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 D

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) In re Guantanamo Detainee Cases ) ) ) ) ) ____________________________________)

Civil Action Nos. 02-CV-0299 (CKK), 02-CV-0828 (CKK), 02-CV-1130 (CKK), 04-CV-1135 (ESH), 04-CV-1136 (JDB), 04-CV-1137 (RMC), 04-CV-1142 (RJL), 04-CV-1144 (RWR), 04-CV-1164 (RBW), 04-CV-1166 (RJL), 04-CV-1194 (HHK), 04-CV-1227 (RBW), 04-CV-1254 (HHK), 04-CV-1519 (JR)

RESPONDENTS' RESPONSE TO NOVEMBER 1, 2004 ORDER SETTING DEADLINE FOR SUBMISSIONS IN RESPONSE TO PETITIONER'S MOTION FOR AN ORDER REQUIRING PARTIES TO ABIDE BY PROPOSED PROCEDURES FOR COUNSEL ACCESS Pursuant to the Court's November 1, 2004 Order offering all parties in the Guantanamo Bay habeas litigation the opportunity "to oppose, supplement, concur with, or otherwise comment on the proposed procedures set forth in the Motion for an Order Requiring Parties to Abide by Proposed Procedures for Counsel Access, filed on October 22, 2004 in Begg v. Bush, 04-CV-1137," respondents state that they are prepared to accept the "closed universe" approach proposed by Judge Kollar-Kotelly in her October 20, 2004, Memorandum Opinion and Order in Al Odah v. United States of America, et al., Civil Action No. 02-0828-CKK (dkt. no. 117), with respect to all detainees other than the three detainees addressed in that Order.1 However, respondents respectfully submit that the procedures proposed by counsel in Begg are in certain respects inconsistent with Judge Kollar-Kotelly's proposal, and that, in other respects, they The government continues to review Judge Kollar-Kotelly's October 20 decision with respect to the monitoring of the three detainees addressed in that Order, and has not decided whether to seek modification of that ruling or additional review. Nevertheless, as explained above, the government has revised its counsel access procedures as they apply to other petitioners in these cases consistent with Judge Kollar-Kotelly's opinion.
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unduly interfere with military prerogatives. Accordingly, respondents urge adoption of the government's "Revised Procedures For Counsel Access To Detainees At The US Naval Base In Guantanamo Bay, Cuba," submitted herewith. See Exhibit 1 ("Government's Revised Procedures"). The government's revised procedures are a modified version of procedures proposed in Begg ("Begg procedures"). Under the government's revised framework, habeas counsel and detainees may correspond without any intervening review by the privilege team. Petitioners' counsel will be required to treat all information learned from a detainee, including any oral and written communications with a detainee, as classified information, unless and until the information is submitted to the privilege team and determined to be otherwise. As explained below, the government's revised procedures are consistent with the approach adopted by the court in Al-Odah; indeed, the procedures modify aspects of the Begg procedures that are inconsistent with Al-Odah. The government's revised procedures also modify aspects of the Begg procedures that unreasonably alter details of the current counsel access procedures that are more appropriately left to the discretion of the government as administrator of Guantanamo Bay ("GTMO") or that unreasonably create unacceptable GTMO security or national security risks ­ aspects of the procedures that were unaffected by the Al-Odah decision.2 Begg counsel assert that their proposed procedures merely "memorialize temporary counsel access procedures currently in place" with respect to counsel's communications with their clients in this case. See Begg Motion at 4, 6, 16, 17-18. No such ongoing temporary arrangements with counsel exist in the Begg case. Due to some confusion that arose with respect to materials that were generated during Begg counsel's visit to GTMO, the first such visit by habeas counsel in these cases, the government agreed not to subject that single package of material to privilege team review pending a decision from Judge Kollar-Kotelly. See September 24, 2004 Letter from Andrew Warden to Gitanjali Gutierrez (attached as Exhibit 2). The government, however, rejected counsel's subsequent request to adopt on an ongoing basis -22

