IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 264

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 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

PROTECTIVE ORDER PERTAINING TO CERTAIN CASES INVOLVING TOP SECRET / SENSITIVE COMPARTMENTED INFORMATION ("TS/SCI PROTECTIVE ORDER") The Court finds that this case involves national security information or documents, including TOP SECRET/ SENSITIVE COMPARTED INFORMATION ("TS/SCI"), the storage, handling, and control of which require special security precautions, and access to which requires an appropriate security clearance and a "need to know." This case may also involve other protected information or documents, the storage, handling and control of which may require special precautions in order to protect the security of United States personnel and facilities, and other significant interests. Accordingly, in order to protect national security interests and for good cause shown, IT IS SO ORDERED: 1. The following orders previously entered in these and other Guantanamo Bay

detainee habeas corpus cases apply in this case, except as otherwise provided in this TS/SCI Protective Order: (1) the Amended Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantánamo Bay, Cuba, first issued on November 8, 2004, 344 F. Supp. 2d 174 (D.D.C. 2004) ("Amended Protective Order"); the Order Addressing Designation Procedures for "Protected Information," first issued on November 10,

2004; and (3) the Order Supplementing and Amending Filing Procedures Contained in November 8, 2004 Amended Protective Order, first issued on December 13, 2004. 2. The Guantanamo Procedure Guide for Counsel Access in Detainee Habeas Cases

Involving TS/SCI Material, attached hereto as Exhibit A to this TS/SCI Protective Order, shall apply in this case in the place of Exhibit A to the Amended Protective Order for governing counsel access to detainees in the control of the Department of Defense ("DoD") at the U.S. Naval Base at Guantanamo Bay, Cuba, for purposes of litigating this case. 3. read: The Court designates Christine E. Gunning as Court Security Officer for these cases, and Jennifer H. Campbell, Miguel A. Ferrer, Daniel O. Hartenstine, Erin E. Hogarty, Nathaniel A. Johnson, Joan B. Kennedy, James P. Londergan, Michael P. Macisso and Barbara J. Russell as alternate court security officers for the purpose of providing security arrangements necessary to prevent the unauthorized disclosure of any classified documents or information, or protected documents or information, to be made available in connection with these cases. Petitioners' counsel shall seek guidance from the Court Security Officer with regard to appropriate storage, handling, transmittal, and use of classified documents or information. Paragraph 16 of the Amended Protective Order shall be modified in this case to

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4.

Paragraph 29 of the Amended Protective Order shall be modified in this case to

delete the second, third, and fourth sentences of that paragraph. SO ORDERED.

Dated: _________________

___________________________________ Thomas F. Hogan United States District Judge

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Exhibit A

G U A N T A N A M O PROCEDURE GUIDE FOR COUNSEL ACCESS IN DETAINEE HABEAS CASES INVOLVING TS/SCI M A T E R IA L 1. Acknowledgment of and Compliance with Access and Information Handling Procedures 1.1 Before being granted access to certain designated detainees whose cases may involve m a t e r i a l classified as Top Secret/Sensitive Compartmented Information (hereinafter "TS/SCI"), P e t i ti o n e r ' s Counsel (hereinafter "counsel"), will receive a copy of this Guantanamo Procedure G u id e for Counsel Access in Detainee Habeas Cases Involving TS/SCI Material. To have access to designated detainees, counsel must agree to comply fully with all procedures in this Guide. C o u n s e l must also sign the attached affirmation acknowledging his/her agreement to comply, h a v e the necessary security clearances, and present the Department of Justice adequate evidence o f authorization to represent the detainee or the next-friend petitioner. 1.2 This affirmation will not be considered an acknowledgment by counsel that the p ro c e d u re s within this Guide are legally permissible. However, even if counsel elects to challenge th e se procedures, counsel may not knowingly disobey an obligation imposed by these procedures u n til such time, if any, that the procedures are modified or revoked by the United States D e p a r tm e n t of Defense or by a United States District Court or Court of Appeals, or the United S t a t e s Supreme Court. 1.3 Commander, Joint Task Force-Guantanamo (hereinafter "JTF-GTMO") may suspend th e privilege of visiting Guantanamo if he determines a violation of this Guide has occurred or in other appropriate circumstances. Violation of this Guide could also provide grounds for

