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Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 1 of 34

PROTECTIVE ORDER

March 4, 2011

AND

PROCEDURES FOR COUNSEL ACCESS TO DETAINEES
SUBJECT TO MILITARY COMMISSION PROSECUTION

AT THE UNITED STATES NAVAL STATION

IN GUANTANAMO BAY, CUBA

For purposes of litigating cases before military commissions, the following

Protective Order (Section I) and Procedures for Counsel Access to Detainees at the U.S.
Naval Station in Guantanamo Bay, Cuba (Section II), establish procedures for protecting
personal security, safeguarding protected and national security information and
documents, and for counsel access to all detainees in the control ofthe Department of
Defense ("DoD") at the U.S. Naval Station in Guantanamo Bay, Cuba ("GTMO"). These
rules for access are intended to be consistent, to the extent practicable, with the Protective
Order and Requirements for Access to Detainees at the United States Naval Station,
Guantanamo Bay, Cuba, issued by the United States District Court for the District of
Columbia on September 11, 2008, and the Amended Protective Order for Habeas Cases
Involving Top Secret/Sensitive Compartmented Information and Procedures for Counsel
Access to Detainees at the United States Naval Station in Guantanamo Bay, Cuba, in
Habeas Cases Involving Top Secret/Sensitive Compartmented Information issued by the
United States District Court for the District ofColumbia on January 9,2009.

WHEREAS, the cases brought against those currently detained at Guantanamo

Bay, Cuba, often involve national security information or documents, the storage,
handling, and control of which require special security precautions; and

WHEREAS, access to national security information or documents requires both a

security clearance and a "need to know"; and

WHEREAS, the detainee cases might also involve other protected information or
documents, the storage, handling, and control ofwhich might require special precautions
in order to protect the security ofthe United States and other significant interests; and
WHEREAS, detainees have actions pending in the United States District Court
for the District of Columbia, and the United States Court of Appeals for the District of
Columbia, and these courts have established procedures to protect personal security,
national security information, and protected information; and

WHEREAS, on September 11, 2008, the United States District Court for the
District ofColumbia issued a Protective Order and Procedures for Counsel Access to
Detainees at the United States Naval Station in Guantanamo Bay, Cuba, 577 F.Supp.2d
143 (D. D.C. 2008)(Hogan, J.) in the habeas proceedings brought by detainees at
Guantanamo, and on January 9, 2009, issued the Amended Protective Order for Habeas
Cases Involving Top Secret/Sensitive Compartmented Information and Procedures for

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Counsel Access to Detainees at the United States Naval Station in Guantanamo Bay,
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 2 of 34
Cuba, in Habeas Cases Involving Top Secret/Sensitive Compartmented Information; and
WHEREAS, the U.S. Bureau of Prisons has the general authority and obligation
to regulate access, both social and legal, to its detainee populations "to ensure the safety,
security and orderly operation ofBureau of Prisons facilities, and to protect the public,"
and also has the authority and responsibility to impose Special Administrative Measures
that are "reasonably necessary to protect persons against the risk ofdeath or serious
bodily injury," 28 C.F.R Sec. 50L3(a), and, in particular, to prevent detainees suspected
ofterrorist acts from directing or facilitating further acts of terrorism while in detention,
see, e.g., United States v. Lynne Stewart, 590 F.3d 93 (2d Cir. 2009); and

WHEREAS, detainees at GTMO include those suspected of terrorist acts and, in
my judgment, regulations similar to Special Administrative Measures are appropriate and
necessary at GTMO for purposes ofcases brought before military commissions; and

WHEREAS, on May 19,2008, the Commander ofJoint Task Force-

Guantanamo issued a practices guide regarding visitation between Military Commissions
counsel and detainees, which required, among other things, a cursory review oflegal
mail, and contemplated the possibility that a Privilege Team could be created in the
future; and

WHEREAS, on March 2, 2011, the Commander ofJoint Task Force-Guantanamo
issued a memorandum indicating the necessity for a Protective Order for military
commissions which recommended, inter alia, that the Convening Authority for military
commissions issue a Protective Order creating a Privilege Team for military commissions
modeled after the one used for habeas cases, to screen materials provided by defense
counsel to their clients; and

WHEREAS, it is desirable that appropriate security measures be employed

consistently and uniformly in all cases; and

WHEREAS, as the Director, Office of the Convening Authority, and the
Convening Authority for Military Commissions, I am responsible for establishing
procedures to ensure the security of personnel involved in military commission
prosecutions and to protect national security information and protected information
involved in those prosecutions;
THEREFORE:

To protect personal security, national security information and documents, and
protected information, I establish the following Protective Order and Requirements for
Access to Detainees.

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Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 3 of 34

