at '
le~fl one of the overt acts described in the specification and that such act
*~ indeed an act in furtherance of the alleged agreement.
:11'
'1.1
.
il,d ' rdingly, if you find beyond a reasonable doubt that Mr. al Bahlul
cb~ itted one or more such overt act, but not all of them, your fmdings
sb: ~Id reflect this by appropriate exceptions. At least six (6) of the members
n? ,sr concur that the accused committed the same overt act.
iI ;
*r
1jh l $~ you may find Mr. al Bahlul guilty of the Specification of Charge I if

fol
, ,
!, 'J
pnd beyond a reasonable doubt that he conspired to do any ofthe
dwing:
.
: I "
fU (IJonspire to M urder Pr otected Persons:
W:~~der to find Mr. al Bahlul guilty of Conspiracy to Murder Protected
Pe~sons, you must find beyond a reasonable doubt that Mr. al Bahlul:
, I 1
:i I {l) entered into an agreement;
., "1

:: i :I (2) to intentionally kill, without justification or excuse, one or more


: ; : j protected persons;

.. ,
I I' (

I I .' , (3) that Mr. al Bahlul knew or should have known of the factual
i 11 : circumstances that established the person 's or persons protected status
II!
II,I'I I' (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
and joined, with the intent to further its unlawful purpose;
..
APPELLATEEXHIBrr 7.1
PAGE Ie OF ~:;:? {" Ithl"'1
UNCLASSIFIEDIIFOR PUBLIC RELEASE P'9,60132
, II, I' UNCLASSIFIEDIIFOR PUBLIC RELEASE
" ,
.! ,.'I '
[

(5) that Mr, al Bahlul commined an overt act in furtherance of the


agreement; and
,'
" I' 6) that the agreement and the intended killing took place in the context
ii'l
, ,
of and was associated with an armed conflict.
I '
Rr t r cted Persons are:
I!
" : ,! (i) civilians not taking an active part in hostilities;
I ,) I

'i '[I i. (ii) military personnel placed hors de combat by sickness, wounds, or
'i ' I i detention; or
d:'
'II (iii) military medical or religious personnel.
!'I'
"

l! ~ons ire to Attack Civilians: ,


rn jWder to find Mr. al Bahlul guilty of Conspiracy to Attack Civilians, you
must find beyond a reasonable doubt that Mr. al Bahlul:
'III'
:1,,
J '

.! I (I) entered into an agreement;


'i I (2) to intentionally direct attacks against a civilian population as such
'; :r' i or against individual civilians not taking direct part in hostilities;
, :' I: (3) that Mr. al Bahlul knew or should have known the factual
" II f circumstances that established the civilian status;

:: :11 (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
:I! I and joined with the intent to further its unlawful purpose;
; ,I
: ,'I (5) that Mr, al Bahlul committed an overt act in furtherance of the
i agreement; and
,[
I (6) that the agreement and the intended attack on civilians took place
! I. in the context of and was associated with an armed conflict.

C~
' )~teral deaths or injuries incident to a lawful attack do not support the
d nse of attacking civilians.
; ., ' I

APPELLATE EXHIBIT
PAGE 7 OF
7
32:
i 7
AE 71 (al Bahlul)
Page 7 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
:"I
,i I
.,
(3). onspire to Attack Civilian Objects:
In~' ~der to find Mr. al Bahlul guilty of Conspiracy to Attack Civilian
o,. Iects, you must find beyond a reasonable doubt that Mr. al Bablul:
~'

::
,
I ;
(I) entered into an agreement;

! . 1 (2) to intentionally direct attacks against civilian property, that is,


'I ! I
, II !
property that was not a military objective;
, 'I I
i
:1 (3) that Mr. al Bahlul knew or should have known that such property
was not a military obiective;
, 1 I,
,I ' '
i I
'II I

(4) that Mr. al Bahlul knew the unlawful purpose of the agreement
1.
!!
i and joined with the intent to further its unlawful purpose;
:
',1 .
:, I i. (5) that Mr. al Bahlul committed an overt act in furtherance of the
,!I I' I, agreement; and
,I -I t
!: (6) that the agreement and the intended attack on civilian objects took
j i, place in the context of and was associated with an armed conflict.
I I j'
GQUateral damage, death, or injury incident to a lawful attack do not support
thd dffense of attacking civilian objects.
, 'f. I

~i~\~ objectiv~s are those obj~cts during an armed conflict:


, I

.JI (i) which by their nature, location, purpose, or use, effectively


, ,I j contribute to the opposing force's war-fighting or war-sustaining
, i i capability, and
:1 i

'I' i (ii) the total or partial destruction, capture or neutralization of which


.! ;
would constitute a definite military advantage to the attacker under the
': :1 i circumstances at the time of the attack .
.,
" ;, i
C;;i:vipan objects are those objects that do not qualify as military objectives.
,; -d' l
(4)iIDonspire 10 M urder in Violation oflbe Law of War:
In:lhlder to find Mr. al Bahlul guilty of Conspiracy to Commit Murder in
'ti~lation of the Law of War, you must find beyond a reasonable doubt that
Mr. ';1 Bahlul:

APPELLAE EXHIBIT 7 ( 8
PAGE OF ~ AE 71 (al Bahlul)
Page 8 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
I I

,!' ,iI I
',IIi! II (I) entered into an agreement;
I I
::! I' (2) to intentionally kill one or more persons;
, ~ I, (3) in violation of the law of war;
, ,'I
; , I .

I (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
I' and joined with the intent to further its unlawful purpose;

'l:;1 ' (5)agreement;


that Mr. al Bahlul committed an overt act in furtherance of the
and
: ,J .
i II I

1 ~I !' (6) that the agreement and the intended killing took place in the
I" '
I .,
context of and was associated with an armed conflict.

l~i~latiOn of the law of war may be proven by either the killing of


prd!f;cted persons or by using a means, weapon or technique considered
~111al under the laws of war.
k i ;lling violates the law of war where a combatant (whether lawful or
~}ful) intentionally and without justification kills:
" ,I ,
:: '! :' (i) civilians not taki ng an active part in hostilities;
I :1 I
, '[ !, (ii) military personnel placed hors de combat by sickness, wounds, or
11 ,l i d .
!' :'1: j 1 etentlOn; or

, ', j :
. 'II I,
(iii) military medical or religious personnel.
, 'I, I
A,/p Uing may al so violate the law of war where an accused regardless of
sPit4s (as a lawful or unlawful combatant) intentionally and without
j~ffrcation kills any person by a method, manner, or ~nder circumstances,
tha,'! ~ lOlate the law of war. Such method, manner or clTcumstances, may
ill91~de, but are not limited to, attacking United States and allied forces by
!pel41s of perfidy or treachery, improperly using a flag of truce or a
dislifictive symbol (e.g., a Red Cross or Red Crescent), or in the course of
spMiiig.
, ,

