IN RE: GUANTANAMO BAY DETAINEE LITIGATION
MOTION for Reconsideration of Application of Standard Habeas Protective Order and Request for TS/SCI Protective Order by GEORGE W. BUSH, DONALD RUMSFELD, HARRY B. HARRIS, JR, WADE F. DAVIS, ROBERT M. GATES, COMMANDER OF THE JOINT TASK FORCE, GTMO, COMMANDER OF PRISON CAMP, GTMO, ROBERT M. GATES, DONALD RUMSFELD, DAVID M. THOMAS, BRUCE VARGO, JOHN DOE, RICHARD B. CHENEY, CONDELEEZA RICE, MICHAEL V. HAYDEN, GEORGE TENET, ROBERT GATES (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Text of Proposed Order)(Henry, Terry)
IN RE: GUANTANAMO BAY DETAINEE LITIGATION
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) )
Misc. No. 08-442 (TFH) Civil Action Nos. 06-CV-1690, 08-1085, 08-1207, 08-1360
IN RE: GUANTANAMO BAY DETAINEE LITIGATION
RESPONDENTS' MOTION TO RECONSIDER APPLICATION OF STANDARD HABEAS PROTECTIVE ORDER TO THESE CASES AND REQUEST FOR ENTRY OF PROPOSED PROTECTIVE ORDER PERTAINING TO TOP SECRET / SENSITIVE COMPARTMENTED INFORMATION; RESPONSE TO MOTION FOR ORDER DIRECTING FILING OF SUPPLEMENTAL STATUS REPORT IN Khan v. Bush, No. 06-CV-1690 Respondents hereby move for reconsideration of one aspect of the orders entered by the Court on July 29, 2008, and August 15, 2008, in the above-captioned cases. Those orders applied in these cases, "pending further order of the Court," the protective order and counsel access regime applicable in most other Guantanamo Bay habeas cases.1 While petitioners are currently held in Department of Defense ("DoD") custody at Guantanamo Bay, by virtue of petitioners' prior detention in the custody of the Central Intelligence Agency as part of a still highly classified program, any protective order and counsel access regime in these cases must appropriately address the management and handling of information of a special classification level and sensitivity, i.e., TOP SECRET/ SENSITIVE COMPARTMENTED INFORMATION
See In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. Nov. 8, 2004) ("Amended Protective Order"); Order Supplementing and Amending Filing Procedures Contained in November 8, 2004 Amended Protective Order in In re Guantanamo Detainee Cases, No. 02-CV-0299, et al. (D.D.C. Dec. 13, 2004); Order Addressing Designation Procedures for "Protected Information" in In re Guantanamo Detainee Cases, No. 02-CV-0299, et al. (D.D.C. Nov. 10, 2004).
("TS/SCI"). As explained below, the habeas protective order regime typically applicable in other Guantanamo cases is not appropriate with respect to the management and handling of such information. While the Court previously required the parties to confer regarding "a separate proposed protective order for use in cases involving `high-value detainees,'" see Order of July 11, 2008, ¶ 2.A (Misc. No. 08-0442), and respondents suggested briefing on the issue of such a separate order, see Joint Report in Response to Court's July 11, 2008 Scheduling Order, ¶ A.1 (Misc. No. 08-0442), the Court has not had the opportunity to receive full briefing on and consider issues related to the necessity for such an order. Reconsideration of the entry of the standard habeas protective order in these cases, therefore, is warranted, and the Court should enter the TS/SCI Protective Order regime proposed by respondents herein, which incorporates much of the current protective order regime, but appropriately addresses needed TS/SCI information management.2
This filing also incorporates respondents' response to petitioner Khan's Motion for Order Directing Court Security Office to File Supplemental Status Report in Khan v. Bush, No. 06-CV-1690 (filed Aug. 4, 2008). See infra note 22. Counsel for respondents have attempted to confer counsel for petitioners in the abovecaptioned cases. Counsel in Khan, No. 06-CV-1690, have indicated that they oppose respondents' requested relief for reasons including those stated by petitioners in the Joint Report in Response to Court's July 11, 2008 Scheduling Order, ¶ A.2.b (Misc. No. 08-0442). Other counsel have not responded and presumably oppose respondents' requested relief. -2-