I. PROTECTIVE ORDER

A. Overview and Applicability
1. This Protective Order establishes procedures that must be followed by detainees and
their respective counsel, all others involved in the defense ofcommissions cases,
including foreign attorney consultants, interpreters and translators, witnesses, experts,
consultants, support personnel, and all other individuals who, in connection with the
defense ofcommissions cases, receive access to classified national security information
or documents or other protected information in connection with military commissions.
This Protective Order does not apply to counsel representing detainees in habeas
proceedings in the United States District Court for the District of Columbia or the United
States Court of Appeals for the District ofColumbia. Ifa detainee's counsel represents a
detainee in habeas proceedings in the United States District Court for the District of
Columbia or the United States Court ofAppeals for the District ofColumbia and also
represents the detainee under the Military Commissions Act, 10 U.S.C. § 948k(a)(3), the
Protective Orders issued by the United States District Court for the District ofColumbia
or the United States Court ofAppeals for the District ofColumbia shall control matters
related to the habeas proceedings, and the provisions ofthis Protective Order shall apply
to matters relating to military commissions. This Protective Order must also be adhered
to by the Privilege Team as defmed in (cid:0)
(cid:0) 58, infra. All other persons not included in this
paragraph are subject to the orders and procedures ofthe Commander, Joint Task Force-
Guantanamo (JTF-GTMO).
2. The procedures set forth in this Protective Order apply to all aspects ofthe military
commission process and may be modified by further order or upon application by any
party. The Convening Authority for military commissions retains the authority to enforce
or modify the terms ofthis Protective Order. Once charges are referred to trial by military
commission, the terms ofthis Protective Order and Procedures for Counsel Access will
be subject to the requirements ofapplicable statutes and orders ofa court or commission
ofcompetent jurisdiction, including, but not limited to, the Military Commissions Act of
2009 (10 U.S.C. §§ 949p-l, et seq.) and Military Commissions Rule ofEvidence 505.
3. Nothing in this Protective Order precludes the government's use of classified
information as otherwise authorized by law outside of these matters.
4. Counsel for detainees are responsible for advising their client, their support staff,
interpreters, translators, witnesses, experts, consultants, employees, and all others
involved in the defense ofthe client of this Protective Order's contents.
5. Counsel for detainees are bound by the terms and conditions set forth in the Procedures
for Counsel Access, Section II, infra. This Protective Order specifically incorporates by
reference all terms and conditions established in the procedures contained in the
Procedures for Counsel Access. Any violation ofthose terms and conditions will also be
deemed a violation ofthis Protective Order.

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6. The Privilege Team is hereby created pursuant to the provisions of this protective
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 4 of 34
Order and Procedures for Counsel Access. Members ofthe Privilege Team shall not
disclose to any person any information provided by a detainee or detainee's counsel,
other than information provided in a filing with the Court, except as provided in, and
consistent with, the provisions of the Procedures for Counsel Access, (cid:0)
(cid:0) 84-86, infra.
B. Definitions
7. As used in this Protective Order, the words "documents" and "information" include,
but are not limited to, all written or printed matter ofany kind, formal or informal,
including originals, conforming copies and non-conforming copies, whether different
from the original by reason ofnotation made on such copies or otherwise, and further
include, but are not limited to:

a. papers, correspondence, memoranda, notes, letters, reports, summaries,
photographs, maps, charts, graphs, interoffice and intra-office communications,
notations of any sort concerning conversations, meetings, or other
communications, bulletins, teletypes, telegrams, facsimiles, invoices, worksheets,
and drafts, alterations, modifications, changes, and amendments of any kind to the
foregoing;
b. graphic or oral records or representations of any kind, including, but not limited
to, photographs, charts, graphs, microfiche, microfilm, videotapes, sound
recordings of any kind, and motion pictures;
c. electronic, mechanical or electric records of any kind, including, but not limited
to, tapes, cassettes, disks, recordings, electronic mail, films, typewriter ribbons,
word processing or other computer tapes or disks, and all manner ofelectronic
data processing storage; and
d. information acquired orally.

8. The terms "classified national security information and/or documents," "classified
information" and "classified documents" mean:

a. any classified document or information that was classified by any Executive
Branch agency in the interests ofnational security or pursuant to Executive Order,
including Executive Order 13526, as amended, or its predecessor Orders, as
"CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally controlled
as "SENSITIVE COMPARTMENTED INFORMATION (SCI)," or any
classified information contained in such document;
b. any document or information, regardless of its physical form or characteristics,
now or formerly in the possession ofa private party that was derived from United
States government information that was classified, regardless of whether such
document or information has subsequently been classified by the government

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(cid:0)
pursuant to Executive Order, including Executive Order 13526, as amended, or its
predecessor Orders, as "CONFIDENTIAL," "SECRET," or "TOP SECRET," or
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 5 of 34
additionally controlled as "SENSITIVE COMPARTMENTED INFORMATION
(SCI)";
c. verbal or non-documentary classified information known to detainees or
detainees' counsel; or
d. any document and information as to which detainees or detainees' counsel were
notified orally or in writing that such document or information contains classified
information.

9. All classified documents, and information contained therein, shall remain classified
unless the documents bear a clear indication that they were declassified by the agency or
department that is the original classification authority of the document or the information
contained therein (hereinafter, "original classification authority").
10. The terms "protected information and/or documents," "protected information/' and
"protected documents" mean any document or information, including controlled
unclassified information, designated by the government as not suitable for public filing,
subject to the procedures in mr 34 through 45 ofthis Protective Order.
11. As used in this Protective Order, the term "detainee's counsel" or "detainees'
counsel" includes attorneys employed or retained by or on behalf ofa detainee for
purposes ofrepresenting the detainee under the Military Commissions Act of 2009, 10
U.S.C. § 948k(a)(3), as well as co-counsel, foreign attorney consultants, interpreters and
translators, paralegals, investigators, experts, consultants, witnesses, and all other
personnel or support staff employed or engaged to assist in the defense ofthe detainee in
military commissions. Requirements and procedures in Section I.D and Section I.E for
security clearances and access to protected information apply to all members ofthe staff
just described, regardless ofwhether they have direct contact with detainees, and must be
accomplished before each person is allowed access to classified or protected information.
12. "Access to classified information" or "access to protected information" means having
access to, reviewing, reading, learning, or otherwise coming to know in any manner any
classified information or protected information.
13. "Secure area" means a physical facility accredited or approved for the storage,
handling, and control ofclassified information.
14. "Unauthorized disclosure ofclassified information" means any knowing, willful, or
negligent action that could reasonably be expected to result in a communication or
physical transfer ofclassified information to an unauthorized recipient.

