You're viewing Docket Item 125 from the case HATIM et al v. BUSH et al. View the full docket and case details.

Download this document:




Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 1 of 28

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE:

Misc. No. 08-0442 (TFH)

GUANTANAMO BAY
DETAINEE LITIGATION

Civil Action Nos.

02-cv-0828, 04-cv-1136, 04-cv-1164, 04-cv-1194, 04-cv-1254,
04-cv-1937, 04-cv-2022, 04-cv-2035, 04-cv-2046, 04-cv-2215,
05-cv-0023, 05-cv-0247, 05-cv-0270, 05-cv-0280, 05-cv-0329,
05-cv-0359, 05-cv-0392, 05-cv-0492, 05-cv-0520, 05-cv-0526,
05-cv-0569, 05-cv-0634, 05-cv-0748, 05-cv-0763, 05-cv-0764,
05-cv-0877, 05-cv-0883, 05-cv-0889, 05-cv-0892, 05-cv-0993,
05-cv-0994, 05-cv-0998, 05-cv-0999, 05-cv-1048, 05-cv-1189,
05-cv-1220, 05-cv-1244, 05-cv-1347, 05-cv-1353, 05-cv-1429,
05-cv-1457, 05-cv-1458, 05-cv-1487, 05-cv-1490, 05-cv-1497,
05-cv-1504, 05-cv-1505, 05-cv-1506, 05-cv-1509, 05-cv-1555,
05-cv-1592, 05-cv-1601, 05-cv-1602, 05-cv-1607, 05-cv-1623,
05-cv-1638, 05-cv-1639, 05-cv-1645, 05-cv-1646, 05-cv-1678,
05-cv-1704, 05-cv-1971, 05-cv-1983, 05-cv-2010, 05-cv-2088,
05-cv-2104, 05-cv-2185, 05-cv-2186, 05-cv-2199, 05-cv-2249,
05-cv-2349, 05-cv-2367, 05-cv-2370, 05-cv-2371, 05-cv-2378,
05-cv-2379, 05-cv-2380, 05-cv-2381, 05-cv-2384, 05-cv-2385,
05-cv-2386, 05-cv-2387, 05-cv-2398, 05-cv-2444, 05-cv-2479,
06-cv-0618, 06-cv-1668, 06-cv-1684, 06-cv-1758, 06-cv-1759,
06-cv-1761, 06-cv-1765, 06-cv-1766, 06-cv-1767, 07-cv-1710,
07-cv-2337, 07-cv-2338, 08-cv-0987, 08-cv-1101, 08-cv-1104,
08-cv-1153, 08-cv-1185, 08-cv-1221, 08-cv-1223, 08-cv-1224,
08-cv-1227, 08-cv-1228, 08-cv-1229, 08-cv-1230, 08-cv-1231,
08-cv-1232, 08-cv-1233, 08-cv-1235, 08-cv-1236, 08-cv-1237,
08-cv-1238, 08-cv-1310, 08-cv-1440

PROCEDURES FOR COUNSEL ACCESS TO DETAINEES AT THE UNITED STATES

NAVAL BASE IN GUANTANAMO BAY, CUBA

PROTECTIVE ORDER

AND

Upon consideration of the parties’ positions espoused at the status conference held on

July 8, 2008, the parties’ submissions, and the record in these coordinated matters, the Court

finds that the above-captioned cases involve national security information or documents, the

storage, handling, and control of which require special security precautions and access to

which requires a security clearance and a “need to know.” These cases might also involve

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 2 of 28

other protected information or documents, the storage, handling, and control of which might

require special precautions in order to protect the security of the United States and other

significant interests. Accordingly, to protect the national security, and for good cause shown,

the Court

ORDERS that, in place of the Amended Protective Order and Procedures for Counsel

Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, first issued on

November 8, 2004, 344 F. Supp. 2d 174 (D.D.C. 2004), as supplemented by the Order

Addressing Designation Procedures for Protected Information, first issued on November 10,

2004, and the Order Supplementing and Amending Filing Procedures Contained in the

November 8, 2004, Amended Protective Order, first issued on December 13, 2004, the

following Protective Order and Procedures for Counsel Access to Detainees at the United

States Naval Base in Guantanamo Bay, Cuba, apply in these coordinated matters:

I.

PROTECTIVE ORDER

A. Overview and Applicability

1.

2.

3.

This Protective Order establishes procedures that must be followed by
petitioners and their respective counsel, all other counsel involved in these
matters, interpreters/translators for the parties, personnel or support staff
employed or engaged to assist in these matters, and all other individuals who, in
connection with these matters, receive access to classified national security
information or documents or other protected information, including the
privilege team as defined in the Procedures for Counsel Access to Detainees at
the United States Naval Base in Guantanamo Bay, Cuba (“Procedures for
Counsel Access”), see infra Section II.B.6.

