UNITED STATES OF AMERICA KHALID SHAIKH ......UNCLASSIFIEDIIFOR PUBLIC RELEASE UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNITED STATES OF AMERICA

v.

KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH

MUBARAK BIN 'ATTASH, RAMZI BIN AL SHIEH, ALI ABDUL·AZIZ ALI,

MUSTAFA AHMED ADAM AL HAWSAWI

AE 035D

Joint Defense Notice of Objection to AE035C (Order on Motion for

Continuance)

and

Joint Defense Motion for the Military Commission to Respect

the Religious Observances of Enemy Prisoners under Common Article 3

21 June 2012

1. Timeliness: This Motion is timely filed. There is no prescribed filing date

for filing a Notice of Objection with t he Military Commission.

2. Notice of Objection: On 29 May 2012, th e Military Commission in ruling

on a Defense Motion for Continuance (AE035) made a finding of fact and a ruling

concerning Ramadan without soliciting any evidence from either th e Prosecution or

the Defense on the matter. (See AE035C, "No defense counsel has raised any

concerns that 8 August 2012 is during Ramadan (21 July - 20 August 2012). The

Commission will not consider any adjustment in its order based on a conflict with

Ramadan.") . As set forth below in further detail, Ramadan is the holiest period of

worship for Muslims around the world as it is the month wh en God (Allah) revealed

the Holy Qu'ran to the Islamic Prophet Mohammed.

Because neither party advanced any facts to the Military Commission on

Ramadan, th e Defense assumes that t he Military Commission found that Ramadan

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Filed with T J 21 June 2012

UNCLASSIFIEDIIFOR PUBLIC RELEASE Appellate Exhibit 0350 (KSM at al) Page 1 of 40


was a judicially noticed fact that is "not subject to reasonable dispute in that it is

either (1) generally known universally, locally, or in the area pertinent to th e event

or (2) capable of accurate and ready determination by resort to sources wh ose

accuracy cannot reasonably be question ed." (R.M.C. 201(b».

The Defense objects to this Military Commissions decision that it will not

consider any adjustment in its order based on a conflict with Ramadan. Neither the

P rosecution nor th e Defense was notified in advance that the Military Judge

intended to rely on a judicia lly-noticed fact. The finding of such a judicia lly-noticed

fact without notice to th e parties violates R.M.C. 201. As the Defense has recently

learned, Ra madan is more than just a period of time within the Islamic faith , i t is

physical and spiritual endeavor focusing on patience, spirituali ty, humility and

submission to God that influences nearly every aspect of a Muslims life by

regulating wh en an observing Muslim should eat, drink, sleep, and pray.

Consequently, th e Defense respectfully requests this Military Commission hear

from th e Defense as set forth below and consider additiona l facts pertinent to

Ramadan and th e religious requirements of Isla m since these matters are within

th e cognizance of t he Military Commission.

3. Relief Sought: The Defense requests that this Military Commission, upon

consideration of t he additional facts set forth herein , give full consideration to the

religious observances of th e Accused in accordance with Common Article 3 of the

Geneva Conventions and related authorities. At this time, th e Defense requests

that the Military Commission refrain from conducting any proceedings during

Ramadan and Fridays generally.


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UNCLASSIFIEDIIFOR PUBLIC RELEASE Appellate Exhibit 0350 (KSM et al) Page 2 of 40


4. Burden of Proof: The Defense bears the burden of proof on this Motion

under R.M.C. 905(c).

5. Facts: The Defense proffers the following facts for the purposes of this

Motion and has appended evidence as set forth below:

a. Arraignment Order. At the 5 May 2012 arraignment, th e Military

Judge scheduled the next h earing date to be 12 to 15 June 2012.

b. Prompt Notice to Commission of a Schedule Conflict. On 11 May 2012,

as soon as a scheduling conflict became apparent based primarily on a grave matter

implicating the sch edule for Mr. Mohammad's civilian Learned Counsel, Mr. David

Nevin, the Defense filed a Motion for Continuance (AE035) identifying the dates in

which Mr. Nevin and other defense counsel for the co-Accused were unavailable.

c. Motion Filed Prior to Client Consult. In alerting the Commission to

the scheduling conflict, four of the five Defense Counsel (excepting counsel for Mr.

Hawsawi) filed the Motion seeking a Continuance on 11 May 2012 without having

the opportunity to consult with their clien ts about the subject matter of the request

- as it was based "on the non-availability of two defense counsel" (AE035, Def. Mot.,

pg. 1). Current JTF-Guantanamo policy prohibits any member of the defense team

from conferring with these accused via telephone from their offices in the

Washington, D. C metropolitan a rea. Under current JTF-Guantanamo policy, no

member of the defense team may write and send confidentia l attorney-client

privileged communications to any accused. The only manner in which member s of

defense teams and their accused may communicate in confidence is through in-

person meetings at U.S. Naval Station Guantanamo Bay subject to the flight


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Appellate Exhibit 0350 (KSM et al) Page 3 of 40


scheduling of the Office of Military Commissions. There were no flights available

between the arraignment and the 11 May 2012 filing of the Motion for Continuance.

d. Commission Order. On 29 May 2012, the Military Judge issued an

Order on the Defense Motion for Continuance. In the Order, the Commission

provides "No defense counsel has raised any concerns that 8 August 2012 is during

Ramadan (21 July - 20 August 2012). The Commission will not consider any

adjustment in its order based on a conflict with Ramadan." (AE035C).

e. Lack of Cultural Competence. No Defense Counsel is a practicing

Muslim, and no Defense Counsel possesses adequate knowledge and experience in

Islam and its observances. Defense Counsel are not culturally competent in these

areas. After meeting with the accused in person in Guantanamo, during the week

of 4 to 11 June 2012, Defense Counsel for Messrs. Mohammad, bin 'Attash, and

Hawsawi, have learned about the special significance of the last 10 days of

Ramadan and the importance of Friday prayers for Muslims generally. Had

Defense Counsel possessed such special knowledge at the time of the filing of the 11

May 2012 Motion for Continuance, it would have alerted the Commission

accordingly.

f. Assisting the Commission and Defense in Cultural Competence. The

Defense has consulted with the Muslim Research and Development Foundation

(MRDF) which is a U.K. cooperative venture run by a number ofleading Muslim

scholars, Imams, and professionals devoted to the study of Islam and promoting its

cultural awareness. (See h ttp://www. mrdf.co. ukD . The MRDF has issued two

memoranda to assist the Defense, the Prosecution, and the Commission in


4



understanding th e importance of Ramadan and its 10 h oliest days and Friday

prayers.

Ramadan

g. Judicial Notice of Ramadan. The Commission, sua sponte without

notice and input from any party, took judicial notice that Ramadan is between on or

about 21 July - 20 August 2012. (AE035C, Order, dtd. 29 May 2012). The

Commission did not take judicial notice of th e exhausting nature of th e fasting

requirements during Ramadan , and th e special significance of t he last 10 days of

Ramadan. The last ten nights of Ramadan (th e holiest period) will begin either on 8

or 9 August 2012. (Att. B, Ramadan Op., pg. 1)

h . Fasting Obligation. In Islam, God (Allah), th rough His divine word in

th e Holy Qu'ran, obligates all Muslims to fast during Ramadan. This is called

Sawm, and it requires abstention from food, drink, and sexual relations during th e

dayligh t hours. Observant Muslims may fast at any time of the year, but it is an

obligation on all adult Muslims during the full 30 days of Ramadan as a means of

pleasing God (Allah) , pursuing piety and cleansing ones soul of sins. (See Att. B,

Ramadan Op., pgs. 1-3).

i. Night Prayers Generally. The night prayer during Ramadan is

considered to be th e most pious act of submission to God (Allah). Referred to as

Salah al-Tarawih , the night prayer can be performed at any time, but some

Muslims perform it both after the last obligatory prayer of the day (Ish a) and also

within th e early morning hours. Regardless of wh en a Muslim decides to perform





the night prayers, "it is recognized as a practice that takes place in Ramadan

throughout the Muslim world." (See Att. B, Ra madan Op., pg. 4).

j. Night Prayers During the Last 10 Days of Ramadan. God (Allah)

revealed the Holy Qu'ran to the Prophet Mohammed at some point during the last

10 nights of Ramadan, and as such , "[t]he last 10 nights of Ramadan form as part of

the most important dates in the Muslim calendar, more important than the two

Eids (festivals) and even the Hajj." (See Att. B, Ra madan Op. , pg. 5). Traditionally,

the night prayer during the last 10 days is lengthy out of admiration for the acts of

the Prophet Mohammed who would lead the night prayer, standing, for almost the

whole night. (Id.) While the actual night of the revela tion (the "Night of Power" or

Laylat-ul -Qadr) from God (Allah) to the Prophet Mohammed is unknown, it is

believed to have occurred during the last 10 nights of Ramadan. Accordingly, this

is the most holy period of Ra madan:

It is imperative that at this time, Muslims take full ben efit of the month of Ramadan by practising the rituals of their religion to as great an extent as possible. In Muslim majority countries, there is recognition that due to the extra burden of the last ten nights in terms of wor ship, the timings for work are changed in order to alleviate burden on employees. Further, many people will take time off from work, specifically to practice I'tikaaf (seclusion) which is to either stay in the mosque for t he full ten nigh ts, or stay at home without leaving, solely engaging in the worship of God. (Id. at pg. 7).

k. Seclusion During the Last 10 Days of Ra madan. Secluding oneself

from the world during the last 10 days of Ra madan is accordance with Prophetic

tradition, and Muslims should practice it if able as "[t]he whole point is to seclude

yourself away from the world, and to spend time with God." (Id.).