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Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 6 of 34

C. Designation of Commission Security Officers/Special Security Officers
15. Security officers will assist the parties in complying with requirements for protecting
national security information.

a. I designate Michael Stephens, Teresa Woodard and Priscilla Matos as Special
Security Officers (collectively, "SSO") for the purpose of handling requests for
security clearances and providing physical security arrangements for the secure
facilities necessary to protect against unauthorized disclosure of any classified
documents or information to be made available in connection with these cases.
Additional Special Security Officers may be appointed. Detainees' counsel shall
seek guidance from the SSO with regard to appropriate storage, handling, and
transmittal of classified documents or information in the secure facilities provided
for detainees' counsel.
b. I designate Bradley Olson and Andres Ramirez as Commission Security
Officers (collectively, "CSO") for the purpose ofproviding security arrangements
necessary for the storage, handling, transmission and filing with the commission
of classified information related to filings with the commission, to protect against
unauthorized disclosure of any classified documents or information to be made
available in connection with these cases. Additional Commission Security
Officers may be appointed. Detainees' counsel shall seek guidance from the CSO
with regard to appropriate storage, handling, transmittal, and filing ofclassified
documents or information in filings with the military commission.
c. For all persons identified by name in the preceding two sub-paragraphs,
replacements may from time to time be appointed by the Convening Authority or
hislher designee without need to re-publish this Protective Order.
D. Access to and Control of Classified Information and Documents
16. Without authorization from the government, no detainee or detainee's counsel shall
have access to any classified information involved in these cases unless that person has
done the following:

a. received the necessary security clearance from appropriate DoD authorities and
signed an appropriate security non-disclosure agreement as determined by the
Special Security Officer;
b. signed the Memorandum of Understanding ("MOU"), attached hereto as
Exhibit A, agreeing to comply with the terms of this Protective Order. This MOU
is in addition to any other non-disclosure agreement or other agreement required
as a condition of representation before military commissions; and
c. provided to the Chief Defense Counsel detailed verifiable information
regarding past employment, including a list ofprior case assignments, to ensure

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against any conflicts of interest with the case to which detainee's counsel is
currently assigned.

Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 7 of 34

17. In order to be provided access to classified information, detainee's counsel must
execute the MOU appended to this Protective Order as Exhibit A, and shall file executed
originals ofthe MOU with the SSO and provide copies to the CSO, government counsel
and, where applicable, the military commission. Such execution, filing, and submission
of the MOU is a condition precedent to a detainee's counsel having access to, or
continued access to, classified information for the purposes of these proceedings.
18. The substitution, departure, or removal of any detainee's counsel from these cases for
any reason shall not release that person from the provisions ofthis Protective Order or the
MOU executed in connection with this Protective Order.
19. The government shall arrange for one or more appropriately approved secure areas
for detainee's counsel's use. The secure areas shall contain a working area supplied with
secure office equipment and secure storage containers reasonably necessary for preparing
detainee's cases. The government shall bear expenses for the secure areas and the
equipment therein.
20. The SSO shall establish procedures to ensure that the secure area is accessible to
detainee's counsel during normal business hours and at other times on reasonable request
as approved by the SSO. The SSO shall establish procedures to ensure the secure area is
maintained and operated in the most efficient manner consistent with the protection of
classified information. The SSO or SSO designee may place reasonable and necessary
restrictions on the schedule of use of the secure area in order to accommodate appropriate
access to all detainees' counsel in these and other proceedings.
21. All classified information the government provides to detainees' counsel, and all
classified information detainee's counsel otherwise possesses or maintains, shall be
stored, maintained, and used only in the secure area. Classified information may only be
stored, handled, and transported in accordance with Executive Order 13526, as amended,
or its predecessor Orders, DoD 5200.1-R, AI 26, OSD Information and Security
Supplement to DoD 5200.1-R, and DoD Manual 5105.21-MI (for TS/SCI).
22. No documents containing classified information may be removed from the secure
area unless authorized by the SSO or SSO designee supervising the area.
23. Consistent with other provisions of this Protective Order, detainee's counsel shall
have access to the classified information made available to them in the secure area and
shall be allowed to take notes and prepare documents with respect to those materials.
24. Detainee's counsel shall not copy or reproduce any classified information in any
form, except with the SSO's approval or in accordance with the procedures established
by the SSO for the operation of the secure area.

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Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 8 of 34

25. All documents prepared by detainees or detainees' counsel that contain or may
contain classified information-including, without limitation, notes taken or memoranda
prepared by counsel and pleadings or other documents intended for filing with the
Court-shall be transcribed, recorded, typed, duplicated, copied, or otherwise prepared
only by persons possessing an appropriate approval for access to classified information.
Such activities shall take place in the secure area on approved word processing
equipment and in accordance with the procedures approved by the SSO. All such
documents and any associated materials containing classified information-such as notes,
memoranda, drafts, copies, typewriter ribbons, magnetic recordings, and exhibits-shall
be maintained in the secure area unless and until the SSO advises that those documents or
associated materials are unclassified in their entirety. None ofthese materials shall be
disclosed to government counsel unless authorized by the military commission, by
detainees' counsel, or as otherwise provided in this Protective Order. Once these
materials have been determined no longer of use, their destruction shall be done only by
the SSO.
26. Detainee's counsel may discuss classified information within the secure area or
another area authorized by the SSO only. Detainee's counsel shall not discuss classified
information over any non-secure communication system, such as standard commercial
telephone instruments or office intercommunication systems, and shall not transmit or
discuss classified information in non-secure electronic mail communications of any kind.
27. The SSO or SSO designee shall not reveal to any person the content of any
conversations he or she hears by or among detainees' counsel, nor reveal the nature of
documents being reviewed by them or the work generated by them, except as necessary
to report violations ofthis Protective Order to the Convening Authority or, after referral,
the military judge, or to carry out their duties pursuant to this Protective Order.
Additionally, the presence ofthe SSO or SSO designee shall not be construed to waive,
limit, or otherwise render inapplicable the attorney-client privilege or work product
protections.
28. Detainee's counsel shall not disclose the contents of any classified documents or
information to any person, including counsel in related cases ofGuantanamo Bay
detainees in military commissions or other courts (including, but not limited to, habeas
proceedings), except those persons authorized by this Protective Order, a court of
competent jurisdiction, and counsel for the government with the appropriate clearances
and the need to know that information. After referral ofcharges, detainee's counsel may
seek authorization to disclose classified information to appropriately cleared counsel in
related cases ofdetainees at Guantanamo Bay, Cuba, from the military commission
through the procedures established by the Military Commissions Act of 2009, the Manual
for Military Commissions, and Military Commission Rule ofEvidence 505.
29. Detainee's counsel shall not disclose to a detainee classified infonnation which was
not provided by that detainee directly to detainee's counsel during the course of
communications (i.e., Legal Mail and detainee's counsel meetings). Statements ofthe
detainee that detainee's counsel acquires from classified documents cannot be shared

