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UNCLASSIFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL J UDICIARY

GUANTANAMO BAY

UN ITED STATES OF AMERICA

v.

KHALlD SHAIKH MO HAMMAD,

WALlD MUHAMMAD SALlH MUBARAK

BIN 'ATTAS H,

RAMZI BIN AL SHAIBAH,

AMAR AL BALUCHI

("ALl ABDUL AZIZ ALI"),

MUSTAFA AHMED ADAM AL HAWSAWI

AE I07(MAH,AAA)

Defense Motion to Dismiss

for Lack of Jurisdiction

2 November 20 12

1. Timeliness: Th is is time ly fi led in accordance with Rule of Court 3.7(b).

2. Burden: The burden of persuasion on ac1aim of lack of jurisdiction rests with the

prosecution. R.M .C. 905(c)(2)(B).

3. Relief Sought: The Defense asks that th is commission dismiss the charges, absent the

prosecution establishing that each offense charged is a recogni zed violation under the law of war.

4. Overview: All of the accused in this case are charged with offenses under the Military

Commissions Act of 2009. The conduct of wh ich they are accused occurred before enactment of

the MCA.

In accordance with the U.S . Court of Appea ls for the D.C. Circu it's opinion in Hamdall v.

United States, Congress did not aim to create any constitutional Ex Post Facto problems, when it

defined offenses under the MCA. In findin g that material support for terrorism, which is codified

in the MCA, was not an established law of war offense in 2006, the D.C. Circu it in Hamdall

makes clear that the mere fact that an offense is cod ified in the MCA does not mean it was a law

of war offense in the past. In order to levy charges before this military commission for conduct

that occurred before enactment of the MCA wh il e avoiding an Ex Post Facto concern, the

Government must all ege offenses that were crimes under the law of war at the time that conduct

occurred.

Filed with T J

2 November 2012

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Appellate Exhibit 107 (MAH,AAA)

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