6



I. Impact of the 8 to 12 August 2012 Hearing Dates. MRDF expla ins

that holding th e hearings during Ramadan, and the last 10 nights in particular,

"will undoubtedly hinder the defendants unique opportunity to cleanse themselves

spiritually and draw closer to God." (Id. at pgs. 7-8). Using a prayer timetable

based on th e Muslim World League calculations, MRDF determines that th e

accused would have a schedule as follows from beginning on 7 August:

7 Aug, 1935 - 2049 hours: The Muslim Accused will break their fast, engage in the Magh rib Prayer (fourth of the five daily prayers), and eat. This process will conclude with the Ish a Prayer.

7 Aug, 2049 - 2320 hours: The Muslim Accused will engage in the Isha Prayer (last of the five daily prayers), and upon conclusion, will begin th e night prayers (Salat a l.Tarawih), a lengthy prayer, which in the U.K. can last as long as two and a half hours. Mterwards, the Muslim Accused have the opportunity to sleep.

8 Aug, 0135 - 0435 hours: The Muslim Accused may engage a second night prayer in accordance with the tradition of t he Prophet in furtherance of th e divine revelation (Laylat.ul-Qadr). Prior to the morning meal, the Qiyam prayer, as part of t he standard practice of Muslims around th e world, would obligate the Muslim Accused to pray for approximately 3 hours in the early morning h ours.

8 Aug, 0435 - 0521 hours: The Muslim Accused have the opportunity eat their morning meal prior to the fast. This will take approximately 45 minutes as the Muslim Accused will want to pray briefly in conjunction with accepting the meal.

8 Aug, 0520 hours: The Muslim Accused will participate in the first of th e five obligatory da ily prayer s. (Id. at pg. 8).

m. Full Performance of Religious Rites: Because God (Allah) revealed the

Holy Qu'ran to th e Prophet Mohammed at some point during the last 10 nights of

Ramadan, the Muslim Accused, like every Muslim around the world, should have

the opportunity to engage fully in th eir devotions. In fulfilling their divine


7



obligations and being compelled to attend hearings from 8 through 12 August 2012,

the Muslim Accused would not have the opportunity to rest and sleep during the

day, and instead, would only have the opportunity for just two hours of sleep each

night:

Inevitably, if required to attend a court hearing during the day, this will mean that they will only be able to sleep between the hours of 23:20 and 01:35. Just over two hours of sleep at a time when hearings are taking place will make it difficult for the detainees to understand what is taking place in the process. At such a time, the men should be permitted to exercise the full range of their religious rights, particularly when considering the importance of those rights to Muslims worldwide. (Id. at pg. 9).

Friday Prayers

n. Friday Holy Day. In Islam, God (Allah) revealed to the Prophet

Mohammed in the Holy Qur'an that Friday is a special day of worship for Muslims:

9. 0 you who believe, when the call is sounded for prayer on Friday, hasten to the remembrance of Allah and leave off traffic. That is better for you, if you know. 10. But when prayer is ended, disperse abroad in the land and seek of Allah's grace, and remember Allah much, that you may be successful. 11. And when they see merchandize or sport, they break away to it, and leave the standing. Say: What is with Allah is better than sport and merchandise. And Allah is the best of Provider s. 1

o. AI-Jumu'ah Salat. The Friday Prayer or gathering (al-Jumu'ah) begins

at noon and consists of three import factors: (1) it is an obligation for all Muslim

men, which is considered as important, if not more important, than the five

obligatory daily prayers; (2) there is a sermon known as kutbah that is delivered as

I The Holy Qur'an, Surah 62, verses 9·11 , Trans. and Comm. , Maulana Muhammad Ali, (New 2002 Edition) (Ahmadiyya Anjuman 1sha 'at 1slam Lahore, 1nc. U.S.A) .





part of the prayer; and (3) the al-Jumu'ah must be congregational. "[M]any scholars

considered Friday as the Muslim's third Eid that is repeated every week." (Att. C,

Jumuah Op., pg. 2).

p. Significance of Observing al-Jumu'ah Salat. The Friday Prayer is a

central prayer within the Islamic faith, and "it is better for Muslims that the entire

day is dedicated towards act of worship and reflection." (Jd.) Muslims are

encouraged to arrive early for the Friday Prayers, take a ceremonial bath to purify

themselves, and begin their worship to God in anticipation of the noon sermon. (Id.

at pg. 4). According to the tradition of the Prophet Mohammed, arriving five hours

prior to the noon day prayer is the "pinnacle of worship on the Friday." (ld. at pg.

5). Although Muslims are permitted to work before and after the al·Jumu'ah Salat,

it operates within the Abrahamic traditions of a special day for prayer and

reflection similar the J ewish Sabbath (Saturday) and the Christian Sabbath

(Sunday). (Id. at pg. 1, 6). For this Muslim Sabbath, God (Allah) will multiply the

rewards for Muslims who accept his commandments and aim to please him to the

fullest extent - such as maximizing ones prayers on Friday:

[J]t is important to understand that the Friday prayer has a place of precedence in their lives, and for those who are observant of their religion and wish to seek the full spiritual benefit of the day, it is a time of reflection and worship. For many in the Muslim world, the Friday is eith er a holiday, or a time that is negotiated as being for worship. Countries across the Middle East will still provide the weekend to include the Thursday and Friday, or the Friday and Saturday. In Palestine, the weekend is on Friday and Sunday, in order to accommodate both Muslim and Christian faiths.

q. Full Performance of Religious Rites. MRDF explains how holding any

sessions on a Friday would interfere with the ability of the Muslim Accused to



Appellate Exhibit 0350 (KSM et al) Page g of 40


perform th e religious obligations on Friday. Using Friday, 10 August 2012 as an

example of a typical Friday sch edule (setting aside the Ramadan obligations of

nigh t prayers and fasting) , the Muslim Accused would have the following

obligations and religious devotions:

10 Aug, 522 hours: The Muslim Accused would engage in th eir first obligatory prayer, th e Fajr.

10 Aug, 0700 - 1200 hours: To fully respect th e P rophetic traditions to please God (Allah) and seek multiple rewards, th e Muslim Accused would "arrive" early for the noon prayer s, r itualis tically bath e to cleanse themselves spiritually, and begin their own prayers.

10 Aug, 1200 - 1300 hours: A Jumu'ah prayer normally takes between 45 minutes to one hour, but it can sometimes take as long as two hours depending on the length of th e khutbah, sermon, and prayers.

10 Aug, 1625 hours: The Muslim Accused would engage in th eir third obligatory daily prayer, th e Asr Salat.

r. Participating in Hearings on Fridays. Based on th e above, full

performance of the religious rites of th e Muslim Accused would permit t hem

approximately three hours to participate in a hearing from 1300 to 1625 hours

subject to th e duration of Jumu'ah prayer. Nonetheless, many observant Muslims

seek not to work on Fridays:

In many Muslim countries, especially across th e Middle East, the F riday is used as a day away from work, and many observant Muslims will use it as an opportunity to worship as completely as th ey can. Some Muslim countries may keep th e Friday as a working day, however that does not diminish the status of Jumu'ah for those who are observant, as they usually find time to relax th eir working hours or indeed have that day off. (Id. at 6).

6. Law and Argument.

A. U.S. law and policy requires that the religious observances of detainees under U.S. custody and control must be respected.


10



Common Article 3 to the Geneva Conventions applies at U.S. Naval Station

Guantanamo for this "offshore detention of enemies of the state."2 Hamdan v.

Rumsfeld, 548 U.S. 557 (2006). On 22 January 2009, President Obama affirmed

that the humane treatment standards in Common Article 3 control at Guantanamo:

No individual currently detained at Guantanamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of t h e Gen eva Conventions. The Secretary of Defense sha ll immediately undertake a review of the conditions of detention at Guantanamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter. Executive Order, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, Sec. 6, dtd. 22 Jan. 2009 (Emphasis Added).3

Per the President's executive order , the Department of Defense conducted an

immediate review of the conditions of confinement, and published a report on 24

February 2009, entitled "Review of Department Compliance with President's

Executive Order on Detainee Conditions of Confinement." (hereinafter the "Walsh

Report"). This review, led by ADM Patrick Walsh, noted that "determining

conformity with Common Article 3 requires examination of the directive aspect of

21n rema rks at the 35th anniversary of the Department of State Bureau of Democracy, Huma n Rights, and Labor, it has been reported that Harold Koh , the State Department Legal Advisor, recognized Guantanamo detainees as "enemies of the s tate ." ("1 believe that this adm inis tration has tried to ma ke what's currently at Guantanamo lawful, but that doesn't ma ke it a good idea. 1 don't think that offshore detention of enemies of the s tate is a good idea , whether it can be brought within lega l rules or not. And 1 think that that has been the challenge that this administration is facing, and 1 hope that it can be addressed at the start of the next presidential term."). See Law(are, Harold Koh on Guantanamo, dtd 12 June 2012, available at (http ://www.lawfareblog.com/2012/06/harold· koh-on-guantanamo/) (Last accessed 18 June 2012) . 3 See http://www.whitehouse .govlthe press office/ClosureOfGuantanamoDetentionFacilities .