PAGE
APPELLAf EXlDBIT
OF
11
$"2-
9
AE 71 (al Bahlul)
Page 9 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
, ,, , ' UNCLASSIFIEDIIFOR PUBLIC RELEASE
I:
,i It i

~J JdY occurs when a combatant (lawful or unlawful) invites an adversary


~~,irJjieve that he is entitled to, or is obliged to accord, protection to the
cbiiitbatant under the law of war, with the intent to betray that confidence,
~Jtl *,ample, feigning status as a non-combatant civilian in order to attack a
niWjary installation or personnel may violate the law of war,
i 'I ii
(5), Conspire to Destroy Property in Violation of the Law of War:
Ii1ji~ ~~er to find Mr. al Bahlul guilty of Conspiracy to Destroy Property in
"\!WJ~tion of the Law of War, you must fwd beyond a reasonable dOllbt that
l\1J1,
'i ( '
al BaWul:
I i! !
.in!'i : (l) entered into an agreement;
,i ,': J'

.I I
,

,' " I
'1'1 ': : (2) to intentionally and without consent destroy property of another
i , ,i which is not a military objective;
I, 1 ,
' I '::'
i EI ' !,
,i '! ! (3) that the destruction of the property would have been in violation of
"
:I . .~;1,:" t he Iaw 0 f war",
, .i!
'" ,
'Ii '
'" ,I (4) that Mr, al BaWul knew the unlawful purpose of the agreement
J , I and joined with the intent to further its unlawful purpose;
d ,.
,I i'

" I, (5) that Mr. al Bahlul committed an overt act in furtherance of the
'i Ii I agreement; and
; ~ !" i
,i i;
1 ,i ; (6) that the agreement and the intended destruction of property took
:1 ! place in the context of and was associated with an armed conflict.
" iI
Military
, , j i l
objectives are combatants and those objects during an armed
cot)4ict:
, ,
,I !
,j:; (i) which by their nature, location, purpose, or use, effectively
" :1. 1, contribute to the opposing force's war-fighting or war-sustaining
,: 'I:!!
, ' capab'I'
1 lty, an d
I : :'
.I,! !
:", I (ii) the total or partial destruction, capture or neutralization of which
i 1
1 I , ,,:ould constitute a definite military advantage to the attacker under the
'I Cll'cumstances at the ume of the attack.
~ I

Civilian objects are all objects that do not qualify as military objectives.

APPELLATE EXHIBIT ] I AE 71 (al~ghIUI)


PAGE ID OF 37- Page 10 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
r
,
': 1'
I
I'I, UNCLASSIFIEDIIFOR PUBLIC RELEASE
,,
~ 'I
,'
I I'
, i'
Dest!ruction of property may violate the law of war where an accused
r~~~\uess of status (as a lawful or unlawful combatant) intentionally and
w~h},ut justification destroys any property - including military property - by
aI rlId/hod, manner, or under circumstances, that violate the law of war. Such
fllt~mod, manner or circumstances, may i,nclude, but are not limited to,
a~9~g United States and allied property by means of perfidy or treachery,
im~~?perly using a flag oftmce or a distinctive symbol (e.g., a Red Cross or
R.eU
. .. ,Crescent), or in the course of spying .
, ~ I
: 'i,"
Perfidy occurs when a combatant (lawful or unlawful) invites an adversary
tb::~4peve that he is entitled to, or is obliged to accord, protection to the
cpl\Jpatant under the law of war, with the intent to betray that confidence.
f!<\H,xam ple, feigning status as a non-combatant civilian to attack military
p~ol1~rty may violate the law of war.
': ,"!
:Conspire to Commit Terr orism :
In:p~der to fmd Mr. al Bahlul guilty of Conspiracy to commit Terrorism, you
n;lllst 'find beyond a reasonable doubt that Mr. aI Bahlul:
, ,
i" I ,
, .
, .i, (I) entered into an agreement;
I:, I"
.' i"i;(2) to intentionally kill or inflict great bodily harm on one or more
I" ,: protected persons, or engaged in an act that evidences a wanton
i:: ::
.,
disregard for human life;
,i ' ;
:, ~: (3) in a marmer calculated to influence or affect the conduct of
,: ::. goverrunent or civilian population by intimidation or coercion, or to
.;:,i: retaliate against government conduct;
., I

~. i ' (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
:, ' and joined with the intent to further its unlawful purpose;
.' ,
'.j
, , ' (5) that Mr. al Bahlul committed an overt act in furtherance of the
o IJ1:
, .
!: agreement; and
"
,:Ii i' (6) that the agreement and the intended act of terrorism took place in
:

I, .: the context of and was associated with an armed conflict. .

APPBLLATBEXHIBIT
PAGE)\ OF "_
1b:1
-=i.32 =: 11
AE 71 (al Bahlul)

UNCLASSIFIEDIIFOR PUBLIC RELEASE P'9" 101 32


UNCLASSIFIEDIIFOR PUBLIC RELEASE
,..'I'' I
"; I
1'1 I I
~ " i
Ii I:
'~~ I~orism". is defmed as the intentional killing or the inte~tiona.l infliction
q(i eat bodily hann on one or more protected persons; or mtentlOnally
~~' , ~ing in acts that evince a wanton disregard for human life, in a manner
cf\l l )ated to influence or affect the conduct of govermnent or a civilian
I\d~Hlation by intimidation or coercion, or to retaliate against govermnent
c~~4!lct. In order to be an act of terrorism, the act must be wrongful, which
'*#,#s t/;at it was undertaken without legal justification or excuse. An attack
6~! "ij111btary obJective, undertaken by mIlitary forces of a state m the
e;X~fcise
I I. ,.
of their official duties, would not constitute an act of terrorism_

nRrorected
, I , 'I
persons are: tl

,. ; '1' i,
I,i II

Ili 'il (i) civilians not taking an active part in hostilities;


'II','
, .
II
' I

'111 :,:: I (ii) military personnel placed hors de combat by sickness, wounds, or
.'1 ',': iI detention;
!,), I or
II
,e "
: I ';
.I
" ;'1; (iii) military medical or religious personnel.
:, ; "1- ;:
', :" .1
(V)i'(ilonspire to Provide Material Support for Terrorism:
'l'Iiis: bffense can be proven by either of two ways.
,
It ~ai1 be proven that Mr. al Bahlul:
" ::
,...
, ;.
'; j.
' . j'
(1 ) entered into an agreement;
:]" "
,,' ii (2) to provide material support or resources to be used in preparation
,
"
" ~,
"i' ' for or in carrying out an act of terrorism;
. ,.I II
,I, "
"\ i:
i, (3)that Mr. al Bahlul knew or intended that the material support or
,:" i
:II "
resources were to be used for those purposes
I ;'i i ,