The procedures set forth in this Protective Order apply to all aspects of these
matters and may be modified by further order of the Court upon its own motion
or upon application by any party. The Court retains continuing jurisdiction to
enforce or modify the terms of this Protective Order.

Nothing in this Protective Order precludes the government’s use of classified
information as otherwise authorized by law outside of these matters.

2

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 3 of 28

4.

5.

6.

7.

As appropriate and needed, petitioners’ counsel is responsible for advising their
employees, petitioners, and others of this Protective Order’s contents.

Petitioners’ counsel are bound by the terms and conditions set forth in the
Procedures For Counsel Access, see infra Section II. To the extent such terms
and conditions place limitations on petitioners’ counsel in their access to and
interaction with petitioners or handling of information, this Protective Order
specifically incorporates by reference all terms and conditions established in the
procedures contained in the Procedures for Counsel Access. Any violation of
those terms and conditions will also be deemed a violation of this Protective
Order.

The privilege team shall not disclose to any person any information provided by
petitioners’ counsel or petitioners, other than information provided in a filing
with the Court, unless such information, if it were monitored information, could
be disclosed under the Procedures for Counsel Access. Any such disclosure
shall be consistent with the provisions of the Procedures for Counsel Access.

B. Definitions

As used in this Protective Order, the words “documents” and “information”
include, but are not limited to, all written or printed matter of any kind, formal
or informal, including originals, conforming copies and non-conforming copies,
whether different from the original by reason of notation made on such copies
or otherwise, and further include, but are not limited to:

a.

b.

c.

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;

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;

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 of electronic data processing storage; and

d.

information acquired orally.

8.

The terms “classified national security information and/or documents,”
“classified information” and “classified documents” mean:

3

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 4 of 28

a.

b.

c.

d.

any classified document or information that was classified by any
Executive Branch agency in the interests of national security or pursuant
to Executive Order, including Executive Order 12958, 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;

any document or information, regardless of its physical form or
characteristics, now or formerly in the possession of a 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 pursuant to Executive
Order, including Executive Order 12958, as amended, or its predecessor
Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or
additionally controlled as “SENSITIVE COMPARTMENTED
INFORMATION (SCI)”;

verbal or non-documentary classified information known to petitioners
or petitioners’ counsel; or

any document and information as to which petitioners or petitioners’
counsel were notified orally or in writing that such document or
information contains classified information.

9.

10.

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”).

The terms “protected information and/or documents,” “protected information,”
and “protected documents” mean any document or information the Court
deems, either sua sponte or upon designation pursuant to paragraph 34 of this
Protective Order, not suitable for public filing.

11. As used in this Protective Order, the term “petitioners’ counsel” includes

attorneys employed or retained by or on behalf of a petitioner for purposes of
representing the petitioner in habeas corpus or other litigation in federal court in
the United States, as well as co-counsel, interpreters/translators, paralegals,
investigators and all other personnel or support staff employed or engaged to
assist in the litigation. Access to classified information by all persons
mentioned in the foregoing sentence is governed by Section I.D of this
Protective Order, and access to protected information by all persons mentioned
in the foregoing sentence is governed by Section I.E of this Protective Order.

4

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 5 of 28

12.

13.

14.

15.

“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.

“Secure area” means a physical facility accredited or approved for the storage,
handling, and control of classified information.

“Unauthorized disclosure of classified information” means any knowing,
willful, or negligent action that could reasonably be expected to result in a
communication or physical transfer of classified information to an unauthorized
recipient.

C. Designation of Court Security Officer

The Court designates Christine E. Gunning as Court Security Officer for these
cases, and Jennifer H. Campbell, Miguel A. Ferrer, Daniel O. Hartenstine,
Erin H. Hogarty, Nathaniel A. Johnson, Joan B. Kennedy, Michael P. Macisso,
Maura P. Peterson, and Barbara J. Russell as Alternate Court Security Officers
(collectively, “CSO”) for the purpose of providing security arrangements
necessary to protect against unauthorized disclosure of any classified documents
or information to be made available in connection with these cases. Petitioners’
counsel shall seek guidance from the CSO with regard to appropriate storage,
handling, transmittal, and use of classified documents or information.

D. Access to Classified Information and Documents

16. Without authorization from the government, no petitioner or petitioner’s

counsel shall have access to any classified information involved in these cases
unless that person has done the following:

a.

b.

received the necessary security clearance as determined by the
Department of Justice Security Officer; and

signed the Memorandum of Understanding (“MOU”), attached hereto as
Exhibit A, agreeing to comply with the terms of this Protective Order.

17.

Petitioners’ counsel to be provided access to classified information shall execute
the MOU appended to this Protective Order, and shall file executed originals of
the MOU with the Court and submit copies to the CSO and government
counsel. Such execution, filing, and submission of the MOU is a condition
precedent to a petitioner’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 petitioners’ counsel from these
cases for any reason shall not release that person from the provisions of this
Protective Order or the MOU executed in connection with this Protective

5

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 6 of 28

Order.

19.

20.