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the Article, th is being that "Persons ... shall in all circumstances be treated

humanely." (Walsh Report at pg. 4). As an aspect of humane treatment, Admiral

Walsh determined that, at a minimum, the following legal and policy authority

governed the U.S. obligation to provide the detainees with the opportunity for the

free exercise of religion:

Under DoDD 2310.01E [DoD Detainee Program], detainees are to be provided the opportunity for free exercise of their religion, consistent with requirements of detention. Additional reference material may be found in GPW (Art. 34), GCC (Art. 93), and AR 190-8 (6-7) , which provide for complete latitude in the exercise of religious duties, including attendance at services, if t hey comply with the prescribed disciplina ry routine. In addition, ministers of religion who are detainees sh ould be allowed to minister freely to members of t he community.

l d. at pg. 25. Admiral Walsh underscored that "[c]oncerns ra ised in th e early years

of detention operations at Guanttinamo highlighted th e importance of respect for

th e religious traditions of detainees. In response, "considerable efforts were

undertaken to avoid actions that could be construed as disrespectful." l d. pg. 25-26.

Some of th ese prior concerns highlighting the disrespect for the religious

traditions of detainees were provided by five Special Rapporteurs to th e 62nd

Session of the U.N.'s Commission on Human Rights, entitled "Situation of

Detainees at Guantanamo Bay." This report, extracted in pertinent part below,

highlights th e universal obligations for States to respect and promote th e right to

freedom of religion or belief under both internationa l h uman rights law and

international humanitarian law and further identifies some of the prior abusive

practices of th e U.S. Government:





Excerpt: U.N. Economic and Social Council , Commission on Human Rights, 62"d Session, E/CN.4/20061120, paras. 57-65 dtd 27 Feb 2006

"Situation of d etainees at Guantanamo Bay"

A. Applicable international standards

57. The right to freedom of religion or belief is protected by article 18 of ICCPR [International Covenant on Civil and Political Rights] and the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In its general comment No. 22, the Human Rights Committee interprets article 18 to the effect that "persons a lready subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with th e specific nature of th e constraint". [Human Rights Committee, general comment No. 22 (1993), CCPRlC/211Rev.l/Add.4, para. 8.] A person deprived of his or her liberty cannot be deprived of his or her righ t to freedom of religion or belief. These standards must be applied to every person, regardless of th eir religion or belief, and in all detention facilities. [In h er previous report to the General Assembly (Al60/399), the Special Rapporteur analysed, in the context of her mandate, the international standards applicable to persons deprived of their liberty.]

58. Article 18 (3) of ICCPR provides that "[fJreedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order , health , or morals or t he fundamental righ ts and freedoms of oth er s". [ICCPR, art. 18 (3). See similarly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, art. 1 (3) (25 November 1981).] On these limitations, the Committee "observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified t here, even if they would be a llowed as restrictions to oth er righ ts protected in the Covenant, such as national security". [General comment No. 22, supra note 83, para. 8.] Moreover, under article 4 of ICCPR, th e right to freedom of religion or belief may in no circumstances be subject to derogation.

59. Finally, th e Third and Fourth Geneva Conventions oblige parties to respect t he religion and religious practices of per son s deprived of their liberty in th e context of an armed conflict, including prisoners of war, interned persons and other types of detainees. This includes t he freedom to practise one's religion, t he access to clergy, and the

Filed with T J 21 June 20 12




prohibition of discrimination on the basis of religion. [See, inter alia, article 3 common to the four Geneva Conventions; articles 34 and 35 of the Third Geneva Convention; articles 76, 86 and 93 of the Fourth Geneva Convention; article 75, paragraph 1, of Additional Protocol I and articles 4 and 5 of Additional Protocol II.]

B. Reported human rights allegations

60. The review of a number of official documents and reports as well as information obtained on the basis of interviews reveal that certain interrogation techniques that were especially degrading for members of certain religions were authorized by the United States authorities. [Techniques such as the use of dogs were explicitly authorized as part of the "First Special Interrogation Plan" (pp. 13 and 14) . see in Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report).] Other treatments which may have been specifically designed to offend the religious sensitivities of the detainees, were repeatedly used by those involved in the custody, interrogation and treatment of detainees (e.g. use of female interrogators, who performed, inter alia, "lap dances during interrogations"). [A technique that the Schmidt Report, supra note 88, found to be authorized (FM 34·52) and approved by SECDEF as mild, non-injurious physical touching. The same report found the rubbing of perfume to have been authorized, as well as leaning over detainees and whispering in their ears that the situation was futile. In addition, the wiping of menstrual blood on a detainee in March 2003 was considered authorized to show the futility of the situation.] It was also reported that these techniques were used before prayer times and that in some cases, detainees were not allowed to wash themselves before and therefore were not able to pray.

61. The list of officially approved interrogation techniques in force today [Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on "Counter Resistance Techniques in the War on Terror". See supra, para. 50.] allows for the removal of religious items (e.g. the Holy Koran). This constitutes an impermissible limitation on the right to freedom of religion or belief of detainees.

62. There was particular concern at reports of possible mishandling of religious objects, such as the Holy Koran. The Special Rapporteur on freedom of religion or belief sent a communication on this matter to the Government of the United States on 23 May 2005. The Government reply of 18 August 2005 provided detailed information on the investigations that were conducted following these allegations, as well


14



as on the eXIstmg measures and guidelines for the personnel of the detention facilities. As a result of their investigations, th e Government indicated that it had identified five confirmed cases of mishandling of th e Holy Koran by guards and interrogators, either intentionally or unintentionally, including kicking and stepping on th e Holy Koran. [Response of th e United States of America, dated 21 October 2005 to th e inquiry of the Specia l Rapporteurs dated 8 August 2005 pertaining to detainees at Guantanamo Bay, p. 21 et seq.]

63. A number of detainees have alleged that they were subjected to forced grooming, including shaving of beards, heads and eyebrows.

64. Further concerns were raised by the removal of a military Muslim cleric from his position at Guantanamo Bay. He later was arrested on suspicion of espionage and held in solitary confinement for 76 days. It has been alleged that he has not been replaced, leaving th e Muslim detainees unattended, in violation of t he Standard Minimum Rules for th e Treatment of Prisoner s. [Standard Minimum Rules for t he Treatment of Prisoners. Adopted by the First United Nations Congress on th e Prevention of Crime and th e Treatment of Offenders, held at Geneva in 1955, and approved by th e Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.]

65. Finally, there are also concerns about reports t hat the United States Government has, either implicitly or explicitly, encouraged or tolerated the association of Islam and terrorism, for example, by interrogating detainees on the extent of their faith in Islamic teachings.

Contrary to the suggestions of th e U.N. report cited above at paragraph 65, it

is not current U.S. policy to implicitly or explicitly encourage the association of

Islam and terrorism, and U.S. policy supports the h umane treatment of detainees,

wh ich necessarily includes their freedom to practice th eir religion to th e fullest

extent.

Similar to th e admonition in the Walsh Report to avoid actions that could be

construed as disrespectful to detainees in their practice of Islam, th e U.S. Armed

Forces attempts to, and takes remedial measures to, avoid actions that are





disrespectful to Islam generally. For instance, on 25 April 2012, the Chairmen of

the Joint Chiefs of Staff ordered an investigation into the curriculum at the Joint

Forces Staff College based on the course "Perspectives on Islam and Islam

Radicalism," taugh t since 2004 to senior military leaders.

This course asserted, as a basis oru.s. policy, "that th e United States is at

war with Islam and we ough t to recognize that we are at war,"4 According to recent

reporting, "some of the material suggested th e U.S. ultimately might have to

obliterate the Islamic holy cities of Mecca and Medina in Saudi Arabia without

regard for civilian deaths, following World War II precedents of the nuclear attack

on Hiroshima, Japan or the a llied firebombing of Dresden, Germany."5

On 20 June 2012, an official press release from the Department of Defense

indicates that th e course has been suspended, will not be offered again until

changes are in place, and that supervisors may consider whether administrative or

disciplinary action is appropriate against the course instructor and other academic

staff.6 There should be no question that it is U.S. policy to respect Islam, and that

U.S. policy further honors the right of Muslim detainees in their care and custody to

practice the tenants of Islam to the fullest extent possible.

4"Dem psey Orders Review of Courses Dealing with Islam, News Article, American Forces Press Services, Department of Defense, (25 Apr. 2012) (See http ://www.defense.gov/news/newsarticle.aspx?id- 116092) (Last Accessed 20 June 2012) . 5 "Pentagon Probe Finds Poor Judgment Led to Teaching of Anti-Islam Material at Military School," Associated Press, The Washington Post (20 Jun. 2012). (See http://www.washingtonpost.com/politics/pentagon·probe-finds-poor-iudgment. led ·to- teac h i ng -of-antiislam-material-at-militarv-school/2012/06/20/gJ QAn48JgV story.html) (Last Accessed 21 June 2012). 6"Officials Announce Findings of Military Education Reviews," News Article, American Forces Press Services, Department of Defense, (20 Jun . 2012) (See http ://www.defense .gov/news/newsarticle.aspx?id- 116092) (Last Accessed 20 June 2012) .





Consistent with the Walsh Report, Hamdan, and Executive Order , the

following law of war treaties, at a minimum, apply to support the contention that a

person deprived of his or h er liberty cannot be denied his or her right to freedom of

religion or belief:

• 1949 Geneva Convention III, Art. 34: "Prisoners of war shall enjoy complete latitude in the exercise of th eir religious duties, including attendance at the service of th eir faith, on condition that they comply with th e disciplinary routine prescribed by the military authorities. Adequate premises shall be provided wh ere religious services may be h eld,"

• 1949 Geneva Convention IV, Art. 76: "Protected persons shall ... have the right to receive any spiritual assistance which they may require ."7

• 1949 Geneva Convention IV, Art. 86: "The Detaining Power shall place a t th e disposal of interned persons, of whatever denomination, premises suitable for t he holding of t heir religious services."8

• 1949 Geneva Convention IV, Art. 93: "Internees shall enjoy complete latitude in the exercise of t heir religious duties, including attendance at the services of th eir faith, on condition that they comply with the disciplinary routine prescribed by the detaining authorities."9

• 1977 Additional Protocol II, Art. 4(1): "All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not th eir liberty has been restricted, are entitled to respect for th eir ... convictions and religious practices."lO

7 Convention (IV) relative to the Protection of Civilia n Persons in Time of War , Geneva, 12 August 1949, Article 76. 8 Convention (IV) relative to t he Protection of Civilia n Persons in Ti me of War , Geneva, 12 August 1949, Article 86. 9 Convention (IV) relative to the Protection of Civilia n Persons in Time of War , Geneva, 12 August 1949, Article 93 . 10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the P rotect ion of Victims of Non-Inter national Armed Conflicts (Protocol ll), Geneva, 8 June 1977, Article 4(1) . CDDH, Official Record s, Vol. VII , CDDH/SR.50, 3 J une 1977, p. 90, Article 5 was adopted by consensus.