BACKGROUND Petitioners in these cases (Majid Khan, Abd Al-Rahim Hussain Mohammed Al-Nashiri,3 and Muhammad Husayn (a.k.a. Abu Zubaydah)) are among fourteen individuals who in September 2006 were transferred to Guantanamo to the custody of the Department of Defense ("DoD") from the custody of the Central Intelligence Agency ("CIA").4 The CIA had previously held petitioners as part of a special, limited program operated by that agency to capture; detain (in secret, off-shore facilities); and interrogate key terrorist leaders and operatives in order to help prevent terrorist attacks. See President George W. Bush, Speech: President Discusses Creation of Military Commissions to Try Suspected Terrorists (September 6, 2006) (copy attached as Exhibit 2) (acknowledging CIA program; discussing certain petitioners' involvement in program);5 see also Declaration of Marilyn A. Dorn (Oct. 26, 2006) ¶¶ 7, 10, 16 ("Dorn Decl.") (attached as Exhibit 1) (discussing CIA program).6 The importance of the program to national security interests cannot be overstated. Information obtained through the program has provided the United States with one of the most useful tools in combating terrorist threats to the national
Petitioner Al-Nashiri has had two habeas cases brought on his behalf by different counsel, Al Nashir v. Gates, No. 08-CV-1085, and Al-Nashiri v. Bush, No. 08-CV-1207. All three petitioners in the above-captioned cases also have cases in the Court of Appeals seeking that Court's review under the Detainee Treatment Act of their designation as enemy combatants. After their transfer to DoD custody, petitioners were found to be enemy combatants by Combatant Status Review Tribunals. See U.S. Department of Defense, Combatant Status Review Tribunals / Administrative Review Boards, http://www.defenselink.mil/news/Combatant_Tribunals.html (last visited Aug. 16, 2008). The text of the President's speech is available at <> . The Dorn Declaration was originally filed in Khan v. Bush, No. 06-CV-1690 (RBW) (D.D.C.). -36 5 4
security. Dorn Decl. ¶ 11. It has shed light on probable targets and likely methods for attacks on the United States, has led to the disruption of terrorist plots against the United States and its allies, and has gathered information that has played a role in the capture and questioning of senior Al Qaeda operatives. Id. Many aspects of the terrorist detainee program remain classified as TS/SCI. Id. For example, information such as where detainees have been held, the details of their confinement, interrogation methods, and other operational details constitute or involve TS/SCI information. Id. Under Executive Order 12958, as amended,7 the anticipated severity of the damage to national security resulting from disclosure determines which of three classification levels is applied to information. Thus, if an unauthorized disclosure of information reasonably could be expected to cause damage to the national security, that information may be classified as CONFIDENTIAL; serious damage may be classified as SECRET; and exceptionally grave damage may be classified as TOP SECRET. Id. § 1.2. Section 4.3 of Executive Order 12958 further provides that specified officials may create special access programs upon a finding that the vulnerability of, or threat to, specific information is exceptional, and the normal criteria for determining eligibility for access applicable to information classified at the same level are not deemed sufficient to protect the information from unauthorized disclosure. These special access programs relating to intelligence are called Sensitive Compartmented Information, or SCI, programs. See Dorn Decl. ¶ 9. As noted above, many aspects of the terrorist detainee program are classified at the TS//SCI level.