1'1 'I
!' !' (4) that Mr. al Bahlul knew the unlawful purpose of the agreement
,I '-Ii: 1
, and joined with the intent to further its unlawful purpose;

(5) That Mr. al Bahlul committed an overt act in furtherance of the


agreement; and

APPElLATE EXHIBIT ] I .o.E 71 (a lJBl.h lul)

UNCLASSIFIEDIIFOR pJ~<jlC RbtEASW 32. P'9' 12 0132


UNCLASSIFIEDIIFOR PUBLIC RELEASE
,
I

(6) that the agreement and the intended act of terrorism took place in
, 'I the context of and was associated with an armed conflict.
, Ii
, I
Or, il 'can be proved that Mr. al Bahlul:
I. '
.,
'I (I) Entered into an agreement;
'I '
I, I
I, I (2) to provide material support or resources to an international
,
terrorist organization engaged in hostilities against the United
States
,
I (3) that Mr. al Bahlul intended that the material support or resources
be provided to an international terrorist organization
.:, .
(4) that Mr. al Bahlul knew that al Qaeda has engaged in or engages
in terrorism;

(5)that Mr. al Bahul knew the unlawful purpose of the agreement


and joined with the intent to further its unlawful purpose;

(6) that Mr. al Bahlul committed aniovert act in furtherance of the


agreement; and

(7) that the agreement and the intended act of terrorism took place in
the context of and was associated with an armed conflict.

"T~ftorism" has been previously defined and should also be used in the
c;o~ideration of this offense.
"q~,terial Support or Resources" means any properry, tangible or intangible,
or' service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
s~e ,houses, false docwnentation or identification, communications
equipment, propaganda, recruiting materials, facilities, weapons, lethal
substances, explosives, personnel (one or more individuals who may be or
indu~e oneself) and transportation, except medicine or religious materials.

~au
"!,
I'
If have a reasonable doubt that any overt act alleged in the specification
was committed, or that any overt act was committed in furtherance of the
alleged agreement, you may still reach a finding of guilty so long as you

APPEU.A
PAGE
13 EXHIBIT
OF
71
&'2-
13
AE 71 (al Bahlul)
page 13 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE

,
"
, " 1
.1 :: i ,
" ,
cOllqlude that Mr, al BaWul committed one of the alleged overt acts in
rn4.Jihance of the agreement, and all the other elements of the offense are
pr~~~d beyond a reasonable doubt, but you must modifY the specification to
c~*#:t1y reflect your findings in this regard,
," I,.
,I" " '1
SPECIFICATION OF CHARGE n
i j Iii;
," ",
ljl'lh:e specification of Charge II, the accused is charged with the offense of
Soli,citation to commit (1) murder of protected persons, (2) attack civilians,
(3) attack civilian objects, (4) murder in violation of the law of war, (5)
ddiroy property in violation of the law of war, (6) terrorism, and (7) provide
material support for terrorism.
,

In, order to find the accused guilty of this offense, you must be convinced
by ,I~gal
, and competent evidence of each of the following elements,
b,,,y~nd a reasonable doubt:
,.
i ,
,
(1) Jhat Mr, aI Bahlul was an alien unlawful enemy combatant,
, ,
,',

(2~: that Mr, al BaWul did, in the context of and associated with an armed
cdrUlict, from in or about February 1999 through in or about December
2001, at various locations in Afghanistan, Pakistan and elsewhere,
V{fopgfully solicit, order, induce and advise la.alla Sal@A Muhammad Ka:hla
.a! : M:~i, Yahya Goba, Yassein Taher, Faysal Hussein Galab, Shafal Mosed,
. Sarulll Ahmed Alwan, and other persons, known and unknown, to commit
suos/antive offenses triable by military commissions;
: I.

(3} that the accused intended that one or more of these offenses actually be '
cQtp.mhted; and
,
, the solicitation took place in the context of and was associated with
(4) that
an l\f111ed
,.. conflict

SO,!lcitation means any statement or any other act which may be understood
to bF a serious request to commit the offenses listed in the specification of
Chlirge II, The person solicited must know that the act requested is part of a
cr\minal venture, although it is not necessary the person solicited agree to
th,f,'e quest or act upon It.

To "i,nduce" is another term for solicit.

APPELLA~EXHlBrr ] I. 14
PAGE OF 32;: ~\~lo~~~IUI)
UNCLASSIFIEDIIFOR PUBLIC RELEASE 9
' I :, UNCLASSIFIEDIIFOR PUBLIC RELEASE
I 'I
, .'il
, \ 'i

,il'II
'j
"
i ;
'(Q '1r dvise" means any statement or any other act which may be understood
t?'~!f a serious recommendation or suggestion to commit the offenses
iillt~ed. The person advised must know that the act advised is part of a
c~al venture, although it is not necessary the person advised agree to the
*~tipe or act upon it. '
I ~ '!;'l!
){1'U' iue advised that there is no requirement that all of the persons who were
sol/cited be named in the specification or that all such persons be subject to
th~ Military Commissions Act.
,
,i ! .
" ,,
y~,J i pre further advised that proof that the offenses listed in the specification
o~C~arge II actually occurred is not required. However, it must be proven
li~yohd a reasonable doubt that the accused intended that persons known or
unkh.~wn would commit every element of the offense or offenses listed in
t\l~ ' fpecification of Charge II.
I . _I
, .!:
T~U:S, you may find the accused guilty of Charge II only if you fmd beyond a
rea~qnable doubt that the accused solicited persons known and unknown to
c0irjIDit all of the elements of one or more of the alleged following offenses.
,
AHe~st six (6) of you 'must agree that the accused solicited at least one of
the, pamed offenses in the specification of Charge II in order to find the
acc*sed guilty of the separate offense of solicitation. Accordingly if you
(J,~ beyond a reasonable doubt that the accused intended to agree to commit
ope,irr more solicited offenses, but notal! of them, your findings should
refl~ct this by exceptions.
, ll.