• 1977 Additional Protocol II, Art, 5(1)(d): "Per sons wh ose liberty has been restricted "shall be a llowed to practice their religion and, if requested and appropriate, to receive spiritual assistance from persons, such as chapla ins, performing religious functions.""

• 1899 Hague Regulations, Art. 18: "Prisoners of war shall enjoy every latitude in the exercise of th eir religion, including attendance at their own ch urch services, provided only they comply with th e regulations for order and police issued by th e military authorities,"12

• 1907 Hague Regulations, Art. 18: "Prisoners of war shall enjoy complete liberty in th e exercise of their religion, including attendance at th e ser vices of whatever church th ey may belong to, on th e sole condition that they comply with the measures of order and police issued by th e military authorities."13

Consequently, the U.S. Government has an affirmative duty to ensure that the

Muslim Accused are fully permitted to exercise their religious practices.

B. This Military Commission attempted to respect the rights of the detainees to observe their religion during the 5 May 2012 arraignment and should continue this practice.

Consistent with the humane treatment guarantees of Common Article 3, the

Military Judge attempted to respect the righ ts of th e Muslim Accused during th e 5

May 2012 arraignment by granting them an opportunity to practice th eir religion.

During the 13-hour proceeding, the Military Judge provided the detainees several

opportunities for prayer consistent with their need to perform five, obligatory

prayers throughout the day.

11 P rotocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol ll), Geneva, 8 June 1977, Article 5(1)(d) . CDD H, Official Records, Vol. Vll, CDDH/SR.50, 3 J une 1977, p. 92. 12 Regulations concer ning the Laws and Customs of War on Land, annexed to Convention (11) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 18. 13 Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 18.





However, based on the length of the 13-hour arraignment, it appears that the

fifth and final Isha prayer missed the attention of the Military Judge, Trial

Counsel, Defense Counsel, and JTF -Guantanamo staff - likely due to the length

and mental fatigue associated with the 13-hour session. This prayer would have

been at approximately 2041 hours on 5 May 2012.14 At that time, the Military

Commission was in session with th e reading of the charges which commenced at

1956 hours and ended at 2228 hours.

The Defense respectfully requests that this Military Commission further its

attempts to ensure th e humane treatment of the Muslim Accused by respecting

th eir Islamic observances during the Ramadan period and Fridays.

As discussed in detail in the attached Memoranda, t he importance of the

month of Ramadan is rooted in the Qur'an and in the Hadith, which are

interpretations of Islamic principles reflected in recorded statements or actions of

the Prophet Mohammed. The obligatory fasting or abstention from food and water

during the daytime, and th e rigorous prayer schedule of th e nighttime are not

simply religious rituals, but are requirements of a faithful Muslim .1s

Abstention is practiced during the entire month, and all of Ramadan is

important, but not a ll nights of Ramadan are equal. The Qur'an reveals th e

particular importance of Laylat al-Qadr, or "Night of Power," on wh ich the Qur'an

was revealed to the Prophet Mohammed. Laylat al-Qadr is considered the holiest

14 Historical data on Guantanamo Bay prayer times is available at www.islamicfinder.org. 15 See Holy Qu'ran, Surah 2:183-5; See also, Imam al-Nawawi, 'Riyad-us-Saliheen', Ch. 193:1075 and Ch. 216:1206 (Is lam is based on five pilllars, including fasting during Ramadan), reported by Ibn 'Umar and quoted in AI-Bukhari and Muslim, and Ch. 213: 1187 (recommendation of night prayer during Ramadan) , reported by Abu Hurayra and quoted in AI-Bukhari and Muslim).





nigh t of the Muslim year, and is believed to have occurred on an odd-numbered

nigh t during th e last ten days of Ramadan. 16 Also discussed in further detail in the

attach ed memoranda is th e practice of I'tikaf, typically a ritual wherein Muslims

sequester themselves during the day, preferably in a mosque, with the purpose of

eliminating distractions from their worship. 17

Clearly, th e fatigue and toll of the fasting period a lone is mentally

exhausting, and likely to interfere with their ability to participate fully in the

proceedings. Moreover, as established the last 10 days of Ramadan are sacrosanct

within th e Islamic faith . Devout practitioners, who will have already been fasting

for approximately 20 days, are expected to seclude th emselves from the world

during the day for rest and prayer, and to perform lengthy prayers in th e early

morning hours in honor of th e night t hat God (Allah) revealed the Holy Qu'ran to

th e Prophet Mohammed. As MRDF explains,

Inevitably, if required to attend a court hearing during the day, this will mean that they will only be able to sleep between th e hours of 23:20 and 01:35. Just over two hours of sleep at a time when hearings are taking place will make it difficult for t h e detainees to understand what is taking place in th e process. At such a time, the men should be permitted to exercise th e full range of their religious rights, particula rly when considering the importance of those righ ts to Muslims worldwide. (Att B, Ramadan Op. at pg. 9).

The Defense acknowledges th e Military Commissions' attempts during th e

arraignment to provide prayer breaks to th e Accused and the implication in the

16 See Holy Qu'ran, Surah 97 (describing prayer on Laylat al-Qadr as better than prayer for "a thousand months"); and Surah 44:3; see also Imam al-Nawawi, 'Riyad-us-Saliheen', Ch. 214: 1191-4, reported by 'A'isha and quoted in AI-Bukhari and Muslim. 17 I'tikaf is recommended during the last ten days of Ramadan . See also Imam al.Nawawi, 'Riyad-usSaliheen', Ch . 232: 1268, reported by Ibn 'Umar and quoted in AI-Bukhari and Muslim.





Order, sua sponte, that Ramadan could implicate scheduling concerns. With the

objection noted, the Defense believes the Commission must be alerted to these

additional facts bearing on the decision to hold the hearings between 8 to 12 August

2012. Based on th e earlier commitment of th e Military Judge in attempting to

respect th e religious commitments of th e Muslim Accused, there is little doubt that

if the Commission received th is information in advance of its judicially-noticed

finding and decision, it would not have scheduled th e continued hearings during the

holiest of times within the Islamic faith .

F riday prayers likewise bear similarity to the J ewish and Christian

Sabbaths. F riday is the holiest day of th e week for observant Muslims who must

participate in an additional noon-day prayer that can sometimes last up to two

hours. Observant Muslims can show their devotion and praise to God (Allah) by

beginning th eir ablutions and prayers at 700 hours on F riday and continuing

th rough by participating in the Jumu'ah , or congregational prayer at noon.

Requiring the Muslim Accused to attend Friday sessions generally denies them th e

opportunity to practice th eir religion fully in accordance with the Holy Qu'ran and

th e Prophetic tradition.

This Military Commission, and every member of th e V.S. Government

cha rged with th e care, custody, and welfare of th e detainees, has an obligation

under V.S. law and policy to give full force and effect to the religious protections of

the Muslim Accused. It is likely that if th e barriers to attorney-client

communications were not in effect, such as the ability to communicate with th ese





clients over the telephone or to communicate confidentiality in writing, that there

may have been a meaningful dialogue about the significance of th ese matter s prior

to this Court's order on 29 May 2012. Instead, this significance of this matter

became readily apparent during the client visits dur ing the week of 4 to 11 June

2012. The Defense respectfully requests that this Commission consider this request

with this new information presented - and not to hold the Accused accountable for

the Defense's lack of cultura l competence and failure to presage the issue for the

Commission in the 11 May 2012 pleading.

Sufficient cause exists under Common Article 3, internationa l humanitarian

law, internationa l human rights law, and derivative U.S. law and policy, to refrain

from holding a motions hearing from 8 to 12 August 2012 to a llow for these Muslim

Accused to observe their required religious observances.

7. Availability Dates of Defense CounseL No Defense Counsel has a

schedule conflict between the period Ramadan ends (o/a 21 August 2012) and 8

September 2012.

8. Request for Oral Argument: None.

9. Request for Witnesses: None.

10. Conference with Opposing Counsel: The defense contacted the

prosecution bye-mail at approximately 1400 hours on 21 June 2012 to request their

position. At the time of filing, t he Defense had not received a response to the

requested relief.

11. Additional Information: None.





12.Attachments:

A. Certificate of Service.

B. Memorandum from the Muslim Research and Development Foundation to Military Commission on Jumu'ah, dtd June 18, 2012.

C. Memorandum from the Muslim Research and Development Foundation to the Military Commission on Ramadan, dtd June 18, 2012.



