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Case 1:07-cv-02338-UNA Document 25 Filed 07/07/2008 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDURRAHMAN ABDALLAH ALI
MAHMOUD AL SHUBATI,

Petitioner/Plaintiff,

MISC. NO. 08-442 (TFH)

v.

GEORGE W. BUSH, et al.,

Respondents/Defendants.

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

PETITIONER’S UNOPPOSED MOTION TO ENTER PROTECTIVE ORDER

In this unopposed motion, Petitioner respectfully moves the Court to enter the

November 8, 2004 Protective Order, as amended on November 10, 2004 and December

13, 2004, in the In re Guantanamo Bay Detainee Cases, Civil No. 02-0299, et al., by

Judge Joyce Hens Green. A copy of the proposed Protective Order is attached hereto as

Exhibit 1. The amendments to the Protective Order are attached as Exhibits 2 and 3.1

The Supreme Court’s recent decision in Boumediene v. Bush, No. 06-1195, Slip

op. at 66 (June 12, 2008) establishes that this court has jurisdiction to consider

Petitioner’s writ of habeas corpus. Consequently, the United States does not contest that

entry of the habeas protective order is appropriate. Entry of the protective order is

necessary for Petitioner’s counsel to meet the litigation demands of Petitioner’s pending





1 In consenting to the entry of the habeas protective order, Respondents reserve

their right to seek modifications to the protective order and supplemental orders as
appropriate. Respondents’ consent to entry of the orders is without prejudice to such a
right.

Case 1:07-cv-02338-UNA Document 25 Filed 07/07/2008 Page 2 of 3

habeas action. For these reasons, Petitioner respectfully moves the Court to enter the

protective order in this case.

Dated: July 7, 2008

Respectfully submitted,

Counsel for Petitioner:

/s/ Brent N. Rushforth

Brent N. Rushforth (DC 331074)
Kit A. Pierson (DC 398123)
HELLER EHRMAN LLP
1717 Rhode Island Avenue, NW
Washington, DC 20036
Tel: (202) 912-2000
Fax: (202) 912-2020

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

2

Case 1:07-cv-02338-UNA Document 25 Filed 07/07/2008 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDURRAHMAN ABDALLAH ALI
MAHMOUD AL SHUBATI,

Petitioner/Plaintiff,

MISC. NO. 08-442 (TFH)

v.

GEORGE W. BUSH, et al.,

Respondents/Defendants.

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

CERTIFICATE OF SERVICE

I hereby certify that, on this 7th day of July, 2008, I caused a true and correct copy of the
PETITIONER’S UNOPPOSED MOTION TO ENTER PROTECTIVE ORDER to
be served electronically via the ECF system on:

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



3

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Exhibit 1

Case 1:02-cv-00299-CKK Document 112 Filed 11/08/2004 Page 1 of 31
Case 1:07-cv-02338-HHK Document 11-2 Filed 01/15/2008 Page 1 of 31
Case 1:07-cv-02338-UNA Document 25-2 Filed 07/07/2008 Page 2 of 32

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________

In re Guantanamo Detainee Cases

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____________________________________)

Civil Action Nos.
02-CV-0299 (CKK), 02-CV-0828 (CKK),
02-CV-1130 (CKK), 04-CV-1135 (ESH),
04-CV-1136 (JDB), 04-CV-1137 (RMC),
04-CV-1142 (RJL), 04-CV-1144 (RWR),
04-CV-1164 (RBW), 04-CV-1166 (RJL),
04-CV-1194 (HHK), 04-CV-1227 (RBW),
04-CV-1254 (HHK), 04-CV-1519 (JR)

AMENDED PROTECTIVE ORDER AND PROCEDURES FOR COUNSEL ACCESS

TO DETAINEES AT THE UNITED STATES NAVAL BASE

IN GUANTANAMO BAY, CUBA

This matter comes before the Court upon Respondents’ Motion for 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 are otherwise in

the possession of, the petitioners and/or petitioners’ counsel in these coordinated cases. Pursuant

to the general supervisory authority of the Court, in order to protect the national security, and for

good cause shown,

IT IS ORDERED:

1.

The Court finds that these cases involve 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.” These cases 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 government

personnel and facilities, and other significant government interests.

2.

