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Case 1:05-cv-01429-UNA Document 93-4 Filed 10/04/2007 Page 1 of 19

EXHIBIT 3

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GUANTANAMO PROCEDURE GUIDE FOR COUNSEL ACCESS IN

DETAINEE TREATMENT ACT CASES

1. Acknowledgment of and Compliance with Access Procedures


Before being granted access to the detainee, Petitioner’s Counsel (hereinafter



“counsel”), as defined in § 2.C. of the Protective Order entered by the United States

Court of Appeals for the D.C. Circuit in Bismullah v. Gates (hereinafter “Protective

Order”), will receive a copy of the Guantanamo Procedure Guide for Counsel (hereinafter

“GTMO Guide”). To have access to the detainee, counsel must agree to comply fully

with these procedures in this document and must sign the attached affirmation

acknowledging his/her agreement to comply, must have the necessary security

clearances, and must present the Department of Justice adequate evidence of

authorization to represent the detainee or the next-friend petitioner.

This affirmation will not be considered an acknowledgment by counsel that the

procedures within the GTMO Guide are legally permissible. However, even if counsel

elects to challenge these procedures, counsel may not knowingly disobey an obligation

imposed by these procedures until such time, if any, that the procedures are modified or

revoked by the United States Department of Defense or by a United States District Court

or Court of Appeals, or the United States Supreme Court.



Commander, Joint Task Force-Guantanamo (hereinafter “JTF-GTMO”) may

suspend the privilege of visiting Guantanamo if he determines a violation of the GTMO

Guide has occurred or in other appropriate circumstances. Violation of the GTMO Guide

could also provide grounds for revocation of counsel’s security clearance. The GTMO

Guide is published in an effort to facilitate counsel’s access to their clients and is

consistent with the current Protective Order. However, it is not intended and does not



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purport to establish any substantive or procedural rights for detainees. Moreover, nothing

in the GTMO Guide shall limit the authority of the Commander of JTF-GTMO to require

the imposition of additional security procedures, relating to access to the detainee based

on operational requirements, security needs and military resources at JTF-GTMO.

Counsel will be advised of any such changes as soon as practicable.

Visits to U.S. Naval Station Guantanamo are subject to delay or cancellation

based upon the operational requirements, security needs and military resources at the

base. Any such cancellation or delay of a visit is at the sole discretion of the Commander

JTF-GTMO. Commander JTF-GTMO retains the authority to suspend or terminate any

and all visits to U.S. Naval Station, Guantanamo.

2. Logistics of Counsel Visits





A. Visit Schedule

In order to travel to Guantanamo, counsel, COUNSEL’S ASSISTANT(S), AND

INTERPRETER(S)/TRANSLATOR(S) must hold a valid current United States security

clearance at the secret level or higher, AS REQUIRED, 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.

As to any visit not scheduled as of the date on which counsel executes the

attached affirmation, counsel shall submit to the Department of Defense (DoD) a written

request to meet with a detainee thirty (30) days in advance of the proposed visit date.

Requests for visits made inside of thirty (30) days will not normally be granted.



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Reasonable efforts will be made to accommodate counsel’s request regarding the

scheduling of a meeting. DoD will contact counsel regarding approval or disapproval of

requests.

Legal visits shall take place in an area designated by Commander JTF-GTMO. No

more than two attorneys plus one interpreter/translator shall visit with a detainee at one

time, unless approved in advance by Commander, JTF-GTMO. Such approval will not

be unreasonably withheld. Normal visitation hours are daily from 9:00 a.m. to 11:30 a.m.

and 1:00 p.m. to 5:00 p.m., Monday through Friday. Detainee client meetings will not

occur on Saturday, Sunday, or federal holidays. Changes to normal visitation hours

(including requests to work through lunch 11:30 a.m. to 1:00 p.m.) will be permitted at

the sole discretion of Commander, JTF- Guantanamo.



