Bismullah v. Rumsfeld

From Wikisource
Jump to: navigation, search

In the United States Court Of Appeals

for the Distrcit of Columbia Circuit


)
Haji Bismullah, et al. )
)
Petitioners )
) No. 06-1197
Donald H. Rumsfeld )
Secretary of Defense )
)
Respondent )
)

Protective order and procedures for counsel access
to detainee 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 this case. Pursuant to the general supervisory authority of the Court, in order to protect the national security, and for good cause shown,

IT IS ORDERED:


Part One – General Provisions and Definitions

General Provisions[edit]

A.

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 Government personnel and facilities, and other significant Government interests.

B.

The purpose of this Protective Order is to establish the procedures that must be followed by the petitioners and petitioners’ counsel, 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 this case, including the DoD privilege team.

C.

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.

D.

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.

E.

Petitioners’ counsel shall be responsible for advising their employees, the petitioners, and others of the contents of this Protective Order, as appropriate or needed.

F.

All documents marked as classified, 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”).

Definitions[edit]

A.

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:

i.

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;

ii.

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;

iii.

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.

B.

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

i.

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

ii.

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)”;

iii.

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

iv.

any document and/or information as to which the petitioner or petitioners’ counsel have been notified orally or in writing that such documents or information contains classified information.

C.

The terms “protected information and/or documents,” “protected information” and “protected documents” refer to information for which the storage, handling and control require special precautions in order to protect the security of the United States Government personnel and/or facilities, or other significant Government interests, and includes:

i.

any document or information contained within the records of proceedings before the Combatant Status Review Tribunals that:

a.

is not classified national security information and/or documents as defined in § 2.B.; and

b.

has not been filed in the public record in this Court as part of the administrative record.

ii.

any information designated by the Government as protected information. Examples include, but are not limited to, information designated by the Government as “For Official Use Only,” or “Law Enforcement Sensitive,” or information which may be reasonably expected to increase the threat of injury or harm to any person.

The terms defined in § 2.C do not include any document or information that the Court, upon application by counsel for a party, determines should not be treated as protected.

D.

“Petitioners’ counsel” shall be defined to include an attorney who is employed or retained by or on behalf of the petitioner for purposes of representing the petitioner 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. Petitioners’ counsel must be U.S. citizens.

E.

“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.

F.

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

G.

“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.

H.

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

I.

“Detainee” shall mean an alien detained by DoD as an alleged enemy combatant at the U.S. Naval Base in Guantanamo Bay, Cuba.

J.

“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.

are directly related to the litigation of this Detainee Treatment Act action;

ii.

address only (a) those events leading up to this detainee’s capture or (b) the conduct of the CSRT proceeding relating to this detainee; and

iii.

do not include any of the following information, in any form:

a.

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;

b.

information relating to current political events in any country;

c.

information relating to security procedures at the Guantanamo Naval Base (GTMO) (including names of U.S. Government personnel and the layout of camp facilities) or the status of other detainees;

d.

publications, articles, reports, or other such material including newspaper or other media articles, pamphlets, brochures, and publications by non-governmental or advocacy organizations, or

K.

“Secondary Materials” consists of any of the materials described in 2.J.iii., above, that counsel believes are directly related to the litigation of this Detainee Treatment Act action.

Designation of Court Security Officer[edit]

The Court designates Christine E. Gunning as Court Security Officer for this case, and Joan B. Kennedy, Michael P. Macisso, James P. Londergan, Mary M. Cradlin, Daniel O. Hartenstine, John P. Molinard, Jennifer Campbell, Erin Hogarty 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 this case. Petitioners’ counsel shall seek guidance from the Court Security Officer with regard to appropriate storage, handling, transmittal, and use of classified documents or information.

Roles and Functions of the DoD Privilege Team and Special Litigation Team[edit]

A.