Appellate Exhibit 0350 (KSM at al) Page 23 of 40


IlslI DAVID Z. NEVIN Learned Counsel

Ilsll JASON D. WRIGHT CPT, USA Defense Counsel

Counsel (or Mr. Mohammad

Ilsll CHERLY T. BORMANN Learned Counsel

Ilsll MICHAEL A. SCHWARTZ Capt, USAF

Very respectfully,

Ilsll DEREK A. POTEET Maj , USMC Defense Counsel

Ilsll WILLIAM T. HENNESSY Maj, USMC Detailed Military Defense Counsel

Detailed Military Defense Counsel

Counsel for Mr. bin 'Attash

Ilsll JAMES G. CONNELL, III Learned Counsel

Counsel for Mr. af Ealuchi

Ilsll JAMES P . HARRINGTON Learned Counsel

Counsel for Mr. bin al Shibh

Ilsll WALTER B. RUIZ CDR, USN Defense Counsel

Counsel (or Mr. Hawsawi

Ilsll STERLING R. THOMAS Lt Col, USAF Detailed Military Defense Counsel

Iisl KEVIN BOGUCKI LCDR,USN Detailed Military Defense Counsel

24 UNCLASSIFIEDIIFOR PUBLIC RELEAS E




CERTIFICATE OF SERVICE

I certify that on the 21st day of June 2012, I caused the foregoing document

to be electronically filed with the Clerk of the Court and served on a ll counsel of

record by electronic mail.

IlslI Jason D. Wrigh t , CPT, USA Defense Counsel for Mr. Mohammad

UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed with T J 21 June 2012

Attachment A Page 1 of 1



June 18,20 12

Memorandum from Muslim Research and Development Foundation to the Military Commission

The Muslim Research and Development Foundation (MRDF) is providing the following observations regarding the Islamic etiquette during the month of Ramadan and whether it

would be suitable to continue a trial or hearing of a Muslim defendant during this month before

a Military Commission (MC) or other court. MRDF would like to emphasise that itis offering this guidance on a purely religious ground and it has no interest in the case. It holds no liability in providing this religious view and it is not accountable for the beliefs and views of any party involved in any proceedings.

MRDF understand that the military judge has scheduled the following hearings for the 'joint case' to take place between 8 - 12 August 2012. Depending on when Ramadan begins in July, these hearings will cut into a time which is considered to be extremely sacred for Muslims. It is a time when Islam teaches Muslims that the Qur'an was first revealed to the Prophet

Muhammad.

The last ten nights of Ramadan will begin either on the 8 or 9 August 2012. This will significantly impair the ability of the defendants to take part in proceedings, and may result in them not understanding correctly what is taking place in court.

There are a number of issues that must be considered in relation to Ramadan in order to understand the impact this can have on defendant participation, and their own obligations to their religion.

Prior to any explanation of any Islamic doctrine, it is mandatory to explain the nahlre of Islamic belief. God, the creator, created all beings including humans for a noble purpose; to worship him in order for them to live in peace and comfort He divided life in to two parts; a temporary that ends by the death of the person followed by the second one that it eternal. Peace in the first part is attained when the person follows the commandments of his creator; in another word submit and surrender in obedience to the will of his God; this submission is the essence as well as the meaning of ai-Islam. However, as this life is a test and a passing by stage to the second one. Peace in this life is limited and is more spirihlal than physical. The same applies to comfort The real peace and confront will be secured in the second and eternal life once the person is successful in submitting to his Lord entirely in the first life. This was summarised in the Quran the first main source of Islam, [3:185J "Everyone shall taste death. And only on the Day of Resurrection shall you be paid your wages in full. And whoever is removed away from the Fire and admitted to Paradise, he indeed is successful. The life of this world is only the enjoyment of deception (a deceiving thing)". With this in mind, we can understand why Muslims willingly accept to perform certain acts that might burden them with some difficulty. Moreover, it explains why Muslims willingly abstain from certain desirable activities including having food and sexual relations; such is the case ofSawm.

MUSLIM RESEARCH AND DEVELOPMENT FOUNiJj)jl;;

Fi led with T J 21 June 2012

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Page 1 of 9 Page 26 of 40


Sawm, is commonly referred to as fasting. especially during the Islamic calendar month of Ramadan. However, the concept is closer to the concept of abstention. The fasting (abstention) is from food, drink and sexual relations. Although this fasting can take place at any time of the year, there is one month in which it becomes an obligation on all adult Muslims, that is Ramadan. The month acts as a spiritual cleansing for the soul of a human being, it is not just about leaving food, drink and sexual relations, and it is thus a means of achieving piety and righteousness. Quran, the first main source of Islam confirms this: "0 y ou who believe! Observing

As-Sawm (the fasting) is prescribed for you as it was prescribed for those before you, that you may become AI-Muttaqun (the pious)". l In an authentic narration of the Prophet Muhammad, he said,

"He who does not give up false speech and evil actions, Allah does not need his refraining from food and drink. " 2

In other words, God may not accept the fast of the person who is not mindful of his other deeds, thus telling lies and committing other minor sins in Islam, may constitute in the invalidity of the entire fast The spiritual importance of the fasting is further clarified in another authentic narration of the Prophet Muhammad,

"Allah the Exalted and Majestic said: 'Every act of the son of Adam is for him, except As-Sljam (the fasting) which is (exclusively) for Me, and I will reward him for it.' Fasting is a shield. When anyone of you is observing fast, he should neither indulge in obscene language nor should he raise his voice; and if anyone reviles him or tries to quarrel with him, he should say: 'I am fasting.' By Him in Whose Hand the soul of Muhammad is, the breath of one observing Sawm is sweeter to Allah than the fragrance of musk. The one who fasts, experiences two joys: he feels pleasure when he breaks the fast. He is joyful by virtue of his fast when he meets his Rubb. " 3

The narration above again points to the relationship between the one observing the fast during Ramadan and their connection to God. The fasting is a means of drawing closer to God and seeking His forgiveness and pleasure.

Obligation to fast

As one of the five pillars of Islam, the fasting has been prescribed during Ramadan as an obligatory act that can only be waived in very specific circumstances, such as that of illness. The Qur'an sets out specifically the obligation of the fast, its importance, and mitigation for those who are not able in the second chapter, Surah al-Baqarah:

o you who believe, fasting has been prescribed for you just as it was prescribed for those before you, so that you may do your duty.

On days which have been planned ahead. Any of you who is ill or on a journey [should choose] a number of other days. For those who can

1 Qur'an (2 : 183) 2 Sahih al -Bukhari (1903. 605 7) 3 Imam al -Nawawi. 'Riyad-us-Saliheen '. Chapeter 217 - the excellence of observing the sawm (fasts) during Ramadan. The narration was reported by Abuliurairah and is quoted in both Sahih al -Bukhari and Mu slim

Filed wi th T J 21 June 20 12


Attachment B Page 2 of 9

Appellate ElO:hibit 0350 (KSM et al) Page 27 of 40

UNCLASSIFIEDIIFOR PUBLI C RELEASE

[scarcely] afford it, making up for it means feeding Q poor man. It is better

for anyone who can volunteer some wealth; although it is better yet for you

to fast, if you only knew.

The month of Ramadan is when the Qur'an was sent down as guidance, and

as a Standard. Let any of you who is at home during the month, fast in it; while anyone who is ill or on a journey should [set an equal] number of other days. Allah wants things to be easy for you and does not want any hardship for you, so complete the number and magnify Allah because he has

guided you, so that you may act grateful.

Whenever My servants Qskyou about Me, [it means]l am Near. I answer the

appeal a/the prayerful one whenever he appeals to Me. Let them respond to

Me, and believe in Me so that they may be directed!

It is lawful for you to have intercourse with your wives on the night of the

Fast: they are garments for you while you are garments for them. Allah knows how you have been deceiving yourselves, so He has relented towards

you and pardoned you. Now [feel free to] frequent them and seek what Allah

has prescribed for you. Eat and drink until the white streak [of dawn] can

be distinguished by you from the black thread [of night] at daybreak. Then

complete the Fast until nightfall and have no dealings with women while

you are secluded at your devotions in the masajid (mosques). Such are the

limits set by Allah, so do not attempt to cross them! Allah explains His signs to mankind so they may do their duty. 4

The obligation to fast is clear and accepted by the consensus of Islamic scholars throughout history, however, there are many other actions that are required in Ramadan that go beyond the aspect of abstention. It is these supererogatory actions that capture the spirit of the month, chief among them being the night prayers. Without these actions, as mentioned in the first quotation above, the fasting would likely be an exercise in hunger and thirst and the essence of the Ramadan would not be achieved.

As explained earlier, this life is meant to be a test and hence devoted Muslims are norma lly trying to make the most of it to secure themselves fully from the punishment of God as we ll as attaining the highest ranks in Paradise. Moreover, it is the practice of Muslims over cenhtries to prepare themselves, physiologically and spiritually for this month as it is a uniq ue and distinguished opportunity for pleasing Go d, expiating their sins and attaining high ranks in paradise. It is also the practice of Muslims to exert the maximum effort in this month which he wo ul d consider to be a time full of blessings.

Night prayer in Ramadan

During Ramadan, the night prayer has been prescribed for Muslims in the form of Salah alTarawih (the night prayer). It is considered to be one of the greatest acts of worship by which the worshippers seek to come closer to God in that month.

~ Qur'an (2:183-187)






A late contemporary scholar of Islam said of the Salah al-Tarawih, "Salah at night during Ramadan has benefits and merits not found in other times. The Prophet (peace be upon him) said: 'Whoever makes night prayer during Ramadan, with Eman and hoping for reward from Allah, all

his previous sins are forgiven. ' [Agreed upon] Night prayer during Ramadan is inclusive of salah in

the early as well as late part of the night For this reason, Tarawih is part of night prayer during Ramadan. It is necessary to seek it, to protect it, and to hope for reward from Allah because afit. It

is only during a limited number of nights, so the intelligent believer takes advantage of the opportunity before it is lost."