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For these reasons, as elaborated below, the Court should adopt the government's revised procedures and not the Begg procedures. ARGUMENT I. The Begg Procedures Do Not Comply With The Framework Adopted by Judge Kollar-Kotelly in Al-Odah. One significant reason the Begg procedures should not be adopted as proposed is that the procedures, though described by petitioners' counsel as consistent with those in Judge KollarKotelly's October 20 Opinion and Order, see Begg Motion at 5-6, 22, in fact fail to include important aspects of the approach chartered by Judge Kollar-Kotelly. The government's revised procedures, by contrast, are consistent with Judge Kollar-Kotelly's approach. For example, one of the conditions Judge Kollar-Kotelly placed on counsel access was to prohibit counsel from sharing with the detainee any classified information learned from sources other than the detainee.3 See Al-Odah Memorandum Opinion at 23. The government's procedures include this requirement, see Government's Revised Procedures at ¶ IX.D.; the Begg procedures intentionally do not, see Begg Motion at 20-21. In Al Odah, Judge Kollar-Kotelly also imposed an explicit requirement that petitioners' counsel disclose to the government any information learned from a detainee involving future events that may threaten national security or imminent violence. See Al-Odah Memorandum Opinion at 22. The government's proposed procedures similarly impose

procedures that diverted from the counsel access procedures applicable to all the habeas cases. See id.; see also Transcript of October 13, 2004 Status Conference at 49, l.11-50, l.13 (excerpt attached as Exhibit 3). This aspect of Judge Kollar-Kotelly's opinion is consistent with the proposal of the government and certain petitioners with respect to the proposed protective order in this case. See Proposed Protective Order (Begg dkt. no. 29) ¶¶ 17, 29-30; Joint Report on Protective Order Issues (Begg dkt. no. 30). -33

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such an obligation, see Government's Revised Procedures at ¶ IX.C.; the Begg procedures do not.4 In Al Odah, the Court precluded counsel from sharing classified information learned from the detainee with anyone except, perhaps, co-counsel with security clearances in the detainee's case.5 See Al-Odah Memorandum Opinion at 21, 23-24.6 The Begg procedures do not contain this prohibition; indeed, Begg counsel appear to reserve the issue of whether they, without the consent of the government, may share information being treated as classified with counsel in other pending habeas cases. See Begg Motion at 20-21. The inconsistency of the Begg counsel procedures with conditions imposed on counsel under Judge Kollar-Kotelly's decision warrants rejection of the Begg procedures in favor of the government's revised procedures, which are consistent with Judge Kollar-Kotelly's approach. II. The Begg Procedures Would Create Unacceptable Risks To Security at GTMO And National Security. Respondents also oppose implementation of the Begg procedures because they improperly or inadequately modify existing counsel access rules that are necessary to ensure security at GTMO and to protect against threats to national security. First, the Begg procedures

While both the Begg procedures and the government's revised procedures permit the government to act upon any such information learned in the course of any permitted classification review by the government, see Begg Procedures at ¶ VII.F.; Government's Revised Procedures at ¶¶ VII.D. & E., the Begg procedures impose no affirmative obligation of disclosure of such information by counsel. Al-Odah petitioners have filed a motion for clarification that the October 20 Memorandum Opinion and Order permits counsel to share information learned from a detainee with other cleared counsel on the case. See Al-Odah et al. v. United States of America et al., Civil Action No. 02-828-CKK (dkt. no. 134) (filed Nov. 3, 2004). The proposal of the government with respect to the proposed protective order in this case is consistent with this aspect of Judge Kollar-Kotelly's opinion. See Proposed Protective Order (Begg dkt. no. 29) ¶ 29; Joint Report on Protective Order Issues (Begg dkt. no. 30) at 5-7. -46 5

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provide that personnel at GTMO cannot open incoming mail to detainees. See Begg Procedures at ¶ IV.2. Such a restriction is unacceptable in light of concerns regarding the infusion of prohibited contraband into the secure environment at GTMO. The government's procedures, in contrast, permit GTMO personnel to open incoming legal mail to search the contents for prohibited physical contraband. However, GTMO personnel may not read or copy incoming legal mail as long as counsel adequately identifies the envelope or mailer as containing legal mail. See Government's Revised Procedures at ¶ IV.A.3. These procedures adequately protect both the government's interest in maintaining a secure facility at GTMO and petitioners' interest in safeguarding the confidentiality of attorney-client communications. Consequently, the government's procedures, which are analogous to procedures adopted by the Bureau of Prisons, are reasonable and should be adopted without modification. See 28 C.F.R. § 540.18; Henthorn v. Swinson, 955 F.2d 351, 353-54 (5th Cir. 1992) (upholding Bureau of Prisons mail regulations and procedures against constitutional challenge). Second, in the event the privilege team, in performing a classification review requested by petitioners' counsel, discovers information that reasonably could be expected to result in immediate and substantial harm to the national security, the Begg procedures improperly require the privilege team to make reasonable efforts to contact habeas counsel prior to disseminating this information to law enforcement, military, or intelligence personnel. See Begg Procedures at ¶ VII.F. No such obligation should be imposed, however, both because the government's ability to protect national security should not be impaired and any communication that reasonably could result in future harm to the national security would not be protected by the attorney-client privilege. See In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985) ("Communications -5-