The “DoD privilege team” is comprised of one or more DoD attorneys and one or more intelligence or law enforcement personnel. If required, the DoD privilege team may include interpreters/translators, provided that such personnel meet these same criteria. The DoD privilege team is charged with representing and protecting U.S. Government interests related to security and threat information. The DoD privilege team functions in congruence with the Court Security Officer under this order to assure that those equities are protected while assuring attorney-client privilege is not violated. The DoD privilege team is authorized to review all communications specified in this order (including written communications and other materials sent from the counsel to the enemy combatant detainee (and review of communications from the detainee, to the extent counsel requests such review)). The DoD privilege team may not disclose those communications from counsel other than information provided in a filing with the Court served on government counsel, unless the disclosure of such information is authorized by this order, the Court or counsel for the detainee.

B.

The DoD privilege team is given specific authority to identify and designate information “Protected Information.” Upon application to this Court, counsel may request that such material be removed from protected status.

C.

The DoD privilege team, in coordination with the Court Security Officer, may identify to this Court any issues or problems related to the release or processing of information related to the cases. The DoD privilege team is authorized to directly contact this Court on these issues through the “Special Litigation Team” (see below).

D.

A “Special Litigation Team” is authorized to represent the DoD Privilege Team with respect to execution of their duties. The Special Litigation Team shall, if needed, comprise one or more attorneys from the Department of Justice. Such attorneys shall not take part or be involved in litigating the merits of the petitions in the Guantanamo Bay detainee cases or any other cases brought by or against the petitioner.

E.

The DoD Privilege Team is hereby authorized to disclose to the Special Litigation Team information otherwise not permissibly disclosable under this Order. The Special Litigation Team shall not disclose such information provided by the DoD Privilege Team, or any information submitted by petitioners’ counsel to the DoD Privilege Team for review, outside the DoD Privilege Team and the Special Litigation Team, except as provided by this Order or as permitted by petitioners’ counsel or by the Court. The Special Litigation Team may submit filings to the Court concerning the DoD Privilege Team or actions taken by it that contain or concern information otherwise not permissibly disclosable.

F.

Until otherwise notified, filings made by the Special Litigation Team containing potentially privileged information shall be made under seal through the Court Security Officers. Such filings shall contain a conspicuous notation in substantially the following form, “Filed Under Seal – Contains Privileged Information.” Filings by counsel for a petitioner challenging DoD privilege team action that contain privileged information that would otherwise warrant filing ex parte, likewise shall be filed through the Court Security Officers with the foregoing notation, conspicuously placed. The Court Security Officers shall not serve such filings by petitioners’ counsel or the Special Litigation Team on counsel for respondent, except as authorized by petitioners’ counsel or the Court. With respect to a filing made under seal, the Special Litigation Team and involved counsel shall confer regarding a redacted version of the filing suitable for filing on the public record. Unresolved disputes concerning such redacted versions may be presented to the Court.

Access to Classified Information and Documents[edit]

A. Without authorization from the Government, no petitioner or petitioners’

counsel shall have access to any classified information involved in this case.

B.

Authorization from the Government will not be granted unless that person shall first have:

i.

been determined by the Government to have a “need to know” with respect to the particular classified information at issue;

ii.

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

iii.

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

iv.

if counsel for a “next friend” petitioner, have obtained authorization to represent the detainee (and to have access to the record) by having the detainee sign Exhibit D; and

v.

if counsel appointed by this Court to a pro se petitioner, have obtained a signed authorization to represent the detainee.

C.

The Government will provide petitioners’ counsel that has met each of the requirements of 5.B., above, with access only to material in the CSRT record for the petitioner that the Government has determined petitioners’ counsel has a “need to know.”

D.

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.

E.

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

F.

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. 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.

G.

The Court Security Officer shall establish procedures to ensure that the secure area is accessible to petitioners’ counsel during normal business hours and at other times on reasonable request as approved by the 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.

H.

All classified information provided by the Government to counsel for petitioner, and all classified information otherwise possessed or maintained by petitioners’ counsel, shall 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 Court Security Officer or Court Security Officer designee supervising the area.

I.

Petitioners’ counsel shall not copy or reproduce any classified information, 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.

J.