The scholar stresses the importance of the night prayer, that it forms as part of the corpus of actions thata Muslim is obliged to carry out during the month. While the Muslim is not sinful for not praying the night prayers, it is considered to be a Sunnah Mu'akkadah (strongest of the voluntary actions) and so it is considered to be part of the rites of Ramadan.

The night prayer is normally preformed at any part of the time. However, some Muslims tend to have two main times for the night prayer. One, is after the last obligatory prayer of the day, so when the night first sets in. The second time that the night prayer is usually prayed is what is referred to as the third part of the night, which usually fa lls within the early hours of the morning. In a narration of the wife of the Prophet, Aisha, she reported,

''The Prophet would sleep during the early part of the night and stand in

Salat (prayer) during the latter part. " 5

The Prophet himself clarified this, explaining that there is an Abrahamic tradition to prayer,

"The Salat (prayer) which is dearest to Allah is that of (Prophet) David; and

As-Sawm (the fasting) which is dearest to Allah is that of (Prophet) David. He used to sleep half the night, get up to perform Salat (prayer) for one

third of it, then sleep through the remaining one-sixth of it; and he used to

observe Sawm (fasts) on alternative days. " 6

In relation to Ramadan, the specific narration which points to its practice is an authentic narration of the Prophet Muhammad,

"He who observes optional prayer throughout Ramadan, out of sincerity of

Faith and in the hope of earning reward will have his past sins pardoned. " 7

In whatever form the night prayer takes place, it is recognised as a practice that takes place in Ramadan throughout the Muslim world. Every mosque in Muslim world will be full of those who pray congregationally during the early part of the night, with many further choosing to wake in the latter part of the night to pray congregationa lly or in their own homes.

5 Imam al-Nawawi, 'Riyad-us-Saliheen', Chapeter 212 - the excellence of standing in prayer at night. Th e narration was reported by Aisha and is quoted in both Sahih al-Bukhari and Muslim 6 Imam al-Nawawi, 'Riyad-us-Saliheen', Chapeter 212 - the excellence of standi ng in prayer at night. The narration was reported by 'Abdullah bin 'Amr and is quoted in both Sahih al-Bukhari and Muslim 7 Imam al-Nawawi, 'Riyad-u s-Saliheen', Chapeter 213 - the excellence of tarawih prayer during Ramadan. The narration was reported by Abu Hurairah and is quoted in both Sahih al-Bukhari and Muslim


4

UNCLASSIFIEDIIFOR PUBLIC RELEASE Attachment B Page 4 of 9



During the last 10 nights of Ramadan, this simatian dramatically changes, as millions around the world also wake in the early ho urs of the morning in order to pray congregationally in the mosque.

The prayer during the last 10 nights

The last 10 nights of Ramadan form as part of the most important dates in the Muslim calendar,

more important than the two Ei ds (festivals) and even the Hajj. The reason for this, is that the Qur'an was revealed during the last ten nights of Ramadan, and Muslims engage themselves in

worship, seeking the blessing of that night that the Qur'an was revealed. According to the wife of the Prophet Muhammad, Aisha,

"The Prophet used to strive hard (in worship) during the last ten days of Ramadan in a way that he did not strive at other times. " 8

Also Aisha reported,

"The Prophet would stay up at night, wake his family and gird his loins (Arabic metaphor for striving hard). " 9

The phrase "stay up at night" means that he would stay awake, spending the either the whole

night or most of it in prayer, etc.

The night prayer is intended to be lengthy, it is the tradition of the Prophet to do so as specifica lly stated by the Prophet when asked by his companion Jabir, ""Which Sa/at (prayer) is the best?" He replied, "The best Sa/at is that in which Qiyam (the duration of standing) is longer. ""10

It is important to understand the length of this prayer, in re lation to the subject matter at hand, for the defendants who are to be present at hearings, will be particularly affected during the last ten nights of Ramadan. It was authentically reported that the Prophet led his companions for Ramadan night prayer for almost the whole night. One of the companions of the Prophet reported,

"One night I joined the Prophet in his (night prayer) Salat. He prolonged the Qiyam (standing) so much that I made up my mind to commit an act of wrong. He was questioned: "What did you intend to do?" He replied: "I intended to sit down and stop fol/owing him (in prayer). "II

Another example of the length of the Prophet's prayer is given by a different companion,

"/ performed Sa/at (prayer) with the Prophet one night, and he started reciting Surat A/·Baqarah (the second chapter of the Qur'an). / thought that he would go in Ruku' (bowing posture in prayer) at the end of one hundred Ayat, but he continued (reciting); and I thought that he would perhaps

BSahihMuslim,1175 9 Sahih al-Bukhari, 1920 and Muslim, 1174 10 Imam al-Nawawi, 'Riyad-us-Saliheen', Chapeter 212 - the excellence of standing in prayer at night. The narration was reported by /abir and is quoted in Muslim 11 Imam al-Nawawi, 'Riyad-us-Saliheen', Chapeter 212 - the excellence of standing in prayer at night. The narration was reported by Ibn Mas'ud and is quoted in both Sahih al-Bukhari and Muslim






recite (this chapter) in the whole Rak'ah (prayer), but he continued the recitation; I thought he would perhaps bow on completing (this prayer). He then started reciting Surat An-Nisa' which he followed with Surat AI-Imran.

He recited leisurely. When he recited an Ayah (verse) which mentioned the

tasbeeh (glorification of God), he would say Subhan Allah and when he

recited the Ayah which tells how the Rubb (Lord) is to be asked, the

Messenger of Allah would then ask from Him; and when he recited an Ayah

asking one to seek Protection Allah, he would seek Protection of Allah. Then he bowed and said, "Subhana Rabbiyal-Azim (My Rubb the Great is free

from imperfection)"; his bowing lasted about the same length aftime as his

standing, (and then on returning to the standing posture after Rukuj he would say, "Sam;' Allahu liman hamidah, Rabbana lakal-hamd (Allah listens

to him who praises Him. Praise be to You, Our Rubb!), " and he would then

stand about the same length of time as he had spent in bowing. He would then prostrate himself and say, "Subhana Rabbiyal-A'la (My Rubb the

Supreme is free from imperfection)," and his prostration lasted nearly the

same length of time as his standing (Qiyam)."

Despite the fact that some of those narrations are not specific to Ramadan, yet they give us a clear idea about the nature of the night prayer Islam recommends. The above prayer, recited and prayed in the way it was, would have lasted over four hours due to the length of the chapters that were being recited by the Prophet

Laylat- ul-Qadr (The Night of Decree)

In Chapter 97 of the Qur'an, God speaks of a special night that has been sent down for Muslims in Ramadan, this night is considered to be the most holy and important night of the entire Muslim calendar, and its emphasis in the lives of Muslims cannot be stressed enough. God says in Suratal-Qadr,

"Verily. We have sent it (this Qur'an) down in the night of al·Qadr (Decree).

And what will make you know what the night of al·Qadr (Decree) is?

The night of al-Qadr (Decree) is better than a thousand months. (i.e.

worshipping Allah in that night is better than worshipping Him a thousand

months, (i.e. 83 years and 4 months).

Therein descend the angels and the Spirit (Gabriel), by Allah's permission

with all Decrees,

Peace! Until the appearance of dawn. " 12

Laylat-ul-Qadr has mainly two points of significance. It is the night on which the Qur'an was

revealed to the Prophet Muhammad, but further, it is the night that all preordained matters are set down for the fo llowing year (predestination). As mentioned in the above verses, it is a night which is worth over 83 years of performing good deeds and prayer in terms of its significance, so crucial for the lives of Muslims. In fact, if outsiders are to venture into mosques in the last 10

12 Qur'an (97:1-5)






nights of Ramadan, you wi ll see them full of Muslims in the early hours of the morning. and this occurs across the world.

The wife of the Prophet, Aisha, reported,

"The Messenger of Allah used to seclude himself (in the mosque) during the

last ten nights of Ramadan. He would say, "Search for Laylat-ul-Qadr (Night

of Decree) in the last ten nights of Ramadan. ""1 3

The achtai night of Laylat- ul-Qadr is unknown, but what is known is that it specifica lly occurs

within the last 10 nights of Ramadan. It is imperative that at this time, Muslims take full benefit of the month of Ramadan by practising the riruals of their religion to as great an extent as possible. In Muslim majority countries, there is recognition that due to the extra burden of the last ten nights in terms of worship, the timings for work are changed in order to alleviate burden on employees. Further, many people wi ll take time off from work, specifically to practice I'tikaaf (seclusion) which is to either stay in the mosque for the full ten nights, or stay at home without leaving, solely engaging in the worship of God.

l'tikaaf (seclusion)

The practice of secluding oneself from the world during the last ten nights of Ramadan is a Prophetic tradition, and one that should be practised if a person is able during the last ten nights of Ramadan. According to the wife of the Prophet,

"The Prophet used to engage himself in l'tikaf (seclusion for prayers) in the mosque during the last ten nights of Ramadan till he passed away; thereafter, his wives followed this practice after him. "14

It should be borne in mind that the Prophet's home was situated in the same building as the

mosque, there was simply a portioned door between his room and the main mosque area. Seclusion, while being recommended to take place in the mosque , can also take place in the home as well. The whole point is to seclude yourself away from the world, and to spend time with God. Muslims exercise their right to this practice across partisan di vides and is considered to be an extremely rewarding action.

Other important points:

The above information describes that nature of this sacred month of Ramadan and it also provides a snapshot of the Muslims state during this month. Such circumstance will undoubtedly hinder the defendants unique opportuni ty to cleanse themselves spiritually and draw closer to God. Moreover, it should be noted that the defendant will not be in a stable and normal condition, as he will be observing abstention from food and drink for over 12 hours in an environment.