Adbast six (6) members preseIl! when die vote js tlrke!> must concur that the
acq~sed intended the same solicited offense or offenses .
." ,
I
(1): Solicitation to Commit M urder of P r otected Persons:
iIi'\Jrder to find Mr. al Bahlul guilty of soliciting others to Murder Protected
I1ei,lons, you must find beyond a reasonable doubt that Mr. al Bahlul:
I :-j
,
'j,
, , (J) wrongfully solicited, ordered, induced or advised one or more
:1.:1 persons;
II :1
"
(2) without justification or excuse, to intentionally kill one or more
Protected Persons;

\PPELLATIl EXlfiBlTll ~~I=1


PAGE IS OF _ ,!>2.
= 15
AE 71 (al Bahlul)
Page 15 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
I ;11
, IIi
I , "I:
i :r" 'I
! : :1 I
'i I: ., '
i ,I I ,
il:II,1:
i :Ii' , (3) that Mr, al Bahlul knew or should have known of the factual
'. ' 11'1 ;
i :, I, j circumstances that established such person's or persons protected
:,I!~'I;:jl;
i :I i
status
I, !,.I:,

, ,:I!, (4) that Mr, al Bahlul intended that the offense actually be committed;
I ~: i! I
:! II;! and
: I ~ 'J! ,
, :':1 ' (5) that the solicitation and the intended killing took place in the
, context of and was associated with an armed conflict
.I 1

i :i
!1r{irected Persons are:
I ,1 ~1
:'~F .
"!
;.
(i) civilians not taking an active part in hostilities;
i;!;1'
I': : (ii) military personnel placed hors de combat by sickness, wounds, or
"I ' ,j 1 detention; or
r , ~.'
I. ,
:1 ,

,, ,:, i ' (iii) military medical or religious personnel,


,

(2): Solicitation to Attack Civilians:


Il1 'b,aer to ftnd Mr, al Bahlul guilty of Solicitation to Attack Civilians, you
mllst ftnd beyond a reasonable doubt that Mr, al Bahlul:
.i
I ( j'
' 1 (I) wrongfully solicited, ordered, induced or advised one or more
persons;

(2) to intentionally direct attacks against the civilian popUlation as


1

J"; such or against individual civilians not taking direct part in hostilities
,,::, to be the object of the attack;
"

, i',
! :
(3) that ML al Bahlul knew or should have known the factual
',,' i ' circumstances that established such civilian status;
, , ", ,
i i
,,' (4) that Mr. al Bahlul intended that the offense actually be committed;
: ", and

il'il : (5) that the solicitation took place in the context of and was associated
, with an armed conflict,

APPELLATE
PAGE 1(0 EXHIBIT" 3:2:1 ~
. OF _ 3').. :,:::/AE 71 (alll6hlul)
Page 16 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
I, UNCLASSIFIEDIIFOR PUBLIC RELEASE
j' '

:)1' ,
d

'II'j '
~! 'I !
J '

ad) !teral deaths or injuries incident to a lawful attack do not support the
AiffW.L:se of attacking civilians.
~'!fnl:'
, 'II ,
(3)1Solicitation to Attack Civilian Ob jects:
r~
' 'ilii:ler to find Mr. al Bahlul guilty of Solicitation to Attack Civilian
!.I' :
o gop!s,
, ~l
you must find beyond a reasonable doubt that Mr. al Bahlul:
II
I ;'.!;!lj
::,1' I (I) wrongfully solicited, ordered, induced or advised one or more
-I persons;

,, (2) to intentionally conduct attacks against civilian property, that is,


, " property that was not a military objective;
" P
'j 'i "
'j.-

,,-:;; (3) that Mr. al Bahlul knew or should have known that such property
;.: was not a military objective;
,, ,

. . til tirat Mr. al Bat\lul knew the un lawfo l purpose of dIe agreement
. ,J. aRdjGin~Q williRgly, with th~ iRtem to 6Jrtber the 1In.1awfiI ) pw=pQse;
;J, ~ that Mr. al Bahlul intended that the offense actually be committed;
.: and
;, S
'; :' !fJ that the solicitati?n took place in the context of and was associated
. With an armed confhct.

C~Jj~teral damage or damage incident to a lawful attack do not support the


o~rse of attacking civilian objects.

Military objectives are those objects during an armed conflict:


I ' 1

: (i) which by their nature, location, purpose, or use, effectively


" contribute to the opposing force' s war-fighting or war-sustaining
. ',' capability, and

(ii) the total or partial destruction, capture or neutralization of which


would constitute a definite military advantage to the attacker under the
'rl'
, .1[ .
circumstances at the time of the attack.

Civilian objects are those objects that do not qualify as military objectives.

APP~'!f BXHlBlT 71 17
PAGE OF ':'3~2~== AE 7 1 (al Bahlul)

UNCLASSIFIEDIIFOR PUBLIC RELEASE P' 9' 17 of 32


; 'I UNCLASSIFIEDIIFOR PUBLIC RELEASE
. '1''I1
I
,
!i'I'1
,II ,

:il ". " I '


4" Solicitation to Commit Murder in Violation of the Law of War:
~ i , ,:~der to find Mr, al Bahlul guilty of Solicitation to Commit Murder in
Vif fption of the Law of War, you must fmd beyond a reasonable doubt that
l\1li. lal Bahlul:
:';'11
: I'!i '
: "1'1 , (1) wrongfully solicited, ordered, induced or advised one or more
i ::; 1:1: persons;
q iI
.' , I
" (2) to intentionally kill one or more persons;

", , ,, (3) in violation of the law of war;


, ,
", (4) that Mr. al Bahlul intended that the offense actually be
i ' : committed; and
;:
',', (5) that the solicitation took place in the context of and was associated
, ; , with an armed conflict.

A lviolation of the law of war may be proven by either the killing of


prOtected persons or by using a means, weapon or technique considered
illegal under the laws of war.

A~illing violates the law of war where a combatant (whether lawful or


u'1h,wful)
, ,
intentionally and without justification kills:

" (i) civilians not taking an active part in hostilities;


, I;
(ii) military personnel placed hors de combat by sickness, wounds, or
detention; or

:" " (iii) military medical or religious personnel.

A 'killing may also violate the law of war where an accused regardless of
stains (as a lawful or unlawful combatant) intentionally and without
justi/lcation kills any person by a method, manner, or under circumstances, ,
th~~i ~iolate the law of war. Such method, manner or circumstances, may
incNde, but are not limited to, attacking United States and allied forces by
means of perfidy or treachery, improperly using a flag of truce or a
distinctive symbol (e.g., a Red Cross or Red Crescent), or in the course of
spYIng.