All documents prepared by petitioner 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 DoD privilege team 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.

K.

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.

L.

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.

M.

Except as provided herein, 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 Court or any other court. Petitioners’ counsel shall not disclose classified information to the petitioner, unless that information was obtained in the first instance from the petitioner, and the classification is based solely on the information contained in the detainee’s statements.

N.

Neither petitioner nor counsel to petitioner shall disclose or cause to be disclosed any information known or believed to be classified in connection with any hearing or proceeding in this case except as otherwise provided herein.

O.

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.

P.

As stated in more detail below, failure to comply with these rules may result in the revocation of counsel’s security clearance, revocation of authorization to travel to Guantanamo, as well as civil and/or criminal liability.

Q.

All documents containing classified information prepared, possessed or maintained by, or provided to, petitioners’ counsel (except filings submitted to the Court and served on counsel for the Government), shall remain at all times in the control of the Court Security Officer for the duration of this case. Upon final resolution of this case, including all appeals, all such documents shall be destroyed by the Court Security Officer.

Access to Protected Information and Documents, and to Unclassified CSRT Records[edit]

A.

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:

i.

petitioners’ counsel, provided such counsel has signed the acknowledgment, attached hereto as Exhibit B, attesting to the fact that they have read this Protective Order and agree to be bound by its terms, and they have obtained a signed authorization to represent the detainee (Exhibit C or D); and

ii.

the Court and its support personnel.

B.

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. Petitioners’ counsel will also file with the court copies of the Acknowledgement related to access to protected information. 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.

C.

The substitution, departure, or removal of petitioners’ counsel from this case 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.

D.

Protected information may be transported and handled outside of a secure facility but may not be displayed publicly, disseminated to or shared with unauthorized persons, or released publicly without leave of this Court or specific authorization of the Government.

E.

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 Court or any other court. Petitioners’ counsel shall maintain all protected information and documents received through this proceeding in a confidential manner.

F.

Petitioners’ counsel shall not disclose protected information to the petitioner, unless that information was obtained in the first instance from the petitioner, unless counsel obtains prior concurrence of counsel for the Government or express permission of the Court.

G.

Neither petitioner nor 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 this case except as otherwise provided herein.

H.

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.

I.

Protected information shall 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 shall be made only to the extent necessary to facilitate the permitted use hereunder.

J.

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.

K.

Supplying protected information to another party does not waive privilege with respect to any person or use outside that permitted by this Protective Order.

L.

Within ninety (90) days of the resolution of this action, and the termination of any certiorari review therefrom, all protected documents or information, and any copies thereof, provided to petitioners’ counsel shall be promptly destroyed, provided that the party to whom protected information is disclosed certifies in writing that all designated documents and materials have been destroyed.

M.

Subject to paragraph 6.A., the unclassified portion of the CSRT record will be provided to counsel at the time the certified index of record is to be filed in this Court unless the government contests or challenges counsel’s purported representation of the detainee through a next friend petitioner, in which case the unclassified record need not be provided to counsel pending resolution of the government’s challenge and further order of the Court.

Procedures for Filing Documents[edit]

A.

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, routine, 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 immediately deliver under seal to the Court and counsel for the Government any pleading or document to be filed by petitioner that contains classified information or protected information.

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. Counsel shall notify the Court in writing of the filing with the Court Security Officer. 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.

B.

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 intended for service upon counsel at the secure facility. In accord with the briefing schedule to be established by this Court, the Government will file with the Court a public version of the Combatant Status Review Tribunal administrative record, which is made up of the unclassified summary of the Combatant Status Review Tribunal and the documents in the record that do not include classified information. A complete version of the CSRT record, including the documents containing classified information, will be filed with the Court Security Officer for use by the Court. Any departure from the practice in the foregoing two sentences will be specifically addressed by the Government in each particular case.

C.

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 petitioner 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 with notice served on such counsel.

Penalties for Unauthorized Disclosure[edit]

A.

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

B.

