The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE: Misc. No. 08-0442 (TFH)
GUANTANAMO BAY Civil Action Nos.
DETAINEE LITIGATION
06-cv-1690, 08-cv-1207, 08-cv-1360, 08-cv-2083
PROTECTIVE ORDER FOR HABEAS CASES INVOLVING TOP
SECRET/SENSITIVE COMPARTMENTED INFORMATION
AND
PROCEDURES FOR COUNSEL ACCESS TO DETAINEES AT THE UNITED STATES
NAVAL BASE IN GUANTANAMO BAY, CUBA, IN HABEAS CASES INVOLVING
TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION
The Court finds that the above-captioned civil cases involve national security
information or documents, including TOP SECRET/SENSITIVE COMPARTMENTED
INFORMATION (“TS/SCI”), the storage, handling, and control of which require special
security precautions and access to which requires a security clearance and a “need to know.”
These cases might also involve other protected information or documents, the storage,
handling, and control of which might require special precautions in order to protect the
security of the United States and other significant interests. Accordingly, to protect the
national security, and for good cause shown, the Court
ORDERS that the following Protective Order for Habeas Cases Involving TOP
SECRET/SENSITIVE COMPARTMENTED INFORMATION (“TS/SCI Protective Order”)
and Procedures for Counsel Access to Detainees at the United States Naval Base in
Guantanamo Bay, Cuba, in Habeas Cases Involving TOP SECRET/SENSITIVE
COMPARTMENTED INFORMATION (“TS/SCI Procedures for Counsel Access”) apply in
the above-captioned civil cases:
I. PROTECTIVE ORDER FOR HABEAS CASES INVOLVING TOP
SECRET/SENSITIVE COMPARTMENTED INFORMATION
A. Overview and Applicability
1. This TS/SCI Protective Order establishes procedures that must be followed by
petitioners and their respective counsel, all other counsel involved in these
matters, interpreters and translators for the parties, personnel or support staff
employed or engaged to assist in these matters, and all other individuals who, in
connection with these matters, receive access to classified national security
information or documents or other protected information, including the
Privilege Team as defined in the TS/SCI Procedures for Counsel Access, see
infra Section II.B.6, and the Special Litigation Team as defined in the TS/SCI
Procedures for Counsel Access, see infra Section II.B.7.
2. The procedures set forth in this TS/SCI Protective Order apply to all aspects of
these matters and may be modified by further order of the Court upon its own
motion or upon application by any party. The Court retains continuing
jurisdiction to enforce or modify the terms of this TS/SCI Protective Order.
3. Nothing in this TS/SCI Protective Order precludes the government’s use of
classified information as otherwise authorized by law outside of these matters.
4. As appropriate and needed, petitioners’ counsel are responsible for advising
their employees, petitioners, and others of this TS/SCI Protective Order’s
contents.
5. Petitioners’ counsel are bound by the terms and conditions set forth in the
TS/SCI Procedures for Counsel Access, see infra Section II. To the extent such
terms and conditions place limitations on petitioners’ counsel in their access to
and interaction with petitioners or handling of information, this TS/SCI
Protective Order specifically incorporates by reference all terms and conditions
established in the procedures contained in the TS/SCI Procedures for Counsel
Access. Any violation of those terms and conditions also will be deemed a
violation of this TS/SCI Protective Order.
6. The Privilege Team shall not disclose to any person any information provided
by petitioners’ counsel or petitioners, other than information provided in a filing
with the Court, unless such information, if it were monitored information, could
be disclosed under the TS/SCI Procedures for Counsel Access. Any such
disclosure shall be consistent with the provisions of the TS/SCI Procedures for
Counsel Access.
2
B. Definitions
7. As used in this TS/SCI Protective Order, the words “documents” and
“information” include, but are not limited to, all written or printed matter of
any kind, formal or informal, including originals, conforming copies and
non-conforming copies, whether different from the original by reason of
notation made on such copies or otherwise, and further include, but are not
limited to:
a. papers, correspondence, memoranda, notes, letters, reports, summaries,
photographs, maps, charts, graphs, interoffice and intra-office
communications, notations of any sort concerning conversations,
meetings, or other communications, bulletins, teletypes, telegrams,
facsimiles, invoices, worksheets, and drafts, alterations, modifications,
changes, and amendments of any kind to the foregoing;
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.