APPELLA EXHIBIT
PAGE OF
illJ
3..
I AE 71 (al b~lul)
Page 18 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
, I

I '
UNCLASSIFIEDIIFOR PUBLIC RELEASE
I
" q
I, "
jl t
,

.1 .; :~ \
: .1 'i I
, 'I. "-, ,
, , I
1 JI II I
~~' ~dy occurs when a combatant (lawful or unlawful) invites an adversary
to ' ffheve that he IS entItled to, or IS obhged to accord, protectIOn to the
c~~~atant under the law of war, with the intent to betray that confidence,
~ot !*,ample, feigning status as a non-combatant civilian in order to attack a
Dilili!fY installation or personnel may violate the law of war,
'I'i: I.
(~W~ ~~licitation to Destrov Property in Violatio n ofthe Law of War:
In otder
,, to fmd Mr, al Bablul g uilty of Solicitation to Destroy Property in
Violation of the Law of War, you must find beyond a reasonable doubt that
Mr, ;;I Bablul:
I' ,
. 'i

I I
. -,
"" (I) wrongfully solicited, ordered, induced or advised one or more
persons;
,,
i'
, (2) to intentionally and without consent destroy property of another
which is not a military objective;

(3) that the destruction of the property would have been in violation of
I the law of war

(4) that Mr, Al Bablul intended that the offense actually be


committed; and

(5) thaI the solicitation took place in the context of and was associated
, with an armed conflict
k
MII,ifary objectives are combatants, and those objects during an armed
cot)J).)ct:
,!' ,. (i) which by their nature, location, purpose, or use, effectively
contribute to the opposing force's war-fighting or war-sustaining
capabi lity, and

(ii) the total or partial destruction, capture or neutralization of which


would constitute a definite military advantage to the attacker under the
" circumstances at the time of the attack

~'!
III!
Ci Uian objects are all objects that do not qualifY as military objectives,
Destruction of property may violate the law of war where an accused
regardless of status (as a lawful or unlawful combatant) intentionally and

~
' .

PAGE 4
I\PPELLA EXHIBIT
OF z OE 7 1 (aI 1"hlul)
Page 19 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
I: UNCLASSIFIEDIIFOR PUBLIC RELEASE
, ,
I :ij ,

:I'i
4!\~utjUStification destroys any property-including military property-by a
,*~~od, mamler, or under circumstances, that violate the law of war. Such
m~od, manner or circumstances, may include , but are not limited to,
a~"~king United States and allied property by means of perfidy or treachery,
i.r;np~operly using a flag of truce or a distinctive symbol (e.g., a Red Cross or
Re~ :Crescent), or in the course of spying.
"'t,
. I '
Pe,fldy occurs when a combatant (lawful or unlawful) invites an adversary
to believe that he is entitled to, or is obliged to accord, protection to the
combatant under the law of war, with the intent to betray that confidence.
F,or:cxarnple, feigning status as a non-combatant civilian to attack military
prol1erty may violate the law of war.
:: i
(6) Solicitation to Commit Terrorism:
If'order to find Mr. al BaWul guilty of Solicitation to commit Terrorism, you
mll~t fmd beyond a reasonable doubt that Mr, al BaWul:

()) wrongfully solicited, ordered, induced or advised one or more


persons;

(2) to intentionally kill or inflict great bodily harm on one or more


protected persons, or engaged in an act that evidences a wanton
disregard for human life;

(3) in a marmer calculated to influence or affect the conduct of


government or civilian population by intimidation or coercion, or to
retaliate against government conduct;

,r --4}lh.t Mr AI Babl,,] knew the unlawfiJ! pllTpo,. oflh!5<..... ent and ~


. ~ joined wil l ing.ly, wjth the inteot to Su1her the l;,1ula1J 'R.ll pHl]363e,

&; that Mr, Al BaWul intended that the offense actually be


committed; and
----
'2
(6) that the solicitation took place in the context of and was associated
with an armed conflict
II'd
In brder to be an act of terrorism, the act must be wrongful. An attack on a
military objective, undertaken by military forces of a state in the exercise of
their official duties, would not constitute an act of terrori sm.

APPELLATE EXIDBrr
PAGE z-o OF 32-
=r' 20
AE 71 (ill Bahlul)
Page 20 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
1" 1 UNCLASSIFIEDIIFOR PUBLIC RELEASE
"'I
:: \1~i
'I I, ,
" ' olicitation for P rovidin Materia l Su o rt fo r Terr orism:
T :' :r.Wffense can be proven by either of two ways.

It "
I~
~I .!: be proven that Mr. Al Bahlul:
'1 !~i'
Q. (l) wrongfully solicited, ordered. induced or advised one or more
:j,no persons;
~ \~'. '
~/11
p,: (2) to provide material support or resources to be used in preparation
;; : t for or in carrying out an act of terrorism;
,' I
, <'
I,:i
(3) that Mr. al Bahlul knew or intended that the material support or
resources were io be used for those purposes I
I'
"
I
(4) that Mr. al Bahlul intended that the offense actually be
committed; and

,. (5) that the solicitation took place in the context of and was
associated with an armed conflict.

Or ii can be proved that Mr. al Bahlul:

(I) wrongfully solicited, ordered, induced or advised one or more


"
persons;
::
(2) to provide material support or resources to an international
terrorist organization engaged in hostilities against the United States

; .: (3) the accused knew that al Qaeda knew had engaged or was
,I',: engaging in terrorism
'i I '
''',
>,: '
(4) that Mr. al Bahlul intended that the material support or resources
be provided to an international terrorist organization

(5) that Mr. al Bahlul intended that the offense actually be corrunitted;
and

'.; (6) that the solicitation took place in the context of and was
'"
, ",
associated with an armed conflict
'.

I have previously instructed you as to explanations and definitions


applicable to the offense of material support of terrorism with respect to the

APPELLAlE EXlDBIT ~T,,"I_


PAGE '2, 1 OF 32. 21
AE 11 (al Bahlul)
Page 21 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
i '! UNCLASSIFIEDIIFOR PUBLIC RELEASE
:-, il
I "
1':1,1
,'I

lilt :
cbn' ' iracy in Charge 1. These explanations and definitions also apply to the
s\IRk ' tive offense of soliciting material support for terrorism as alleged in
Ch' I' ge II. I will not repeat those explanations and definitions as you will
I , Ii '
haY! 'a wntten copy of these InStructiOns as a reference. You should apply
th~~ definitions when you deliberate on the specification of Charge II.
, !,'" "~'Il
. 'i! ''I
Fil,ja),ly with regard to Charge II, you may find the accused guilty of the
of:t:~se of Solicitation only if you find beyond a reasonable doubt that the
accused solicited persons known or unknown to commit all of the elements
of one or more of the offenses alleged in the specification.
;:
, I :'
At least six (6) of you must agree that the accused solicited at least one of
thb+,amed offenses in the specification of Charge II in order to find the
~cGused guilty of the separate offense of solicitation. Accor~ ifpu -' "-
fm~ ' \>eyond a rea~ble doubt that the accused intended to~~ GSA"'lit (~
orie,or more ~ffenses, but not all of them, your findings should
retlect this by exceptions. At least six (6) members must concur that the
accused intended the same solicited offense or offenses.