The impact of the August hearing on the five defendants

13 Imam al-Nawawi, 'Riyad-us-Saliheen', Chapeter 212 - the excellence of standi ng in prayer at night. The narration was reported by Aisha and is quoted in both Sah ih al-Bukhari and Muslim 14 Imam al-Nawawi, 'Riyad-us-Saliheen', Chapeter 212 - the excellence of standi ng in prayer at night. The narration was reported by Aisha and is quoted in both Sahih al-Bukhari and Muslim


7

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In order to assess the impact of having the hearings during the last 10 nights of Ramadan, it is important to understand what the timings of the fast day are likely to be, and further the prayer times that will take place.

Using a prayer timetable that is based on the Muslim World League calculations, a standard that is associated with countries across the world, the fo llowing times have been suggested for the vario us prayers and points in the day:

D,y August Fajr Sunrise Dhuhr A" Maghrib Isha

Tue 7 5:21 6:38 13:07 16:25 19:35 20:49

Wed 8 5:21 6:38 13:07 16:25 19:34 20:48

Thu 9 5:22 6:38 13:07 16:25 19:34 20:47

Fri 10 5:22 6:39 13:07 16:25 19:33 20:46

Sot 11 5:23 6:39 13:06 16:25 19:32 20:46

Sun 12 5:23 6:39 13:06 16:25 19:32 20:45

In the Islamic calendar, the night comes before the day, it begins at sunset. So for example, the night of 19/20 July, could potentially be the first of Ramadan. Thus, we would need to consider the timings on August 7, 2012 in order to understand the problem of the hearings in the last ten nights uf RalTladan.

On August 7, 2012 the defendants will break their fast from the previous day at 19:35 at which point they will break their fast, pray the Maghrib prayer, and then eat a meal. This process wi ll take them until the time of the next prayer, which is Ish a, coming in at 20:49.

The Isha prayer is one of the obligatory prayers as we ll, however, after Ish a begins Sa lat alTarawih, which ordinarily wo uld be prayed in congregation. If they men are not permitted to pray in congregation, then it is permissible for them to pray individually. As mentioned above, the prayer is supposed to be a lengthy prayer. In the UK, it can last as long as two and half hours in those mosques which are keen to fo llow the guidance of the Prophet. Two and half hours forward from 20:49 would take the men to 23:20 at which point they wo uld go to sleep.

The time for the morning prayer Fajr begins at its earliest at 05:21 on Wednesday 8 August 2012. It takes around 45 minutes to eat breakfast, what is known as suhoor as the men wi ll want to pray two units of prayer before beginning and any of the preparation of the food they will like to do prior to eating. This means, that the start time for them to eat the morning meal will be around 04:35.

from the discussion above, if we recall that the time to pray or qiyam (standing) for Laylat-ulQadr is in the early hours of the morning. Traditionally, this is done before the time of the morning meal, which we have identified as being at 04:35. The qiyam prayer, again, as part of standard practice of Muslims around the world, usually carries on for about 3 hours, although it can go on for much longer depending on the religiosity of the specific mosque or community. If






we take 3 hours as the standard, this wi ll mean that the men will need to be awake at 01 :35 in order to try and pray for Laylat- ul-Qadr.

Inevitably, if req uired to attend a court hearing during the day, this will mean that they wi ll only be able to sleep between the hours of 23:20 and 01:35. Just over two hours of sleep at a time when hearings are taking place will make it difficul t for the detainees to understand what is taking place in the process. At such a time, the men should be permitted to exercise the full

range of their re ligious rights, particularly when considering the importance of those rights to Muslims worldwide.




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June 18, 20 12

Me morandum from Muslim Research and Development Foundation to the Military Commission

The Muslim Research and Deve lopment Fo undation (MRDF) is providing the fo llowing observations regarding the Is lamic etiquette of the day of Jumu'ah (Friday) and whether it

wo uld be suita ble to hold hearings for a Muslim on this day before the Military Commission (Me). MRDF would like to emphasise that it is offering this guidance on a purely religious gro und and it has no interest in the case. It holds no li abili ty in providing this reli gio us view and it is not acco untable for the beliefs and views of any party involved in any proceedings.

As Muslims be lieve and submit to God, they are accepting his commandments and aim to p lease

him as m uch as they can. God, as the creator, p referred certain times over others and a llocated

them as opporhmities for Musli ms to become closer to Him. He norma lly m ultiplies the rewards

of certain actions if they were to be carried ou t in those places or times that He selected.

In keeping with the Ab rahamic trad ition of special days of prayer akin to the Saturday and

Sunday in Judaism and Christianity, Friday, known as Jum u'ah in Ara bic, is given a place of

precedence in the li ves of Muslims. It is a bl essed day that is favoured by God a bove all others

that are in the week, and so it is important to understand the significance of this day for the li fe

of an observant Musli m, and the r ulings which are attached to it In one of the au thentic

narrations, the Messenger of God, detailed some of the numerous key q ualities and virtues of

this day. He sa id with comments of explanation betvveen brackets,

"[First] Friday is the master of days, and [Secondly] the greatest of them before Allah. [Thirdly] It is greater before Allah than the day of al-Adha (one of the two Islamic festivals) and the day of a/-Fitr (the other of the two Islamic festivals). [Fourthly] It has five [more unique] characteristics: 1) on this day Allah created Adam, 2) on it He sent Adam down to the earth, 3) on it Allah caused Adam to die, 4) on it there is a time when a person does not ask Allah for anyth ing but He gives it to him, so long as he does not ask for anything haraam, and 5) on it the Hour wi// begin. [Fifthly] There is no angel who is close to Allah, no heaven, no earth, no wind, no mountain and no sea that does not fear Friday. "/

The prophet Muhammad confirms that this day was a gift that was se lected by the Creator for

Prophet Muhammad and whoever fo llows him i.e. Musli ms. He said ,

"Allah led those who came before us away from Friday. The Jews had Saturday, and the Christians had Sunday. Then Allah brought us and Allah guided us to Friday. So there is

Friday, Saturday and Sunday, and thus they will follow us on the Day of Resurrection. We are the last of the people of this world but we wi// be the first on the Day of Resurrection, and we will be dealt with before all others. "2

1 Ibn Maajah. 108 4 - narrated by Abu Lubaabah ibn 'Abd al-Mundhir 2 Mu slim. Sahih . 856 - narrated by Abu Hurayrah and Hudhayfah

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While in these faiths , i.e Christianity and Judaism, much emphasis is placed on the observance of religious festivals i.e. Christmas and Yom Kippur, Islam takes a very different approach. The days that are recognised to be the best in the religion relate to the days where the worshipping of God is at its pinnacle. Thus, Friday prayers, the Laylat-ul-Qadr (the night of decree) , and the Yawm-al-'Arafu (the day of 'Arafa) are all considered as important as the two Eids (festivals)

within the Islamic tradition. In fact, many scholars considered Friday as the Muslim's third Eid that is repeated every week.

In emphasising the central role of this day in the life of Muslims, the Prophet Muhammad (peace be upon him) gave every part of it special significant It was confirmed that the first prayer on Friday, which is the Fajr prayer, is very virtuous. The Messenger of God said: "The best prayer before Allah is Fajr prayer on Friday in congregation. "3

On the other hand, the last part of that day before sunset is extremely virrnous and has a particular importance , the prophet said:

"On this day there is an hour when no Muslim slave stands and prays and asks Allah for something, but Allah will give it to him, " 4

"Seek the hour in which there is hope that prayers will be answered, on Friday after 'Asr (mid-afternoon) prayer, until the sun goes down. " 5

The prophet singled out this day to make it a time for increasing the salutations upon the Prophet on this day. In one narration, the Prophet said: "The best of your days is Friday. On that day Adam (peace be upon him) was created; on that day he died; on that day the Trumpet will be blown and on that day all of creation will swoon. So send a great deal of blessings upon me, for your blessings will be shown to me." They said, "0 Messenger of Allah, how will our blessings upon you be shown to you when you have turned to dust?" He said, "Allah has forbidden the earth to consume the bodies of the Prophets, peace be upon them."

Similarly, the prophet peace be upon him urged Muslims to read Surat Kahf, chapter 18 of the Quran on this day particularly. One of the companions, Abu Sa'eed al-Khudri, said: "Whoever reads Surat al-Kahf on the night ofjumu'ah, will have a light that will stretch between him and the Ancient House (the Ka'bah)." Scholars said that such statement from this companion would not be said except if he heard it from the Prophet (peace be upon him) himself and hence they confirmed that reading this chapter of the Quran in this day is a recommended action.

Many scholars wrote books that talk only about the starns of this day with the Islamic Faith. It is easy to surmise that day of Jumu'ah is blessed beyond the specific act of the obligatory congregational prayer in the middle of the day. Indeed, it is better for Muslims that the entire day is dedicated towards acts of worship and reflection as will be further evidenced in the sections below.

3 Narrated by Ibn 'Umar 4 AI -Bukhari, Sahih, BB3 - narrated by Abu Hurayrah 5 AI -Tirmidhi



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The specific starns of lumu'ah (Friday) prayer:

The main and the most virtuous activity Muslims perform on this day, is the Jumu'ah Salat (friday prayer), which is an obligation for every single Muslim male.

One of the most renowned scholars of Islam, Ibn al-Qayyim, summarized the starns of Friday

prayer by saying:

']umu'ah prayer is singled out from among a/l the other obligatory prayers for having particular characteristics that are not found in other prayers, including the fact that it is

offered in congregation, has a minimum number afworshippers required in order for it to be valid, the iqaamah is a condition of its being valid, one must not be travelling in order for it to be obligatory, and the recitation is done out loud.