The Government reserves the right to unilaterally take protective measures if it concludes that any provision of this protective order has been violated or if there has been unauthorized disclosure of classified information. If the Government so concludes, it may bar counsel from visiting the U.S. Naval Base at Guantanamo Bay, Cuba; may terminate access to classified information and protected information; and may suspend or revoke security clearances. The Government may take these actions without consultation with the Court or counsel.

C.

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

Part Two – Initiation of Suit under Detainee Treatment Act

Petitions for Review Filed by Detainees[edit]

A.

If a detainee files a petition pro se (in a letter or other form), as opposed to a petition being filed by “next friend” petitioner, this Court may appoint an attorney to act as counsel or amicus on behalf of a detainee that has filed a petition for review. Counsel appointed to a pro se petitioner will be allowed one visit to Guantanamo to meet with the detainee (for up to a total of eight hours) to offer representation on behalf of the detainee. If the detainee has acknowledged the representation by signing Exhibit C, attached hereto, appointed counsel may then appear in this Court as counsel to the detainee, have access to the legal mail system described herein, and will be afforded visits to the detainee (as limited under the terms below). If the detainee does not sign the acknowledgment of representation, counsel appointed by this Court may appear in this Court as amicus. Counsel appearing as amicus will not be granted further access to the detainee or be allowed to communicate with the detainee as his counsel under the procedures for sending legal mail outlined in this Order.

B.

Counsel claiming to have been directly retained by a detainee must provide DoD with written evidence, such as a signed copy of Exhibit C, establishing the attorney-client relationship.

C.

Once counsel has established an attorney-client relationship with detainee, and provided sufficient evidence thereof, under the terms set forth above, counsel will be allowed both access to the legal mail system described herein and to visit the detainee at Guantanamo Bay, Cuba a maximum of three additional times to assist in the preparation of this action under the Detainee Treatment Act, including all stages of review in this Court.

“Next Friend” Lawsuits[edit]

A.

The filing of a suit on behalf of a detainee by a “next friend” will not by itself entitle counsel to visit Guantanamo Bay, Cuba or communicate with a detainee as his counsel through the legal mail system described herein. The Government expressly reserves the right to challenge “next friend” standing under Whitmore v. Arkansas, 495 U.S. 149 (1989), in any such case.

B.

Where the Government does not challenge the validity or legal sufficiency of the next friend petitioner, counsel will be provided one visit to Guantanamo to meet with the detainee (for up to a total of eight hours) in order to ask the detainee to sign the form attached hereto as Exhibit D, granting authorization to represent the detainee and access his CSRT records. Prior to, or during this visit, counsel may provide the detainee with a copy of the form and may also include other relevant introductory materials. Those materials are, however, subject to review as non-privileged materials by the Joint Task Force at the Guantanamo Naval Base (JTF-GTMO). Such introductory materials must be limited to a reasonable quantity and must be submitted to JTF-GTMO at least 30 days prior to the visit.

C.

If the detainee signs Exhibit D, counsel will be allowed access both to the legal mail system described herein and to visit the detainee at Guantanamo Bay, Cuba a maximum of three additional times to assist in the preparation of this action under the Detainee Treatment Act, including all stages of review in this Court. If the detainee does not sign the Exhibit D, then no further visits will be afforded, counsel will not be afforded access to the legal mail system, and counsel’s access to the CSRT record will be limited to the unclassified material.

Part Three – Procedures for Counsel Access to Detainee

Applicability[edit]

Except as otherwise stated herein or by other order issued by the United States Court of Appeals for the District of Columbia Circuit, the following procedures shall govern counsel access to detainees in the control of the Department of Defense (“DoD”) at the U.S. Naval Base in Guantanamo Bay, Cuba, by counsel for purposes of litigating the case in which this Order is issued.

Requirements for Access to and Communication with Detainees[edit]

Visits to the U.S. Naval Base are subject to delay or cancellation based upon the security and military resource needs at the base. The Commander of the JTF GTMO) may suspend the privilege of visiting Guantanamo if the Commander determines there is a violation of any provision of this protective order, or in other appropriate circumstances. Any such cancellation or delay of the visit is at the sole discretion of the Commander JTF-GTMO. The Commander JTF-GTMO retains the authority to suspend or terminate any and all visits to the U.S. Naval Base.

