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Case 1:07-cv-02338-UNA Document 14 Filed 01/23/2008 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDURRAHMAN ABDALLAH ALI
MAHMOUD AL SHUBATI,

v.

Petitioner/Plaintiff,

GEORGE W. BUSH, et al.,

Respondents/Defendants.

CIVIL ACTION NO. 07-CV-02338
(HHK)

PETITIONER’S REPLY TO RESPONDENTS’ OPPOSITION TO AMENDED
MOTION TO ENTER THE NOVEMBER 8, 2004 AMENDED PROTECTIVE

ORDER

Petitioner respectfully requests the Court to enter the November 8, 2004 protective

order so that Petitioner and his counsel can meet, discuss, and correspond regarding this

habeas corpus case.

Respondents’ first argument is that the Court lacks jurisdiction to hear this case

under the D.C. Circuit’s decision in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007),

cert. granted, 75 U.S.L.W. 3707 (U.S. June 29, 2007). The Supreme Court, however,

remains the final arbiter of this court’s jurisdiction. It will resolve the jurisdiction

question when it hands down its decision in Boumediene. But until that time, the status

quo allowing counsel access to the base in habeas cases should remain in effect.

Respondents argue that this Court should deny entry of the November 8, 2004

Protective Order because Respondents will agree to entry of the more limited Bismullah

protective order entered for Detainee Treatment Act (“DTA”) cases. See Ex. 1. But that

Case 1:07-cv-02338-UNA Document 14 Filed 01/23/2008 Page 2 of 4

protective order is expressly confined to cover DTA litigation, which examines whether

Petitioner was properly labeled an “enemy combatant” by a Combatant Status Review

Tribunal. In this case, Petitioner challenges his unjust detention at Guantanamo Bay

through the writ of habeas corpus.

The Bismullah protective order is not appropriate here because it would limit

Petitioner’s ability to pursue this case. If the Bismullah protective order were entered,

Petitioner can only receive legal mail regarding his DTA case. Further, only two client

visits are permitted under the DTA protective order to “obtain his authorization to seek

review of the CSRT’s determination of his status.” Thus, there would be no mechanism

for counsel to communicate with Petitioner regarding this habeas case, and certainly no

long-term mechanism for communication with Petitioner regarding this case.

For these reasons, the November 8, 2004 protective order adopted in other habeas

cases is appropriate in this habeas corpus action.

Dated: January 23, 2008

Respectfully submitted,

Counsel for Petitioner:

/s/ Brent N. Rushforth

Brent N. Rushforth (DC 331074)
Kit A. Pierson (DC 398123)
Sarah B. Pojanowski (DC 502036)
Jenny L. Workman (DC 502584)
Elizabeth S. Arora
Janet E. Haws
HELLER EHRMAN LLP
1717 Rhode Island Avenue, NW
Washington, DC 20036
Tel: (202) 912-2000
Fax: (202) 912-2020

2

Case 1:07-cv-02338-UNA Document 14 Filed 01/23/2008 Page 3 of 4

Shayana Kadidal (DC 49512)
Pardiss Kebriaei (DC 51395)
CENTER FOR CONSTITUTIONAL
RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
Tel: (212) 614-6439
Fax: (212) 614-6499

3

Case 1:07-cv-02338-UNA Document 14 Filed 01/23/2008 Page 4 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDURRAHMAN ABDALLAH ALI
MAHMOUD AL SHUBATI,

v.

Petitioner/Plaintiff,

GEORGE W. BUSH, et al.,

Respondents/Defendants.

CIVIL ACTION NO. 07-CV-02338
(HHK)

CERTIFICATE OF SERVICE

I hereby certify that, on this 23rd day of January, 2008, I caused a true and correct copy
of the PETITIONER’S REPLY TO RESPONDENTS’ OPPOSITION TO
AMENDED MOTION TO ENTER THE NOVEMBER 8, 2004 AMENDED
PROTECTIVE ORDER to be served by on the ECF system:

TERRY M. HENRY
ANDREW WARDEN
JUDRY SUBAR
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 514-4107
Fax: (202) 616-8470
Counsel for Respondents

/s/ Brent N. Rushforth



4

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 1 of 14

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 06-1197

September Term, 2007

Filed On: October 23, 2007

[1075248]
Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji
Besmella, Haji Mohammad Wali, Next Friend of Haji
Bismullah,

Petitioners

v.