re v o c a tio n of counsel's security clearance. This Guide is published in an effort to facilitate c o u n s el' s access to their clients and is consistent with the current TS/SCI Protective Order e s ta b lis h e d in the Guantanamo detainee habeas cases (hereinafter "TS/SCI Protective Order"). H o w e v e r, it is not intended and does not purport to establish any substantive or procedural rights

for detainees. Moreover, nothing in this Guide shall limit the authority of the Commander of JTFG T M O to require the imposition of additional security procedures, relating to access to the d e ta in e e based on operational requirements, security needs and military resources at JTF-GTMO. C o u n s e l will be advised of any such changes as soon as practicable. 1.4 All documents containing information about or related to material classified as T S /S C I must be handled in accordance with the security procedures established in the TS/SCI P ro te c tiv e Order and this Guide. Materials classified as TS/SCI shall not be handled by counsel o u ts id e designated areas while at Guantanamo. All classified material created by an attorney or th e detainee that is related to a detainee's case will be transmitted from Guantanamo to W a sh in g to n , D.C. via secure point­to-point electronic transmission, or via USG designated c o u r ie r in a sealed container, designed to protect attorney-client confidentiality. (Because these m a te ria ls must be handled TS/SCI, they cannot be transmitted by mail.) Classified information th a t is transported at Guantanamo shall be handled in accordance with the security procedures e sta b l is h e d in of the TS/SCI Protective Order and this Guide 2. Logistics of Counsel Visit 2.1 Issues related to logistics of counsel visits not addressed by the TS/SCI Protective O rd e r or this Guide are governed by procedures applicable to visits of counsel representing other G u a n t a n a m o detainees. 3. Mail Procedures A. Mail Sent by Counsel for Delivery to Detainee (Incoming Mail) Legal Mail 3.1 Legal mail consists of correspondence between counsel and a detainee related to c o u n s el' s representation of the detainee, as well as privileged documents and publicly filed legal d o c u m e n ts relating to that representation. Legal mail is to be processed in accordance with the T S /S C I Protective Order and subject to security review for contraband by the DoD Privilege T e a m . Written and oral communications with a detainee, including all incoming legal mail, shall

not include any of the following information, in any form, unless directly related to the litigation o f this action: information relating to any ongoing or completed military, intelligence, security, or la w enforcement operations, investigations, or arrests, or the results of such activities, by any n a tio n or agency; information relating to current political events in any country; information re la tin g to security procedures at the Guantánamo Naval Base (including names of United States g o v e r n m e n t personnel and the layout of camp facilities); the status of other detainees; p u b lic a t io n s , articles, reports, or other such material including newspaper or other media articles, p a m p h le ts , brochures, and publications by nongovernmental or advocacy organizations, or any d e sc rip tio n s of such material. C o u n s el shall send incoming legal mail for a detainee to the DoD Privilege Team (re fe re n c e d in the Amended Protective Order and Procedures for Counsel Access to Detainees at th e United States Naval Base in Guantánamo Bay, Cuba, first issued on November 8, 2004, 344 F . Supp. 2d 174 (D.D.C. 2004)) at an address supplied by the government. Each envelope or m a ile r shall be labeled with the name and Internment Serial Number (ISN) of the detainee and s h a ll include a return address for counsel sending the materials. The outside of the envelope or m a ile r for incoming legal mail shall be labeled clearly with the following annotation: "AttorneyD e ta in e e Materials-For Mail Delivery to Detainee." Each page of legal mail shall be labeled " A tto rn e y-D e ta in e e Materials." No staples, paper clips or any non-paper items shall be included w i th the documents. Upon receiving legal mail, the DoD Privilege Team shall open the envelope or mailer to s e a r c h the contents for prohibited contraband. Following its review, the DoD Privilege Team shall send legal mail approved for delivery to the detainee to personnel at Guantanamo Bay. The DoD Privilege Team is not required to send le g a l mail to personnel at Guantanamo Bay in the event of a dispute with counsel regarding the p re s e n c e of contraband. Each page of legal mail that is approved for delivery to the detainee by D o D Privilege Team shall be marked/stamped "Legal Mail Approved by Privilege Team" and