8. Unless otherwise stated, the terms “classified national security information
and/or documents,” “classified information” and “classified documents” mean:
a. any classified document or information that was classified by any
Executive Branch agency in the interests of national security or pursuant
to Executive Order, including Executive Order 12958, as amended, or
its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP
SECRET,” or additionally controlled as “SENSITIVE
COMPARTMENTED INFORMATION (SCI),” or any classified
information contained in such document;
b. any document or information, regardless of its physical form or
characteristics, now or formerly in the possession of a private party that
was derived from United States government information that was
classified, regardless of whether such document or information has
subsequently been classified by the government pursuant to Executive
Order, including Executive Order 12958, as amended, or its predecessor
Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or
additionally controlled as “COMPARTMENTED INFORMATION
3
(SCI)”;
c. verbal or non-documentary classified information known to petitioners
or petitioners’ counsel; or
d. any document and information as to which petitioners or petitioners’
counsel were notified orally or in writing that such document or
information contains classified information.
9. All classified documents, and information contained therein, shall remain
classified unless the documents bear a clear indication that they were
declassified by the agency or department that is the original classification
authority of the document or the information contained therein (hereinafter,
“original classification authority”).
10. The terms “protected information and/or documents,” “protected information,”
and “protected documents” mean any document or information the Court
deems, either sua sponte or upon designation pursuant to paragraph 35 of this
TS/SCI Protective Order or paragraph 34 of the Protective Order first entered
by this Court in 08-mc-442 on September 11, 2008, not suitable for public
filing.
11. As used in this TS/SCI Protective Order, the term “petitioners’ counsel”
includes attorneys employed or retained by or on behalf of a petitioner for
purposes of representing the petitioner in habeas corpus or other litigation in
federal court in the United States, as well as co-counsel, interpreters/translators,
paralegals, investigators and all other personnel or support staff employed or
engaged to assist in the litigation. Access to classified information by all
persons mentioned in the foregoing sentence is governed by Section I.D of this
TS/SCI Protective Order, and access to protected information by all persons
mentioned in the foregoing sentence is governed by Section I.E of this TS/SCI
Protective Order.
12. “Access to classified information” or “access to protected information” means
having access to, reviewing, reading, learning, or otherwise coming to know in
any manner any classified information or protected information.
13. “Secure area” means a physical facility accredited or approved for the storage,
handling, and control of classified information.
14. “Unauthorized disclosure of classified information” means any knowing,
willful, or negligent action that could reasonably be expected to result in a
communication or physical transfer of classified information to an unauthorized
recipient.
4
C. Designation of Court Security Officer
15. The Court designates Christine E. Gunning as Court Security Officer for these
cases, and Jennifer H. Campbell, Miguel A. Ferrer, Daniel O. Hartenstine,
Erin H. Hogarty, Nathaniel A. Johnson, Joan B. Kennedy, Michael P. Macisso,
Maura P. Peterson, and Barbara J. Russell as Alternate Court Security Officers
(collectively, “CSO”) for the purpose of providing security arrangements
necessary to protect against unauthorized disclosure of any classified documents
or information to be made available in connection with these cases. Petitioners’
counsel shall seek guidance from the CSO with regard to appropriate storage,
handling, transmittal, and use of classified documents or information.
D. Access to Classified Information and Documents
16. Without authorization from the government, no petitioner or petitioner’s
counsel shall have access to any classified information involved in these cases
unless that person has done the following:
a. received the necessary security clearance as determined by the
Department of Justice Security Officer; and
b. signed the Memorandum of Understanding (“MOU”), attached hereto as
Exhibit A, agreeing to comply with the terms of this TS/SCI Protective
Order.
17. Petitioners’ counsel to be provided access to classified information shall execute
the MOU appended to this TS/SCI Protective Order, and shall file executed
originals of the MOU with the Court and submit copies to the CSO and
government counsel. Such execution, filing, and submission of the MOU is a
condition precedent to a petitioner’s counsel having access to, or continued
access to, classified information for the purposes of these proceedings.
18. The substitution, departure, or removal of any petitioners’ counsel from these
cases for any reason shall not release that person from the provisions of this
TS/SCI Protective Order or the MOU executed in connection with this TS/SCI
Protective Order.
19. The government shall arrange for one appropriately approved secure area for
petitioners’ counsel’s use. The secure area shall contain a working area
supplied with secure office equipment reasonably necessary for preparing
petitioners’ cases. The government shall bear expenses for the secure area and
its equipment.