The government shall arrange for one appropriately approved secure area for
petitioners’ counsel’s use. The secure area shall contain a working area
supplied with secure office equipment reasonably necessary for preparing
petitioners’ cases. The government shall bear expenses for the secure area and
its equipment.

The CSO shall establish procedures to ensure that the secure area is accessible
to petitioners’ counsel during normal business hours and at other times on
reasonable request as approved by the CSO. The CSO 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
CSO or CSO designee may place reasonable and necessary restrictions on the
schedule of use of the secure area in order to accommodate appropriate access
to all petitioners’ counsel in these and other proceedings.

21. All classified information the government provides to petitioners’ counsel, and
all classified information petitioners’ counsel otherwise possesses or maintains,
shall be stored, maintained, and used only in the secure area.

22. No documents containing classified information may be removed from the

secure area unless authorized by the CSO or CSO designee supervising the area.

23.

24.

25.

Consistent with other provisions of this Protective Order, petitioners’ 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.

Petitioners’ counsel shall not copy or reproduce any classified information in
any form, except with the CSO’s approval or in accordance with the procedures
established by the CSO for the operation of the secure area.

All documents prepared by petitioners or petitioners’ 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 CSO. 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 CSO advises that those
documents or associated materials are unclassified in their entirety. None of
these materials shall be disclosed to government counsel unless authorized by

6

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 7 of 28

26.

27.

28.

the Court, by petitioners’ counsel, or as otherwise provided in this Protective
Order.

Petitioners’ counsel may discuss classified information within the secure area or
another area authorized by the CSO only. Petitioners’ counsel shall not discuss
classified information over any standard commercial telephone instrument or
office intercommunication system and shall not transmit or discuss classified
information in electronic mail communications of any kind.

The CSO or CSO designee shall not reveal to any person the content of any
conversations he or she hears by or among petitioners’ counsel, nor reveal the
nature of documents being reviewed by them or the work generated by them,
except as necessary to report violations of this Protective Order to the Court or
to carry out their duties pursuant to this Protective Order. Additionally, the
presence of the CSO or CSO designee shall not be construed to waive, limit, or
otherwise render inapplicable the attorney-client privilege or work product
protections.

Petitioners’ counsel shall not disclose the contents of any classified documents
or information to any person, including counsel in related cases brought by
Guantanamo Bay detainees in this or other courts, except those persons
authorized by this Protective Order, the Court, and counsel for the government
with the appropriate clearances and the need to know that information. Except
as otherwise specifically provided by Judge Colleen Kollar-Kotelly in her
well-reasoned opinion addressing counsel access procedures regarding
petitioners Mohammed Ahmed al Kandari, Fawzi Khalid Abdullah Fahad al
Odah, and Khalid Abdullah Mishal al Mutairi in Al Odah v. United States,
02-cv-0828, docket # 117, counsel for petitioners in these cases are presumed to
have a “need to know” information both in their own cases and in related cases
pending before this Court. Therefore, and except as provided with respect to
the three petitioners in Al Odah mentioned above, counsel for all petitioners in
these cases who satisfy all necessary prerequisites and follow all procedures set
forth herein may share and discuss among themselves classified information to
the extent necessary for the effective representation of their clients.
Government counsel may challenge the “need to know” presumption on a
case-by-case basis for good cause shown.

29.

Petitioners’ counsel shall not disclose to a petitioner-detainee classified
information not provided by that petitioner-detainee. Should a petitioner’s
counsel desire to disclose classified information not provided by a
petitioner-detainee to that petitioner-detainee, that petitioner’s counsel will
provide in writing to the privilege review team, see infra Section II.G, a request
for release clearly stating the classified information they seek to release. The
privilege review team will forward a petitioner’s counsel’s release request to the
appropriate government agency authorized to declassify the classified
information for a determination. The privilege review team will inform

7

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 8 of 28

30.

31.

petitioner’s counsel of the determination once it is made.

Except as otherwise provided herein, no petitioners or petitioners’ counsel shall
disclose or cause to be disclosed any information known or believed to be
classified in connection with any hearing or proceeding in these cases.

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 petitioners’ counsel make any public or
private statements disclosing any classified information or documents accessed
pursuant to this Protective Order, including the fact that any such information
or documents are classified. In the event that classified information enters the
public domain, however, counsel is not precluded from making private or
public statements about the information already in the public domain, but only
to the extent that the information is in fact in the public domain. Counsel may
not make any public or private statements revealing personal knowledge from
non-public sources regarding the classified or protected status of the information
or disclosing that counsel had personal access to classified or protected
information confirming, contradicting, or otherwise relating to the information
already in the public domain. In an abundance of caution and to help ensure
clarity on this matter, the Court emphasizes that counsel shall not be the source
of any classified or protected information entering the public domain. As stated
in more detail in paragraph 51 of this Protective Order, failure to comply with
these rules may result in the revocation of counsel’s security clearance as well
as civil and criminal liability.

32.