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with the detainee absent authorization from the appropriate government agency
authorized to declassify the classified infonnation. After referral ofcharges, detainee's
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 9 of 34
counsel may seek authorization to disclose to that detainee classified infonnation not
provided directly by that detainee to detainee's counsel during the course of
communications (Le., Legal Mail, detainee's counsel meetings) from the military
commission through the procedures established by the Military Commissions Act of
2009, the Manual for Military Commissions, and Military Commission Rule of Evidence
505.
30. Except as otherwise provided herein, no detainee or detainees' counsel shall disclose
or cause to be disclosed any infonnation which the detainee or detainee's counsel knows
or reasonably should know is classified in connection with any hearing or proceeding in
these cases.
31. Except as otherwise stated in this paragraph, and to ensure the security of the United
States of America, at no time, including any period subsequent to the conclusion of these
proceedings, shall detainees' counsel make any public or private statements disclosing
any classified infonnation or documents accessed pursuant to this Protective Order,
including the fact that any such infonnation or documents are classified. In the event that
classified infonnation enters the public domain, counsel is nonetheless precluded from
making private or public statements about the infonnation. Counsel may not make any
public or private statements revealing personal knowledge from non-public sources
regarding the classified or protected status of the infonnation or disclosing that counsel
had personal access to classified or protected infonnation confinning, contradicting, or
otherwise relating to the infonnation already in the public domain. Only after classified
infonnation has been properly declassified by appropriate authority may fonnerly
classified infonnation in the public domain be the subject ofpublic or private statements
from counsel. In an abundance of caution and to help ensure clarity on this matter, it is
emphasized that counsel shall not be the source ofany classified or protected infonnation
entering the public domain. As stated in more detail in (cid:0)
(cid:0) 51 of this Protective Order,
failure to comply with these rules may result in the revocation ofcounsel's security
clearance as well as civil and criminal liability.
32. The foregoing does not prohibit a detainee's counsel from citing or repeating
infonnation in the public domain that detainee's counsel does not know or have reason to
know to be classified information or a classified document or derived from classified
infonnation or a classified document.
33. All documents containing classified infonnation prepared, possessed or maintained
by, or provided to, detainee's counsel-except filings submitted to the Court and served
on·government counsel-shall remain at all times in the SSO's control (including secure
locations established by the SSO) for the duration ofthese cases. Upon final resolution of
these cases, including all appeals, the SSO shall dispose ofall such documents in
accordance with DoD regulations while assuring client confidentiality.

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E. Designation Procedures for and Access to Protected Information and Documents
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 10 of 34
34. Should government counsel in these cases wish to have a military commission deem
any document or information "protected," government counsel shall disclose the
information to qualified counsel for a detainee (Le., counsel who have satisfied the
necessary prerequisites ofthis Protective Order for the viewing ofprotected information)
and attempt to reach an agreement about the designation ofthe information prior to filing
a motion with the military commission. Detainee's counsel shall treat such disclosed
information as protected unless and until the military commission rules that the
information should not be designated as protected.
35. Without authorization from the government or the military commission, protected
information shall not be disclosed or distributed to any person or entity other than the
following:

a. detainee's counsel, provided such individuals signed the Acknowledgment,
attached hereto as Exhibit B, attesting to the fact that they read this Protective
Order and agree to be bound by its terms; and
b. the military commission and its support personnel.

36. The execution ofthe Acknowledgment is a condition precedent to a detainee's
counsel having access to, or continued access to, protected information for the purposes
ofthese proceedings. A copy ofeach executed Acknowledgment shall be kept by
government counsel making the disclosure until thirty days after the termination of
proceedings, including appeals.
37. The substitution, departure, or removal ofa detainee's counsel from these cases for
any reason shall not release that person from the provisions ofthis Protective Order or the
Acknowledgment executed in connection with this Protective Order.
38. A detainee's counsel shall not disclose the contents of any protected documents or
information to any person, including counsel in related cases brought by Guantanamo
Bay detainees, except as authorized by this Protective Order, the military commission, or
government counsel. Detainee's counsel shall maintain all protected information and
documents received through this proceeding in a confidential manner. Detainee's counsel
may seek, on a case-by-case basis, authorization from appropriate DoD officials to
disclose protected information to appropriately cleared counsel in related cases of
detainees at Guantanamo Bay, Cuba. Such authorization shall not be unreasonably
withheld. If detainee's counsel believes authorization is being unreasonably withheld,
counsel may seek relief from the Convening Authority or the military commission.
39. A detainee's counsel shall not disclose protected information not provided by a
detainee to that detainee without prior concurrence of government counsel or express
permission ofthe military commission or the Convening Authority.