There is an emphasis on its importance the like a/which is not mentioned for other prayers except 'Asr prayer. In the four Sunans it is narrated in the hadeeth of Abu'l-ja'd ad-Dumari - who was a Companion - that the Messenger of Allah (blessings and peace of Allah be upon him) said: "Whoever misses three jumu'ahs out a/heedlessness, Allah will place a seal on his heart. " 6

The above quotation from Ibn al-Qayyim provides an insight into the Friday prayer itself, the starns that it holds in the most important day of the week for the Muslim, and the repercussions that the Muslim faces for being negligent in observing the prayer. Thus, three important factors must be considered:

1- That the prayer is an obligation on all Muslim men. In fact, many scholars from all school of thoughts considered Friday prayer as more important that the five daily prayers.

2. As a unique prayer, there must be a speech known as the khutbah that is delivered as part of the prayer

3. Unlike other prayers that can be done individually in some exceptional cases, this prayer must be done congregationally and there must be a minimum number of congregants for it to be valid

The main evidence for the importance of the Friday prayer comes from God, Who says in the Qur'an,

"0 you who believe (Muslims)! When the call is proclaimed for the Salaah (prayer) on Friday Uumu'ah prayer), come to the remembrance of Allah Oumu'ah religious talk (Khutbah) and Salat (prayer)] and leave off business (and every other thing). That is

better for you iJyou did but know!"7

The above statement will be addressed in the discussion of the issue of working on the Friday, however, for the time being it is important to ascertain that the Friday prayer is established as being a centra l prayer to the religion of any Muslim.

6 Ibn al-Qayyim, Zaad al-Ma'aad, 1/38 4-385

7 Qur'an, 62:9






In terms of what preparing for the Jumu'ah Sa lat means, then there are a number of specific ruli ngs that must be considered in re lation to that spiritual preparation that begins with the Fajr (pre-morning) prayer. The Messenger of God said: "The best prayer before Allah is Fajr prayer on Friday in congregation. "II

In relation to the achlai preparation for the Friday prayer, then ghusl (the complete washing) is considered to be a precondition to the prayer. The Messenger of God said, "The taking of Q bath on Friday is compulsory for every male (Muslim) who has reached the age of puberty. "9 This obli gation was given further force by the second Cali ph of Islam, 'Umar bin AI-Khattab, whose

son narrated,

"While 'Urnar bin AI-Khattab was standing and delivering the sermon on a Friday, one of

the companions of the Prophet, who was one of the foremost Muhajirs (emigrants) came. 'Umar said to him, "What is the time now?" He replied, "[ was busy and could not go back

to my house till I heard the Adhan. / did not perform more than the ablution. " Thereupon

'Umar said to him, "Did you perform only the ablution although you know that Allah's

Apostle (p.b.u.h) used to order us to take a bath (on Fridays)?"10

Other narrations add extra obligations to the bath in preparation for the Friday prayer, to include brushing the teeth either with the traditional 'siwak' (a twig used for cleaning teeth) or

any other means of brushing them and also perfuming both the body and clothes.

"The taking of a bath on Friday is compulsory for every male Muslim who has attained the

age of puberty and (also) the cleaning of his teeth, and the using of perfume if it is

available." 'Amr (a sub-narrator) said, "/ confirm that the taking of a bath is compulsory,

but as for the brushing the teeth and the using of perfume, Allah knows better whether it is obligatory or not, but according to the Hadith it is as above. " 11

In terms of the time of the Friday prayer, the Prophet wo uld usually offerthe prayer early in the day, usually after midday, "The Prophet used to offer the jumu'ah prayer immediately after

midday. " 12 However, on days when the weather was very hot, the Prophet was accustomed to

delay the prayer for a time of the day when it would be coo ler,

"The Prophet used to offer the prayer earlier if it was very cold; and if it was very hot he used to delay the prayer, i.e. the jumu'ah prayer. "13

The spiritual attachment of the individual to the day of Jumu'ah and specifically the Friday prayer cannot be encapsulated in terms of the prayer and its attached speech (khutbah ). The narration below from the Prophet, explains how the believer is encouraged to arrive early at the mosque, in order to worship God prior to the start of the actual Friday prayer,

"He who takes a bath on Friday, like the bath for ceremonial purity, and then goes (to the

mosque), he is like one who offers a camel as a sacrifice to seek the Pleasure of Allah; and he who comes at the second hour is like one who offers a cow to win the Pleasure of Allah;

B Narrated by Ibn ' Umar 9 AI -Bukhari, Sahih, 879 - narrated by Abu Sa'id AI-Khudri 10 AI -Bukhari, Sahih, 878 - narrated by Ibn 'Umar 11 AI -Bukhari, Sahih, 880 - narrated by Abu Sa'id AI-Khudri 12 AI -Bukhari, Sahih, 904 - narrated by Anas bin Malik 13 AI -Bukhari, Sahih, 906 - narrated by Anas bin Malik


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and he who comes at the third hour is like one who offers a ram with horns (in sacrifice); and he who comes at the fourth hour is like one who offers a hen; and he who comes at the fifth hour is like one who offers an egg. And when the Imam ascends the pulpit, the angels (who write the names of those who come to the mosque before the coming of the Imam) close (their record) in order to listen to the Khutbah. " 14

One can see clearly from the above narration, that for the believing Muslim, the pinnacle of

worship on the Friday, is to arrive five hours prior to the Friday prayer. This is not a disparate act, for the narration spells out that by arriving early, there will be more reward for the Friday prayer. A similar narration is presented in the narration below, where again the emphasis is very much on the early arrival of the worshipper.

It was narrated that Abu Hurayrah said: "The Messenger of Allaah (peace and blessings of Allah be upon him) said: 'When Friday prayer comes, at each door of the mosque there are

angels who write down the first ones to come to the mosque. Then when the imaam sits down they close their books and come to listen to the sermon. The one who comes early (for Friday prayer) is like who sacrificed a camel, then those who come after him (in order of their coming) are like one who sacrificed a cow, then one who sacrificed a horned ram, then one who sacrificed a chicken, then like one who offered an egg. " 15

The rulings and statements of the Prophet above, give a very clear insight into the great extent of worship that is recommended for the believing Muslim across the friday. Below, it is shown how by having the hearings on the friday, this will impact significantly the ability of the defendants to carry out their religious duties.

In relation to the defendants in Guantanamo Bay, it is important to understand that the Friday prayer has a place of precedence in their lives, and for those who are observant of their religion and wish to seek the full spiritual benefit of the day, it is a time of reflection and worship. For many in the Muslim world, the Friday is either a holiday, or a time that is negotiated as being for worship. Countries across the Middle East will still provide the weekend to include the Thursday and Friday, or the Friday and Sarurday. In Palestine, the weekend is on Friday and Sunday, in order to accommodate both Muslim and Christian faiths.

Impact of hearings on the Friday

In order to assess the impact of having the hearings, it is important to understand how the day relates to the various religious rites they would seek to observe against the timings of any hearings.

Using a prayer timetable that is based on the Muslim World League calculations, a standard that is associated with countries across the world, the following times have been suggested for the various prayers and points in the day:

D,y August

Fri 1D

14 AI -Bukhari and Mu slim 15 AI -Bukhari. Sahih. 1416


Fajr Sunrise Dhuhr Maghrib lsha

5:22 6:39 13:07 16:25 19:33 20:46





If the day is based around the general practice of the Prophet Muhammad to pray at midday, it would give an indication as to the how their day might play out if they were permitted to practice to the fullest extent of their religious obligations.

At 5:22 they would pray the Fajr (pre-sunrise) prayer. In order to arrive at the place of prayer as Guantanamo does not have a mosque - they would need to arrive atthe place of worship by

07:00 in order to gain the maximum reward of the Jumu'ah. Prior to this, they are required to take the full ritualistic bath - taking somewhere in the region of half an hour including purifying themselves etc.

A Jumu'ah prayer that is offered perfectly would take around 45 minutes to 1 hour to complete (however it can take as long as 2 hours depending on the length of the khutbah, sermon, and prayer) , which would take the time to 13:00, providing the Ju mu'ah Sal at began at midday. With 'Asr prayer at 16:25, they would only have three and half hours of free time in which they would

need to eat and relax for after the 'Asr prayer, they would wish to fulfil the rite of worship until the Maghrib prayer at 19:33.

In such a circumstance, conducting hearings would provide a great difficulty for the defendants who would not be able to practice the full extent of their religious rites.

Working on the Friday

The Quran says:

"0 People who Believe! When the call for prayer is given on (Friday) the day of congregation, rush towards the remembrance of Allah and stop buying and selling; this is better for you if you understand. " 16

"And when the prayer ends, spread out in the land and seek Allah's munificence, and profusely remember Allah, in the hope of attaining success. " 17

These verses in the Qur'an might indicate to the casual reader that the day of Jumu'ah is a normal working day for Muslim people, just like any other. However, the issue of what is permissible to do and what is preferable should not be overlooked. In many Muslim countries, especially across the Middle East, the Friday is used as a day away from work, and many observant Muslims will use it as an opporhmity to worship as completely as they can. Some Muslim countries may keep the Friday as a working day, however that does not diminish the starns of Jumu'ah for those who are observant, as they usually find time to relax their working hours or indeed have that day off.

For the defendants, who have no option of working. they have the ability to practice the full range of their religious rights, and for that reason, the Friday should be kept sacrosanct for them, in order to give them the opporrnnity to worship God in the way that they know to be best.

16 Qur'an. 62:9 17 Qur'an. 62 :10

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