See Executive Order 13292, 68 Fed. Reg. 15315 (Mar. 28, 2003). -4-
In light of the prevalence of TS/SCI information in petitioners' cases, respondents previously suggested the need for a special protective order and counsel access regime in these cases tailored for the handling of such information. The Court then required the parties to confer regarding such "a separate proposed protective order for use in cases involving `high-value detainees.'" See Order of July 11, 2008, ¶ 2.A (Misc. No. 08-0442). In the parties' July 21, 2008 Joint Report in Response to Court's July 11, 2008 Scheduling Order, ¶ A, respondents noted that the parties had been unable to agree to a separate protective order, that petitioners had suggested briefing on the matter, and that respondents were amenable to such briefing. Id. Petitioners in the Joint Order urged entry of the standard habeas protective order. Id. Subsequently, without briefing on the matter, the Court made the standard habeas protective order, which had never before been made applicable to cases involving high-value detainees and the prevalence of TS/SCI information, applicable in all the cases being coordinated by the Court, "pending further order of the Court." See Order (Jul. 29, 2008) in Misc. No. 08442. The Court thereafter also made the standard habeas protective order applicable in the subsequently filed case on behalf of petitioner Husayn, No. 08-CV-1360. See Minute Order (Aug. 15, 2008) in Misc. No. 08-442 and No. 08-CV-1360. ARGUMENT A court should reconsider an interlocutory order where "justice requires" it, in the sense that reconsideration may be appropriate when the court has "`patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.'" See Singh v. George -5-
Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (Lamberth, J.) (citing Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). "Errors of apprehension may include a Court's failure to consider `controlling decisions or data that might reasonably be expected to alter the conclusion reached by the court.'" Id. (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). "These considerations leave a great deal of room for the court's discretion and, accordingly, the `as justice requires' standard amounts to determining `whether reconsideration is necessary under the relevant circumstances.'" Williams v. Savage, No. 07-CV-0583 (RMU), F. Supp. 2d 272). In this case, reconsideration of the Court's decision to enter the standard habeas protective order in these cases involving high-value or TS/SCI detainees8 is appropriate given that the Court appears to have taken such action without the benefit of a full explanation of the ramifications of such action and of the absolute need for a special protective order and counsel access regime tailored to the management and handling of TS/SCI information. Indeed, as explained below, the Court may have based its action on a misapprehension of the effect of application of the standard protective order in these cases, thus warranting reconsideration of the matter. The Court entered the standard habeas protective order, which had never before been made applicable to cases involving high-value detainees and the prevalence of TS/SCI information, "pending further order of the Court." See Order (Jul. 29, 2008) in Misc. No. 08442. Respondents respectfully note the possibility that the Court's reference to a "further order" , 2008 WL 2977585 at *7 (D.D.C. Aug. 5, 2008) (quoting Cobell, 224 F.R.D. at
Judge Sullivan, in a status conference in Al-Shibh v. Bush, No. 06-CV-1725 (EGS), directed respondents to use the term, "TS/SCI detainees," instead of "high-value detainees." -6-
was intended to signify that a further order on this issue would be forthcoming. In any event, a "further order of the Court" is appropriate now for the reasons explained below, and the Court should enter forthwith the TS/SCI Protective Order regime proposed by respondents herein, which incorporates much of the current protective order regime, but appropriately addresses needed TS/SCI information management. I. A REVISED PROTECTIVE ORDER APPROPRIATE FOR THE MANAGEMENT AND HANDLING OF TS/SCI INFORMATION IS NECESSARY IN THESE CASES.