placed in a sealed envelope bearing the same marking on the exterior. Within three (3) business d a ys of receipt of legal mail from the DoD Privilege Team, personnel at Guantanamo shall d e liv e r the envelope bearing the approved DoD Privilege Team marking to the detainee without o p e n i n g the envelope. In the event an envelope approved by the DoD Privilege Team arrives at G u a n ta n a m o bearing evidence of tampering or physical contraband, JTF-GTMO personnel retain th e authority to return the envelope, without opening it, to the DoD Privilege Team for a p p r o p r i a t e action. The detainee shall be responsible for mailing any confirmation of delivery to counsel as o u tg o in g legal mail. This method shall be the sole and exclusive means by which confirmation of d e l i v e r y is provided to counsel. Non-Legal Mail 3.2 Written correspondence to a detainee not falling within the legal mail definition of the T S /S C I Protective Order (also referred to as "non-legal mail") shall be sent through the United S ta te s Postal Service to the following address: Detainee's Name and ISN, U.S. Naval Base, G u a n ta n a m o Bay, Cuba, Washington, D.C. 20355. These non-privileged communications will be re v ie w e d by military personnel at Guantanamo under the standard operating procedures for d e ta in e e non-legal mail. B . Mail Sent by Detainee to Counsel (Outgoing Legal Mail) Legal Mail (All such Legal Mail is Presum p t iv e l y TS/SCI) 3.3 Guantanamo will provide each detainee with paper to prepare legal mail c o m m u n ic a tio n s to counsel. Access to such items may be limited or restricted because of the d e ta in e e ' s disciplinary and/or medical status, although a detainee's disciplinary and/or medical s ta tu s shall not be a basis for denying all access to such items. Any outgoing legal mail will be h a n d l e d as if it is classified at the TS/SCI level, as defined by the TS/SCI Protective Order, p e n d i n g an appropriate classification review of the legal mail by a DoD Privilege Team member.

3.4 When legal mail is ready to be sent, the detainee will notify the guard staff, who will c o n ta c t the SJA legal mail clerk. In the presence of the SJA legal mail clerk, the detainee will d o u b le -w ra p all legal mail. Each envelope will be annotated with the words "Attorney-Detainee M a te ria ls -F o r Delivery To Counsel." Each envelope shall be labeled with the name of the d e t a i n e e , the detainee's ISN, and the name of the detainee's counsel. 3.5 The SJA mail clerk will place the outgoing mail into a courier bag, which will then be lo c k e d , and hand delivered to a DoD Privilege Team member at Guantanamo. The DoD Privilege T e a m member will send all approved legal mail to the secure facility in Washington, D.C., th ro u g h a secure electronic point-to-point transfer system in a manner designed to protect the c la s s if ie d material as well as attorney-client confidentiality. All originals of legal mail sent by a d e ta in e e will be stored in a safe located in the secure area in Guantanamo in a manner designed to p ro te c t classified material as well as attorney-client confidentiality. The DoD Privilege Team will n o tify counsel via email when legal mail has been received at the secure facility in Washington D .C . Non-Legal Mail 3.6 Non-legal mail communications and combined non-legal/legal mail communications fro m detainees, including written communications to persons other than counsel, shall be sent th ro u g h the United States Postal Service and are subject to ordinary review by military personnel a t Guantanamo under the standard operating procedures for detainee non-legal mail. Any e n v e lo p e or communication submitted by a detainee to Guantanamo personnel for mailing will be p ro c e ss ed as non-legal mail unless the envelope or communication meets the criteria for legal m a i l listed above. In the event any non-legal correspondence or messages from a detainee to individuals o th e r than his counsel (including but not limited to family/friends or other attorneys) or c o m m u n ic a tio n s not generated by the detainee (e.g., notes from other detainees) are sent to c o u n s e l as legal mail, the DoD Privilege Team shall notify counsel that the material will not be