Robert M. Gates, Secretary of Defense,

Respondent

________
06-1397

Huzaifa Parhat, et al.,

Petitioners

v.

Robert M. Gates, Secretary of Defense, et al.,

Respondents

BEFORE:

Ginsburg, Chief Judge, and Henderson and Rogers, Circuit Judges

P R O T E C T I V E O R D E R

as Amended October 23, 2007

This matter comes before the court upon the parties’ motions for a protective order
to prevent the unauthorized disclosure or dissemination of classified national security
information and other protected information that may be reviewed by, made available to,
or is otherwise in the possession of, the Petitioner or Petitioner’s Counsel in this case, and
upon the Government’s motion to amend the initial Protective Order. Pursuant to the
general supervisory authority of the court, and for good cause shown,

IT IS ORDERED:

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 2 of 14

1.

A.

B.

C.

D.

E.

F.

General Provisions

The court finds that this case involves classified 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.” This case may also involve other protected information or documents, the
storage, handling and control of which may require special precautions in order to
protect the security of United States personnel and facilities, and other significant
interests.

The purpose of this Protective Order is to establish the procedures that must be
followed by a Petitioner, Petitioner’s Counsel, and all other individuals who receive
access to classified information or documents, or other protected information or
documents, in connection with this case, including the Department of Defense (DoD)
Privilege Team.

The procedures set forth in this Protective Order will apply to all aspects of this
case, and may be modified by further order of the court sua sponte or upon
application by any party. The court will retain continuing jurisdiction to enforce or
modify the terms of this Order.

Nothing in this Order is intended to or does preclude the use of classified information
by the Government as otherwise authorized by law outside of this action under the
Detainee Treatment Act.

Petitioner’s Counsel of record is responsible for advising his or her partners,
associates, and employees, the Petitioner, and others of the contents of this
Protective Order, as appropriate or needed.

All documents marked as classified, and information contained therein, remain
classified unless the documents bear a clear indication that they have been
declassified or determined to be unclassified by the agency or department that is the
original classification authority of the document or of the information contained
therein.

G.

Any violation of this Protective Order may result in a sanction for contempt.

2. Designation of Court Security Officer

The court designates Christine E. Gunning as Court Security Officer (“CSO”) for
these cases, and Jennifer H. Campbell, Erin E. Hogarty, Joan B. Kennedy, Charline
A. DaSilva, Nathaniel A. Johnson, Daniel O. Hartenstine, Michael P. Macisso,
James P. Londergan, Barbara J. Russell and Miguel A. Ferrer as Alternate CSOs,
for the purpose of providing security arrangements necessary to protect from
unauthorized disclosure any classified documents or information, or protected

2

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 3 of 14

documents or information, to be made available in connection with these cases.
Petitioners’ Counsel must seek guidance from the CSO with regard to appropriate
storage, handling, transmittal, and use of classified documents or information.

3. Definitions

A.

B.

C.

D.

“Detainee” means an alien detained by the DoD as an alleged enemy combatant at
the U.S. Naval Base at Guantánamo Bay, Cuba.

“Petitioner” means a Detainee or a “next friend” acting on his behalf.

“Petitioner’s Counsel” includes a lawyer who is employed or retained by or on behalf
of a Detainee for purposes of representing the Detainee in this litigation, as well as
co-counsel, interpreters, translators, paralegals, investigators, and all other
personnel or support staff employed or engaged to assist in this litigation.

As used herein, 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:

i.

ii.

iii.

papers, correspondence, memoranda, notes, letters, reports, summaries,
photographs, maps, charts, graphs,
intraoffice
communications, notations of any sort concerning conversations, meetings,
or other communications, bulletins, teletypes, telegrams, telefacsimiles,
invoices, worksheets; and drafts, alterations, modifications, changes and
amendments of any kind thereto;

interoffice and

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

iv.

information acquired orally.

E.

The terms “classified documents” and “classified information” refer to:

i.

any document or information that has been 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

3

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 4 of 14

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 characteristics, now
or formerly in the possession of a private party that has been 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)” ;

oral or nondocumentary classified information known to the Petitioner or
Petitioner’s Counsel; or

any document or information as to which the Petitioner or Petitioner’s
Counsel has been notified orally or in writing that such document or
information contains classified information.

ii.

iii.

iv.

F.

G.

H.

I.

The terms “protected documents” and “protected information” refer to any document
or information deemed by the court, either upon application by the Government or
sua sponte, to require special precautions in storage, handling, and control, in order
to protect the security of United States Government personnel or facilities, or other
significant government interests.