A.

Security Clearance. 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.

B.

Before being granted access to the detainee for visits and the legal mail system (for counsel qualified under the terms above), counsel must also agree to comply fully with these procedures set forth in this Order, 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 set forth in this order are legally permissible. Even if counsel elects to challenge these procedures, counsel may not knowingly disobey an obligation imposed by this Order.

C.

Prior to any visit, or access to the legal mail system, counsel must also 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 that 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 that counsel has complied with ABA Model Rule 1.8(f).

Procedures for Correspondence Between Counsel and Detainee[edit]

Counsel qualified (under the terms set forth above) for participation in the legal mail system shall have access to the privileged mail system described below:

A.

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

i.

Counsel shall send incoming legal mail and any secondary materials for a detainee to the DoD 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. Legal mail and secondary materials shall be separated and included in separate envelopes. 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.” The outside of the envelope or mailer that includes secondary materials will be labeled clearly with the following annotation: “Attorney-Detainee-Secondary Materials-For Mail Delivery to Detainee.”

ii.

Each page of legal mail shall be labeled “Attorney-Detainee Materials.” Each page of secondary materials shall be labeled “Secondary Materials.” No staples, paper clips or any non-paper items shall be included with the documents. Legal mail and secondary materials that together do not exceed 100 pages in total per month for a detainee will receive “priority processing” as described below in parts iv.a and v.a.

iii.

Upon receiving legal mail or secondary materials from counsel for delivery to the detainee, the DoD privilege team shall open the envelope or mailer to search the contents for prohibited physical contraband. The DoD privilege team shall return to the sender any materials that do not comply with the terms of §§ 13.A.i & ii.

iv.

Secondary material shall be subject to both review and to security and contraband screening, including possible redaction, by the DoD Privilege Team.

Counsel shall not convey to a detainee material, including information redacted or screened out or designated for such redaction or screening out, absent consent of DoD privilege team or the Government or authorization by the Court.
a.

Such review shall be conducted as soon as practicable from the time of receipt by the DoD privilege team. Secondary materials that receive “priority processing” will be reviewed within 10 business days for information that is written in the English language and 15 business days for information that includes information written in any language other than English, to allow for translation. Additional secondary materials will be reviewed as resources allow. Within the applicable time frame, the secondary materials that are determined to be appropriate for forwarding to the detainee shall be forwarded to military personnel at GTMO in a sealed envelope marked “Secondary Materials Approved by DoD privilege team” and clearly indicating the identity of the detainee to which the legal mail is to be delivered.

b.

Counsel shall be notified with respect to secondary materials that, upon review, will be redacted or screened out.

c.

In the event a dispute regarding the screening or redaction of material cannot be resolved and counsel pursue Court intervention regarding the matter, the DoD privilege team may disclose the material at issue to a Special Litigation Team, as addressed above in section 4, and may also disclose the material at issue to the Commander, JTF-GTMO, and/or his representatives, including attorneys for the Government. Prior to seeking Court intervention, counsel may authorize the Privilege Team to so disclose the secondary material in order to attempt to facilitate resolution of a dispute.

v.

Documents marked “legal mail” by counsel shall be subject to content review and security and contraband screening by the DoD Privilege Team.

a.

Such review shall be conducted as soon as practicable from the time of receipt by the DoD privilege team. Documents marked “legal mail” that receive “priority processing” will be reviewed within 5 business days for information that is written in the English language and 10 business days for information that includes information written in any language other than English, to allow for translation. Additional documents marked “legal mail” will be reviewed as resources allow. Within the applicable time frame, the materials that are determined to be appropriate for forwarding to the detainee shall be forwarded to military personnel at GTMO in a sealed envelope marked “Legal Mail Approved by DoD privilege team” and clearly indicating the identity of the detainee to which the legal mail is to be delivered.

b.

