IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1684

MOTION to Amend/Correct September 11, 2008 Protective Order and Counsel Access Procedures and January 9, 2009 Amended TS/SCI Protective Order and Counsel Access Procedures by ROBERT GATES, GEORGE W. BUSH (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Berman, Julia)

Exhibit A

Protective Order Paragraph 29 Petitioners' counsel shall not disclose to a petitioner-detainee classified information not provided by that petitioner-detainee. Should a petitioner's counsel desire to disclose classified information not provided by a petitioner-detainee to that petitionerdetainee, that petitioner's counsel will provide in writing to the privilege review team, see infra Section II.G, a request for release clearly stating the classified information they seek to release. The privilege review team will forward a petitioner's counsel's release request to the appropriate government agency authorized to declassify the classified information for a determination. The privilege review team will inform petitioner's counsel of the determination once it is made. Proposed Amended Protective Order Paragraph 29 Petitioners' counsel shall not disclose to a petitioner-detainee classified information which was not communicated by that petitioner-detainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitioner-detainee absent authorization from the appropriate government agency authorized to declassify the classified information. Should a petitioner's counsel desire to disclose classified information not communicated directly by that petitioner-detainee to counsel during the course of communications (i.e., legal mail, counsel meeting) to that petitioner-detainee, that petitioner's counsel will provide in writing to the privilege review team, see infra Section II.G, a request for release clearly stating the classified information they seek to release. The privilege review team will forward a petitioner's counsel's release request to the appropriate government agency authorized to declassify the classified information for a determination. The privilege review team will inform petitioner's counsel of the determination once it is made. Comparison of Current and Proposed Amended Protective Order Paragraph 29 Petitioners' counsel shall not disclose to a petitioner-detainee classified information which was not provided communicated by that petitioner-detainee. directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitioner-detainee absent authorization from the appropriate government agency authorized to declassify the classified information. Should a petitioner's counsel desire to disclose classified information not provided communicated directly by a that petitioner-detainee to counsel during the course of communications (i.e., legal mail, counsel meeting) to that petitioner-detainee, that petitioner's counsel will provide in writing to the privilege review team, see infra Section II.G, a request for release clearly stating the classified information they seek to release. The privilege review team will forward a petitioner's counsel's release request to the appropriate government agency authorized to declassify the classified information for a determination. The privilege review team will inform petitioner's counsel of the determination once it is made.

-1-

Protective Order Paragraph 39 Petitioners' counsel shall not disclose protected information not provided by a petitioner-detainee to that petitioner-detainee without prior concurrence of government counsel or express permission of the Court.

Proposed Amended Protective Order Paragraph 39 Petitioners' counsel shall not disclose to a petitioner-detainee protected information which was not communicated by that petitioner-detainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting) without prior concurrence of government counsel or express permission of the Court.

Comparison of Current and Proposed Amended Protective Order Paragraph 39 Petitioners' counsel shall not disclose to a petitioner-detainee protected information which was not provided communicated by a that petitioner-detainee directly to that petitioner-detainee counsel during the course of communications (i.e., legal mail, counsel meeting) without prior concurrence of government counsel or express permission of the Court.

-2-

Counsel Access Procedures Paragraph 31 Counsel may not divulge classified information not learned from the detainee to the detainee. Counsel may not otherwise divulge classified information related to a detainee's case to anyone except those with the requisite security clearance and need to know using a secure means of communication. Counsel for detainees in these coordinated cases are presumed to have a "need to know" information in related cases pending before this Court. Counsel for respondents in these cases may challenge this presumption on a case-by-case basis for good cause shown. Proposed Amended Counsel Access Procedures Paragraph 31 Counsel may not divulge to the petitioner-detainee classified information which was not communicated by that petitioner-detainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitionerdetainee absent authorization from the appropriate government agency authorized to declassify the classified information. Counsel may not otherwise divulge classified information related to a detainee's case to anyone except those with the requisite security clearance and need to know using a secure means of communication. Counsel for detainees in these coordinated cases are presumed to have a "need to know" information in related cases pending before this Court. Counsel for respondents in these cases may challenge this presumption on a case-by-case basis for good cause shown. Comparison of Current and Proposed Amended Counsel Access Procedures Paragraph 31 Counsel may not divulge to the petitioner-detainee classified information which was not learned from the detainee to the detainee communicated by that petitionerdetainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitioner-detainee absent authorization from the appropriate government agency authorized to declassify the classified information. Counsel may not otherwise divulge classified information related to a detainee's case to anyone except those with the requisite security clearance and need to know using a secure means of communication. Counsel for detainees in these coordinated cases are presumed to have a "need to know" information in related cases pending before this Court. Counsel for respondents in these cases may challenge this presumption on a case-by-case basis for good cause shown.