“Access to classified information” and “access to protected information” mean
having access to, reviewing, reading, learning, or otherwise coming to know in any
manner any classified information or protected information.

“Communication” means all forms of communication between Petitioner’s Counsel
and a Detainee, including oral, written, electronic, or by any other means.

“Legal Mail” consists only of documents and drafts of documents that are intended
for filing in this action and correspondence directly related to those documents that-

i.

ii.

iii.

relate directly to the litigation of this action;

address only (a) events leading up to the capture of the Detainee on whose
behalf the petition in this action was filed, (b) events occurring between such
Detainee’s capture and any hearing before a Combatant Status Review
Tribunal (CSRT) relating to such Detainee, and (c) the conduct of the CSRT
proceeding relating to such Detainee; and

do not include any of the following information, in any form, unless directly
related to the litigation of this action:

4

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 5 of 14

a.

b.

c.

d.

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;

information relating to current political events in any country;

information relating to security procedures at the Guantánamo Naval
Base (including names of United States Government personnel and
the layout of camp facilities) or the status of other Detainees;

publications, articles, reports, or other such material including
newspaper and other media articles, pamphlets, brochures, and
publications by nongovernmental or advocacy organizations, or any
descriptions of such material.

J.

K.

4.

A.

B.

C.

The “Record on Review” means the information defined as “Government
Information” by the Secretary of the Navy in his memorandum regarding
“Implementation of Combatant Status Review Tribunal Procedures” dated July 29,
2004, to wit, all “reasonably available information in the possession of the U.S.
Government bearing on the issue of whether the detainee meets the criteria to be
designated as an enemy combatant.”

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

Roles and Functions of the DoD Privilege Team and Special Litigation Team

The “DoD Privilege Team” comprises one or more DoD attorneys and one or more
intelligence or law enforcement personnel. If required, the DoD Privilege Team may
include interpreters/translators. The DoD Privilege Team is charged with
representing and protecting the interests of the United States Government related
to security and threat information. The DoD Privilege Team is authorized to review
all communications specified in this order, including written communications and
other materials sent from Petitioner’s Counsel to the Detainee. The DoD Privilege
Team may not disclose a communication from Petitioner’s Counsel to the Detainee
other than information provided in a filing with the court and served on Government
counsel, unless the disclosure of such information is authorized by this or another
order of the court or by Petitioner’s Counsel.

The DoD Privilege Team may redact or screen out material not meeting the
definition of “Legal Mail” in section 3(I) above.

When the DoD Privilege Team proposes to redact or screen out material sent from
Petitioner’s Counsel to a Detainee, Petitioner’s Counsel for that Detainee must be
notified.

5

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 6 of 14

D.

E.

F.

G.

H.

I.

J.

5.

A.

In the event a dispute regarding the screening and redaction of material from legal
mail sent from Petitioner’s Counsel to a Detainee cannot be resolved by the parties
and Petitioner’s Counsel seeks the intervention of this court, the DoD Privilege
Team may disclose the material at issue to the Commander, JTF-Guantánamo
Naval Base, or his representatives, including counsel for the Government.

A “Special Litigation Team” is authorized to represent the DoD Privilege Team with
respect to execution of its duties. The Special Litigation Team will be composed of
one or more attorneys from the Department of Justice, who may not take part or be
involved in litigating the merits of this action under the Detainee Treatment Act or
any other case brought by or against the Detainee.

The DoD Privilege Team may, through the Special Litigation Team (see § 4(H)
below), inform the court of any issues or problems related to the release or
processing of information related to this case.

The Special Litigation Team may not disclose information provided by the DoD
Privilege Team or any information submitted by Petitioner’s Counsel to the DoD
Privilege Team for review, except as provided by this Order or as permitted by
Petitioner’s Counsel or by the court.

Petitioner’s Counsel or the Special Litigation Team may submit filings to the court
concerning the DoD Privilege Team or actions taken by it.

Until otherwise notified, potentially privileged information in such filings must be
submitted to the court under seal and contain a conspicuous notation as follows:
“Submitted Under Seal-Contains Privileged Information.” To maintain such
information under seal, an appropriate application must be made to the court. Such
information must be maintained under seal unless and until the court determines the
information should not be sealed. Such filings by Petitioner’s Counsel or the Special
Litigation Team may not be served on counsel for respondent, except as authorized
by Petitioner’s Counsel or the court. With respect to a submission made under seal,
a redacted version suitable for filing in the public record must be provided.
Unresolved disputes concerning such redacted versions may be presented to the
court.