B. Modifications to Visit Schedule

Any request to modify an approved visit schedule, including but not limited to,

adding, removing, or substituting an attorney or support staff, shall be submitted no later

than seven (7) days prior to the scheduled visit. Reasonable efforts will be made to

accommodate a modification of a request made less then seven (7) days prior to the

scheduled visit. Any more than two revisions to a particular approved visit request will

not normally be granted, absent good cause shown. Counsel must notify the Staff Judge

Advocate as soon as practicable of any anticipated cancellations of detainee meetings or

expected delay in arriving for detainee meetings.

If counsel desires to modify a visit schedule after arrival at Guantanamo, counsel

must submit a written request through the habeas escort to the Staff Judge Advocate



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(SJA). All such requests are subject to operational limitations and requirements of JTF-

GTMO.

Commander, JTF-GTMO retains the authority to modify any visit due to

operational requirements or security needs. Counsel will be advised of these

modifications as soon as practicable. JTF-GTMO personnel will take reasonable steps to

support and to minimize any disruption of approved visits.

C. Security Procedures for Counsel Visits



Counsel shall comply with the following security procedures and force protection

safeguards. All counsel visiting any detention camp or designated meeting location shall

follow the instructions and directions of the military escorts and guard force.

Additionally, all military escorts and guard force members are to be treated with dignity

and respect. All conflicts or concerns should be brought to the immediate attention of the

SJA for resolution. Failure to follow the instructions or directions of the military escorts

of guard force, as given, may result in exclusion from the detention camp or designated

meeting location and/or a denial of further visitation. Counsel will not travel to anywhere

on the Windward side of Naval Station Guantanamo unless specifically authorized,

accompanied, and escorted by their assigned military escort.

Upon arrival at a detention camp or designated meeting location, security

personnel will perform a contraband inspection of counsel for unauthorized or

unapproved items using metal detectors as well as a physical inspection of counsel’s bags

and briefcases and, if determined necessary, a physical inspection of counsel’s person.

Counsel shall submit all books, briefcases, folders, files, papers or other containers being

carried by them to a contraband search by JTF-GTMO personnel. Entering or exiting any



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detention camp or designated meeting location for purposes of meeting with detainee

clients constitutes consent to search of all persons and things for contraband.

Contraband includes any physical items or prohibited information as described

herein. This includes, but is not limited to the following: physical items such as weapons,

drugs, or items of value; anything that could be considered detrimental to the security,

good order, and discipline of Camp Delta. It also includes correspondence, documents,

electronic media, or similar materials (other than information in material cleared and

stamped as legal mail by the Privilege Team) relating to: any military, intelligence,

security or law enforcement operations, investigations, arrests, or the results of such

activities by any nation or agency; current political or military events in any country;

historical perspectives or discussions on jihadist activities; security procedures at

Guantanamo, including names of personnel and the layout of camp facilities; information

pertaining to assignment or reassignment of present and former detention personnel;

information regarding the status or detention of former and current detainees; changes to

detention facilities; operation of the detention facility or changes to security procedures at

Guantanamo; or any material Commander, JTF-GTMO, or his designee, has otherwise

deemed to be impermissible or inappropriate for a detainee to possess. Contraband found

during an inspection or cursory scan is subject to seizure and examination by JTF-GTMO

personnel.

Any written communication bearing an approval marking from the DoD Privilege

Team or the Commander, JTF-GTMO shall not be considered to be written contraband.

Any written materials that counsel seek to bring into a meeting with a detainee, with the

exception of blank paper, not bearing an appropriate approval marking from the DoD



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Privilege Team or the Commander, JTF-GTMO, will not as a rule be permitted. JTF-

GTMO may in its discretion review and permit such items to be brought into the meeting.

There is, however, no right to such review. Further, the availability of such review and

the manner of the review is subject to the discretion of JTF-GTMO.

Counsel will meet with a detainee in designated meeting locations provided by

JTF-GTMO. Meetings are subject to visual monitoring by closed circuit TV or visual

observation, including through an open door for safety and security reasons.