The purpose of this Protective Order is to establish the procedures that must be

followed by all petitioners’ counsel, their respective petitioner(s), all other counsel involved in

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these cases, translators for the parties, and all other individuals who receive access to classified

national security information or documents, or other protected information or documents, in

connection with these cases, including the privilege team as defined in Exhibit A.

3.

The procedures set forth in this Protective Order will apply to all aspects of these

cases, 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.

4.

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 these actions.

5.

Petitioners’ counsel shall be responsible for advising their employees, the

petitioners, and others of the contents of this Protective Order, as appropriate or needed.

6.

Petitioners’ counsel are bound by the terms and conditions set forth in the

“Revised Procedures For Counsel Access To Detainees At the U.S. Naval Base In Guantanamo

Bay, Cuba,” and the procedures for handling mail and documents brought into and out of counsel

meetings, attached hereto as Exhibit A. This Protective Order specifically incorporates by

reference all terms and conditions established in the procedures contained in Exhibit A to the

extent they place limitations on petitioners’ counsel in their access to and interaction with

petitioners or handling of information. Any violation of the terms and conditions of those

procedures will also be deemed a violation of this Protective Order. This paragraph does not

apply with respect to provisions in the procedures contained in Exhibit A that are or have been

overridden by the Court.

7.

The privilege team shall not disclose to any person any information provided by

counsel for a petitioner or by a petitioner, other than information provided in a filing with the

Court, unless such information, if it were monitored information, could be disclosed under

Section X of Exhibit A. Such disclosure shall be consistent with the provisions of Section X of

Exhibit A.

2

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Definitions

8.

As used herein, the words “documents” or “information” shall 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.

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, telefacsimiles, invoices, worksheets, and drafts, alterations, modifications, changes

and amendments of any kind to the foregoing;

b.

graphic or oral records or representations of any kind, including, but not

limited to, photographs, charts, graphs, microfiche, microfilm, videotapes, sound recordings of

any kind, and motion pictures;

c.

electronic, mechanical or electric records of any kind, including, but not

limited to, tapes, cassettes, disks, recordings, electronic mail, films, typewriter ribbons, word

processing or other computer tapes or disks, and all manner of electronic data processing storage;

and

d.

information acquired orally.

9.

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

information” and “classified documents” refer to:

a.

any classified 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 Orders as “CONFIDENTIAL,”

“SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE

3

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COMPARTMENTED INFORMATION (SCI),” or any classified information contained in such

document;

b.

any document or information, regardless of its physical form or

characteristics, now or formerly in the possession 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)”;

c.

verbal or non-documentary classified information known to the petitioner

or petitioners’ counsel; or

d.

any document and information as to which the petitioner or petitioners’

counsel have been notified orally or in writing that such documents or information contains

classified information.



10.

All classified documents, and information contained therein, shall remain

classified unless the documents bear a clear indication that they have been declassified by the

agency or department that is the original classification authority of the document or the

information contained therein (hereinafter, the “original classification authority”).

11.

The terms “protected information and/or documents,” “protected information” and

“protected documents” refer to any document or information deemed by the Court, either upon

application by counsel or sua sponte, as worthy of special treatment as if the document or

information were classified, even if the document or information has not been formally deemed

to be classified.

12.

For purposes of this Protective Order, “petitioners’ counsel” shall be defined to

include an attorney who is employed or retained by or on behalf of a petitioner for purposes of

4

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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.

13.

“Access to classified information” or “access to protected information” shall mean

having access to, reviewing, reading, learning, or otherwise coming to know in any manner any

classified information or protected information.

14.

“Secure area” shall mean a physical facility accredited or approved for the storage,

handling, and control of classified information.

15.

“Unauthorized disclosure of classified information” shall mean 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.

Designation of Court Security Officer

16.

The Court designates Christine E. Gunning as Court Security Officer for these

cases, and Joan B. Kendrall, Michael P. Macisso, James P. Londergan, Mary M. Cradlin,

Daniel O. Hartenstine, John P. Molinard, Jennifer Campbell, and Barbara J. Russell as Alternate

Court Security Officers, for the purpose of providing security arrangements necessary to protect

from unauthorized disclosure of any classified documents or information, or protected documents

or information, to be made available in connection with these cases. Petitioners’ counsel shall

seek guidance from the Court Security Officer with regard to appropriate storage, handling,

transmittal, and use of classified documents or information.