The foregoing does not prohibit a petitioner’s counsel from citing or repeating
information in the public domain that petitioner’s counsel does not know to be
classified information or a classified document or derived from classified
information or a classified document.

33. All documents containing classified information prepared, possessed or

maintained by, or provided to, petitioners’ counsel—except filings submitted to
the Court and served on government counsel—shall remain at all times in the
CSO’s control for the duration of these cases. Upon final resolution of these
cases, including all appeals, the CSO shall destroy all such documents.

E. Designation Procedures for and Access to Protected Information and Documents

34.

Should government counsel in these consolidated cases wish to have the Court
deem any document or information “protected,” government counsel shall
disclose the information to qualified counsel for petitioners—i.e., counsel who
have satisfied the necessary prerequisites of this Protective Order for the
viewing of protected information—and attempt to reach an agreement about the
designation of the information prior to filing a motion with the Court.
Petitioners’ counsel shall treat such disclosed information as protected unless

8

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 9 of 28

and until the Court rules that the information should not be designated as
protected.

35. Without authorization from the government or the Court, protected information

shall not be disclosed or distributed to any person or entity other than the
following:

a.

petitioners’ 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

36.

37.

38.

39.

40.

b.

the Court and its support personnel.

The execution of the Acknowledgment is a condition precedent to a petitioner’s
counsel having access to, or continued access to, protected information for the
purposes of these proceedings. A copy of each executed Acknowledgment shall
be kept by counsel making the disclosure until thirty days after the termination
of this action, including appeals.

The substitution, departure, or removal of petitioners’ counsel from these cases
for any reason shall not release that person from the provisions of this
Protective Order or the Acknowledgment executed in connection with this
Protective Order.

Petitioners’ 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 in this or other courts, except as authorized by this
Protective Order, the Court, or government counsel. Except as otherwise
specifically provided by Judge Colleen Kollar-Kotelly with respect to counsel
for petitioners Mohammed Ahmed al Kandari, Fawzi Khalid Abdullah Fahad al
Odah, and Khalid Abdullah Mishal al Mutairi in Al Odah v. United States,
02-cv-0828, petitioners’ counsel in these coordinated cases may share protected
information with each other but only to the extent that counsel have appropriate
security clearances and comply with all other procedures set forth in this
Protective Order. Petitioners’ counsel shall maintain all protected information
and documents received through this proceeding in a confidential manner.

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

Except as otherwise provided herein, no petitioner or petitioner’s counsel shall
disclose or cause to be disclosed any information known or believed to be
protected in connection with any hearing or proceeding in these cases.

41. At no time, including any period subsequent to the conclusion of these

9

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 10 of 28

proceedings, will petitioners’ 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
Court. 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 of the resolution of these actions, and the termination of any

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 Court. 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 of the materials pursuant to its
general document retention policies.

F. Procedures for Filing Documents

46. Unclassified Filing by Petitioners. Pending further order of the Court, any

pleading or other document filed by petitioners that petitioners’ counsel does not
believe contains classified information and has no reason to believe contains
classified information is authorized for direct filing in the CM/ECF system
consistent with the regular electronic filing practices of this Court. See LCvR
5.4. Presumptively classified information that petitioners’ counsel learned from
a petitioner, see infra Section II.D.12.f and Section II.I.29, but has not been
determined to be unclassified, shall not be filed in the CM/ECF system.
Presumptively classified information shall be filed pursuant to the procedures
specified in paragraph 47 of this Protective Order.

47.

Classified Filings by Petitioners. Any pleading or other document filed by
petitioners that petitioners’ counsel know, have reason to believe, or are
uncertain whether it contains classified information, shall be filed, along with

10

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 11 of 28

three copies, under seal with the CSO by 4:00 p.m. Such document must be
marked with the appropriate classification marking (e.g., “SECRET”). The
time of physical submission to the CSO shall be considered the date and time of
filing. At the time of making a submission to the CSO, petitioners’ counsel
shall file on the public record in the CM/ECF system a “Notice of Filing,”
notifying the Court that the submission was made to the CSO and specifying in
general terms the nature of the filing without disclosing any potentially
classified information.

a.

b.

Upon receipt, the CSO will deliver to the Court and government counsel
any pleading or other document petitioners filed that may contain
classified information. The CSO will forward the document to the
appropriate government agencies and departments for their determination
as to whether the pleading or other document contains classified
information. To facilitate this review, petitioners’ counsel shall identify
each paragraph of a document that counsel believe may contain classified
information by marking each paragraph with an appropriate
classification marking or otherwise specifically identifying such
paragraphs. If, following review by the appropriate government
agencies and departments, it is determined that the pleading or other
document contains classified information, the CSO must ensure that the
document is marked with the appropriate classification marking and that
the document remains under seal. The CSO will work with the
appropriate government agencies or departments to prepare a redacted
version of the pleading or other document appropriate for filing on the
public record. Counsel shall then file the redacted version of the
document in the CM/ECF system with a notation in the upper right hand
corner of the first page stating “REDACTED VERSION FOR PUBLIC
FILING CLEARED BY CSO.” The docket entry description in the
CM/ECF system for the document suitable for public viewing shall
make specific reference to the earlier docket entry notifying the Court
that the document was submitted to the CSO for review.