Because petitioners in these cases are in possession of information classified as TS/SCI by virtue of their prior detention in the CIA program, a protective order regime appropriate for the management and handling of TS/SCI information is necessary in these cases. Petitioners' counsel suggestion that the protective order and counsel access regime normally applicable in Guantanamo habeas cases not involving detainees with TS/SCI information is not appropriate. The standard habeas protective order and counsel access regime is improper and unsuitable given the unique circumstances of petitioners and their prior CIA custody. As explained below, the protective order regime applicable in many other Guantanamo cases contemplates issues associated with the handling of information classified no higher than SECRET, while counsel access in these cases require appropriate provisions and protections to govern information potentially classified at the TS/SCI level, by virtue of petitioners' prior detention and involvement in the CIA's still highly classified terrorist detainee program. As explained supra, because of petitioners' involvement in the CIA program, it is likely they possess, and will be able to transmit to counsel, information that is classified at the TOP SECRET/SCI level, such as detention locations and other operational details, or information that -7-
would warrant equivalent treatment or other special handling while petitioners remain in United States' custody. See Dorn Decl. ¶¶ 8, 10, 16. For example, as explained in the Dorn Declaration, improper disclosure of operational details about the program, such as the locations of CIA detention facilities, would put United States' allies at risk of terrorist retaliation and betray relationships that are built on trust and are vital to efforts against terrorism. See id. ¶ 12; see also Declaration of Wendy M. Hilton (Mar. 28, 2006) ¶¶ 12-20 (attached as Exhibit 3) ("Hilton Decl.").9 Improper disclosure of other operational details, such as interrogation methods, could also enable terrorist organizations and operatives to adapt their training to counter such methods, thereby obstructing the CIA's ability to obtain vital intelligence that could disrupt future planned terrorist attacks. Dorn Decl. ¶ 13; Hilton Decl. ¶¶ 19-21. The appropriate and adequate protection of information that petitioners may possess and may transmit to counsel, therefore, is imperative. The protective order and counsel access regime entered in many other Guantanamo cases not involving detainees who had previously been held in the CIA program, however, is patently inadequate to protect the unique national security-related interests in this case. For example, the standard counsel access regime applicable in various other cases contemplates that counsel representing a detainee hold or obtain only a SECRET-level clearance. See Amended Protective Order, Exhibit A, Revised Procedures for Counsel Access to Detainees ("Standard Access
The Hilton Declaration was originally filed in petitioner Khan's Detainee Treatment Act case, Khan v. Gates, No. 07-1324 (D.C. Cir.), in opposition to a motion to unseal TS/SCI filings in that Court. -8-
Procedures") § III.A.1.10 Such a clearance would not permit counsel access to information classified or treated as TS/SCI, and an appropriate counsel access regime should require the appropriate clearance level. The counsel access regime further contemplates mailing of communications to counsel from a detainee or of notes of a counsel's meeting with a detainee from Guantanamo to the secure workspace facility for habeas counsel called for under the protective order.11 See Standard Access Procedures §§ IV.B.3; VI.B; Amended Protective Order ¶ 20. While information classified at the SECRET-level can be sent through the mail, via certified mail, materials classified or treated as TS/SCI, cannot. See Dorn Decl. ¶ 15; 32 C.F.R. § 2001.45(c), (d) (DoD regulation regarding handling of classified information). The standard habeas protective order regime also provides a presumed "need to know" between counsel in related Guantanamo detainee cases pending before the Court, see Amended Protective Order ¶ 29, which, as discussed in more detail infra, is not appropriate in the unique context of this case, which involves TS/SCI information. As the Supreme Court stated in Boumediene, "the Government [in the Guantanamo habeas cases] has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible." Boumediene v. Bush, 128 S. Ct. 2229, 2276 (2008).12