Counsel shall not be permitted to interview or question members of JTF-GTMO

about their duties or interactions with detainees without first obtaining permission from

Commander, JTF-GTMO.

Nothing in the Guide shall limit the authority of the Commander of JTF-GTMO

to require the imposition of additional security procedures, relating to access to the

detainee and the legal mail process, based on the security needs and military resources at

the Base.




D. Counsel Badges

While visiting Guantanamo, counsel will be issued a visitor’s badge. Counsel are

not permitted to damage, tamper with, alter, copy, photograph, or otherwise reproduce

these badges in any way. These badges are property of JTF-GTMO and must be

surrendered each night prior to returning to the Leeward side of the base and prior to

leaving Guantanamo. Any lost badges must be immediately reported to the Staff Judge

Advocate.

Any violation of this requirement may constitute grounds for suspension or

revocation of counsel’s security clearance or other sanctions.



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E. Electronic Devices

No electronic communication or recording devices are permitted on the

Windward side of Naval Station, Guantanamo. This includes, but is not limited to,

recording devices, cameras, cellular or satellite phones, personal digital assistants

(PDAs), laptops, MP3 players, portable electronic devices and related equipment.

If any such devices are brought to the Windward side of the Naval Station, they

are subject to confiscation and surrender to JTF-GTMO personnel. Such devices will be

held until all saved or recorded information can be accessed and reviewed, and any

information or data saved or recorded on the device at the time of surrender may be

destroyed.




F. Photography and Recording

Photography or recording of any type (e.g., audio and video) is prohibited on the

entirety of U.S. Naval Station, Guantanamo (both the Windward and Leeward sides)

without the prior approval of Commander, JTF-GTMO. If approval is granted for such

requests, any photographs or recordings must be screened by JTF-GTMO prior to being

taken or transmitted from Naval Station Guantanamo, in any medium.

G. Telephone Access



There is no right to telephonic access to a detainee. Requests for telephonic

access to the detainee by counsel may be considered on a case-by-case basis due to

special circumstances and must be submitted to the Staff Judge Advocate, JTF-GTMO.



Any telephonic access by counsel will be subject to appropriate security

procedures, which may include, inter alia, contemporaneous monitoring by the DoD

privilege team.



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3. Mail Procedures

A. Mail Sent by Counsel to Detainee (Incoming Mail)

Legal Mail

In accordance with § 3.A of the Protective Order, legal mail, as defined by § 2.I of





the Protective Order, shall be subject to content review for prohibited information and

security review for physical contraband by the DoD Privilege Team. See Protective

Order § 3.B.



Counsel shall send incoming legal mail for a detainee to the DoD Privilege Team

to the following address: Privilege Team, c/o Court Security Officer, 1235 South Clark

Street, Suite 210, Crystal Gateway 1, Arlington, Virginia 22202. Each envelope or

mailer shall be labeled with the name and Internment Serial Number (ISN) 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: AAttorney-Detainee Materials-For Mail Delivery to Detainee.”

Each page of legal mail shall be labeled AAttorney-Detainee [email protected] No staples,

paper clips or any non-paper items shall be included with the documents.



Upon receiving legal mail, the DoD Privilege Team shall open the envelope or

mailer to search the contents for prohibited physical contraband. In addition, the DoD

Privilege Team may redact or screen out written material not meeting the definition of

“Legal Mail.” See Protective Order § 3.B. In the event the DoD Privilege Team

proposes to redact or screen out material sent from counsel to a detainee, counsel for that

Detainee must be notified. See Protective Order § 3.C.