Counsel shall be notified with respect to legal mail that, upon review, will be redacted or screened out.

c.

In the event a dispute regarding the screening or redaction of material cannot be resolved and counsel pursue Court intervention regarding the matter, the DoD privilege team may disclose the material at issue to a Special Litigation Team as addressed above in section 4.

d.

Counsel shall not convey to a detainee material, including information redacted or screened out or designated for such redaction or screening out, absent consent of DoD privilege team or the Government or authorization by the Court.

vi.

Within three (3) business days of receipt of legal mail and secondary materials from the DoD privilege team, personnel at GTMO shall deliver the envelope or mailer to the detainee without opening the envelope or mailer. The detainee shall be responsible for mailing any confirmation of delivery to counsel as outgoing legal mail.

vii.

Written correspondence to a detainee not falling within the definition of legal mail or secondary materials shall be sent through the United States Postal Service to the appropriate address provided by Government counsel. These non-privileged communications will be reviewed by military personnel at GTMO under the standard operating procedures for detainee non-legal mail. Counsel is responsible for reviewing and removing these from legal mail.

viii.

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 DoD privilege team and determined to be otherwise by the DoD 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.

ix.

While conducting its classification and status review of the materials, the DoD privilege team shall promptly report any information that reasonably could be expected to result in immediate and substantial harm to the national security to the Commander, JTF-GTMO. In his discretion, the Commander, JTF-GTMO may disseminate the relevant portions of the information to law enforcement, military and intelligence officials as appropriate.

x.

If, at any time, the DoD privilege team determines that information in the documents submitted for review relate to imminent acts of violence, the DoD privilege team shall report the contents of those documents to Commander, JTF-Guantanamo. In his discretion, the Commander, JTF-Guantanamo may disseminate the relevant portions of the information to law enforcement, military and intelligence officials.

B.

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

i.

Detainees will be provided with paper to prepare legal mail 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. Any outgoing mail will presumptively be treated as classified information. 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.

ii.

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.

iii.

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 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 three (3) business days of receipt from the detainee, the communication will be mailed to the appropriate address as provided by Government counsel.

iv.

Non-legal mail communications from detainees, including written communications to persons other than counsel, are to 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.

v.

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, 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.

Materials Brought Into A Meeting With Detainee And Counsel[edit]

A.

Counsel shall bring only writing utensils and blank 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 the communication does not fall into the category of items defined in § 2.J.iii, above or does not otherwise threaten the security of the United States. Non-privileged material that counsel seeks to bring into a meeting with the detainee may be provided to the Commander, JTF-GTMO in advance of counsel’s travel to the address provided by Government counsel for review by the Commander, JTF-GTMO. Review of this material will be conducted as resources allow, but there is no guarantee that non-privileged material will be processed and approved for hand delivery to the detainee in advance of the 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. Material hand carried to GTMO without prior approval may or may not be processed for release to the detainees.

B.

All legal mail and secondary materials that counsel seeks to bring to a meeting with a detainee must be processed pursuant to the procedures set out in § 13.A for the review of legal mail and secondary materials. The page length of materials submitted for review under this section will be included along with the page length of all other legal mail and secondary materials submitted under § 13.A in determining whether the 100 page per month “priority processing” limit has been surpassed. The time limits described in § 13.A will apply to materials submitted under this section in cases where the material qualifies for “priority processing.” When the “priority processing” limit has been surpassed, materials submitted under this section will be reviewed as resources allow. In submitting such materials to the DoD privilege team, counsel will separate legal mail from secondary materials, seal them in separate envelopes, and will mark clearly on the envelope either “Legal Mail – For Hand Delivery to Detainee by Counsel” or “Secondary Materials – For Hand Delivery to Detainee by Counsel.” Once material is reviewed by the DoD privilege team, each page will be stamped “Legal Mail and Secondary Materials Reviewed for Hand Delivery to Detainee by Counsel.” Counsel may then carry those stamped materials to GTMO and the Commander, JTF-GTMO, after confirming that the materials are stamped as indicated above, will ordinarily allow counsel to bring stamped materials into the meeting with the detainee.