A copy of the Amended Protective Order is attached hereto as Exhibit 4, for the Court's convenience. See Standard Access Procedures §§ IV.A.6 (counsel required to treat information learned from a detainee, "including any oral and written communications with a detainee," as classified pending classification review by a DoD Privilege Team). The Boumediene opinion is not the first instance in which the Supreme Court has recognized the responsibility of the Executive to safeguard and protect classified and other -912 11
Here, "[a] protective order that allows individuals without the necessary security clearances access to TS/SCI information, or permits the use of procedures not appropriate for TS/SCI information, cannot possibly begin to adequately protect such information from unauthorized disclosure." Dorn Decl. ¶ 15. Accordingly, the Court should not continue in these cases the standard habeas protective order regime, which fails to address classification-level concerns such as those raised above. Reconsideration is warranted, and a revised protective order regime, tailored for TS/SCI information issues, is required. Indeed, in recognition of the special classification-level issues presented in these cases, special procedures to deal with the management and handling of TS/SCI information have been used in cases involving TS/SCI detainees, including several petitioners, in litigation under the Detainee Treatment Act ("DTA") in the Court of Appeals. See Stipulation to Immediate Entry of Khan Protective Order (filed in Al-Nashiri v. Gates, No. 08-1007 (D.C. Cir.)) & Ex. A, B (copy attached as Exhibit 5). The procedures, inter alia, require an appropriate (TS/SCI) security clearance and include requirements for proper handling and transmission of TS/SCI information. Id. Ex. A ("DTA HVD Protective Order"). The procedures also include, consistent with the standard protective order regime in DTA cases in the Court of Appeals, monitoring and possible
national security information adequately and the responsibility of courts to defer to protective measures the Executive deems appropriate. See, e.g., Dep't of Navy v. Egan, 484 U.S. 518, 52730 (1988) (authority to control access to classified information is constitutionally vested in the President as head of the Executive Branch and Commander in Chief and should not be intruded upon by the courts "[f]or reasons . . . too obvious to call for enlarged discussion"); see also Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation."). - 10 -
redaction by a DoD Privilege Team of legal mail going from petitioner's counsel to petitioner in the case. DTA HVD Protective Order ¶ 4.B. Certain petitioners in these cases previously argued that the standard habeas protective order is sufficient for use in these cases because other counsel were permitted to submit TS/SCI information to the Court in another Guantanamo habeas case, Zalita v. Bush, No. 05-CV-1220 (RMU) (D.D.C.), in which only the standard habeas protective order had been entered. See Joint Report in Response to Court's July 11, 2008 Scheduling Order at 4-5 (filed Jul. 21, 2008 in Misc. No. 08-0442). That situation does not support entry of the standard habeas protective order in these cases, however. In Zalita respondents authorized TS/SCI-cleared petitioner's counsel to share information with the District Court that counsel had previously learned through access to a TS/SCI detainee in the context of a DTA case in the Court of Appeals access that had been permitted pursuant to and governed by the special, TS/SCI access procedures applicable in the DTA litigation context.13 Thus, Zalita did not involve initial access by habeas counsel to a TS/SCI detainee or TS/SCI information under the standard habeas protective order regime or the transmission of TS/SCI information from Guantanamo to D.C. under the standard habeas protective order regime. The Zalita situation simply does not support application in this case of a habeas protective order regime that, as explained above, is demonstrably inappropriate for the management and handling (including transmission) of TS/SCI information. A revised protective order regime, tailored for TS/SCI information issues, is required in these cases.
The DTA protective order did not permit counsel in the DTA case to disclose TS/SCI information learned in that case to any other court or in any other case, see DTA HVD Protective Order ¶ 5.H; thus, habeas counsel sought the government's consent to a disclosure to the District Court in the Zalita case. The government consented to the disclosure to the District Court. - 11 -
THE COURT SHOULD ADOPT THE TS/SCI PROTECTIVE ORDER REGIME PROPOSED HEREIN.