5

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Access to Classified Information and Documents

17. Without authorization from the government, no petitioner or petitioners’ counsel

shall have access to any classified information involved in these cases unless that person shall

first have:

a.

made a written submission to the Court Security Officer precisely stating

the reasons why counsel has a need to know the classified information requested; and

b.

received the necessary security clearance as determined by the Department

of Justice Security Officer; and

c.

signed the Memorandum of Understanding (“MOU”), attached hereto as

Exhibit B, agreeing to comply with the terms of this Protective Order.

The written submissions that are made by counsel to the Court Security Officer stating the

reasons why counsel has a need to know the classified information requested shall be kept

confidential by the Court Security Officer and shall not be disclosed to any other counsel or party

to these cases unless the Court specifically orders such disclosure.

18.

Petitioners’ counsel to be provided access to classified information shall execute

the MOU appended to this Protective Order, and shall file executed originals with the Court and

submit copies to the Court Security Officer and counsel for the government. The execution and

submission of the MOU is a condition precedent for petitioners’ counsel to have access to, or

continued access to, classified information for the purposes of this proceeding.

19.

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

MOU executed in connection with this Order.

6

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20.

The government shall arrange for one appropriately approved secure area for the

use of petitioners’ counsel. The secure area shall contain a working area that will be supplied

with secure office equipment reasonable and necessary to the preparation of the petitioners’ case.

Expenses for the secure area and its equipment shall be borne by the government.

21.

The Court Security Officer shall establish procedures to ensure that the secure

area is accessible to the petitioners’ counsel during normal business hours and at other times on

reasonable request as approved by the Court Security Officer. The Court Security Officer shall

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 Court Security

Officer or Court Security Officer 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.

22.

All classified information provided by the government to counsel for petitioners,

and all classified information otherwise possessed or maintained by petitioners’ counsel, shall be

stored, maintained, and used only in the secure area.

23.

No documents containing classified information may be removed from the secure

area unless authorized by the Court Security Officer or Court Security Officer designee

supervising the area.

24.

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.

25.

Petitioners’ counsel shall not copy or reproduce any classified information in any

form, except with the approval of the Court Security Officer or in accordance with the procedures

established by the Court Security Officer for the operation of the secure area.

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26.

All documents prepared by petitioners or petitioners’ counsel that do 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 who have

received 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 Court Security Officer. All such documents and any associated

materials containing classified information (such as notes, memoranda, drafts, copies, typewriter

ribbons, magnetic recordings, exhibits) shall be maintained in the secure area unless and until the

Court Security Officer advises that those documents or associated materials are unclassified in

their entirety. None of these materials shall be disclosed to counsel for the government unless

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

27.

Petitioners’ counsel shall discuss classified information only within the secure

area or in another area authorized by the Court Security Officer, 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.

28.

The Court Security Officer or Court Security Officer designee shall 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 Court Security Officer or Court

Security Officer designee shall not operate as a waiver of, limit, or otherwise render inapplicable,

the attorney-client privilege or work product protections.

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29.

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 authorized pursuant to 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 (CKK), 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 have satisfied 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. Counsel for respondents may challenge the “need to know” presumption on a case-by-

case basis for good cause shown.

30.

Petitioners’ counsel shall not disclose classified information not provided by

petitioner-detainee to that petitioner-detainee. Should petitioners’ counsel desire to disclose

classified information not provided by petitioner-detainee to that petitioner-detainee, petitioners’

counsel will provide in writing to the privilege review team (See Exhibit A) a request for release

clearly stating the classified information they seek to release. The privilege review team will

forward the petitioner counsel’s request to the appropriate government agency authorized to

declassify the classified information for a determination. The privilege review team will inform

petitioners’ counsel of the determination once it is made.

9

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31.

No petitioner or counsel for petitioner 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 provided herein.

32.

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 the

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 49 below, failure to comply with these rules may

result in the revocation of counsel’s security clearance as well as civil and/or criminal liability.

33.

The foregoing shall not prohibit petitioners’ counsel from citing or repeating

information in the public domain that petitioners’ counsel does not know to be classified

information or a classified document, or derived from classified information or a classified

document.

34.

All documents containing classified information prepared, possessed or

maintained by, or provided to, petitioners’ counsel (except filings submitted to the Court and

10

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served on counsel for the government), shall remain at all times in the control of the Court

Security Officer for the duration of these cases. Upon final resolution of these cases, including

all appeals, all such documents shall be destroyed by the Court Security Officer.