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otherwise protected by the attorney-client privilege are not protected if the communications are made in furtherance of a crime, fraud, or other misconduct."); Al-Odah Memorandum Opinion at 22-23. The government's revised procedures, which do not contain a counsel notification requirement, should be upheld. See Government's Revised Procedures at ¶¶ VII.E. & F. Third, both the government's revised counsel access procedures, as well as those proposed by Begg counsel, properly include a prohibition on the sharing with detainees of information relating to current events and security matters not related to counsel's representation, including current political events; security arrangements; status of other detainees; and information relating to ongoing or completed military, intelligence, security, or law enforcement operations, investigations, or arrests, or the results of such activities. See Begg Procedures at ¶ IV.A.5.; Government's Revised Procedures at ¶¶ IV.A.7.; V.B. The purpose of such a constraint is to preserve security and stability among the detainee population, the Guantanamo Bay facility, and those associated with the facility, without intruding upon information sharing that may be needed for purposes of appropriate representation of detainees in these cases.7 As explained in the Declaration of Brigadier General Jay Hood, Commander, Joint Task Force Guantanamo Bay, Cuba, attached as Exhibit 4, permitting such restricted information into the detainee population could create risks to U.S. personnel and detainees, and could irreparably harm intelligence-gathering efforts. See Ex. 4 ¶¶ 3­7. For example, sharing the identities of security personnel or information concerning security procedures could create force protection issues and affect good order in the facility. See id. ¶¶ 3-6. Information concerning current political events or military activities could incite or cause unrest among detainees. Id. ¶¶ 3-6. Such information, if spread, might also be used by detainees to target other detainees for persecution or harm based on their nation's action. Id. ¶ 6. (An obvious example would be if detainees were informed that forces of a certain nation were conducting activities in the area surrounding a shrine or other place of interest to a detainee). Restricted information, if passed to detainees, could also permit detainees to thwart interrogations or cause cooperating detainees to decline further cooperation, thereby harming the investigations or interrogations. See id. ¶ 7. Accordingly, the communication of these types of information, to the extent not strictly necessary to the habeas representation, must be foreclosed. See id. ¶ 8. -67

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In contrast to the Begg procedures, however, the government's revised procedures should be adopted by the Court because they provide counsel with specific information about the scope of the prohibition. Because, under the government's revised procedures, the government will not be able to check incoming communications to detainees for such security-related information, a situation that obviously increases the risk of the introduction of such information to the detainee population, the government's revised procedures add specific examples of the types of information falling with the prohibition, so that counsel have a clearer understanding of what Information liable to lead to such harms, as explained by General Hood, would include: a. The status of current political or military events. This includes: the progress and conduct of the war in Afghanistan, Iraq and other operations conducted during the Global War on Terrorism, election predictions and results, international disputes and the opinions of foreign governments or nongovernmental organizations; b. Historical perspective on jihadist activities. This includes: discussions of the Afghanistan jihad, jihadist movements in other countries, the demise or progress of extremist and terrorist groups, the presence and activities of foreign fighters in Iraq; c. Any information or mention of the fate, whereabouts or activities of any leaders of al Qaida, the Egyptian Islamic Jihad and other terrorist organizations comprising the al Qaida Associated Movement or their associations or affiliates; d. Information about allegations of abuse or mistreatment made by other detainees (including former detainees) at Guantanamo or other facilities; e. Information pertaining to assignment or reassignment of present and former detention personnel; and f. Information regarding any plans for release or continued detention of detainees; changes, upgrades or additions to detention facilities; the operation of the detention facility or changes or enhancements to security procedures at Guantanamo. Id. ¶ 5. -7-

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types of information-sharing would not be appropriate. See Government's Revised Procedures at ¶¶ IV.A.7.; V.B. The examples track the examples provided by General Hood. See supra note 7. Similarly, the government's procedures, consistent with the concerns raised by such information and the judgment of General Hood that its disclosure to detainees be avoided in the absence of "strict[] and specific[] necess[ity]," see Ex. 4 ¶ 8, revise the caveat permitting the sharing of such types of information only when the information is "directly" related to the representation. The potential threat to safety, security, and intelligence interests from the introduction of such information into the detainee population warrant these revisions to and clarifications of the prohibition, and should not interfere with communications necessary for litigation of these habeas cases. III. The Begg Procedures Unreasonably Alter Details Of Existing Government Procedures Regarding Counsel Access to Detainees Held At GTMO, Details More Appropriately Reserved To The Judgment Of The Government Than To That Of Petitioners' Counsel. In addition to the matters described above, the Begg procedures unreasonably alter ­ frequently without any supporting explanation ­ many details of the government's counsel access procedures, details more appropriately reserved to the judgment of the government than to that of petitioners' counsel: 1. The Begg procedures modify without explanation the paragraph addressing the