Materials Brought Out Of A Meeting With Detainee and Counsel[edit]

A.

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.

B.

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 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. Counsel to the detainee will then be allowed to review the material at the secure facility.

C.

Correspondence or messages from a detainee to individuals other than his counsel (including family/friends or other attorneys) communications not generated by the detainee/client, and other communications that are not legal mail shall not be handled through this process. Rather, such matters must be processed as non-privileged mail by JTF-GTMO. If during the review of material submitted by counsel , such non-privileged material is identified by the DoD privilege team, the material will not be further processed by the privilege team. The non-privileged material will be held at the secure facility and counsel will be notified. Counsel can then, elect to send the material back to JTF-GTMO for processing as non-privileged mail.

D.

Oral messages from a detainee to individuals other than his counsel (including family/friends or other attorneys) shall not be communicated directly by counsel absent review by JTF-GTMO. If counsel wishes to communicate such messages, counsel must memorialize the messages in writing (at Guantanamo or at the secure facility) and then submit the written messages to JTF-GTMO for review as non-privileged mail. Counsel may request that such messages, to the extent cleared by JTF-GTMO, be returned to counsel’s office for forwarding to the intended recipient.

Classification And Status Determination of Detainee Communications[edit]

A.

All materials sent by a detainee to counsel or brought out of a meeting by a detainee by counsel will be presumptively treated as classified and will be maintained at the secure area described in § 2.F of the applicable protective order.

B.

Counsel may submit information learned from a detainee to the DoD privilege team for an intelligence 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 submitted for classification and status 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 status review shall be prepared, handled and treated in the manner required for classified materials, as provided by as required by Executive Order 12958, DOD Regulation 5200.1-R and AI 26, OSD Information Security Supplement to DOD Regulation 5200.1R.

C.

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 “Attorney-Detainee Materials” and “Classified.” The envelope or mailer will be sealed and mailed in the manner required for classified materials. Materials that do not comply with these requirements will not be processed, and will be returned to counsel within five (5) business days.

D.

As soon as possible after conducting the classification and status review, the DoD privilege team shall advise counsel of the classification levels of the information contained in the materials submitted for review. For that material that does not fall under privilege or is outside the scope of communications as specified herein, the DoD privilege team will memorialize the reasons why such material is not processed or released. In the event a dispute regarding the release of material cannot be resolved and counsel pursue Court intervention regarding the matter, the DoD privilege team may disclose the material at issue to a Special Litigation Team as addressed above in section 4. The DoD privilege team shall forward its classification determination directly to counsel after a review and analysis period which should not exceed, from the time of receipt by the DoD privilege team:

i.

Fifteen (15) business days for information that is written in the English language;

ii.

Twenty (20) business days for any information that includes writing in any language other than English, to allow for translations by the DoD privilege team (counsel must also submit this material accompanied by a translation);

iii.

Twenty-five (25) business days for any information where the DoD privilege team has reason to believe that a code was used, to allow for further analysis.

iv.

Material which requires special analytic tools or processing or specialized expertise not resident on the DoD privilege team will be identified and the DoD privilege team may request counsel waive privilege to allow further processing. If privilege is not waived, such material may not be removed from the secure facility.

E.

While conducting classification review, the DoD privilege team shall promptly report any information that reasonably could be expected to result in immediate and substantial harm to the national security to the Commander, JTF-Guantanamo. In his discretion, the Commander, JTF-Guantanamo may disseminate the relevant portions of the information to law enforcement, military and intelligence officials as appropriate.

F.

If, at any time, the DoD privilege team determines that information in the documents submitted for classification review relate to imminent acts of violence, the DoD privilege team shall report the contents of those documents to Commander, JTF-Guantanamo. In his discretion, the Commander, JTF-Guantanamo may disseminate the relevant portions of the information to law enforcement, military and intelligence officials.

G.