20. The CSO shall establish procedures to ensure that the secure area is accessible
to petitioners’ counsel during normal business hours and at other times on
reasonable request as approved by the CSO. The CSO shall establish
5
procedures to ensure the secure area is maintained and operated in the most
efficient manner consistent with the protection of classified information. The
CSO or CSO designee may place reasonable and necessary restrictions on the
schedule of use of the secure area in order to accommodate appropriate access
to all petitioners’ counsel in these and other proceedings.
21. All classified information the government provides to petitioners’ counsel, and
all classified information petitioners’ counsel otherwise possesses or maintains,
shall be stored, maintained, and used only in the secure area.
22. No documents containing classified information may be removed from the
secure area unless authorized by the CSO or CSO designee supervising the area.
23. Consistent with other provisions of this TS/SCI 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.
24. Petitioners’ counsel shall not copy or reproduce any classified information in
any form, except with the CSO’s approval or in accordance with the procedures
established by the CSO for the operation of the secure area.
25. All documents prepared by petitioners or petitioners’ counsel that contain or
may contain classified information—including, without limitation, notes taken
or memoranda prepared by counsel and pleadings or other documents intended
for filing with the Court—shall be transcribed, recorded, typed, duplicated,
copied, or otherwise prepared only by persons possessing an appropriate
approval for access to classified information. Such activities shall take place in
the secure area on approved word processing equipment and in accordance with
the procedures approved by the CSO. All such documents and any associated
materials containing classified information—such as notes, memoranda, drafts,
copies, typewriter ribbons, magnetic recordings, and exhibits—shall be
maintained in the secure area unless and until the CSO advises that those
documents or associated materials are unclassified in their entirety. None of
these materials shall be disclosed to government counsel unless authorized by
the Court, by petitioners’ counsel, or as otherwise provided in this TS/SCI
Protective Order.
26. Petitioners’ counsel may discuss classified information within the secure area or
another area authorized by the CSO only. Petitioners’ counsel shall not discuss
classified information over any standard commercial telephone instrument or
office intercommunication system and shall not transmit or discuss classified
information in electronic mail communications of any kind.
27. The CSO or CSO designee shall not reveal to any person the content of any
conversations he or she hears by or among petitioners’ counsel, nor reveal the
6
nature of documents being reviewed by them or the work generated by them,
except as necessary to report violations of this TS/SCI Protective Order to the
Court or to carry out their duties pursuant to this TS/SCI Protective Order.
Additionally, the presence of the CSO or CSO designee shall not be construed
to waive, limit, or otherwise render inapplicable the attorney-client privilege or
work product protections.
28. A petitioner’s counsel is presumed to have a “need to know” all the information
in the government’s possession concerning the detainee or detainees whom that
counsel represents. This presumption is overcome to the extent the government
seeks to withhold from a petitioner’s counsel highly sensitive information or
information concerning a highly sensitive source that the government presents to
the Court ex parte and in camera. Except for good cause shown, the
government must provide notice to petitioner’s counsel the same day it files
such information with the Court ex parte.
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 persons
authorized by this TS/SCI Protective Order, the Court, and counsel for the
government with the appropriate clearances and the need to know that
information. Petitioners’ counsel may seek, on a case-by-case basis,
authorization from appropriate officials to disclose TS/SCI information to
appropriately cleared counsel in related cases brought by Guantanamo Bay
detainees in this or other courts or to receive such information from them.
Such authorization shall not be unreasonably withheld. If petitioners’ counsel
believe authorization is being unreasonably withheld, counsel may seek this
Court’s intervention.
30. Petitioners’ counsel shall not disclose to a petitioner-detainee classified
information not provided by that petitioner-detainee. Should a petitioner’s
counsel desire to disclose classified information not provided by a
petitioner-detainee to that petitioner-detainee, that petitioner’s counsel will
provide in writing to the Privilege Team, see infra Section II.G, a request for
release clearly stating the classified information they seek to release. The
Privilege Team will forward a petitioner’s counsel’s release request to the
appropriate government agency authorized to declassify the classified
information for a determination. The Privilege Team will inform petitioner’s
counsel of the determination once it is made.
31. Except as otherwise provided herein, no petitioners or petitioners’ counsel shall
disclose or cause to be disclosed any information known or believed to be
classified in connection with any hearing or proceeding in these cases.