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40. Except as otherwise provided herein, no detainee or detainee's counsel shall disclose
or cause to be disclosed any information which the detainee or detainee's counsel knows
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 11 of 34
or reasonably should know is protected in connection with any hearing or proceeding in
these cases.
41. At no time, including any period subsequent to the conclusion ofthese proceedings,
will detainee's counsel make any public or private statements disclosing any protected
information or documents accessed pursuant to this Protective Order, including the fact
that any such information or documents are protected.
42. Protected information shall be used only for purposes directly related to these cases
and not for any other litigation or proceeding, except by leave of the military commission
or the Convening Authority. Photocopies of documents containing such information shall
be made only to the extent necessary to facilitate the permitted use hereunder.
43. Nothing in this Protective Order shall prevent the government from using for any
purpose protected information it provides a party. Nothing in this Protective Order shall
entitle another party to protected information.
44. Supplying protected information to another party does not waive privilege with
respect to any person or use outside that permitted by this Protective Order.
45. Within sixty days ofthe resolution ofthese actions, and the termination ofany
appeals therefrom, all protected documents or information, and any copies thereof, shall
be promptly destroyed, provided that the party to whom protected information is
disclosed certifies in writing that all designated documents and materials have been
destroyed, and further provided that government counsel may retain one complete set of
any such materials that were presented in any form to the military commission. Any such
retained materials shall be placed in an envelope or envelopes marked "Protected
Information Subject to Protective Order." In any subsequent or collateral proceeding, a
party may seek discovery of such materials from the government, without prejudice to the
government's right to oppose such discovery or its ability to dispose ofthe materials
pursuant to its general document retention policies.
F. Procedures for Filing Documents
46. Classified Filings. Any pleading or other document filed by a detainee pro se, or by a
detainee's counsel, that a detainee or detainee's counsel knows or reasonably should
know includes classified information, shall be filed with the military commission in
accordance with the provisions ofthe Manual for Military Commissions, the Military
Commissions Rules ofEvidence, the Regulation for Trial by Military Commission and
the Rules ofPractice for the Military Commissions Trial Judiciary applicable to filing
classified materials. Presumptively classified information that detainee's counsel learned
from a high-value detainee, see infra (cid:0)
(cid:0) 77, but has not been determined
to be unclassified by the appropriate government agency, shall be filed pursuant to the
procedures specified for classified information.

(cid:0) 69(b) and (cid:0)

(cid:0) 57, (cid:0)

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a. Classified filings must be marked with the appropriate classification markings
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 12 of 34
(e.g., "SECRET" or "TOP SECRET"). Each paragraph ofa document
containing classified information shall have an appropriate classification
marking (e.g. "(U)," "(S)," or "(TS)").
b. Copies shall be provided to the opposing party and the Clerk ofCourt by secure
communication.

47. Protected Information Filing. Any pleading or other document filed by a detainee pro
se, or by a detainee's counsel, that a detainee or detainee's counsel knows or reasonably
should know contains protected information, shall be filed with the military commission
in accordance with the provisions ofthe Manual for Military Commissions, the Military
Commissions Rules of Evidence, the Regulation for Trial by Military Commission and
the Rules ofPractice for the Military Commissions Trial Judiciary applicable to filing
materials containing protected information. The presence, or potential presence, of
protected information in any pleading or document that contains or may contain classified
material shall not affect the method of filing such pleading or document; it shall be
governed by the rules applicable to the filing ofclassified material under 146.
48. ClassifiedlProtected Filings by the Government. Nothing herein requires the
government to disclose classified or protected information. Additionally, nothing herein
prohibits the government from submitting classified or protected information to the
military commission in camera or ex parte in these proceedings or entitles a detainee or a
detainee's counsel access to such submissions or information. Except for good cause
shown in the filing, the government shall provide a detainee or detainee's counsel with
notice on the date of the filing.
49. Redacted Versions ofFilings for the Public Record. When a detainee or detainee's
counsel files with the military commission pleadings or documents that contain classified
or protected materials, a redacted version of the pleading or document shall be prepared
in a manner suitable for public release and filed in accordance with the provisions of the
Manual for Military Commissions, the Rules for Military Commissions, the Military
Commissions Rules ofEvidence, the Regulation for Trial by Military Commission, and
the Rules of Practice for the Military Commissions Trial Judiciary.
50. Disclosure ofProtected or Classified Information on the Public Record. In the event
government counsel believe that a party has disclosed classified or protected information
to the public, government counsel shall notify the CSO, who shall take appropriate
measures to retrieve the classified or protected information. A copy ofthe filing shall
then be lodged with the CSO and treated according to 146 or 147 ofthis Protective
Order. Nothing herein limits the government's authority to take necessary remedial action
to ensure the protection ofthe classified or protected information.

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G. Penalties for Unauthorized Disclosure
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 13 of 34
51. Any unauthorized disclosure ofclassified infonnation may constitute violations of
United States criminal laws. Additionally, any violation ofthe tenns of this Protective
Order shall be immediately brought to the attention ofthe Convening Authority and,
where applicable, the military commission. Any breach ofthis Protective Order may
result in administrative sanctions, including the tennination ofaccess to classified
infonnation and protected infonnation, and may result in referral for criminal prosecution
(see, e.g., Executive Order 13526, as amended). Persons subject to this Protective Order
are advised that direct or indirect unauthorized disclosure, retention, or negligent
handling of classified documents or infonnation could cause damage to the national
security ofthe United States or may be used to the advantage ofan adversary ofthe
United States or against the interests ofthe United States. Persons subject to this
Protective Order are also advised that direct or indirect unauthorized disclosure,
retention, or negligent handling ofprotected documents or infonnation could risk the
security of United States government personnel and facilities and other significant
government interests. This Protective Order is to ensure that those authorized to receive
classified infonnation and protected infonnation will not divulge this infonnation to
anyone who is not authorized to receive it without prior written authorization from the
original classification authority and in confonnity with this Protective Order.
52. The tennination ofthese proceedings shall not relieve any person or party provided
classified infonnation or protected infonnation of his, her, or its obligations under this
Protective Order.