Petitioner’s Counsel may not convey to a Detainee information redacted or screened
by the DoD Privilege Team or designated for such redaction or screening, absent
consent from the DoD Privilege Team, the Special Litigation Team, or the
Government, or authorization by this court.

Access to Classified Information and Documents

Without authorization from the Government, neither Petitioner nor Petitioner’s
Counsel may have access to any classified information involved in this case.

6

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 7 of 14

B.

C.

D.

E.

F.

G.

H.

I.

Petitioner’s Counsel is presumed to have a “need to know” all the information in the
Government’s possession concerning the Detainee he represents. This presumption
is overcome to the extent the Government seeks to withhold from Petitioner’s
Counsel highly sensitive information or information concerning a highly sensitive
source that the Government presents to the court ex parte and in camera. Except
for good cause shown, the Government must provide notice to Petitioner’s Counsel
on the same day it files such information with the court ex parte.

Petitioner’s Counsel to be provided access to classified information must execute
the Memorandum of Understanding (“MOU”) appended to this Protective Order, file
executed originals with the court, and submit copies to the CSO and counsel for the
Government. The execution and submission of the MOU is a condition precedent
for Petitioner’s Counsel to have initial and continuing access to classified information
for the purposes of this proceeding.

The substitution, departure, or removal of Petitioner’s Counsel from these cases for
any reason will not release that person from the provisions of this Protective Order
or the MOU executed in connection with this Order.

Authorization from the Government to access classified information will not be
granted to Petitioner’s Counsel unless Petitioner’s Counsel has first:

i.

ii.

iii.

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

obtained either (a) written evidence of authority to represent the Detainee or
(b) evidence of authority to represent the Detainee through the Detainee’s
next friend; and

signed the MOU attached hereto as Exhibit A, agreeing to comply with the
terms of this Protective Order.

Prospective counsel for a Detainee may have up to two visits with a Detainee to
obtain his authorization to seek review of the CSRT’s determination of his status.

The substitution, departure, or removal of Petitioner’s Counsel from this case for any
reason will not release that person from the provisions of this Protective Order.

Except as provided herein, Petitioner’s Counsel may not disclose any classified or
protected information to any person. Petitioner’s Counsel may not disclose
classified or protected information to a Detainee, unless that information was
obtained in the first instance from the Detainee.

A disclosure of classified information includes any knowing, willful, or negligent
action that could reasonably be expected to result in a communication or physical
transfer of classified information.

7

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 8 of 14

Neither Petitioner nor Petitioner’s Counsel may disclose or cause to be disclosed in
connection with this case any information known or believed to be classified except
as otherwise provided herein.

At no time, including anytime subsequent to the conclusion of this case, may
Petitioner’s Counsel make any public or private statements disclosing any classified
information made available pursuant to this Protective Order, including the fact that
any such information is classified.

Petitioner’s Counsel is required to treat all information learned from a Detainee,
including any oral or written communication with a Detainee, as classified
information, unless and until the information is submitted to the DoD Privilege Team
or counsel for the Government and determined to be nonclassified. All classified
material must be handled, transported, and stored in a secure manner, as provided
by Executive Order 12958, DOD Regulation 5200.1-R and AI 26, OSD Information
Security Supplement to DOD Regulation 5200.1R.

Petitioner’s Counsel or the DoD Privilege Team must disclose to Government
counsel or Commander, JTF-Guantánamo Naval Base, any information learned
from a Detainee involving any future event that threatens national security or is likely
to
the Privilege Team must provide
contemporaneous notice to Petitioner’s Counsel and retain for Petitioner’s Counsel
a copy of the material provided to Government counsel or Commander, JTF-
Guantánamo Naval Base.

involve violence.

In such case,

Petitioner’s Counsel may not disclose the contents of any classified documents or
information to any person, except those authorized pursuant to this Protective
Order, the court, and counsel for the Government with the appropriate clearances
and the need to know that information.

In the event that classified information enters the public domain, counsel is not
precluded from making private or public statements about the information already
in the public domain, but only where the statements are not subject to the limitation
set forth below. 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 must not be the
source of any classified or protected information entering the public domain.

The foregoing does not prohibit Petitioner’s Counsel from citing or repeating
information in the public domain that Petitioner’s Counsel does not know or have
reason to believe to be classified information or a classified document, or derived
from classified information or a classified document.