In the event an entire document is deemed classified, petitioners’ counsel
shall file notice in the CM/ECF system listing the caption of the case, a
version of the title of the document that does not disclose classified or
protected information, and a brief statement that the CSO informed
counsel that the entire document is classified. The docket entry
description in the CM/ECF system for the document suitable for public
viewing shall make specific reference to the earlier docket entry
notifying the Court that the document was submitted to the CSO for
review.

c.

If it is determined that the pleading or other document does not contain
classified information, counsel shall file the full submission in the
CM/ECF system and make specific reference to the earlier docket entry

11

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 12 of 28

notifying the Court that the document was submitted to the CSO for
review. The docket entry description shall also state that the CSO
approved public filing of the document. The underlying document filed
in the CM/ECF system shall contain a notation in the upper right hand
corner of the first page stating “PREVIOUSLY FILED WITH CSO
AND CLEARED FOR PUBLIC FILING.”

48.

Classified Filings by Respondents.

a.

b.

Any pleading or other document filed by respondents’ counsel containing
classified information shall be filed, along with three copies, under seal
with the Court through the CSO by 4:00 p.m. The time of physical
submission to the CSO shall be considered the date and time of filing.
The CSO shall serve a copy of any classified pleading or document on
petitioners’ counsel at the secure facility. At the time of making a
submission to the CSO, respondents shall file on the public record in the
CM/ECF system a “Notice of Filing,” notifying the Court that a
submission was made to the CSO and specifying in general terms the
nature of the filing without disclosing any potentially classified
information. As soon as practicable following the original filing date,
respondents’ counsel shall file in the CM/ECF system a version of the
pleading or document appropriate for filing on the public record,
consistent with the procedures outlined in paragraphs 47.a-c of this
Protective Order.

Nothing herein requires the government to disclose classified
information. Additionally, nothing herein prohibits the government
from submitting classified information to the Court in camera or ex
parte in these proceedings or entitles petitioners or petitioners’ counsel
access to such submissions or information. Except for good cause
shown in the filing, the government shall provide petitioners’ counsel or
petitioners with notice served on petitioners’ counsel on the date of the
filing.

49.

Protected Information Filing by Petitioners and Respondents.

a.

The presence, or potential presence, of protected information in any
pleading or document that is governed by paragraph 47 or paragraph 48
of this Protective Order shall not affect the method of filing such
pleading or document; it shall be governed by paragraph 47 or 48, as
applicable. Any pleading or other document that does not contain
classified information but that petitioners’ counsel or respondents have
reason to believe contains or petitioners’ counsel is uncertain whether it
contains protected information shall be filed under seal pursuant to Local
Civil Rule 5.1(j). At the time of the submission of a filing containing
protected but not classified information, the party shall file on the public

12

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 13 of 28

record in the CM/ECF system a “Notice of Filing,” notifying the Court
that a protected information submission was made and specifying in
general terms the nature of the filing without disclosing any potentially
protected information. As soon as practicable following the original
filing date, counsel for the party submitting the protected information
shall file in the CM/ECF system a version of the pleading or document
appropriate for filing on the public record, consistent with the
procedures outlined in paragraphs 47.a-c of this Protective Order.

This Protective Order shall constitute authorization for petitioners and
respondents to file protected information under seal. That is, no motion
to seal is required at the time of submission of the pleading or document
to the Clerk’s Office. Procedures for designation of protected
information shall be governed by paragraph 34 of this Protective Order.

Nothing herein requires the government to disclose protected
information. Additionally, nothing herein prohibits the government
from submitting protected information to the Court in camera or ex
parte in these proceedings or entitles petitioners or petitioners’ counsel
access to such submissions or information. Except for good cause
shown in the filing, the government shall provide counsel for the
petitioner or petitioners with notice served on counsel on the date of the
filing.

b.

c.

50. Disclosure of Protected or Classified Information on the Public Record. In the

event respondents believe that a party has disclosed classified or protected
information on the public docket, respondents shall notify the CSO, who shall
work with the Clerk’s Office to remove the filing from the public docket. A
copy of the filing shall then be lodged with the CSO and treated according to
paragraphs 47.b or 47.c of this Protective Order. Nothing herein limits the
government’s authority to take necessary remedial action to ensure the
protection of the classified or protected information.

G. Penalties for Unauthorized Disclosure

51. Any unauthorized disclosure of classified information may constitute violations
of United States criminal laws. Additionally, any violation of the terms of this
Protective Order shall be immediately brought to the attention of the Court and
may result in a charge of contempt of Court and possible referral for criminal
prosecution. See, e.g., Executive Order 12958, as amended. Any breach of
this Protective Order may also result in the termination of access to classified
information and protected information. Persons subject to this Protective Order
are advised that direct or indirect unauthorized disclosure, retention, or
negligent handling of classified documents or information could cause damage
to the national security of the United States or may be used to the advantage of
an adversary of the United States or against the interests of the United States.