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
7
conclusion of these proceedings, shall petitioners’ counsel make any public or
private statements disclosing any classified information or documents accessed
pursuant to this TS/SCI 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 52 of this TS/SCI Protective
Order, failure to comply with these rules may result in the revocation of
counsel’s security clearance as well as civil and criminal liability.
33. The foregoing does not prohibit a petitioner’s counsel from citing or repeating
information in the public domain that petitioner’s counsel does not know to be
classified information or a classified document or derived from classified
information or a classified document.
34. All documents containing classified information prepared, possessed or
maintained by, or provided to, petitioners’ counsel—except filings submitted to
the Court and served on government counsel—shall remain at all times in the
CSO’s control for the duration of these cases. Upon final resolution of these
cases, including all appeals, the CSO shall destroy all such documents.
E. Designation Procedures for and Access to Protected Information and Documents
35. Should government counsel in these consolidated cases wish to have the Court
deem any document or information “protected,” government counsel shall
disclose the information to qualified counsel for petitioners—i.e., counsel who
have satisfied the necessary prerequisites of this TS/SCI Protective Order for
the viewing of protected information—and attempt to reach an agreement about
the designation of the information prior to filing a motion with the Court.
Petitioners’ counsel shall treat such disclosed information as protected unless
and until the Court rules that the information should not be designated as
protected.
36. 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:
8
a. petitioners’ counsel, provided such individuals signed the
Acknowledgment, attached hereto as Exhibit B, attesting to the fact that
they read this TS/SCI Protective Order and agree to be bound by its
terms; and
b. the Court and its support personnel.
37. The execution of the Acknowledgment is a condition precedent to a petitioner’s
counsel having access to, or continued access to, protected information for the
purposes of these proceedings. A copy of each executed Acknowledgment shall
be kept by counsel making the disclosure until thirty days after the termination
of this action, including appeals.
38. The substitution, departure, or removal of a petitioner’s counsel from these
cases for any reason shall not release that person from the provisions of this
TS/SCI Protective Order or the Acknowledgment executed in connection with
this TS/SCI Protective Order.
39. Petitioners’ counsel shall not disclose the contents of any protected documents
or information to any person, including counsel in related cases brought by
Guantanamo Bay detainees in this or other courts, except as authorized by this
TS/SCI Protective Order, the Court, or government counsel. Petitioners’
counsel in these cases may share protected information with each other but only
to the extent that counsel have appropriate security clearances and comply with
all other procedures set forth in this TS/SCI Protective Order. Petitioners’
counsel shall maintain all protected information and documents received through
this proceeding in a confidential manner.
40. Petitioners’ counsel shall not disclose protected information not provided by a
petitioner-detainee to that petitioner-detainee without prior concurrence of
government counsel or express permission of the Court.
41. Except as otherwise provided herein, no petitioner or petitioner’s counsel shall
disclose or cause to be disclosed any information known or believed to be
protected in connection with any hearing or proceeding in these cases.
42. At no time, including any period subsequent to the conclusion of these
proceedings, will petitioners’ counsel make any public or private statements
disclosing any protected information or documents accessed pursuant to this
TS/SCI Protective Order, including the fact that any such information or
documents are protected.
43. 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.
9
44. Nothing in this TS/SCI Protective Order shall prevent the government from
using for any purpose protected information it provides a party. Nothing in this
TS/SCI Protective Order shall entitle another party to protected information.
45. Supplying protected information to another party does not waive privilege with
respect to any person or use outside that permitted by this TS/SCI Protective
Order.
46. Within sixty days of the resolution of these actions, and the termination of any
appeals therefrom, all protected documents or information, and any copies
thereof, shall be promptly destroyed, provided that the party to whom protected
information is disclosed certifies in writing that all designated documents and
materials have been destroyed, and further provided that government counsel
may retain one complete set of any such materials that were presented in any
form to the Court. Any such retained materials shall be placed in an envelope
or envelopes marked “Protected Information Subject to Protective Order.” In
any subsequent or collateral proceeding, a party may seek discovery of such
materials from the government, without prejudice to the government’s right to
oppose such discovery or its ability to dispose of the materials pursuant to its
general document retention policies.