II. PROCEDURES FOR COUNSEL ACCESS TO DETAINEES
AT THE U.S. NAVAL STATION IN GUANTANAMO BAY, CUBA

A. Applicability
53. These Procedures for Counsel Access to Detainees at the U.S. Naval Station in
Guantanamo Bay, Cuba ("Procedures"), shall govern counsel access to all detainees in
the control ofthe Department ofDefense ("DoD") at the U.S. Naval Station in
Guantanamo Bay, Cuba ("GTMO"), for purposes ofdefending cases before military
commISSIOns.
54. These Procedures do not apply to counsel who are retained solely to assist detainees
in habeas corpus proceedings in the United States District Court for the District of
Columbia or other federal courts. Access by petitioner's counsel is covered by the
Protective Order and Requirements for Access to Detainees at the United States Naval
Station, Guantanamo Bay, Cuba, issued by the United States District Court for the
District ofColumbia on September 11,2008, and the Amended Protective Order for
Habeas Cases Involving Top Secret/Sensitive Compartmented Infonnation and
Procedures for Counsel Access to Detainees at the United States Naval Station in
Guantanamo Bay, Cuba, in Habeas Cases Involving Top Secret/Sensitive

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Compartmented Information issued by the United States District Court for the District of
Columbia on January 9, 2009. Ifa detainee's counsel represents a detainee in habeas
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 14 of 34
proceedings in the United States District Court for the District ofColumbia or the United
States Court ofAppeals for the District ofColumbia and also represents the detainee
under the Military Commissions Act, 10 U.S.C. § 948k(a)(3), the Protective Orders
issued by the United States District Court for the District of Columbia or the United
States Court ofAppeals for the District of Columbia shall control matters related to the
habeas proceedings, and the provisions ofthis Protective Order shall apply to matters
relating to military commissions.
B. Definitions
55. "Communications" means all forms ofcommunication between counsel and a
detainee, including oral, written, electronic, or by any other means.
56. As used in these Procedures, "detainee's counsel" or "detainees' counsel" means
attorneys employed or retained by or on behalf ofa detainee for purposes ofrepresenting
the detainee under the Military Commissions Act, 10 U.S.C. § 948k(a)(3), as well as co-
counsel, foreign attorney consultants, interpreters and translators, paralegals,
investigators, experts, consultants, witnesses, and all other personnel or support staff
employed or engaged to assist in the defense ofa detainee in military commissions.
57. "Detainee" means an individual now held by the DoD at the U.S. Naval Station at
Guantanamo Bay, Cuba. HVD is defined as one ofthe fifteen high-value detainees who
the United States Government has publicly acknowledged to have been detained by the
Central Intelligence Agency (CIA) prior to their transfer to Department ofDefense (DoD)
custody at the U.S. Naval Station at Guantanamo Bay, Cuba.
58. "Privilege Team" means a team comprised of one or more attorneys employed by the
DoD and one or more intelligence or law enforcement personnel, for the purpose of
reviewing communications between detainees and their counsel pursuant to this Order,
while protecting the attorney-client and related privileges that may be reflected in those
materials. Members ofthe Privilege Team shall not have taken part in, and, in the future,
will not take part in, any domestic or foreign court, military commission, or combatant
status tribunal proceedings involving the Detainee. Ifrequired, the Privilege Team may
include interpreters and translators, provided that such personnel meet these same
criteria. Prior involvement as a member ofthe Privilege Team for habeas proceedings
does not disqualify an individual from serving on a military commission Privilege Team.
59. "Special Litigation Team" means a team comprised ofone or more attorneys acting
on behalf ofthe DoD, who have not taken part in, and, in the future will not take part in,
any domestic or foreign court, military commission, or combatant status tribunal
proceedings involving the Detainee or any matter arising as part oftheir official duties
on the Special Litigation Team. The Special Litigation Team is authorized to advise the
Privilege Team and represent the Privilege Team before military commissions with
respect to the execution ofthe Privilege Team's duties.

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(cid:0) 68(g). The military commission is the final arbiter ofwhether material

60. "Legal Mail" means written communications between a detainee's counsel and the
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 15 of 34
detainee that are related to the counsel's representation ofthe detainee, as well as
privileged documents and publicly filed legal documents relating to that representation,
provided the communications do not threaten the security ofthe United States. Legal
Mail does not include Contraband or Threat Information, as those terms are defined
below. See also (cid:0)
falls within the definition of Legal Mail.
61. "Non-Legal Mail" means any written material that is not Legal Mail, and includes,
but is not limited to, letters from persons other than counsel, including family and friends
ofthe detainee.
62. "Contraband" is material that, in the judgment ofthe Commander of JTF-GTMO,
constitutes Contraband. Examples of Contraband include, but are not limited to,
weapons, chemicals, drugs, and materials that may be used in an escape attempt.
Contraband also includes, but is not limited to, money, stamps, cigarettes, and writing
instruments.
63. "Threat Information" is any information that reasonably could be expected to result
in immediate and substantial harm to national security, imminent acts ofviolence, or
information learned from a Detainee involving future events that threaten national
security.
C. Requirements for Access to and Communications with Detainees
64. Security Clearance.

a. Detainee's counsel must hold a valid, current United States security clearance
at the TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION level
and complete a non-disclosure agreement to have access to HVDs. Counsel must
hold a valid, current United States security clearance at the SECRET level and
complete a non-disclosure agreement to have access to non-HVDs, unless
otherwise required. The Chief Defense Counsel may determine that a clearance at
a higher level, or its equivalent, is appropriate and if so, may request of
appropriate officials that the process be initiated to secure such higher level
access.
b. Detainee's counsel who possess a valid security clearance shall provide, in
writing, the date oftheir background investigation, the date such clearance was
granted, the level ofthe clearance, and the agency that granted the clearance.
Access will be granted only after DoD verification ofthe security clearance and a
completed non-disclosure agreement.

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c. Detainee's counsel who do not currently possess a clearance at the appropriate
level are required to submit an application for clearance to the Department of
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 16 of 34
Defense through the SSO.