13

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 14 of 28

Persons subject to this Protective Order are also advised that direct or indirect
unauthorized disclosure, retention, or negligent handling of protected documents
or information 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 information and protected
information will not divulge this information to anyone who is not authorized to
receive it without prior written authorization from the original classification
authority and in conformity with this Protective Order.

52.

The termination of these proceedings shall not relieve any person or party
provided classified information or protected information of his, her, or its
obligations under this Protective Order.

14

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 15 of 28

II.

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

1.

2.

3.

4.

5.

6.

7.

A. Applicability

Except as otherwise stated in these Procedures for Counsel Access to Detainees
at the U.S. Naval Base in Guantanamo Bay, Cuba (“Procedures”), or by other
Order issued in the United States District Court for the District of Columbia,
the following procedures shall govern counsel access to all detainees in the
control of the Department of Defense (“DoD”) at the U.S. Naval Base in
Guantanamo Bay, Cuba (“GTMO”), for purposes of litigating these cases.

These Procedures do not apply to counsel who are retained solely to assist in a
detainee’s defense in a trial by military commission. Access by that counsel is
covered by the Procedures for Monitoring Communications Between Detainees
Subject to Trial by Military Commission and their Defense Counsel Pursuant to
Military Commission Order No. 3.

B. Definitions

“Communications” means all forms of communication between counsel and a
detainee, including oral, written, electronic, or by any other means.

As used in these Procedures, “counsel” means attorneys employed or retained
by or on behalf of a detainee for purposes of representing the detainee in the
United States District Court for the District of Columbia and admitted, either
generally or pro hac vice, in this Court. Unless otherwise stated, “counsel”
also includes co-counsel, interpreters/translators, paralegals, investigators, and
all other personnel or support staff employed or engaged to assist in the
litigation.

“Detainee” means an individual detained by DoD as an alleged enemy
combatant at GTMO.

“Privilege team” means a team comprised of one or more DoD attorneys and
one or more intelligence or law enforcement personnel 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. If required, the privilege team may include interpreters/translators,
provided that such personnel meet these same criteria.

“Legal mail” means letters written between a detainee’s counsel and the
detainee that are related to the counsel’s representation of the detainee, as well
as privileged documents and publicly filed legal documents relating to that
representation. The Court is the final arbiter of whether documents fall within
the definition of legal mail.

15

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 16 of 28

C. Requirements for Access to and Communications with Detainees

8.

Security Clearance.

a.

b.

c.

Counsel must hold a valid, current United States security clearance at
the Secret level or higher or its equivalent, as determined by appropriate
DoD intelligence personnel.

Counsel who possess a valid security clearance shall provide, in writing,
the date of their background investigation, the date such clearance was
granted, the level of the clearance, and the agency that granted the
clearance. Access will be granted only after DoD verification of the
security clearance.

Counsel who do not currently possess a Secret clearance are required to
submit an application for clearance to the Department of Justice,
Litigation Security Division.

9.

Acknowledgment of and Compliance with Access Procedures.

a.

b.

c.

Before being granted access to a detainee, counsel will receive a copy of
these Procedures. To have access to a detainee, counsel must agree to
comply fully with these Procedures and must sign an affirmation
acknowledging an agreement to comply with them.

This affirmation will not be considered an acknowledgment by counsel
that these Procedures are legally permissible. Even if counsel elect to
challenge these Procedures, counsel may not knowingly disobey an
obligation imposed by these Procedures.

DoD expects that counsel, counsel’s staffs, and anyone acting on
counsel’s behalf will fully abide by the requirements of these
Procedures. Counsel are required to provide DoD with signed
affirmations from interpreters/translators, paralegals, investigators and
all other personnel or support staff employed or engaged to assist in the
litigation, upon utilization of those individuals by counsel in a manner
that implicates these Procedures.

d.

Should counsel fail to comply with these Procedures, access to or
communication with detainees will not be permitted.

10. Verification of Representation.

a.

Prior to being permitted access to a detainee, counsel must provide DoD
with a Notification of Representation. This Notification must include
counsel’s licensing information, business and email addresses, and phone

16

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 17 of 28

b.

c.

d.

number, as well as the name of the detainee counsel represents.
Additionally, counsel shall provide evidence of their authority to
represent the detainee.

Counsel shall provide evidence of their authority to represent the
detainee as soon as practicable and, in any event, not later than ten days
after the conclusion of a second visit with a detainee. The Court
recognizes that counsel may not be in a position to present such evidence
after the initial meeting with a detainee. Counsel for detainees and
counsel for respondents shall cooperate to the fullest extent possible to
reach a reasonable agreement on the number of counsel visits allowed.
Should a detainee’s counsel believe the government is unreasonably
limiting the number of visits with the detainee, counsel may petition the
Court at the appropriate time for relief.