. " ; SPECIFICATION OF CHARGE Ill:


MATERIAL SUPPORT FOR TERRORISM

In (he specification of Charge III, the accused is charged with the offense
o~Providing Material Support for Terrorism. In order to find the accused
guiiIY of this offense, you must be convinced by legal and competent
evidnce of each of the following elements, beyond a reasonable doubt:

(I)~ !!'at Mr. Al Bahlul was an alien unlawful enemy combatant


, ,
,
(2) that from in or about February 1999 through in or about December 2001,
at v.;rious locations in Mghanistan and elsewhere Mr. a1 Bahlul intentionally
prpy;ided material support and resources to al Qaeda, an international
ten:orist organization then engaged in hostilities against the United States, by
prpy,iding the following:

(a) traveling to Mghanistan with the purpose and intent of joining aI


Qaeda;

(b) meeting with Saif al 'Ad!, the head of the aI Qaeda Security

APPElLATIlEXHIBIT 71 22
PAGE 22.. OF f/'- AE 71 (al Bahlul)
Page 22 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
'd' UNCLASSIFIEDIIFOR PUBLIC RELEASE

,,, "I ',


,1'1 ,

I
"
,
'~
,' ,

'I ' Committee, as a step toward joining the al Qaeda organization;


, "I I '
! 1.'1
'1,:;[' ()
c undergomg
"I . . at an al Qaeda sponsored
mlltary-type trammg
.hi' training camp then located in Afghanistan near Mes Aynak;
. j'
.I I
:t'i' (d) pledging fealry, or "bayat," to the I~ader ofal Qaeda, Usama bin
I' " Laden, joining al Qaeda, and providing personal services in support of
,;t al Qaeda;
,i
, (e) preparing and assisting in the preparation of various propaganda
products, including the video "The Destruction of the American
Destroyer Us.s. Co/e, " to solicit material support for al Qaeda, to
, recruit and indoctrinate personnel to the organization and
objectives of al Qaeda, and to solicit, incite and advise persons to
commit terrorism;

(I) acting as personal secretary and media secretary of Usam a bin


, '
Laden in support of al Qaeda;

(g) arranging for Muhammed Atta, also known as Abu Abdul Rahman
al Masri, and Ziad al Jarrah, also known as Abu al Qa'qa al Lubnani,
to pledge fealty, or "bayat," to Usama bin Laden;

(h) preparing the propaganda declarations styled as martyr wills of


, Muhammed Atta and Ziad al Jarrah in preparation for the acts of
i: terrorism perpetrated by the said Muhammed Atta, Ziad al Jarrah and
, others at various locations in the United States on September 11,
2001;

, , (i) at the direction ofUsama bin Laden, researching the economic


effect of the September 11 , 200 1 attacks on the United States, and
providing the result of that research to Usama bin Laden;

G) operating and maintaining data processing equipment and media


communications equipment for the benefit ofUsama bin Laden and
other members of the al Qaeda l eadership,~;
o,Q.
(k) arming himself with an explosive belt, rifle, and grenades to
protect and prevent the capture of Usam a bin Laden.

APPELLATE EXHIBIT 7!
PAGE 2..3 OF _~3",~,--...... 23
AE 71 (al Bahlul)
Page 23 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
!' UNCLASSIFIEDIIFOR PUBLIC RELEASE
Ii
i ':1
, " I I

(3)i ~at Mr. al Bahlul intended to provide s~chmaterial support or resources


to '~Qaeda, an mtematlOnal terronst orgaruzatlOn engaged ill hostilItIes
'1' ~
agffl 51 the United States;
1.\.';''1
~;$at Mr. al Bahlul knew that al Qaeda has engaged or engages in
terf9rism; and
S , ),! .
~i iqat~r. AI Bahlul 's conduct took place in the context of or was
ass'dciated with an armed conflict.

I have previously instructed you as to explanations and definitions


appli~able to the offense of material support of terrorism with respect to the
c~n$piracy in Charge 1. These explanations and definitions also apply to the
st;bstantive offense of providing material support of terrorism as alleged in
Charge Ill. I will not repeat those explanations and definitions as you will
have a written copy of these instructions as a reference. You should apply
th~se definitions when you deliberate on the specification of Charge III.

At .Jeast six (6) of you must agree that the accused provided material support
by doing at least one of the named acts in the specification of Charge III in
order to fmd the accused guilty of the separate offense providing material
support for terrorism. Accordingly if you find beyond a reasonable doubt
that the accused committed one or more acts, but not all of them, your
findings should reflect this by exceptions. At least six (6) members must
cot)cur that the accused committed the same act.

THE LAW OF PRINCIPALS

Anx'person who commits an offense is a principal . Any person who


knin,vingly and willfully counsels, commands or procures another to commit
an offense is also a principal and is just as guilty as the person who actually
committed the offense.

"Counsel" means to advise, recommend, or encourage. "Command" means


an order given by one person to another, who, because of the relationship of
th~ parties, is under an obligation or sense of duty to obey the order.
"PIocure" means to bring about or cause. If the offense is conunitted, even
if i\"!Js
, accomplished in a different manner from that counseled, commanded
or procured, the person who counseled, commanded or procured the
commission of the offense is guilty of the offense.

APP~;Y: EXHIBIT ~7'd-1_


PAGE OF 3'2- AE 71 (a~1hIUI )
Page 24 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
~ 'r
UNCLASSIFIEDIIFOR PUBLIC RELEASE
I

. '1'1
l'r '
:'/ "
II' i I
..
,Ii ."
b~~~ the act counseled, commanded or procured by a person is done, he is
c~~naUy responsible for all the likely results that may occur from the doing
of\!tat act.
I i'

If48 u are satisfied beyond a reasonable doubt that the accused knowingly
allrl WillfulIy counseled, commanded or procured the conurussion of an
f'e_

of(e(lse with which he is charged, you may find him guilty of that offense
ev~n though he was not the person who actualIy committed the crime.

JUDICIAL NOTICE

I hhve taken judicial notice that that there are no documents within the
control of the United States Government that show that Mr. al Bahlul is or
ever has been a legal resident of the United States.

This means that you are now permitted to recogllize and consider this fact
without further proof. It should be considered by you as evidence with alI
other evidence in the case. You may, but are not required to, accept as
conclusive any matter I have judicially noticed.

EVIDENTIARY INSTRUCTIONS

The Accused's Statements:

A number of pretrial statements by the accused have been admitted into


evidence through the testimony of various federal investigative agents. You
m~st decide the weight or significance, if any, such statements deserve under
all the circumstances. In deciding what weight or significance, if any, to
givb to the accused's statements, you should consider the specific evidence
offered on the matter, your own common sense and knowledge of human
natore, and the nature of any corroborating evidence as welJ as the other
evidence in this trial.