65. Acknowledgment of and Compliance with Access Procedures.

a. Before being granted access to a detainee, counsel will receive a copy of these
Procedures. To have access to a detainee, detainee's counsel must agree to
comply fully with these Procedures and must sign an affirmation acknowledging
an agreement to comply with them. This affirmation will be signed by each
detainee's counsel who is granted access, both before (using the format attached
hereto as Exhibit C) and after (using the format attached hereto as Exhibit D) each
visit.
b. This affirmation will not be considered an acknowledgment by detainee's
counsel that these Procedures are legally permissible. Even ifdetainee's counsel
elect to challenge these Procedures, detainee's counsel may not knowingly
disobey an obligation imposed by these Procedures.
c. It is required that detainee's counsel, detainee's counsel's staff, and anyone
acting on detainee's counsel's behalf or at the direction ofdetainee's counsel will
fully abide by the requirements ofthese Procedures. Detainee's counsel are
required to provide DoD with signed affirmations from interpreters and
translators, experts, consultants, witnesses, paralegals, investigators and all other
personnel or support staff employed or engaged to assist in the litigation, upon
utilization of those individuals by detainee's counsel in a manner that implicates
these Procedures.
d. Should detainee's counsel fail to comply with these Procedures, access to or
communication with detainees will not be permitted.

66. Verification of Representation.

a. Prior to being permitted access to a detainee pursuant to these Procedures,
detainee's counsel must provide DoD with a Notification of Representation. This
notification must include detainee's counsel's licensing information, business and
email addresses, and telephone number, as well as the name of the detainee
counsel represents. Additionally, detainee's counsel shall provide evidence of
their authority to represent the detainee.
b. Ifdetainee's counsel withdraws from representation of a detainee, or if the
representation is otherwise terminated, detainee's counsel shall inform DoD
immediately ofthat change in circumstances.
c. Civilian counsel representing a detainee must provide DoD with a signed
representation stating (a) that, to the best of counsel's knowledge after reasonable

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inquiry, payments in satisfaction ofany counsel fees or for reimbursement of
expenses are not funded directly or indirectly by persons or entities connected to
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 17 of 34
terrorism or the product ofterrorist activities, including "Specially Designated
Global Terrorists," identified pursuant to Exec. Order No. 13,224,66 Fed. Reg.
49,079 (Sept. 23, 2001) or Exec. Order No. 12,947,60 Fed. Reg. 5079 (Jan. 23,
1995), and (b) counsel has complied with ABA Model Rule 1.8(t).

67. Logistics of Counsel Visits.

a. Detainee's counsel shall submit to the JTF-GTMO, any request to meet with a
detainee.

(1) Each such request shall specify dates ofavailability for a meeting, the
desired duration ofthe meeting, and the language that will be utilized
during the meeting with the detainee.

(a) Detainees and detainee's counsel will speak in the same
language during visits to the maximum extent possible.
(b) Translators will only translate the conversation that takes place
between detainees and detainee's counsel. Private conversations
of any kind or duration between translators and detainees are
strictly prohibited.

(2) Reasonable efforts will be made to accommodate counsel's requests
regarding the scheduling ofa meeting. Once a request is approved, JTF-
GTMO will contact counsel with the date and duration ofthe meeting.

b. Legal visits shall take place in a room designated by JTF-GTMO. No more than
two attorneys (or one attorney and one assistant) plus one interpreter/translator
shall visit with a detainee at one time, unless approved in advance by the
Commander, JTF-GTMO. Such approval shall not be unreasonably withheld.
c. Due to the mission and location ofJTF-GTMO, certain logistical details,
including arrangements for travel and lodging, will need to be coordinated by
counsel prior to arrival. JTF-GTMO andlor the Office ofMilitary Commissions
will provide specific information regarding these issues.
d. In order to travel to GTMO, counsel must have a country and theater clearance
for that specific visit. In order to begin processing country and theater clearances,
counsel must have confirmed flight information for travel to GTMO and a valid,
current United States security clearance at the SECRET level or higher or its
equivalent, as determined by appropriate DoD intelligence personnel. Country
and theater clearances require 20 days to process. Accordingly, counsel shall
provide DoD, through the SSO, with the required information no later than 20

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days prior to the GTMO visit date, or as soon as a visit is scheduled. Requests for
visits made inside of20 days will not normally be granted.
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 18 of 34
e. Military defense counsel and defense paralegals, as sponsors, are responsible
for escorting non-DoD civilian defense counsel, non-DoD civilian experts, and
other non-DoD witnesses and members of a defense team while at GTMO. The
military escort/sponsor will accompany any non-DoD civilians to the JTF-GTMO
area ofoperations before any meetings, will accompany such non-DoD civilians
through security screening, will accompany such non-DoD civilians for lunch
(other than breaks in meetings), and will escort such non-DoD civilians from the
JTF-GTMO area ofoperations at the close of business. Once non-DoD civilians
are within the designated meeting location, the military escort/sponsor will leave a
recall phone number with JTF-GTMO personnel.