If counsel withdraw from representation of a detainee, or if the
representation is otherwise terminated, counsel shall inform DoD
immediately of that change in circumstances.

Counsel must provide DoD with a signed representation stating (a) that,
to the best of counsel’s knowledge after reasonable inquiry, the source of
funds to pay counsel any fees or reimbursement of expenses are not
funded directly or indirectly by persons or entities counsel believes are
connected to terrorism or the product of terrorist 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(f).

11.

Logistics of Counsel Visits.

a.

b.

Counsel shall submit to the Department of Justice (“DoJ”) any request
to meet with a detainee. Requests shall specify dates of availability for a
meeting, the desired duration of the meeting, and the language that will
be utilized during the meeting with the detainee. Reasonable efforts will
be made to accommodate counsel’s requests regarding the scheduling of
a meeting. Once a request is approved, DoJ will contact counsel with
the date and duration of the meeting.

Legal visits shall take place in a room designated by JTF-Guantanamo.
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-Guantanamo. Such
approval shall not be unreasonably withheld.

c.

Due to the mission and location of GTMO, certain logistical details,

17

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 18 of 28

including arrangements for travel and lodging, will need to be
coordinated by counsel prior to arrival. DoJ 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 twenty days to process. Accordingly, counsel shall provide
DoD, through DoJ, with the required information no later than 20 days
prior to the GTMO visit date, or as soon as a visit is scheduled.
Requests for visits made inside of 20 days will not normally be granted.

D. Procedures for Correspondence Between Counsel and Detainees

12. Mail Sent by Counsel to Detainees (“Incoming Mail”).

a.

b.

c.

Counsel shall send incoming legal mail for detainees to the privilege
team at the appropriate address provided by government counsel. Each
envelope or mailer shall be labeled with the name of the detainee and
shall include a return address for counsel sending the materials. The
outside of the envelope or mailer for incoming legal mail shall be
labeled clearly with the following annotation: “Attorney-Detainee
Materials-For Mail Delivery to Detainee.”

Each page of legal mail shall be labeled “Attorney-Detainee Materials.”
No staples, paper clips or any non-paper items shall be included with the
documents.

Upon receiving legal mail from counsel for delivery to the detainee, the
privilege team shall open the envelope or mailer to search the contents
for prohibited physical contraband. Within two business days of receipt
of legal mail, and assuming no physical contraband is present, the
privilege team shall forward the mail to military personnel at GTMO in
a sealed envelope marked “Legal Mail Approved by Privilege Team”
and clearly indicating the identity of the detainee to whom the legal mail
is to be delivered. The privilege team shall return to the sender any
incoming mail that does not comply with the terms of paragraphs 12.a
and 12.b of these Procedures.

d.

Within two business days of receipt of legal mail from the privilege
team, personnel at 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. If counsel desire

18

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 19 of 28

e.

f.

g.

confirmation that documents were delivered to the detainee, counsel
shall provide a stamped, self-addressed envelope for that purpose. The
detainee shall be responsible for mailing any confirmation of delivery to
counsel as outgoing legal mail. This method shall be the sole and
exclusive means by which confirmation of delivery is provided to
counsel.

Written correspondence to detainees not falling within the definition of
legal mail shall be sent through the United States Postal Service to the
appropriate address provided by government counsel. Non-legal mail
includes, but is not limited to, letters from persons other than counsel,
including family and friends of the detainee. These non-privileged
communications will be reviewed by military personnel at GTMO under
the standard operating procedures for detainee nonlegal mail.

Counsel shall treat all information learned from a detainee, including
any oral and written communications with a detainee, as classified
information, unless and until the information is submitted to the
privilege team and the privilege team, this Court, or another court
determines it to be otherwise. Accordingly, if counsel’s correspondence
contains any summary or recitation of or reference to a communication
with a detainee that has not been previously determined to be
unclassified, the correspondence shall be prepared, marked, transported
and handled as classified material as required by Executive Order 12958,
DOD Regulation 5200.1-R and AI 26, OSD Information and Security
Supplement to DOD Regulation 5200.1R.

Written and oral communications with a detainee, including all incoming
legal mail, shall not include 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 or current political events in any country that are
not directly related to counsel’s representation of that detainee; or
security procedures at GTMO, including names of U.S. Government
personnel and the layout of camp facilities, or the status of other
detainees, not directly related to counsel’s representation.

13. Mail Sent by Detainees to Counsel (“Outgoing Mail”).

a.

Detainees will be provided with paper to prepare communications to
counsel. In the presence of military personnel, the detainee will seal the
written communication in an envelope and it will be annotated as
“Attorney-Detainee Materials-For Mail Delivery To Counsel.” Each
envelope shall be labeled with the detainee’s and counsel’s names.
Envelopes annotated with the names of persons other the detainee’s
counsel, including family, friends, or other attorneys, shall be processed

19

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 20 of 28

b.

c.

d.

e.

according to the standard operating procedures for detainee non-legal
mail.