Credibility of Witnesses:

You have the duty to determine the believability of the witnesses. In


performing this duty you must consider each witness' intelIigence, ability to
observe and accurately remember, sincerity and conduct before the
Conunission, and prejUdices and character for truthfulness. Consider also the

APPELLATE EXlUBIT 71 25
PAGE eS Of 1Ib AE 71 (al Bahlul)
Page 25 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
i ,I UNCLASSIFIEDIIFOR PUBLIC RELEASE
I' I
Iii
, "I I'I
I'll
! II
ex~.l~'t to which each wi~ess is either supported or ~ontr~dicted by other
evifl nce; the relationship each witness may have With either side; and how
ea~ :i witness might be affected by the verdict.
! .~
In Weighing discrepancies by a witness or between witoesses, you should
c01~der whether they resulted from an innocent mistake or a deliberate lie.
':i' .
Taking all these matters into account, you should then consider the
prdbability of each witness' testimony and the inclination of the witness to
tell the truth.

The believability of each witness' testimony should be your guide in


evaluating testimony and not the number of witnesses called.

Circumstantial Evidence:

Evidence may be direct or circumstantial. Direct evidence is evidence which


ten;ds directly to prove or disprove a fact in issue. If a fact in issue was '
whether it rained during the evening, testimony by a witness that he or she
saw it rain would be direct evidence that it rained. On the other hand,
circumstantial evidence is evidence which tends to prove some other fact
from which, either alone or together with some other facts or circumstances,
you may reasonably infer the existence or nonexistence of a fact in issue.
If there was evidence the street was wet in the morning that would be
circumstantial evidence from which you might reasonably infer it rained
during the night.

There is no general rule for determining or comparing the weight to be given


to direct or circumstantial evidence, You should give all the evidence the
weight and value you believe it deserves.

Certain elements of the charged offenses require proof of the accused' s


kn6wledge or intent. Direct evidence of knowledge and intent is often
unavailable. The accused's knowledge or intent, however, may be proved
by 'circumstantial evidence, that is, by facts or circumstances from which
you may reasonably infer the existence of such intent. In deciding this issue,
YOr'must consider all the relevant facts and circumstances concerning the
a 11',gallOn,
"'.

"Spill-Over"- Facts of One C barged Offense to Prove Another:

APPEILATE EXIIIB~~"!:.7=(
PAGE 2(,. OF ~2-
;;;; 26
AI! 71 (al Bahlul)
Page 26 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
,
UNCLASSIFIEDIIFOR PUBLIC RELEASE
'I
'i
'II
i!i l"
.'III'II
. I' 'I .

~ #ccused may be cenvicted based .only en evidence befere the


CriMn1ission not on evidence of a general criminal disposition. Each offense
mlii! stand en its .own and yeu must keep the evidence .of each .offense
separa,te. Stated differently, ifyeu fmd .or believe that the accused is guilty
efb~e .offense, yeu may net use that finding .or belief as a basis fer inferring,
as~\jlning, .or preving that he cemmitted any ether .offense.

If evidence has been presented which is relevant te mere than .one .offense,
yeu may censider that evidence with respect te each .offense te which it is
relevant. Fer example, evidence has been presented with respect that Mr. Al
Bahlul\ created the "Cele Videe." Yeu may censider this evidence when
yeu deliberate separately en each .of the Charges

The burden is en the prosecutien te prove each and every element .of each
.offense beyend a reasenable deubt. Preef .of .one .offense carries with it ne
inference that the accused is guilty .of any ether .offense.

Variance - Findings by Exceptiens:

Aste any specificatien, if yeu have deubt that the Gevernment has proven
all of the times, places and manners charged in the specificatien, yeu may
stili reach a finding .of guilty se long as all the elements .of the .offense are
preved beyend a reasenable deubt, but yeu must modify the specificatien te
cer:rectly reflect yeur findings.

Expert Testimeny:

Y have heard the testimeny


I.

They are knewn as "expert witnesse,s" because


;;;;:u;;., cncc, training, or education may assist you in understanding the
evidence .or in determining a fact in issue. Yeu are net req uired te accept the
testimeny .of an expert witness .or give it mere weight than the testimeny .of
an .ordinary witness. Yeu sheuld, hewever, censider their qualificatiens as
experts.

When an expert witness answers a hypethetical questien, the expert


assumes as true every asserted fact stated in the questien. Therefere,
unless yeu fllld that the evidence establishes the truth .of the asserted
facts in the hypethetical questien, yeu carmet censider the answer .of

APPELLATE EXHIBIT 7(
PAGE 2.'1 OP :,~
AE 71
27
(al Bahlul)
Page 27 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
i. UNCLASSIFIEDIIFOR PUBLIC RELEASE

I
,
I' .
,
I, ;
th~1 'h pert witness to that hypothetical question.
1 I'
Iil , ,'
A~h)mplice Testimony:
I. I
"I ~

Y~~[ peard the testimony of three individuals who are described in the
sp~4j:fication of Charge II and were themselves previously convicted of
tert~;'ism related offenses. Such persons could be considered accomplices.
A )vitness is an accomplice ifhe was criminally involved in an offense with
which the accused is charged. The purpose of this advice is to call to your
attention a factor specifically affecting the witness' believability, that is, a
mot,ve to falsify his testimony in whole or in part, because of an obvious
self-interest
. , under the circumstances. In deciding the believability of these
witnesses,
, you should consider all the relevant evidence.

Wh~ther these three individuals were accomplices is a question for you to


decide. If they shared the criminal intent or purpose of the accused, if any,
or aided, encouraged, or in any other way criminally associated or involved
themselves with the offense with which the accused is charged, they would
be accomplices.

These three individuals have testified as part of their guilty pleas from their
convictions in federal court. If the witnesses did not tell the truth, they can
be prosecuted for perjury. In determining their credibility you should
consider the fact that they were testifying as part of their guilty pleas along
with all the other factors that may affect the witnesses believability.

Alihbugh you should consider the testimony of an accomplice with caution,


you may convict the accused based solely upon the testimony of an
acdo.\llplice, as long as that testimony was not self-contradictory, uncertain,
or improbable.
,
. CLOSING SUBSTANTIVE INSTRUCTIONS ON FINDINGS

You are further advised:

First, that the accused is presumed to be innocent until his guilt is


eS\~lblished by legal and competent evidence beyond a reasonable doubt; he
is 4#der no obligation to say or do anything to establish his innocence.

APPELLA're EXHIBIT 7, 28
PAGE ,.~ OF ;o;L AF 71 (al Bahlul)
Page 28 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
, I UNCLASSIFIEDIIFOR PUBLIC RELEASE
11 " :
'.. I
i I
'I ' ,
",I,
Se~opd, if there is reasonable doubt as to the guilt of the accused, that doubt
mnst,be resolved in favor of the accused, and he must be acquitted;
"I "I
'. ,I
;II,lI' . . .
Tlij'r~, If there IS a reasonable doubt as to the degree of gUllt, that doubt must
be' r~solved in favor of the lower degree of guilt as to which there is no
, '
reaS~nable doubt; and
1'1,
, "
. it
Lastly, the burden of proof to establish the guilt of the accused beyond a
reasonable doubt is on the government. The burden never shifts to the
accused to establish innocence or to disprove the facts necessary to establish
e~cjl , element oreach offense. Thus, the Commission should take no adverse
inffrence toward the accused from the accused s choice that he and his
counsel
,
stand mute. This is a permissible defense. The accused has an
,

absolute right to stand silent and do nothing but require the Government to
prove its case against him beyond a reasonable doubt.