Access to Protected Information and Documents

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 have signed the

Acknowledgment, attached hereto as Exhibit C, attesting to the fact that they have read this

Protective Order and agree to be bound by its terms; and

b.

the Court and its support personnel.

36.

The execution of the Acknowledgment is a condition precedent for petitioners’

counsel to have access to, or continued access to, protected information for the purposes of this

proceeding. A copy of each executed Acknowledgment shall be kept by counsel making the

disclosure until thirty (30) days after the termination of this action, including appeals.

37.

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.

38.

Petitioners’ counsel shall not disclose the contents of any protected documents or

information to any person, to include counsel in related cases brought by Guantanamo Bay

detainees in this or other courts, except those authorized pursuant to this Protective Order, the

Court, or counsel for the government. 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 (CKK), counsel for petitioners in these coordinated cases may share

protected information with each other but only to the extent that counsel have appropriate

11

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security clearances and that all other procedures set forth in this Protective Order are complied

with. Petitioners’ counsel shall maintain all protected information and documents received

through this proceeding in a confidential manner.

39.

Petitioners’ counsel shall not disclose protected information not provided by

petitioner-detainee to that petitioner-detainee without prior concurrence of counsel for the

government or express permission of the Court.

40.

No petitioner or counsel for petitioner 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 except as otherwise provided herein.

41.

At no time, including any period subsequent to the conclusion of the 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 (60) 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

12

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in writing that all designated documents and materials have been destroyed, and further provided

that 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 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.

Procedures for Filing Documents

46.

Until further order of this Court, any pleadings or other document filed by a

petitioner shall be filed under seal with the Court through the Court Security Officer unless the

petitioner has obtained from the Court Security Officer permission, specific to a particular, non-

substantive pleading or document (e.g., motions for extensions of time, continuances, scheduling

matters, etc.) not containing information that is or may be classified or protected, to file the

pleading or document not under seal. The date and time of physical submission to the Court

Security Officer shall be considered the date and time of filing with the Court. The Court

Security Officer shall promptly examine the pleading or document and forward it to the

appropriate agencies for their determination whether the pleading or document contains classified

information. If it is determined that the pleading or document contains classified information,

the Court Security Officer shall ensure that portion of the document, and only that portion, is

marked with the appropriate classification marking and that the document remains under seal. If

it is determined that the pleading or document contains protected information, the Court Security

Officer shall ensure that portion of the document, and only that portion, remains under seal. Any

document filed by petitioner that is determined not to contain classified information or protected

information, and is not subject to any other restrictions on disclosure, shall immediately be

unsealed by the Court Security Officer and placed in the public record. The Court Security

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Officer shall immediately deliver under seal to the Court and counsel for the government any

pleading or document to be filed by petitioners that contains classified information or protected

information. The Court shall then direct the clerk to enter on the docket sheet the title of the

pleading or document, the date it was filed, and the fact that it has been filed under seal with the

Court Security Officer.

47.

Any pleading or other document filed by the government containing classified

information shall be filed under seal with the Court through the Court Security Officer. The date

and time of physical submission to the Court Security Officer shall be considered the date and

time of filing with the Court. The Court Security Officer shall serve a copy of any classified

pleadings by the government upon the Petitioner at the secure facility.

48.

Nothing herein shall require the government to disclose classified or protected

information. Nor shall anything herein prohibit the government from submitting classified

information or protected information to the Court in camera or ex parte in these proceedings, or

entitle 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 such counsel on the date of the filing.

Penalties for Unauthorized Disclosure

49.

Any unauthorized disclosure of classified information may constitute violations of

United States criminal laws. In addition, 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

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States or 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 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.

50.

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.

IT IS SO ORDERED.

November 8, 2004

_____/s/_____________________
JOYCE HENS GREEN
United States District Judge

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Exhibit A

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EXHIBIT A

REVISED PROCEDURES FOR COUNSEL ACCESS TO DETAINEES

AT THE U.S. NAVAL BASE IN GUANTANAMO BAY, CUBA

I. Applicability

Except as otherwise stated herein 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”) by counsel for purposes of litigating the cases in which this
Order is issued.

These procedures do not apply to counsel who are retained solely to assist in the defense

of a detainee 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.

II. Definitions

A. Communications: All forms of communication between counsel and a detainee, including
oral, written, electronic, or by any other means.

B. Counsel: An attorney who is 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
who is 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.