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Following its review, the DoD Privilege Team shall send legal mail approved for

delivery to the detainee to personnel at Guantanamo Bay. The DoD Privilege Team is

not required to send legal mail to personnel at Guantanamo Bay in the event of a dispute

with counsel regarding the presence of contraband and/or the screening or redacting of

information from legal mail. Each page of legal mail that is approved for delivery to the

detainee by DoD Privilege Team shall be marked/stamped “Legal Mail Approved by

Privilege Team” and placed in a sealed envelope bearing the same marking on the

exterior. Within three (3) business days of receipt of legal mail from the DoD Privilege

Team, personnel at Guantanamo shall deliver the envelope bearing the approved DoD

Privilege Team marking to the detainee without opening the envelope. In the event an

envelope approved by the DoD Privilege Team arrives at Guantanamo bearing evidence

of tampering or physical contraband, JTF-GTMO personnel retain the authority to return

the envelope, without opening it, to the DoD Privilege Team for appropriate action.



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.





Non-Legal Mail

Written correspondence to a detainee not falling within the legal mail definition of

the Protective Order (also referred to as non-legal mail) shall be sent through the United

States Postal Service to the following address: Detainee's Name and ISN, U.S. Naval

Base, Guantanamo Bay, Cuba, Washington, D.C. 20355. These non-privileged

communications will be reviewed by military personnel at Guantanamo under the

standard operating procedures for detainee non-legal mail.



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B.

Mail Sent by Detainee to Counsel (Outgoing Legal Mail)

Legal Mail

Guantanamo will provide each detainee with paper to prepare legal mail

communications to counsel. Access to such items may be limited or restricted because of

the detainee’s disciplinary and/or medical status, although a detainee’s disciplinary status

shall not be a basis for denying all access to such items. In the presence of military

personnel, the detainee will seal the written communication into an envelope and it will

be annotated as AAttorney-Detainee Materials-For Mail Delivery To [email protected] Each

envelope shall be labeled with the name of the detainee, the detainee’s ISN and the name

of the detainee’s counsel. Any outgoing legal mail will be handled and treated as

classified information, as defined by § 2.E of the Protective Order, pending an

appropriate classification review of the legal mail. Envelopes annotated with the name of

persons other the detainee=s counsel (including family/friends or other attorneys) shall be

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



Military personnel will collect the outgoing legal mail within three (3) business

days of being notified by the detainee that the communication is prepared for sealing and

mailing. After the outgoing legal mail is collected from the detainee, Guantanamo

personnel shall seal the envelope and place it into a larger envelope marked

AAttorney-Detainee Materials-For Mail Delivery To [email protected] and annotate the larger

envelope with the name of the detainee, his ISN and his counsel. The envelope will be

sealed and mailed in the manner required for classified materials at the secret level.

Within three (3) business days of receipt from the detainee, the communication will be

mailed to the DoD Privilege Team.



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Non-Legal Mail

Non-legal mail

communications

from

detainees,

including written

communications to persons other than counsel, shall be sent through the United States

Postal Service and are subject to ordinary review by military personnel at Guantanamo

under the standard operating procedures for detainee non-legal mail. Any envelope or

communication submitted by a detainee to Guantanamo personnel for mailing will be

processed as non-legal mail unless the envelope or communication meets the criteria for

legal mail listed above.







In the event any non-legal correspondence or messages from a detainee to

individuals other than his counsel (including but not limited to family/friends or other

attorneys) or communications not generated by the detainee (e.g., notes from other

detainees) are sent to counsel as legal mail, the DoD Privilege Team shall notify counsel

that the material will not be processed and the DoD Privilege Team shall return the

communication to Guantanamo for processing according to the standard operating

procedures for detainee non-legal mail. In the event non-legal communications are

included with legal mail communications such that the non-legal mail communication

cannot be segregated and returned to Guantanamo for processing in accordance with

standard operating procedures for non-legal mail, the DoD Privilege Team shall redact or

screen out any material not meeting the definition of “Legal Mail.”

4. Materials Brought Into A Meeting With Detainee And Counsel

Counsel shall bring only writing utensils and blank paper into any meeting with a

detainee, unless counsel has received prior approval from Commander, Joint Task Force-



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Guantanamo or the material has been cleared and stamped by the Privilege Team as legal

mail. Blank paper may not be left with counsel’s detainee-client.