D. Procedures for Correspondence between Counsel and Detainees
68. Mail Sent by Counsel to Detainees ("Incoming Mail").

a. Detainee's counsel shall send all Incoming Mail for detainees to the Privilege
Team at the appropriate address provided by government counseL Each envelope
or mailer containing Incoming Mail shall be labeled with the detainee's name and
Internment Serial Number ("ISN") and shall include a return address for counsel
sending the materials. The outside ofthe envelope or mailer for Incoming Mail
shall be labeled clearly with the following annotation: "Attorney-Detainee
Materials--For Mail Delivery to Detainee."
b. Each page ofIncoming Mail shall be labeled "Attorney-Detainee Materials"
and include markings which indicate the detainee for whom the materials are
intended. No staples, paper clips or any non-paper items shall be included with
the documents.
c. Upon receiving Incoming Mail from counsel for delivery to the detainee, the
Privilege Team shall open the envelope or mailer to review the contents for
Contraband, Non-Legal Mail, or Threat Information. Within two business days
of receipt ofIncoming Mail and assuming no Contraband, Non-Legal Mail or
Threat Information is present, the Privilege Team shall forward the Legal Mail
contained within the Incoming Mail to military personnel at JTF-GTMO in a
sealed envelope marked "Legal Mail Approved by Privilege Team" and clearly
indicating the identity ofthe detainee to whom the Legal Mail is to be delivered.
The Privilege Team should return to the sender any Incoming Mail that is Non-
Legal Mail. The Privilege Team may, in its discretion, return Contraband to the
sender or forward it to military personnel at JTF-GTMO. Contraband shall only
be delivered to a detainee with the permission of the Commander ofJTF-GTMO.
Threat Information shall be handled in accordance with (cid:0)

(cid:0) 85 ofthis order.

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d. Within two business days ofreceipt of Incoming Mail from the Privilege Team,
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 19 of 34
personnel at JTF-GTMO shall deliver the envelope or mailer marked by the
Privilege Team as "Legal Mail Approved by the Privilege Team" to the detainee
without opening the envelope or mailer outside the presence ofthe detainee. If
detainee's counsel desires confmnation that the Incoming Mail was delivered to
the detainee, counsel shall provide an un-stamped, self-addressed envelope for
that purpose. The detainee shall be responsible for mailing any confirmation of
delivery to detainee's counsel as outgoing Legal Mail. This method shall be the
sole and exclusive means by which confmnation ofdelivery is provided to
detainee's counsel.
e. Incoming Non-Legal Mail shall be sent through the United States Postal
Service to the appropriate address provided by government counsel. Incoming
Non-Legal Mail will be reviewed by military personnel at JTF-GTMO under the
standard operating procedures for detainee Non-Legal Mail.
f. Counsel shall treat all information learned from a high-value detainee (HVD),
including any oral and written communications with an HVD, as classified
information at the TS/SCI level, as defined by (cid:0)
(cid:0) 8 ofthis order, unless and until
the information is submitted to an original classification authority which
determines it to be unclassified. Accordingly, ifcounsel's correspondence
contains any summary or recitation ofor reference to a communication with an
HVD that has not been previously determined to be unclassified, the
correspondence shall be prepared, marked, transported and handled as classified
material at the TS/SCI level as required by (cid:0)
g. In addition to the limitations above, written and oral communications with a
detainee, including all Incoming Mail, shall not include any ofthe following
information, in any form, unless directly related to counsel's defense ofa detainee
in the military commission cases:

(cid:0) 21 ofthis order.

1. Information relating to any ongoing or completed military, intelligence,
security, or law enforcement operations, investigations, or arrests, or the results of
such activities, by any nation or agency;

2. Information relating to current political events in any country;
3. Information relating to security procedures at JTF-GTMO, including

names ofU.S. Government personnel and the layout ofcamp facilities; or

4. Information relating to the status ofother detainees.

69. Mail Sent by Detainees to Counsel ("Outgoing Mail").

a. Detainees will be provided with paper to prepare Outgoing Mail. In the
presence of military personnel, the detainee will seal the Outgoing Mail in an

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(cid:0) 8, ofthis order.

envelope and it will be annotated as "Attorney-Detainee Materials--For Mail
Delivery to Counsel." Each envelope shall be labeled with the detainee's name
Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 20 of 34
and ISN and detainee's counsel's names. Outgoing Non-Legal Mail from
detainees addressed to persons other than the detainee's counsel, including family,
friends, or other attorneys, shall be processed according to the standard operating
procedures for outgoing Non-Legal Mail.
b. Any Outgoing Mail from an HVD will be handled as if it is classified at the
TS/SCI level, as defined by (cid:0)
c. Military personnel will collect the Outgoing Mail within one business day of
being notified by a detainee that the communication is prepared for sealing and
mailing.
d. After Outgoing Mail is collected from a detainee, the envelope will be sealed
into a larger envelope by military personnel at Guantanamo. The larger envelope
will be marked as "Attorney-Detainee Materials--For Mail Delivery to Detainee's
Counsel" and will be annotated with the counsel's name and the detainee's ISN.
The envelope will be sealed and transferred in the manner required for classified
materials. Within two business days of receipt from the detainee, Outgoing Mail
will be mailed to the secure facility provided for detainee's counsel at the
appropriate address as provided by government counsel.

(1) Outgoing Mail from detainees who are not HVDs may contain
classified material and will be handled in the manner required for materials
classified at the SECRET level as provided by (cid:0)
detainee's counsel.

(cid:0) 21 of this order until received by

(2) Outgoing Mail from detainees who are HVDs will be transferred in the
(cid:0) 21 of

manner required for materials classified at the TS/SCI level as provided by (cid:0)
this order.
e. Outgoing Mail will be placed in a courier bag, which will then be locked and
provided to a Privilege Team member at GTMO. The Privilege Team member
will send all approved Legal Mail to the appropriate secure facility for the
detainee's counsel in Washington DC through a secure point-to-point transfer
system, or via a government-designated courier in a sealed container, in a manner
designed to protect the classified material and attorney-client and related
privileges. All originals of Outgoing Mail will be stored in a safe location in the
secure area at GTMO in a manner designed to protect the classified material and
attorney-client and related privileges until properly transferred by a government-
designated courier. The Privilege Team will notify counsel via e-mail when
Outgoing Mail is received at the secure facility in the Washington DC area.
f. Detainees also are permitted to send Non-Legal Mail through the United States
Postal Service. These communications shall be reviewed by military personnel at

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Case 1:08-cv-02083-PLF Document 111-1 Filed 03/07/11 Page 21 of 34

JTF-GTMO under the standard operating procedures for detainee Non-Legal
Ma