processed and the DoD Privilege Team shall return the communication to Guantanamo for p ro c e s s in g according to the standard operating procedures for detainee non-legal mail. In the e v e n t non-legal communications are included with legal mail communications such that the nonle g a l mail communication cannot be segregated and returned to Guantanamo for processing in a c c o rd a n c e with standard operating procedures for non-legal mail, the DoD Privilege Team shall r e d a c t or screen out any material not meeting the definition of "Legal Mail." C la s s if ie d information may not be sent through non-legal mail channels. 4 . Materials Brought Into a Meeting between Counsel and Detainee 4.1 Counsel shall bring only writing utensils, and blank paper into any meeting with a d e ta in e e , unless counsel has received prior approval from Commander, JTF- GTMO. Blank paper m a y not be left with the detainee. A. Categories of Materials Legal Mail 4.2 All legal mail counsel seeks to bring to a meeting with a detainee must be processed p u rs u a n t to the general procedures set out in § 3.A of this document. Each page of legal mail that c o u n s el seek to bring into a meeting with a detainee following screening by the DoD Privilege T e a m must be marked/stamped by the DoD Privilege Team with the following annotation: "Legal M a il Approved by Privilege Team." Commander, JTF-GTMO, after confirming that the materials a re stamped as indicated above, will permit counsel to bring stamped materials into a meeting w i th a detainee-client subject to the contraband screening policies discussed above. Counsel are r e s p o n s i b l e for submitting to the DoD Privilege Team any legal mail that they seek to hand-carry in to the meeting that they seek to have reviewed by the DoD Privilege Team twenty-one (21) d a ys in advance of counsel's scheduled visit in order to allow the DoD Privilege Team to review th e documents and return them to counsel.

Non-Legal Mail 4.3 With the exception of writing utensils, blank paper, and legal mail screened as d is c u s s e d above, any communications or physical items that counsel seek to bring into a meeting m u s t be approved in advance by the Commander, JTF-GTMO. All such non-legal items s u b m itte d for advanced review in connection with a counsel visit must be received by G u a n t a n a m o through the United States Postal Service twenty-one (21) days in advance of c o u n s e l' s requested visit. Counsel may send non-legal materials to the following address: D e ta in e e 's Name and ISN, U.S. Naval Base, Guantanamo Bay, Cuba, Washington, D.C. 20355. R e v ie w of this material will be conducted as resources allow and include both a physical c o n tra b a n d inspection as well as a substantive review of any written content. There is no g u a ra n te e that this non-legal material will be processed and approved in advance of a visit. N o n e th e le ss , providing material in advance will speed up processing and increase the likelihood th a t material requested will be allowed to be carried into a meeting with the detainee. F o o d Item s 4.4 Counsel may bring food items into a meeting, but all authorized food items must be c o n s u m e d during the visit or removed by counsel. JTF-GTMO personnel will inspect all food i te m s . Any food item may not be allowed into a meeting location if it is determined by guard p e r s o n n e l that the proposed items constitute a hazard or other security issue. Counsel must ensure th a t all food items not consumed and packaging and debris are collected from the meeting area p rio r to each departure. Counsel agree to notify the guards if the detainee keeps and/or refuses to r e t u r n any item brought in by counsel that the detainee is not authorized to keep. Failure to notify th e guards can result in a loss of the privilege to bring food items to future meetings. Flowers, b a llo o n s and other similar items are expressly prohibited. 5 . Materials Brought Out of a Meeting between Counsel and Detainee 5.1 Upon completion of each meeting with a detainee or during any break in a meeting s e s s io n , the notes or documents carried into, used or produced during the meeting, except those