F. Procedures for Filing Documents
47. Unclassified Filing by Petitioners. Pending further order of the Court, any
pleading or other document filed by petitioners that petitioners’ counsel does not
believe contains classified information and has no reason to believe contains
classified information is authorized for direct filing in the CM/ECF system
consistent with the regular electronic filing practices of this Court. See LCvR
5.4. Presumptively classified information that petitioners’ counsel learned from
a petitioner, see infra Section II.D.13.f and Section II.I.32, but has not been
determined to be unclassified, shall not be filed in the CM/ECF system.
Presumptively classified information shall be filed pursuant to the procedures
specified in paragraph 48 of this TS/SCI Protective Order.
48. Classified Filings by Petitioners. Any pleading or other document filed by
petitioners that petitioners’ counsel know, have reason to believe, or are
uncertain whether it contains classified information, shall be filed, along with
three copies, under seal with the CSO by 4:00 p.m. Such document must be
marked with the appropriate classification marking (e.g., “TOP
SECRET/SENSITIVE COMPARTMENTED INFORMATION”). The time of
physical submission to the CSO shall be considered the date and time of filing.
At the time of making a submission to the CSO, petitioners’ counsel shall file
on the public record in the CM/ECF system a “Notice of Filing,” notifying the
Court that the submission was made to the CSO and specifying in general terms
the nature of the filing without disclosing any potentially classified information.
10
a. Upon receipt, the CSO will deliver to the Court and government counsel
any pleading or other document petitioners filed that may contain
classified information. The CSO will forward the document to the
appropriate government agencies and departments for their determination
as to whether the pleading or other document contains classified
information. To facilitate this review, petitioners’ counsel shall identify
each paragraph of a document that counsel believe may contain classified
information by marking each paragraph with an appropriate
classification marking or otherwise specifically identifying such
paragraphs. If, following review by the appropriate government
agencies and departments, it is determined that the pleading or other
document contains classified information, the CSO must ensure that the
document is marked with the appropriate classification marking and that
the document remains under seal. The CSO will work with the
appropriate government agencies or departments to prepare a redacted
version of the pleading or other document appropriate for filing on the
public record. Counsel shall then file the redacted version of the
document in the CM/ECF system with a notation in the upper right hand
corner of the first page stating “REDACTED VERSION FOR PUBLIC
FILING CLEARED BY CSO.” The docket entry description in the
CM/ECF system for the document suitable for public viewing shall
make specific reference to the earlier docket entry notifying the Court
that the document was submitted to the CSO for review.
b. In the event an entire document is deemed classified, petitioners’ counsel
shall file notice in the CM/ECF system listing the caption of the case, a
version of the title of the document that does not disclose classified or
protected information, and a brief statement that the CSO informed
counsel that the entire document is classified. The docket entry
description in the CM/ECF system for the document suitable for public
viewing shall make specific reference to the earlier docket entry
notifying the Court that the document was submitted to the CSO for
review.
c. If it is determined that the pleading or other document does not contain
classified information, counsel shall file the full submission in the
CM/ECF system and make specific reference to the earlier docket entry
notifying the Court that the document was submitted to the CSO for
review. The docket entry description shall also state that the CSO
approved public filing of the document. The underlying document filed
in the CM/ECF system shall contain a notation in the upper right hand
corner of the first page stating “PREVIOUSLY FILED WITH CSO
AND CLEARED FOR PUBLIC FILING.”
11
49. Classified Filings by Respondents.
a. Any pleading or other document filed by respondents’ counsel containing
classified information shall be filed, along with three copies, under seal
with the Court through the CSO by 4:00 p.m. The time of physical
submission to the CSO shall be considered the date and time of filing.
The CSO shall serve a copy of any classified pleading or document on
petitioners’ counsel at the secure facility. At the time of making a
submission to the CSO, respondents shall file on the public record in the
CM/ECF system a “Notice of Filing,” notifying the Court that a
submission was made to the CSO and specifying in general terms the
nature of the filing without disclosing any potentially classified
information. As soon as practicable following the original filing date,
respondents’ counsel shall file in the CM/ECF system a version of the
pleading or document appropriate for filing on the public record,
consistent with the procedures outlined in paragraphs 48.a-c of this
TS/SCI Protective Order.
b. Nothing herein requires the government to disclose classified
information. Additionally, nothing herein prohibits the government
from submitting classified information to the Court in camera or ex parte
in these proceedings or entitles petitioners or petitioners’ counsel access
to such submissions or information. Except for good cause shown in the
filing, the government shall provide petitioners’ counsel or petitioners
with notice served on petitioners’ counsel on the date of the filing.