C. Detainee: An individual detained by DoD as an alleged enemy combatant at the U.S. Naval
Base in Guantanamo Bay, Cuba.

D. Privilege Team: 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.

E. Legal Mail: Letters written between counsel and a 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.

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EXHIBIT A

III. Requirements for Access to and Communication with Detainees

A. Security Clearance:

1.

2.

3.

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 who granted the clearance. Access will be granted
only after DoD verification of the security clearance.

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

B. Acknowledgment of and Compliance with Access Procedures

1.

2.

3.

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

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

The DoD expects that counsel, counsel’s staff, and anyone acting on the behalf of
the attorney will fully abide by the requirements of this document. Counsel is
required to provide the 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.

4.

Should counsel fail to comply with the procedures set forth in this document,
access to or communication with the detainee will not be permitted.

C. Verification of Representation

1.

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

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EXHIBIT A

2.

3.

4.

the name of the detainee being represented by the counsel. Additionally, counsel
shall provide evidence of his or her authority to represent the detainee.

Counsel shall provide evidence of his or her authority to represent the detainee as
soon as practicable and in any event no later than ten (10) days after the
conclusion of a second visit with the 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 counsel for a detainee believe that the government is
unreasonably limiting the number of visits with a detainee, counsel may petition
the Court at the appropriate time for relief.

If the counsel withdraws from representation of the detainee or if the
representation is otherwise terminated, counsel is required to inform DoD
immediately of that change in circumstances.

Counsel must provide DoD with a signed representation stating 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 the 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).

D. Logistics of Counsel Visits

1.

2.

3.

Counsel shall submit to the Department of Justice (DoJ) any request to meet with
a detainee. This request shall specify date(s) of availability for the 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 the
counsel’s request regarding the scheduling of a meeting. Once the request has
been 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.

Due to the mission and location of the US Naval Base at Guantanamo Bay, Cuba,
certain logistical details will need to be coordinated by counsel prior to arrival.
This includes arrangements for travel and lodging. Specific information regarding
these issues will be provided by DoJ.

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EXHIBIT A

4.

In order to travel to GTMO, all 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 (20) 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.

IV. Procedures for Correspondence Between Counsel and Detainee

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

1.

2.

3.

4.

Counsel shall send incoming legal mail for a detainee 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 (2) 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
which 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
IV.A.1., 2.

Within two (2) 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 desires confirmation that the
documents were delivered to the detainee, counsel is responsible for providing 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.

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EXHIBIT A

5.

6.

7.

Written correspondence to a detainee 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 non-
legal mail.

Counsel is required to 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 determined to be
otherwise by the privilege team or by this Court or another court. Accordingly, if
a 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.

B. Mail Sent by Detainee to Counsel (“Outgoing Mail”)

1.

2.

3.

Detainees will be provided with paper to prepare communications to counsel. In
the presence of military personnel, the detainee will seal the written
communication into an envelope and it will be annotated as “Attorney-Detainee
Materials-For Mail Delivery To Counsel.” Each envelope shall be labeled with
the name of the detainee and the counsel. 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 one (1) business day
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, the envelope will be
sealed into a larger envelope by military personnel at Guantanamo which will be
marked as “Attorney-Detainee Materials-For Mail Delivery To Counsel” and will

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EXHIBIT A

be annotated with the name of the detainee and the counsel. The envelope will be
sealed and mailed in the manner required for classified materials. Within two (2)
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
Guantanamo 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.

4.

5.

V. Materials Brought Into A Meeting With Detainee And Counsel

A.

B.

Counsel shall bring only legal mail, writing utensils and paper into any meeting
with a detainee unless counsel has received prior approval from the Commander,
JTF-GTMO. 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.

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

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

A.

B.

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 Guantanamo. These materials
will be sealed in the presence of counsel and will be 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.

Upon the completion of the counsel’s visit to Guantanamo, the notes or
documents used or produced during the visit shall be sealed in the presence of

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EXHIBIT A

counsel 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 which shall be marked as
“Attorney-Detainee Meeting Documents-For Mail Delivery To Counsel” 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 appropriate address provided by government
counsel.

C.

Correspondence or messages from a detainee to individuals other than his counsel
(including family/friends or other attorneys) shall not be handled through this
process. If a detainee provides these communications to his 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.

VII. Classification Determination of Detainee Communications

A.

B.

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 provided by as required by Executive Order 12958,