Respondents submit herewith a protective order and counsel access regime that addresses the special needs and interests presented by the handling and management of TS/SCI information, and the Court should enter it in these cases in place of the standard habeas protective order.14 See Proposed TS/SCI Protective Order and Counsel Access Regime, Ex. A ("Guantanamo Procedure Guide For Counsel Access in Detainee Habeas Cases Involving TS/SCI Material") (attached). As reflected in the proposed order, this regime incorporates the standard habeas protective order regime, with two exceptions.15 First, the Counsel Access Procedures appended as Exhibit A to the standard protective order are replaced with revised counsel access procedures tailored to account for the handling, transmission, and management of TS/SCI information ("TS/SCI Access Procedures"). See Proposed TS/SCI Protective Order ¶ 2 & Ex. A. Second, the TS/SCI Protective Order revises the "need to know" provisions of the standard protective order. Each of these changes are discussed in greater detail below. The primary difference between the proposed TS/SCI Protective Order and the standard Amended Protective Order is that the standard counsel access procedures appended as Exhibit A to the Amended Protective Order ("Standard Access Procedures") are replaced with revised counsel access procedures, i.e., the "Guantanamo Procedure Guide For Counsel Access in
Respondents have also proposed entry of the same Proposed TS/SCI Protective Order in a high-value or TS/SCI detainee case pending before Judge Sullivan. See Resps' Mem. in Support of Proposed Protective Order Pertaining to Top Secret / Sensitive Compartmented Information (filed Aug. 5, 2008 in Al-Shibh v. Bush, No. 06-CV-1725 (EGS)) (dkt. no. 36). Pursuant to the request of the Court Security Officer responsible for the Guantanamo habeas cases, the proposed order also revises the list of CSOs assigned to these cases. See Proposed TS/SCI Protective Order ¶ 3. - 12 15
Detainee Habeas Cases Involving TS/SCI Material," tailored for counsel's receipt from petitioner and handling of information potentially classified as TS/SCI, see Proposed TS/SCI Protective Order, Ex. A ("TS/SCI Access Procedures"). Like the Standard Access Procedures, the TS/SCI Access Procedures require, for access to a detainee, an appropriate clearance level (TS/SCI) and verification of counsel's representation of the detainee.16 Compare Standard Access Procedures § III.A, C with TS/SCI Access Procedures ¶ 1.1. Further, under both the standard and TS/SCI Access Procedures, petitioner's counsel are required to comply with the procedures unless they are revised by the Court. Compare Standard Access Procedures § III.B with TS/SCI Access Procedures ¶ 1.2. Each set of procedures addresses counsel-detainee visit logistics. Compare Standard Access Procedures § III.D with TS/SCI Access Procedures ¶ 2. Also, like the standard access regime, the TS/SCI regime provides for a system of privileged legal mail between counsel and represented detainee. Under both regimes, legal mail sent to a detainee is subject to contraband inspection by a DoD Privilege Team, which cannot disclose the contents of such communications except as governed by the access procedures. Compare Standard Access Procedures §§ IV.A, VII.A with TS/SCI Access Procedures ¶¶ 3.1, 6.6, 6.7. Likewise, both regimes similarly restrict the content of legal mail sent to a detainee, prohibiting, unless "directly related" to the litigation, information relating to military, intelligence, security, or law enforcement operations; concerning current political events in any country; and information relating to security procedures at Guantánamo (including names of United States government personnel and the layout of camp facilities) and the status of other
At least one counsel for each of the three petitioners in these cases meets these requirements. - 13 -
detainees. Compare Standard Access Procedures §§ II.E, IV.A.7, V.B with TS/SCI Access Procedures ¶ 3.1.17 Both access regimes also reasonably require that non-legal mail and messages to or from a detainee not be sent through privileged legal mail channels, but rather through normal mail channels at Guantanamo. Compare Standard Access Procedures §§ IV.A.5, IV.B.5, VI.C with TS/SCI Access Procedures ¶¶ 3.2, 3.6. Also, both regimes permit counsel to bring legal mail materials and, if approved by Guantanamo, non-legal mail materials into meetings with detainees. Compare Standard Access Procedures § V.A with TS/SCI Access Procedures ¶ 4. Both regimes also make provision for methods and modes of transmission of presumptively classified counsel notes and materials from counsel-detainee meetings to the habeas counsel secure facility in the Washington, D.C., area. While, as discussed supra, the standard Access Procedures permit mailing of such materials (consistent with the handling of information classified at the SECRET level), the TS/SCI Access Procedures utilize privileged non-mail means of transmission appropriate to TS/SCI material. Compare Standard Access Procedures § VI with TS/SCI Access Procedures ¶¶ 1.4, 5.