left in the possession of the detainee, shall be transported to the secure area, and placed in a safe in a manner designed to protect classified material and attorney-client confidentiality. These m a t e r i a l s will be sealed in the presence of counsel and handled as TS/SCI material. 5.2 If further counsel-detainee meetings are scheduled where these materials may be u s ed , counsel will advise on which materials the counsel wants to take into the next meeting. T h e se materials will be placed in a separate envelope and made available to the counsel for use at t h e next meeting. 5.3 All materials coming out of the counsel-detainee meeting are presumptively TS/SCI, e v e n if the document was unclassified going into the meeting (to account for, among other things, th e possible addition of notations to the materials during the meeting). Upon completion of the c o u n se l's visit to JTF-GTMO, the DoD Privilege Team member in Guantanamo will conduct a re v ie w to determine that any originally unclassified documents have not been modified in any w a y. Unclassified materials will be mailed to an address designated by counsel, or, if no such a d d re s s has been designated, to the secure facility in Washington, DC. Other materials shall be s en t by the Privilege Team or by courier to the Washington, D.C., secure facility in accordance w i th governing security regulations. 5.4 For other material coming out of the counsel-detainee meeting, the DoD Privilege T e a m will send English language documents containing any potentially classified information to th e secure facility in Washington, D.C. through a secure electronic point-to-point transfer system, o r via USG designated courier in a sealed container, in a manner designed to protect classified m a te ria l and attorney-client confidentiality. All foreign language materials will be sent to the s e c u r e facility in Washington, D.C. through this same electronic mechanism. The original notes, d o c u m e n ts , and other materials shall be stored in a safe located within the secure area at JTFG u a n ta n a m o , in a manner designed to protect classified material and attorney-client c o n fid e n tia lity. The DoD Privilege Team will notify counsel via email when the electronically t r a n s m i tt e d materials have been received at the secure facility in Washington, D.C.

5.5 Non-legal mail communications provided to the DoD Privilege Team by counsel f o l lo w i n g a visit shall be processed as non-legal mail . 5.6 During a meeting with a detainee, counsel may provide the detainee with any written d o c u m e n ts that were approved to be brought into the meeting. The detainee will be permitted to b rin g all such privileged documents back to his cell at the conclusion of the meeting, subject to an a p p ro p ria te contraband review by JTF-GTMO. The detainee may also bring back to his cell any d o c u m e n t s , notes, or communications created by the detainee and/or counsel during the course of t h e meeting, subject to an appropriate contraband review by JTF-GTMO. 6. Classification Determination of Communications between Counsel and Detainee 6.1 Subject to the review described above, all information provided and materials sent by a detainee to counsel or brought out of a meeting by counsel will be handled and treated as c l a s s i f ie d at the TS/SCI level, pending an appropriate classification review. A. Classification Request of Detainee Communications 6 .2 Counsel may submit information learned from a detainee to the DoD Privilege Team lo c a te d at the secure facility in the Washington, DC area. for a classification and security review w h ic h may result in a determination of its appropriate security classification and whether it c o n t a in s protected material. Counsel shall memorialize the information submitted for

c la ss ific a tio n and security review into a written memorandum outlining as specifically as possible th e information for which counsel requests a classification determination. All documents s u b m i t t e d for classification and security review shall be prepared, handled and treated in the m a n n e r required for classified materials, as required by Executive Order 12958 (as amended), D O D Regulation 5200.1-R and AI 26, OSD Information Security Supplement to DOD R e g u l a t io n 5200.1R. 6.2.1 With the consent of counsel, the DOD Privilege Team may consult with an

in d iv id u a l or individuals in appropriate federal agencies for the purpose of identifying classified