The term "reasonable doubt" does not mean a fanciful or ingenious doubt or
conjecture, but an honest, conscientious doubt suggested by the material
evidence or lack of it in the case. It is an honest misgiving generated by
insufficiency of proof of guilt. Proof beyond a reasonable doubt means proof
to an evidentiary certainty, although not necessarily to an absolute or
mathematical certainty. The proof must be such as to exclude not every
hypothesis or possibility of innocence, but every fair and rational hypothesis
exeppt that of guilt. The rule as to reasonable doubt extends to every element
of the offense, although each particular fact advanced by the prosecution,
which does not amount to an element, need not be established beyond a
re,\sonable doubt. However, if, on the whole evidence, you are satisfied
beyond a reasonable doubt of the truth of each and every element, then you
shO,l1ld find the accused guilty.

Bear in mind that only matters properly before the Commission as a whole
should be considered. In weighing and evaluating the evidence you are
expected to use your own common sense, and your knowledge of human
nature and the ways of the world, In light of all the circumstances in the
case, you should consider the inherent probability or improbability of the
evidence. Bear in mind you may properly believe one witness and disbelieve
se~~ral oth~r witnesses whose testimony conflicts with .the one. The fmal
de1eimmatlOn as to the weIght or sIgnificance of the eVIdence and the
credibility of the witnesses in this case rests solely upon you.

APPELLATE EXHIBIT T I 29
PAGE 2-'1OF 36 AE 71 (al Bahlul)
Page 29 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
i UNCLASSIFIEDIIFOR PUBLIC RELEASE
'I I,

:1 1
'II
~?lb:)ust disregard any comment or statement or expression made by me
d')1~1g the course of the tnal that mIght seem to mdICate any opmlOn on my
pa'~,'~s t.o :-:hether the accused is g~illJ:' or not guilty since yo~ alon~ have the
res, ' bnslhIllty
'
to make that detennmatlOn. Each of you must unparhally
deCide
'. 1
whether the accused is guilty or not guilty according to the law r have
givep you, the evidence admitted in court, and your own conscience.
I ,
,
'I .: .
At :!his time you will hear argument by counsel. As the government has the
burden of proof, trial counsel may open and close. Counsel for the
Government, you may proceed.

ARGUMENT BY COUNSEL

Counsel has referred to instructions that I gave you. If there is any


inconsistency between what counsel have said about the instructions and the
instructions which I gave you, you must accept my statement as being
correct.

PROCEDURAL INSTRUCTIONS

The following procedural rules will apply to your deliberations and must be
observed:

Th~ influence of superiority in rank will not be employed in any manner in


an attempt to control the independence of the members in the exercise of
therr own personal judgment.

YoUr deliberation should include a full and free discussion of all the
evidence that has been presented. After you have completed your discussion,
then voting on your findings must be accomplished by secret, written ballot,
and all members of the Commission are required to vote.

The order in which the several charges and specifications are to be voted on
should be detennined by the president subject to objection by a majority of
the, members. You vote on the specifications under the charge before you
vote,on the charge.

If you fmd the accused guilty of any specification under a charge, the
finding as to that charge must also be guilty. The junior member will collect
i\PPELLATE EXHIBIT 1r
PAGE pO OF 32.. 30
AE 71 (al Bahlul)
Page 30 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
I UNCLASSIFIEDIIFOR PUBLIC RELEASE
iI
I i! .
.~. ,I
arJ~l ~ount the votes. The count will then be checked by the president, who
wijliimmediately announce the result of the ballot to the members .
. 'II
Th~:boncurrence
, of at least two-thirds of the members is required for any
finding of guilty, Since we have nine (9) members that means six (6)
men!bers
, must concur in any finding of guilty.
"
,:
If yO\! have at least six (6) votes of guilty of any offense then that will result
in a finding of guilty for that offense. If fewer than 6 members vote for a
finding
,
of guilty, then your ballot resulted in a finding of not guilty.
,
You'may reconsider any finding prior to its being announced in open
se~:si (;m . However, after you vote, if any member expresses a desire to
re~onsider any fineting, open the Commission and the president should
OfU1ounce only that reconsideration of a finding has been proposed, Do not
state:

( I) whether the fmding proposed to be reconsidered is a fmding of


guilty or not guilty, or

(2) which specification (and charge) is involved. I will then give you
specific further instructions on the procedure for reconsideration.

As soon as the Commission has reached its fmetings, and I have examined
the .Findings Worksheet, the findings will be announced by the president in
the presence of all parties,

As an aid in putting your finetings in proper form and making a proper


armouncement of the findings, you may use Appellate Exhibit "1:2.. the
Findings Worksheet.

Because of the number of acts alleged each is listed on the worksheet under
each offense,

To indicate those acts for which you find Mr. al Bahlul guilty, if any,
please circle,
:I. I
Then line through any of the acts for which you find him not guilty

APPELLATE EXlUBIT ::r (


PAGE '?> L OF 32- JI
AE 71 (al Bahlul)
Page 31 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE
, UNCLASSIFIEDIIFOR PUBLIC RELEASE
I '
I
!I ,
.
,, '
WJ1~il 'you return to the courtroom I will review the findings worksheet so
th~t ~ can ensure your findings are in proper form,
,I
i: I

'f.
Th" ~Y'0rk sheet'III no way III
. d'lcates an oplruon
.. by me or counseI '
concemmg
th'1 findings you should reach or as to any degree of guilt of this accused.
~isl i ~ merely included to aid you in understanding what fmdings might be
m~\I~ in the case, and for no other purpose whatsoever. Are there any
qUes,\ions about the findings worksheet?

If, d~ring your deliberations, you have any questions, please write the
quest,ion on one of the question forms that have been provided to you, and
sena it to me via the bailiff. I will then open the Commission and try to
answer your questiol). The Manual for Military Commissions prohibits me
and everyone else from entering your closed session deliberations. You may
not consult the Manual for Military Commissions or any other legal
publication unless it has been admitted into evidence.

I\PPELLATE EXHIBIT ] I
PAGE 02- OF b2- AE 71 (a?~ahIUI)
Page 32 of 32
UNCLASSIFIEDIIFOR PUBLIC RELEASE

You might also like