8

J.

K.

L.

M.

N.

O.

P.



Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 9 of 14

6.

A.

B.

C.

D.

E.

F.

G.

Secure Storage of Classified Information

The CSO will arrange for one appropriately secure area for the use of Petitioner’s
Counsel. The secure area must contain a working area that will be supplied with
secure office equipment reasonable and necessary to the preparation of the
Petitioner’s case. Expenses for the secure area and its equipment will be borne by
the Government.

The CSO will establish procedures to ensure that the secure area is accessible to
Petitioner’s Counsel during normal business hours and at other times on reasonable
request as approved by the CSO. The CSO will establish procedures to ensure that
the secure area may be 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 this and other proceedings.

All classified information provided by the Government to Petitioner’s Counsel, and
all classified information otherwise possessed or maintained by Petitioner’s Counsel,
must be stored, maintained, and used only in the secure area.

No documents containing classified information may be removed from the secure
area unless authorized by the CSO or CSO designee supervising the area.

Consistent with other provisions of this Protective Order, Petitioner’s Counsel will
have access to the classified information made available to him or her in the secure
area and be allowed to take notes and prepare documents with respect to those
materials.

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

All documents prepared by Petitioner’s Counsel that do or may contain classified
information (including without limitation notes taken and memoranda prepared by
counsel and pleadings and other documents intended for filing with the court) must
be transcribed, recorded, typed, duplicated, copied, and otherwise prepared only by
persons who have received an appropriate approval for access to classified
information. Such activities must 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,
exhibits) must 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 may be disclosed to counsel for the Government unless

9

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 10 of 14

H.

I.

J.

K.

7.

A.

authorized by the court, by Petitioner’s Counsel, or as otherwise provided in this
Protective Order.

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

The CSO or CSO designee may not reveal to any person the content of any
conversations she or he may hear 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 Order. In addition, the presence of the CSO
or CSO designee will not operate as a waiver of, limit, or otherwise render
inapplicable the attorney-client privilege or work product protections.

All documents containing classified information prepared, possessed or maintained
by, or provided to, Petitioner’s Counsel (except filings submitted to the court and
served on counsel for the Government), must remain at all times in the control of the
CSO for the duration of these cases.

As stated in more detail in Section 9 below, failure to comply with these rules may
result in the revocation of counsel’s security clearance, civil liability, criminal liability,
or any combination thereof.

Access to Protected Information

The Government may apply to the court to deem any information “protected,” and
if filed in this court to be maintained under seal. Such information must be
maintained under seal unless and until the court determines the information should
not be designated as “protected.”

B.

Without authorization from the Government or the court, protected information may
not be disclosed or distributed to any person or entity other than the following:

i.

ii.

iii.

Petitioner’s Counsel and counsel bound by the terms of this protective order
in a case filed on behalf of another Detainee seeking review under the
Detainee Treatment Act,

the court and its support personnel, and

a Detainee if the information was obtained in the first instance from the
Detainee.

10

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 11 of 14

C.

D.

E.

F.

G.

H.

8.

A.

Neither Petitioner nor Petitioner’s Counsel may disclose or cause to be disclosed
any information known or believed to be protected in connection with any hearing
or proceeding in this case except as otherwise provided herein.

At no time, including any period subsequent to the conclusion of the proceedings,
may Petitioner’s Counsel make any public or private statements disclosing any
protected information made available pursuant to this Protective Order, including the
fact that any such information is protected.

Protected information may be used only for purposes directly related to this case
and not for any other litigation or proceeding, except by leave of the court.
Photocopies of documents containing such information may be made only to the
extent necessary to facilitate the permitted use hereunder.

Nothing in this Protective Order prevents the Government from using for any
purpose protected information it provides to a party. Nothing in this Protective Order
entitles a nonparty to this case to protected information.

Within ninety (90) days of the resolution of this action and the termination of any
certiorari review therefrom, all protected documents and information, and any copies
thereof, provided to Petitioner’s Counsel must be promptly destroyed and
Petitioner’s Counsel must certify in writing that all designated documents and
materials have been destroyed. Counsel for the Government may retain one
complete set of any such materials that were presented in any form to the court. Any
such retained materials must 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.

The Record on Review must be provided to Petitioner’s Counsel at the time the
certified index of the record is filed in this court or as otherwise ordered by the court.