-3-

TS/SCI Protective Order Paragraph 30 Petitioners' counsel shall not disclose to a petitioner-detainee classified information not provided by that petitioner-detainee. Should a petitioner's counsel desire to disclose classified information not provided by a petitioner-detainee to that petitionerdetainee, that petitioner's counsel will provide in writing to the Privilege Team, see infra Section II.G, a request for release clearly stating the classified information they seek to release. The Privilege Team will forward a petitioner's counsel's release request to the appropriate government agency authorized to declassify the classified information for a determination. The Privilege Team will inform petitioner's counsel of the determination once it is made. Proposed Amended TS/SCI Protective Order Paragraph 30 Petitioners' counsel shall not disclose to a petitioner-detainee classified information which was not communicated by that petitioner-detainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitioner-detainee absent authorization from the appropriate government agency authorized to declassify the classified information. Should a petitioner's counsel desire to disclose classified information not communicated directly by that petitioner-detainee to counsel during the course of communications (i.e., legal mail, counsel meeting) to that petitioner-detainee, that petitioner's counsel will provide in writing to the Privilege Team, see infra Section II.G, a request for release clearly stating the classified information they seek to release. The Privilege Team will forward a petitioner's counsel's release request to the appropriate government agency authorized to declassify the classified information for a determination. The Privilege Team will inform petitioner's counsel of the determination once it is made. Comparison of Current and Proposed Amended TS/SCI Protective Order Paragraph 30 Petitioners' counsel shall not disclose to a petitioner-detainee classified information which was not provided communicated by that petitioner-detainee. directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitioner-detainee absent authorization from the appropriate government agency authorized to declassify the classified information. Should a petitioner's counsel desire to disclose classified information not provided communicated directly by a that petitioner-detainee to counsel during the course of communications (i.e., legal mail, counsel meeting) to that petitioner-detainee, that petitioner's counsel will provide in writing to the Privilege Team, see infra Section II.G, a request for release clearly stating the classified information they seek to release. The Privilege Team will forward a petitioner's counsel's release request to the appropriate government agency authorized to declassify the classified information for a determination. The Privilege Team will inform petitioner's counsel of the determination once it is made.

-4-

TS/SCI Protective Order Paragraph 40 Petitioners' counsel shall not disclose protected information not provided by a petitioner-detainee to that petitioner-detainee without prior concurrence of government counsel or express permission of the Court.

Proposed Amended TS/SCI Protective Order Paragraph 40 Petitioners' counsel shall not disclose to a petitioner-detainee protected information which was not communicated by that petitioner-detainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting) without prior concurrence of government counsel or express permission of the Court.

Comparison of Current and Proposed Amended TS/SCI Protective Order Paragraph 40 Petitioners' counsel shall not disclose to a petitioner-detainee protected information which was not provided communicated by a that petitioner-detainee directly to that petitioner-detainee counsel during the course of communications (i.e., legal mail, counsel meeting) without prior concurrence of government counsel or express permission of the Court.

-5-

TS/SCI Counsel Access Procedures Paragraph 34 Counsel may not divulge classified information not learned from the detainee to the detainee. Counsel may not otherwise divulge classified information related to a detainee's case to any person, except those authorized under these Procedures of the TS/SCI Protective Order, the Court, and government counsel with the requisite security clearance and need to know. Proposed Amended TS/SCI Counsel Access Procedures Paragraph 34 Counsel may not divulge to the petitioner-detainee classified information which was not communicated by that petitioner-detainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitionerdetainee absent authorization from the appropriate government agency authorized to declassify the classified information. Counsel may not otherwise divulge classified information related to a detainee's case to any person, except those authorized under these Procedures of the TS/SCI Protective Order, the Court, and government counsel with the requisite security clearance and need to know. Comparison of Current and Proposed Amended TS/SCI Counsel Access Procedures Paragraph 34 Counsel may not divulge to the petitioner-detainee classified information which was not learned from the detainee to the detainee communicated by that petitionerdetainee directly to counsel during the course of communications (i.e., legal mail, counsel meeting). Statements of the petitioner-detainee that counsel acquires from classified documents cannot be shared with the petitioner-detainee absent authorization from the appropriate government agency authorized to declassify the classified information. Counsel may not otherwise divulge classified information related to a detainee's case to any person, except those authorized under these Procedures of the TS/SCI Protective Order, the Court, and government counsel with the requisite security clearance and need to know.

-6-