applicability of the government's counsel access procedures. Compare Begg Procedures at ¶ I, with Government's Revised Procedures at ¶ I. The government previously determined that the counsel access procedures should not apply to counsel who are retained solely to assist in the defense of a detainee whom the President has determined to be subject to trial by military

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commission. This restriction is reasonable in light of the significant differences between habeas litigation in federal court and military commission proceedings. Because petitioners offer no explanation for the changes to this paragraph, the government's revised procedures should be adopted in full. 2. The Begg procedures also inexplicably remove the definition of the term

"Detainee" from the government's existing provisions. See Begg Procedures at ¶ II. In place of the word "detainee," the Begg procedures consistently refer to the term "client," which is not appropriate give that most of these cases remain next-friend petitions and many counsel have yet to meet their detainee and obtain consent to the representation. In contrast to the Begg procedures, the government's revised procedures contain a clear and concise definition of the terms "counsel" and "detainee" in order to provide all parties with notice of to their responsibilities and privileges under the procedures. See Government's Revised Procedures at ¶ II. Additionally, the Begg Procedures modify without explanation other definitions in paragraph II of the government's revised counsel access procedures, including the terms "communications," "counsel," and "privilege team." The government's definitions are both reasonable and precise, thus they should be adopted by the Court without modification. 3. The Begg procedures unreasonably limit the requirement relating to when counsel's

staff sign an affirmation acknowledging their agreement to comply with the counsel access procedures. See Begg Procedures at ¶ III.B.3. In order to ensure that all staff members working on the GTMO cases comply with the counsel access procedures, the government's revised procedures provide that all staff must sign an affirmation upon utilization of those individuals by counsel in a fashion that implicates the counsel access procedures (e.g., the first time an -9-

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interpreter translates or transcribes information provided by a detainee). See Government's Revised Procedures at ¶ III.B.3. This requirement ensures that counsel and support staff who participate in the GTMO litigation will be aware of and abide by the governing counsel access procedures. 4. The government objects to the inclusion in the Begg Procedures of the requirement

that counsel for the government must sign an affirmation acknowledging their agreement to comply with habeas counsel access procedures. See Begg Procedures at ¶¶ III.B.5-6. The government's "Revised Procedures For Counsel Access To Detainees At The US Naval Base In Guantanamo Bay, Cuba" are simply that: procedures that permit non-government counsel to access detainees held at GTMO for the purpose of conducting habeas litigation. With the exception of arranging the logistics of counsel visits, see Government's Revised Procedures at ¶ III.D, the government's revised procedures do not implicate government counsel. Moreover, government counsel will not have any contact with individual detainees, nor will government counsel be privy to privileged communications between habeas counsel and detainees. For these reasons, any requirement that government counsel sign an affirmation agreeing to comply with the GTMO counsel access procedures is unwarranted.8

Under the government's revised procedures, only the privilege team has access to communications between counsel and detainees. Further, privilege team involvement is limited only to situations in which counsel submits information to the privilege team for a classification determination. See Government's Revised Procedures at ¶ VII. To protect against any potential violations of the attorney-client privilege, the privilege team cannot be comprised of any personnel who have taken part in, and, in the future, will not take par in, any government personnel involved in court, military commission or enemy combatant status proceedings involving the detainee. Additionally, the privilege team is prohibited from disclosing any information except as permitted by the access procedures (i.e., in cases of discovered threats to national security or imminent violence, see id. at ¶ VII). See id. at ¶¶ II.D. & VII. -10-

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5.