Procedures for Filing Documents

Until further order of this court, any pleading or other document filed by Petitioner
that Petitioner’s Counsel does not believe contains classified information must be
marked “Pending Classification Review,” filed directly with the court, and
immediately served upon Government counsel. Government counsel must accept
service via hand or overnight mail. Counsel for the Government must promptly
examine the pleading or other document and forward it to the appropriate agencies
for their determination whether the pleading or other document contains classified
information. The court will secure the document until such a determination is
rendered. If it is determined that the pleading or other document does not contain
classified information, Government counsel will promptly so notify the court and
Petitioner’s Counsel. Should a determination be made that the pleading or other

11

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 12 of 14

document contains classified information, Government counsel will immediately
notify the court of the determination so that the document may be filed under seal
and maintained appropriately. Government counsel will also notify Petitioner’s
Counsel and the CSO. The CSO will work with Petitioner’s Counsel to ensure that
any classified information that may have been inadvertently processed outside of
the secure facility is appropriately secured. Government counsel will work with the
appropriate government agencies and departments to prepare a redacted version
of the pleading or other document appropriate for filing on the public record.

Any pleading or other document filed by Petitioner that Petitioner’s Counsel knows
to be classified, believes may be classified, or is unsure of the proper classification,
must be filed under seal with the CSO at the secure facility. The pleading or other
document must be marked “secret” or “top secret” as appropriate. Petitioner’s
Counsel will provide the original pleading and six copies thereof to the CSO. The
date and time of physical submission to the CSO will be considered the date and
time of filing. The CSO must immediately email the court’s Guantanamo Notification
List that a filing has been received. The CSO will then deliver to the court and
counsel for the Government any pleading or other document filed by Petitioner that
contains classified or presumptively classified information. The CSO must promptly
examine the pleading or other document and forward it to the appropriate
government agencies and departments for their determination as to whether the
pleading or other document contains classified information. If 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. Government counsel 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. If it is
determined that the pleading or other document does not contain classified
information, Government counsel will promptly so notify the court and Petitioner’s
Counsel, and the Clerk will direct the parties to file a public version without any
classification markings. Any deliberate mishandling of classified information could
result in the revocation of counsel’s security clearance, sanction by the court, or
both.

Any pleading or other document filed by the Government containing classified
information must be filed under seal with the court through the CSO. The date and
time of physical submission to the CSO will be considered the date and time of filing
with the court. The CSO must serve a copy of any classified pleadings by the
Government upon the Petitioner at the secure facility.

Penalties for Unauthorized Disclosure

Any disclosure of classified information in violation of this order may constitute
violations of United States criminal laws. In addition, any violation of the terms of
this Protective Order must be immediately brought to the attention of the court and
may result in a charge of contempt of court and possible referral for criminal


B.

C.

9.

A.

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Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 13 of 14

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 and may be used to the advantage of an adversary of
the United States or against the interests of the United States. 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, United States Government
facilities, and other significant United States Government interests. This Protective
Order is to ensure that those authorized to receive classified information or
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.

B.

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

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY:

Michael C. McGrail
Deputy Clerk/LD

13

Case 1:07-cv-02338-UNA Document 14-2 Filed 01/23/2008 Page 14 of 14

Exhibit A

MEMORANDUM OF UNDERSTANDING REGARDING ACCESS TO

CLASSIFIED NATIONAL SECURITY INFORMATION

Having familiarized myself with the applicable statutes, regulations, and orders

related to, but not limited to, unauthorized disclosure of classified information,

espionage and related offenses; The Intelligence Identities Protection Act, 50 U.S.C. §

421; 18 U.S.C. § 641; 50 U.S.C. § 783; 28 C.F.R. § 17 et seq.; and Executive Order

12958, I understand that I may be the recipient of information or documents that

belong to the United States and concern the present and future security of the United

States, and that such documents and information together with the methods and

sources of collecting it are classified by the United States Government. In

consideration for the disclosure of classified information or documents:

(1) I agree that I will never divulge, publish, or reveal either by word, conduct, or

any other means such classified documents and information unless specifically

authorized in writing to do so by an authorized representative of the United States

Government, or as expressly authorized by the Protective Order entered in the case

captioned _____________________________________.

(2) I agree that this Memorandum of Understanding and any other non-disclosure

agreement signed by me will remain forever binding on me.

(3) I have received, read, and understand the Protective Order entered by the

court in the case captioned _____________________________________, and I agree

to comply with the provisions thereof.