According to Rule 17, the court may quash or modify the subpoena not the United States Army acting in concert with the AUSA which was unknown to us until we received the Government’s response. If the AUSA was aware of issues surrounding the subpoena it should have been brought to the attention of the Federal Circuit Judge, especially after Judge Whittemore had already warned the Government about interfering with witnesses when defendants were preparing for the Franks Hearing. The Court should compare Tutterow’s letter to what the AUSA is saying because Tutterow’s letter contradicts what the AUSA is alleging. The Tutterow letter tells Defendants trial lawyer that he hopes he can resolve the issue without involving the US Attorney [Tampa]. However, the AUSA states in the Government’s response that he was in contact with Tutterow (May 2nd, 2006) upon receipt of the subpoena for Sergeant Landers. This is the day before the letter was written. If the AUSA knew of the letter and talked to Tutterow, then, why would Tutterow want to work with the trial lawyers without involving the AUSA? The reason is because Tutterow wanted to know what the Defendants were going to ask Sergeant Landers so that Tutterow could then report it back to the AUSA or USSOCOM lawyers. The Government wanted knowledge of Defendants attorney client privileged work product. The Government alleges that the letter was faxed to Defendants’ attorney. The Government offered no proof of this. Defendants filed a sworn affidavit contradicting the Government’s position on this, no fax was received. Although the Government alleges that the AUSA spoke with an unnamed previous defense attorney, even if true, it does not excuse the AUSA’s conduct in not following the law, Rule 17. Once again the Government is changing the underlying facts of this case.

This unethical behavior by the Government is persistent throughout the whole case. It is plainly the Government’s fault for ordering Sergeant Landers not to appear as a 4