Without any explanation, the Begg Procedures improperly remove the presumption

that no more than one attorney and one interpreter should visit with a detainee at one time, without advance approval by the Commander, JTF-Guantanamo. Compare Begg Procedures at ¶ III.D.2., with Government's Revised Procedures at ¶ III.D.2. As a threshold matter, the Commander, JTF-Guantanamo to date has approved every request from habeas counsel for multiple attorneys to attend a meeting with a single detainee. Nevertheless, given the limitations on facilities and meeting spaces at GTMO, the one attorney-one detainee presumption is reasonable and should be preserved. It is important that all counsel visiting GTMO are accommodated in a safe manner and that personnel at GTMO have discretion with respect to meeting facilities used for habeas counsel visits. For these reasons, the court should adopt the government's revised procedures with respect to the number of counsel presumptively permitted to meet with a single detainee. 6. With respect to the logistics of arranging counsel visits to GTMO, the Court should

adopt the government's revised procedures without modification based on government counsel's previous experience arranging visits for habeas counsel. See Government's Revised Procedures at ¶ III.D. The government's revised procedures provide the most efficient mechanism for distributing information to counsel and arranging logistical details of a visit. 7. In contrast to the Begg procedures, the government's revised procedures contain

more detailed labeling and document handling procedures to ensure that counsel, detainees, and GTMO personnel properly distinguish between legal mail and non-legal mail. See Government's Revised Procedures at ¶¶ IV-VI. These procedures generally provide that GTMO personnel will handle all incoming and outgoing legal mail as privileged, provided the exterior of the envelope -11-

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or mailer is clearly annotated and sent to the appropriate address. See id. Such labeling and mailing requirements are similar to and expand on those previously adopted in the government's supplemental mail procedures, and they can help prevent confusion and any inadvertent misrouting or mishandling of information. 8. The Begg procedures do not provide correct addresses where privileged mail and

documents may be sent. See Begg Procedures at ¶¶ IV.A.1., IV.B.3., VI.B., VII.C. Due to the government's concerns about public dissemination of this information, which is intended solely for legal communications between counsel and detainees, the government will provide all counsel in the GTMO litigation with the proper addresses at a later date. Non-legal communications between detainees and persons other than counsel are addressed in paragraphs IV.A.5. & IV.B.3. of the government's revised procedures. 9. The Court should adopt the government's revised procedures regarding the

mechanics of obtaining from the privilege team classification determinations regarding communications with a detainee. Compare Government's Revised Procedures at ¶ VII, with Begg Procedures at ¶ VII. Although the Begg Procedures address many of the same topics, the government's revised procedures are more complete and provide all parties with additional details regarding their duties and responsibilities.9 For these reasons, the Court should adopt paragraph VII of the government's revised procedures without modification. 10. The Begg procedures also improperly modify the government's procedures

For example, the time guidelines for privilege team review suggested in the Begg procedures are adopted in the government's revised procedures, except that the guidelines are reasonably keyed to the privilege team's receipt of material to be reviewed to account for any uncertainties in mail delivery. -12-

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regarding telephonic access to detainees. More specifically, the Begg procedures attempt to regulate and limit any monitoring of telephone calls between detainees and persons other than counsel. See Begg Procedures at ¶¶ VIII.C., D. This requirement is unreasonable and improper because no privileged relationship exists between detainees and non-counsel. The government's revised procedures properly note that monitoring of telephone calls between detainees and noncounsel may be conducted, as appropriate. See Government's Revised Procedures at ¶ VIII.C. 11. Finally, the Court should adopt paragraph X of the government's revised

procedures as written because these provisions address base security procedures at GTMO, matters that fall more appropriately within the judgment of the government as opposed to petitioners' counsel. Compare Government's Revised Procedures at ¶ X, with Begg Procedures at ¶ X. For instance, the government's revised procedures explain the types of physical contraband prohibited at GTMO and the search policies of the base. Any attempt by petitioners to modify GTMO's basic security procedures is wholly improper. CONCLUSION For the foregoing reasons, the Court should adopt the government's revised procedures as uniform counsel access procedures in these cases. But see supra note 2.

Dated: November 4, 2004

Respectfully submitted, PETER D. KEISLER Assistant Attorney General KENNETH L. WAINSTEIN United States Attorney BRIAN D. BOYLE -13-

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Principal Deputy Associate Attorney General DAVID B. SALMONS Assistant to the Solicitor General DOUGLAS N. LETTER Terrorism Litigation Counsel ROBERT D. OKUN Assistant United States Attorney Chief, Special Proceedings Section /S/ Andrew I. Warden JOSEPH H. HUNT (D.C. Bar No. 431134) VINCENT M. GARVEY (D.C. Bar No. 127191) TERRY M. HENRY LISA A. OLSON JAMES J. SCHWARTZ PREEYA M. NORONHA ALAN S. MODLINGER ROBERT J. KATERBERG ANDREW I. WARDEN (IN Bar No. 23840-49) Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Room 7144 Washington, DC 20530 Tel: [phone] Fax: [phone] Attorneys for Respondents

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