A. Categories of Materials

Legal Mail

All legal mail counsel seeks to bring to a meeting with a detainee must be

processed pursuant to the general procedures set out in § 3.A of this document. Each

page of legal mail that counsel seek to bring into a meeting with a detainee following

screening by the DoD Privilege Team must be marked/stamped by the DoD Privilege

Team with the following annotation: “Legal Mail Approved by Privilege Team.”

Commander, JTF-GTMO, after confirming that the materials are stamped as indicated

above, will permit counsel to bring stamped materials into a meeting with a detainee-

client subject to the contraband screening policies discussed above. Counsel are

responsible for submitting to the DoD Privilege Team any legal mail that they seek to

hand-carry into the meeting that they seek to have reviewed by the DoD Privilege Team

twenty-one (21) days in advance of counsel’s scheduled visit in order to allow the DoD

Privilege Team to review the documents and return them to counsel.



Non-Legal Mail

With the exception of writing utensils, blank paper, and legal mail screened as

discussed above, any communications or physical items that counsel seek to bring into a

meeting must be approved in advance by the Commander, JTF-GTMO. All such non-

legal items submitted for advanced review in connection with a counsel visit must be

received by Guantanamo through the United States Postal Service twenty-one (21) days

in advance of counsel’s requested visit. Counsel may send non-legal materials to the



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following address: Detainee's Name and ISN, U.S. Naval Base, Guantanamo Bay, Cuba,

Washington, D.C. 20355. Review of this material will be conducted as resources allow

and include both a physical contraband inspection as well as a substantive review of any

written content. There is no guarantee that this non-legal material will be processed and

approved in advance of a visit. Nonetheless, providing material in advance will speed up

processing and increase the likelihood that material requested will be allowed to be

carried into a meeting with the detainee.

Food Items

Counsel may bring food items into a meeting, but all authorized food items must

be consumed during the visit or removed by counsel. JTF-GTMO personnel will inspect

all food items. Any food item may not be allowed into a meeting location if it is

determined by guard personnel that the proposed items constitute a hazard or other

security issue. Counsel must ensure that all food items not consumed and packaging and

debris are collected from the meeting area prior to each departure. Counsel agree to

notify the guards if the detainee keeps and/or refuses to return any item brought in by

counsel that the detainee is not authorized to keep. Failure to notify the guards can result

in a loss of the privilege to bring food items to future meetings. Flowers, balloons and

other similar items are expressly prohibited.

5. Materials Brought Out Of A Meeting With Detainee and Counsel



Upon the 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 JTF-GTMO. These materials will be sealed in the

presence of counsel and will be handled as classified material as required by Executive



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Order 12958, DOD Regulation 5200.1-R and AI 26,OSD Information Security

Supplement to DOD Regulation 5200.1R.



Upon the completion of the counsel’s visit to JTF-GTMO, the notes or documents

used or produced during the visit shall be sealed in the presence of counsel and placed in

an envelope labeled as AAttorney-Detainee Meeting DocumentsBFor Delivery to

[email protected] The envelope shall be sealed into a larger envelope by military personnel at

Guantanamo which shall be marked as AAttorney-Detainee Meeting Documents-For Mail

Delivery To [email protected] and shall be annotated with the name of the detainee and the

counsel. The envelope shall be sealed and mailed in the manner required for classified

materials. Within two (2) business days following the completion of the counsel=s visit to

Guantanamo, the package shall be mailed to the DoD Privilege Team. The DoD

Privilege Team will make the materials available to counsel at a physical facility

accredited or approved for the storage, handling and control of classified information (a

secure facility). The materials may not be removed from the secure facility until the

materials have been determined to be unclassified by appropriate U.S. Government

officials.