information and marking the documents with the appropriate classification. If counsel does not c o n se n t to such consultation, information for which consultation is required will remain c la s s ifie d . Any such consultation will not waive attorney client, attorney work product, or any o th e r applicable privilege. Further, the individual consulted for such purposes will not share the i n f o r m a t io n with other government lawyers and/or officers involved in the litigation of this or o th e r matters involving the petitioner, and the information shall not be used as a result of the c o n su lta tio n in the interrogation or investigation of petitioner. If the individual consulted is i n v o lv e d in the classification review of other documents, that individual may have discussions c o n c e rn in g such documents with government lawyers and/or officers involved in this and other m a tte rs involving the petitioner on condition that such discussions be for the sole purpose of c la s s if ic a t io n review of such documents. 6 . 3 M a t e r i a ls provided by counsel to the DoD Privilege Team must be in legible h a n d w ritin g or transcribed by typewriter or computer. Materials that the DoD Privilege Team d e te rm in e s are not legible will be returned to the secure facility and counsel will be required to tra n sc rib e those materials into type-written form. Materials that are not in English must be a c co m p a n i e d by an English translation. Each page of the document submitted for classification re v ie w shall be marked "Attorney-Detainee Materials" and "Classified." Materials that do not c o m p ly with any of these requirements will not be processed, and will be returned to counsel at t h e secure facility within five (5) business days. 6.4 As soon as possible after conducting the classification and security review, the DoD P r iv ile g e Team shall advise counsel of the classification levels of the information contained in the m a te ria ls submitted for review. The DoD Privilege Team will also designate material as " p r o te c t e d . " Pursuant to the TS/SCI Protective Order, counsel shall not publicly disclose

i n f o r m a t i o n designated as "protected." If counsel seeks to use the information in a public court filin g , the document should be filed through the Court Security Officer and the Government then

have the opportunity to have the material maintained under seal as protected (pursuant to the T S / S C I Protective Order). 6.5 The DoD Privilege Team shall not be required to perform classification review of any c o m m u n ic a tio n s that fall outside the scope of legal mail, as defined by the TS/SCI Protective O rd e r. Communications not reviewed by the DoD Privilege Team shall remain presumptively c l a s s i f ie d . 6.6 The DoD Privilege Team may not disclose a communication from counsel to the d e t a i n e e or from the detainee to his counsel other than information provided in a filing with the C o u rt and served on government counsel, unless the disclosure of such information is authorized b y this or another order of the Court or by petitioner's counsel or is to the Special Litigation T e a m representing the DoD Privilege Team. The Special Litigation Team likewise may not

d is c lo s e information provided by the DoD Privilege Team, or any information submitted by c o u n s el to the DoD Privilege Team for review, except as provided by this Order or as permitted b y counsel or by the Court. The DoD Privilege Team may, through the Special Litigation Team in fo rm the Court of any issues or problems related to the release or processing of information r e l a t e d to this case. In the event a dispute regarding aspects of legal mail sent from counsel to a d e ta in e e cannot be resolved with counsel and counsel seeks the intervention of this Court, the D o D Privilege Team may disclose the material at issue to the Commander, JTF-Guantánamo N a v a l Base or his representatives, including counsel for the Government. 6.7 If, at any time, the DoD Privilege Team determines that information in the

d o c u m e n ts submitted by counsel involve any future event that threatens national security or is l ik e l y to involve violence, the DoD Privilege Team will disclose this information to Commander, J T F -G T M O . 6.8 Petitioner's counsel shall disclose to government counsel or Commander, JTF-

G T M O any information learned from a detainee involving future events that threaten national s ec u r ity or involve imminent violence.

ACKNOWLEDGMENT The undersigned hereby acknowledges that he/she has read the Guantanamo Procedure Guide for C o u n s e l Access in Detainee Habeas Cases Involving TS/SCI Material , understands its terms, and a g re e s to be bound by each of those terms. The undersigned acknowledges that his/her duties u n d e r the Guantanamo Procedure Guide for Counsel Access in Detainee Habeas Cases Involving T S /S C I Material shall survive the termination of this case, are permanently binding, and that fa ilu re to comply with the terms of the Guantanamo Procedure Guide for Counsel Access in D e ta in e e Habeas Cases Involving TS/SCI Material could provide grounds for revocation of c o u n s e l ' s security clearance and/or suspension or termination of counsel's access to Guantanamo.

DATED: ______________________ BY: _________________________ (type or print name)

SIGNED:______________________