The TS/SCI Access Procedures additionally prohibit from legal mail channels media and advocacy publications not directly related to the litigation, which, like the other banned information, have the potential to unnecessarily incite unrest and disturbance among the detainee population. See TS/SCI Access Procedures ¶ 3.1. This prohibition is contained in the protective order entered in petitioners' DTA litigation in the Court of Appeals. See DTA HVD Protective Order ¶ 3.I(iii)(d). The DTA protective order in the Court of Appeals also permits the DoD Privilege Team to redact the content of legal mail sent to a detainee in order to prevent the injection of inappropriate information into the detainee population. Id. ¶ 4; see Bismullah v. Gates, 501 F.3d 178, 188-89 (D.C. Cir. 2007), judgment vacated in light of Boumediene, 128 S. Ct. 2960 (2008). In light of petitioner's counsel's objections to such redaction provisions, and in order to facilitate the entry of a TS/SCI Protective Order in this Court, the redaction provision has been omitted from the TS/SCI Access Procedures proposed by respondents to the Court. - 14 -
Both regimes likewise provide for classification review of presumptively classified materials (involving information provided by a detainee to counsel) by the DoD Privilege Team, at counsel's request. Compare Standard Access Procedures §§ VII with TS/SCI Access Procedures ¶ 6.18 And both regimes similarly impose a nondisclosure obligation upon the DoD Privilege Team,19 with an exception for information threatening national security or reflecting imminent violence information that petitioner's counsel is likewise obligated to report. Compare Standard Access Procedures § VII.D, E, F; § IX.C with TS/SCI Access Procedures ¶¶ 6.6-6.8. Accordingly, the TS/SCI Access Procedures, tailored to account for the handling, transmission, and management of TS/SCI information, are a necessary and appropriate replacement for the Counsel Access Procedures appended as Exhibit A to the standard Amended Protective Order.
The TS/SCI Access Procedures permit the DoD Privilege Team, with petitioner's counsel's consent, to consult with individuals in appropriate federal agencies for the purpose of identifying classified information and appropriately marking materials submitted by counsel for classification review. See TS/SCI Access Procedures ¶ 6.2.1. This reflects the reality of limited expertise within the government as to classification issues related to the CIA detention program. Similarly, the Privilege Team can disclose disputes with counsel regarding legal mail if court intervention is sought by counsel to permit injection of inappropriate legal mail into the detainee population. Id. ¶ 6.6. A similar provision is contained in the protective order entered in petitioner's DTA litigation in the Court of Appeals. See Petr's Resp. Ex. C, ¶ 4.E. The DoD Privilege Team is permitted to disclose information to a Special Litigation Team that represents the Privilege Team as necessary in court. See TS/SCI Access Procedures ¶ 6.6. Of course, the Special Litigation Team operates under nondisclosure obligations similar to those of the Privilege Team. Id. Under the standard habeas protective order regime, disclosures to the Special Litigation Team are similarly permitted under orders entered by Magistrate Judge Kay creating the Special Litigation Team. See, e.g., Order (Feb. 2, 2006), Salahi v Bush, 05-CV569 (JR) (dkt. no. 49). See also DTA HVD Protective Order ¶ 4.F-J (DTA Protective Order similarly permitting disclosures to Special Litigation Team representing Privilege Team). - 15 19
The TS/SCI Protective Order proposed by respondents also appropriately revises the "need to know" provisions of the standard Amended Protective Order. See Proposed TS/SCI Protective Order ¶ 2. The standard Amended Protective Order regime provides for a presumed "need to know" between counsel in related Guantanamo detainee cases pending before the Court, see Amended Protective Order ¶ 29, but this is not appropriate in the unique context of these cases, which involve TS/SCI information. Such a presumed "need to know" is not only inappropriate generally, see, e.g., Dep't of Navy v. Egan, 484 U.S. 518, 527-30 (1988) (authority to control access to classified information is constitutionally vested in the President as head of the Executive Branch and Commander in Chief and should not be intruded upon by the courts "[f]or reasons . . . too obvious to call for enlarged discussion"), it is especially inappropriate in these cases, given the potential that information involved in the cases could require classification or treatment at a TS/SCI level based upon the possibility of "exceptionally grave damage" to national security and, beyond that, the determination that the information is so exceptionally sensitive that normal criteria for access and handling of even TOP SECRET information are not sufficient. See Dorn Decl. ¶¶ 8-10. Such a presumption, and placement of the burden upon the government to overcome the presumption in any particular situation (of which the government will not have advance, if any, notice), is improper in this unique context. Indeed, for Sensitive Compartmented Information, for which the normal criteria for access and handling of even TOP SECRET information are not sufficient, the need-to-know requirement is strictly enforced. A compartment is created only upon a determination that the normal criteria for classification are insufficient to protect the information. See Executive Order 12958, as amended, § 4.3(a). Even for government employees, holders of security clearances are - 16 -