If during a meeting a detainee provides counsel with communications or messages

from a detainee to individuals other than his counsel (including family/friends or other

attorneys) or communications not generated by the detainee/client, counsel shall provide

those communications to military personnel at Guantanamo. Such communications will

be processed as non-legal mail by JTF-GTMO. If such non-legal communications are

included in the envelope of materials sent to the DoD Privilege Team following counsel’s

meeting with the detainee, counsel will be notified that the non-legal material will not be



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processed by the DoD Privilege Team and the DoD Privilege Team will return the

material to JTF-GTMO for processing as non-legal mail. In the event non-legal

communications are included with legal mail communications such that the non-legal

mail communication cannot be segregated and returned to Guantanamo for processing in

accordance with standard operating procedures for non-legal mail, the DoD Privilege

Team shall redact or screen out any material not meeting the definition of “Legal Mail.”



During a meeting with a detainee, counsel may provide a detainee with any

written documents approved by JTF-GTMO to be brought into the meeting. The detainee

will be permitted to bring all such documents back to his cell at the conclusion of the

meeting, subject to an appropriate contraband review by JTF-GTMO. The detainee may

also bring back to his cell any documents, notes, or communications created by the

detainee and/or counsel during the course of the meeting, subject to an appropriate

contraband review by JTF-GTMO.

6. Classification Determination of Communications Between Detainee and Counsel



In accordance with § 4.A of the Protective Order, all materials sent by a detainee

to counsel or brought out of a meeting for a detainee by counsel will be handled and

treated as classified information, as defined by § 2.E of the Protective Order, pending an

appropriate classification review.





A. Classification Request of Detainee Communications

In accordance with § 4.J of the Protective Order, counsel may submit information

learned from a detainee to the DoD Privilege Team for a classification and security

review which may result in a determination of its appropriate security classification and

whether it contains protected material. Counsel shall memorialize the information



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submitted for classification and security review into a written memorandum outlining as

specifically as possible the information for which counsel requests a classification

determination. All documents submitted for classification and security 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.



Materials provided by counsel to the DoD Privilege Team must be in legible

handwriting or transcribed by typewriter or computer. Materials that the Government

determines are not legible will be returned to the secure area and counsel will be required

to transcribe those materials into type-written form. Materials that are not in English

must be accompanied by an English translation. Each page of the document submitted

for classification review shall be marked AAttorney-Detainee [email protected] and [email protected]

Materials that do not comply with these requirements will not be processed, and will be

returned to counsel within five (5) business days.



As soon as possible after conducting the classification and security review, the

DoD Privilege Team shall advise counsel of the classification levels of the information

contained in the materials submitted for review. The privilege team will also designate

material as “protected.” Pursuant to §§ 5.A and 5.C of the Protective Order, counsel shall

not publicly disclose information designated as “protected.” If counsel seeks to use the

information in a public court filing, the document should be filed through the Court

Security Officer and the Government would then have the opportunity to have the

material maintained under seal as protected (pursuant to § 5 of the Protective Order).



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The DoD Privilege Team shall not be required to perform classification review of

any communications that fall outside the scope of legal mail, as defined by the Protective

Order. Communications not reviewed by the DoD Privilege Team, as well as material

redacted or screened out by the DoD Privilege Team, shall remain presumptively

classified.



If, at any time, the DoD Privilege Team determines that information in the

documents submitted for classification review involve any future event that threatens

national security or is likely to involve violence, the DoD Privilege Team will disclose

this information to Commander, JTF-GTMO and provide contemporaneous notice to

counsel in accordance with § 4.J of the Protective Order.



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ACKNOWLEDGMENT

The undersigned hereby acknowledges that he/she has read the Guide,

understands its terms, and agrees to be bound by each of those terms. The undersigned

acknowledges that his/her duties under the Guide shall survive the termination of this

case, are permanently binding, and that failure to comply with the terms of the Guide

could provide grounds for revocation of counsel’s security clearance and/or suspension or

termination of counsel's access to Guantanamo.



DATED: ______________________ BY: _________________________

(type or print name)


SIGNED:______________________




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