Military personnel will collect the outgoing legal mail within one
business day of being notified by a detainee that the communication is
prepared for sealing and mailing.

After outgoing legal 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 Counsel” and will be annotated with the detainee’s
and counsel’s names. The envelope will be sealed and mailed in the
manner required for classified materials. Within two business days of
receipt from the detainee, the communication will be mailed to the
appropriate address as provided by government counsel.

Detainees also are permitted to send non-legal mail, including written
communications to persons other than counsel, through the United States
Postal Service. These communications shall be reviewed by military
personnel at GTMO under the standard operating procedures for
detainee non-legal mail.

In the event any non-legal correspondence or messages from a detainee
to individuals other than his counsel, including family, friends, or other
attorneys, are sent to counsel as, or included with, legal mail, counsel
shall return the documents to military personnel at GTMO for
processing according to the standard operating procedures for detainee
non-legal mail.

E. Materials Brought into Meetings with Detainees and Counsel

14.

Counsel shall bring only legal mail, writing utensils and paper into any meeting
with a detainee, unless counsel receives prior approval from the Commander,
JTF-Guantanamo. The Commander shall not unreasonably withhold approval
for counsel to bring into a meeting with a detainee letters, tapes, or other
communications introducing counsel to the detainee, if the government has first
reviewed the communication and determined that sharing the communication
with the detainee would not threaten the security of the United States.

15. Written and oral communications with a detainee, including all documents

brought into a meeting with a detainee, shall not include 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 or current political events in any country that are not directly
related to counsel’s representation of that detainee; or security procedures at
GTMO, including names of U.S. Government personnel and the layout of camp

20

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 21 of 28

facilities, or the status of other detainees, not directly related to counsel’s
representation.

F. Materials Brought out of Meetings with Detainees and Counsel

16. Upon completion of each meeting with a detainee or during any break in a
meeting session, counsel will give the notes or documents used or produced
during the meeting to a designated individual at Guantanamo. These materials
shall be sealed in counsel’s presence and handled as classified material as
required by Executive Order 12958, DOD Regulation 5200.1-R and AI 26,
OSD Information Security Supplement to DOD Regulation 5200.1R.

17. Upon completion of counsel’s visit to Guantanamo, the notes or documents used
or produced during the visits shall be sealed in counsel’s presence and placed in
an envelope labeled as “Attorney-Detainee Meeting Documents–For Delivery to
Counsel.” The envelope shall be sealed into a larger envelope by military
personnel at Guantanamo. The larger envelope shall be marked as “Attorney-
Detainee Meeting Documents-For Mail Delivery To Counsel” and annotated with
the detainee’s and counsel’s names. The envelope shall be sealed and mailed in
the manner required for classified materials. Within two business days following
completion of counsel’s visit to Guantanamo, the package shall be mailed to the
appropriate address provided by government counsel.

18.

19.

Correspondence or messages from a detainee to individuals other than his
counsel, including family, friends, or other attorneys, will not be handled
through this process. If a detainee provides these communications to counsel
during a visit, counsel shall give those communications to military personnel at
Guantanamo so they can be processed under the standard operating procedures
for detainee non-legal mail.

G. Classification Determination of Detainee Communications

Counsel may submit information learned from a detainee to the privilege team
for a determination of its appropriate security classification. Counsel shall
memorialize the information submitted for classification review into a written
memorandum outlining as specifically as possible the information for which
counsel requests a classification determination. All documents submitted for
classification review shall be prepared, handled, and treated in the manner
required for classified materials as required by Executive Order 12958, DOD
Regulation 5200.1-R and AI 26, OSD Information Security Supplement to DOD
Regulation 5200.1R. No information derived from these submissions shall be
disclosed outside the privilege team pursuant to these Procedures until after the
privilege team has reviewed it for security and intelligence purposes. Absent
express consent of the Court, or except as otherwise provided in these
Procedures, the submissions shall not be disclosed to any person involved in the
interrogation of a detainee, and no such individual may make any use of those

21

Case 1:05-cv-01429-UNA Document 125 Filed 09/11/2008 Page 22 of 28

communications, nor shall the submissions be disclosed to any government
personnel involved in any domestic or foreign court, military commission, or
combatant status tribunal proceedings involving the detainee.

20.

Counsel shall send all materials submitted for classification review to the
appropriate address as provided by government counsel. The outside of the
envelope or mailer shall be clearly labeled “Attorney-Detainee Meeting
Documents-For Classification Review By Privilege Team.” Each envelope or
mailer shall be annotated with the detainee’s and counsel’s names. Each page
of the document submitted for classification review shall be marked
“Attorney-Detainee Materials” and “Classified.” The envelope or mailer shall
be sealed and mailed in the manner required for classified mat