not provided with access to compartmented information unless absolutely necessary. And even a person cleared into a compartment may not be given access to all the information in that compartment; they are given access to information only as they have a legitimate need to know it. Thus, a presumed need-to-know all TS/SCI information that may be learned by cleared counsel in various TS/SCI cases, such that such information may be shared between those counsel, is inappropriate. A presumed need-to-know hinders, indeed prevents, the protection of especially sensitive information, as there is no way to know what information has been shared; thus, any hope of addressing protection of that information would only come after an inappropriate disclosure has been made and somehow discovered. Such a system thus risks exactly what a sensitive compartment seeks to avoid the unauthorized disclosure of particularly sensitive information to individuals with no need to know that information. While there certainly may be information that could be shared between cleared counsel, that determination should be made on a case-by-case basis.20 The elimination of the presumed need-to-know in the TS/SCI Protective Order does not prevent counsel seeking, even in a privileged fashion, requests for authorization from appropriate officials to disclose TS/SCI information to appropriately cleared counsel in other TS/SCI cases or to receive such information from them.21 In the unique and especially sensitive circumstances of this case, involving TS/SCI
Indeed, several requests to share information between cleared petitioners' counsel in the DTA context have been considered and consented to by the government. Petitioners' argument that a presumed need-to-know is necessary so as to permit assessment of the credibility or circumstances of statements made by detainees that the government may use in its habeas cases, see Joint Report in Response to Court's July 11, 2008 Scheduling Order at 6 (filed Jul. 21, 2008 in Misc. No. 08-0442), is premature since the government has yet to file final factual returns in the cases. A presumed need-to-know, in the special circumstances of this case involving TS/SCI information, should not be imposed - 17 21
information, for which the normal criteria for access and handling of even TOP SECRET information are not sufficient, such a regime, whereby need-to-know is not presumed, but rather permission to share is sought on a case-by-case basis, is necessary and appropriate. See Boumediene, 128 S. Ct. at 2276 ("[T]he Government [in the Guantanamo habeas cases] has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible."); see also supra note 12. CONCLUSION For the foregoing reasons, the Court should enter the TS/SCI Protective Order submitted by respondents herewith.22 The proposed order is attached.
prematurely or based on speculation, if ever. Entry of the TS/SCI Protective Order submitted by respondents would render moot petitioner Khan's Motion for Order Directing Court Security Office to File Supplemental Status Report in Khan v. Bush, No. 06-CV-1690 (filed Aug. 4, 2008). In that motion, petitioner Khan seeks an order directing the filing of a supplemental status report petitioner previously lodged with the Court Security Officer in the Khan case, claiming that the government has previously objected to this Court having access to the supplemental status report. The government, however, has never objected to this Court having access through appropriate means to presumptively TS/SCI information from a petitioner. (For example, the government permitted such information to be provided to the Court in the Zalita case discussed supra. And even here, the question is not Court access, but rather whether the information that was lodged with the Court Security Officer and is available to the Court should be formally filed.) The government, rather, has noted that information obtained by petitioner's counsel under the auspices of the DTA HVD Protective Order is constrained by the terms of that protective order and could only be handled, as of right, consistent with the terms of that order, which does not authorize the filing of classified materials obtained in that case in other courts or in other cases. See Joint Status Report ¶ 6 (filed Jun. 27, 2008 in Khan v. Bush, No. 06-CV-1690) (dkt. no. 42). The government has consistently maintained that entry of a protective order regime specifically tailored for the handling of TS/SCI is needed in petitioner Khan's case, as is appropriate. - 18 22
Dated: August 18, 2008
Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JOHN C. O'QUINN Deputy Assistant Attorney General /s/ Terry M. Henry JOSEPH H. HUNT (D.C. Bar No. 431134) VINCENT M. GARVEY (D.C. Bar No. 127191) JUDRY L. SUBAR (D.C. Bar No. 347518) TERRY M. HENRY ANDREW I. WARDEN Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 Tel: (202) 514-4107 Attorneys for Respondents
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