If the DoD privilege team determines that counsel has violated the applicable protective order, it shall report the suspected violation to the Court. The DoD privilege team will also report, without revealing any privileged information, the fact of a suspected violation and any information relating to it that can be reported without revealing privileged information to the Commander, JTFGuantanamo.

H.

The DoD privilege team shall not disclose any information submitted by counsel for classification review outside the DoD privilege team, except as provided by these procedures, as permitted by counsel submitting the information, or authorized by this Court.

Telephonic Access to Detainee[edit]

A.

There is no right to telephonic access to a detainee. Requests for telephonic access to the detainee by counsel or other persons may be considered on a case-by-case basis due to special circumstances and must be submitted to the Commander, JTF-Guantanamo.

B.

Any telephonic access by counsel will be subject to appropriate security procedures, which may include, inter alia, contemporaneous monitoring by the DoD privilege team.

Counsel’s Handling And Dissemination Of Information From Detainee[edit]

A.

Counsel may disseminate the unclassified contents of the detainee’s communications for purposes reasonably related to their representation of that detainee in the instant case, to the extent it does not disclose protected information.

B.

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 DoD privilege team and determined to be otherwise. 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.

C.

Counsel shall disclose to Government counsel or Commander, JTF-Guantanamo any information learned from a detainee involving future events that threaten national security or involve imminent violence.

D.

Counsel may not divulge classified information or protected information not learned from the detainee to the detainee. Counsel may not otherwise divulge classified information or protected information related to a detainee’s case to anyone except to other counsel working on the same case and possessing the requisite security clearance and need to know using a secure means of communication.

JTF-Guantanamo Security Procedures[edit]

A.

Counsel and translators/interpreters shall comply with the following security procedures and force protection safeguards applicable to the U.S. Naval Base in Guantanamo Bay, Cuba, JTF-Guantanamo and the personnel assigned to or visiting these locations.

B.

Contraband is not permitted in JTF-Guantanamo and all visitors are subject to search upon arrival and departure. Examples of contraband include, but are not limited to, weapons, chemicals, drugs, and materials that may be used in an escape attempt. Contraband also includes money, stamps, cigarettes, writing instruments, etc. Attempts to transmit, communicate, or convey documents or information that is not legal mail, as defined in section 2.J, above, through the channels for transmitting, communicating, or conveying legal mail, will also be considered a violation of the ban on contraband. No items of any kind may be provided to the detainee without the advance approval of the Commander, JTF-Guantanamo.

C.

Photography or recording of any type at the entire U.S. Naval Base at Guantanamo Bay, Cuba is prohibited without the prior approval of the Commander, JTF-Guantanamo. All recording devices, cameras, pagers, cellular phones, PDAs, laptops, portable electronic devices and related equipment are prohibited in or near JTF-Guantanamo. Should any of these devices be inadvertently taken into a prohibited area, the device must be surrendered to JTF-Guantanamo staff which may at its discretion purge of all information.

D.

Upon arrival at JTF-Guantanamo, security personnel will perform a contraband inspection of counsel and translators/interpreters using metal detectors as well as a physical inspection of counsel’s bags and briefcases and, if determined necessary, a physical inspection of his/her person.

E.

Counsel shall not be permitted to interview or question members of the Joint Task Force about their duties or interactions with detainees without first obtaining permission from the Commander, JTF-Guantanamo.

F.

Counsel will meet with a detainee in conference facilities provided by GTMO. These facilities are subject to visual monitoring by closed circuit TV or visual observation through an open door for safety and security reasons.

G.

At the conclusion of a meeting with a detainee, counsel and translators/interpreters will again be inspected using a metal detector and, if deemed necessary, by physical inspection of their persons.

H.

Violations of any of these procedures and rules will permit the Commander of JTF-GTMO to terminate the privilege of visiting JTF-GTMO and deny counsel access to the legal mail system set forth herein. Violations of any of these procedures and rules also provides grounds for revocation of counsel’s security clearance, and may also provide grounds for possible contempt and criminal sanctions.

I.

Nothing in this order 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. IT IS SO ORDERED.