50. Protected Information Filing by Petitioners and Respondents.
a. The presence, or potential presence, of protected information in any
pleading or document that is governed by paragraph 48 or paragraph 49
of this TS/SCI Protective Order shall not affect the method of filing such
pleading or document; it shall be governed by paragraph 48 or 49, as
applicable. Any pleading or other document that does not contain
classified information but that petitioners’ counsel or respondents have
reason to believe contains or petitioners’ counsel is uncertain whether it
contains protected information shall be filed under seal pursuant to Local
Civil Rule 5.1(j). At the time of the submission of a filing containing
protected but not classified information, the party shall file on the public
record in the CM/ECF system a “Notice of Filing,” notifying the Court
that a protected information submission was made and specifying in
general terms the nature of the filing without disclosing any potentially
protected information. As soon as practicable following the original
filing date, counsel for the party submitting the protected information
shall file in the CM/ECF system a version of the pleading or document
appropriate for filing on the public record, consistent with the
procedures outlined in paragraphs 48.a-c of this TS/SCI Protective
12
Order.
b. This TS/SCI Protective Order shall constitute authorization for
petitioners and respondents to file protected information under seal.
That is, no motion to seal is required at the time of submission of the
pleading or document to the Clerk’s Office. Procedures for designation
of protected information shall be governed by paragraph 35 of this
TS/SCI Protective Order.
c. Nothing herein requires the government to disclose protected
information. Additionally, nothing herein prohibits the government
from submitting protected information to the Court in camera or ex parte
in these proceedings or entitles petitioners or petitioners’ counsel access
to such submissions or information. Except for good cause shown in the
filing, the government shall provide counsel for the petitioner or
petitioners with notice served on counsel on the date of the filing.
51. Disclosure of Protected or Classified Information on the Public Record. In the
event respondents believe that a party has disclosed classified or protected
information on the public docket, respondents shall notify the CSO, who shall
work with the Clerk’s Office to remove the filing from the public docket. A
copy of the filing shall then be lodged with the CSO and treated according to
paragraphs 48.b or 48.c of this TS/SCI Protective Order. Nothing herein limits
the government’s authority to take necessary remedial action to ensure the
protection of the classified or protected information.
G. Penalties for Unauthorized Disclosure
52. Any unauthorized disclosure of classified information may constitute violations
of United States criminal laws. Additionally, any violation of the terms of this
TS/SCI 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 TS/SCI Protective Order may also result in the termination of
access to classified information and protected information. Persons subject to
this TS/SCI 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 TS/SCI 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 TS/SCI 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
13
prior written authorization from the original classification authority and in
conformity with this TS/SCI Protective Order.
53. 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 TS/SCI Protective Order.
14
II. PROCEDURES FOR COUNSEL ACCESS TO DETAINEES AT THE UNITED
STATES NAVAL BASE IN GUANTANAMO BAY, CUBA, IN HABEAS CASES
INVOLVING TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION
A. Applicability
1. Except as otherwise stated in these Procedures for Counsel Access to Detainees
at the U.S. Naval Base in Guantanamo Bay, Cuba, in Habeas Cases Involving
TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION
(“Procedures”), or by other order issued in the United States District Court for
the District of Columbia, the following procedures shall govern counsel access
to certain detainees in the control of the Department of Defense (“DoD”) at the
U.S. Naval Base in Guantanamo Bay, Cuba (“GTMO”), whose cases may
involve TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION
(“TS/SCI”).
2. These Procedures do not apply to counsel who are retained solely to assist in a
detainee’s defense in a trial by military commission. Access by that counsel is
covered by the Procedures for Monitoring Communications Between Detainees
Subject to Trial by Military Commission and their Defense Counsel Pursuant to
Military Commission Order No. 3.
B. Definitions
3. “Communications” means all forms of communication between counsel and a
detainee, including oral, written, electronic, or by any other means.
4. As used in these Procedures, “counsel” means attorneys employed or retained
by or on behalf of a detainee for purposes of representing the detainee in the
United States District Court for the District of Columbia and admitted, either
generally or pro hac vice, in this Court. Unless otherwise stated, “counsel”
also includes co-counsel, interpreters/translators, paralegals, investigators, and
all other personnel or support staff employed or engaged to assist in the
litigation.
5. “Detainee” means an individual detained by DoD as an alleged enemy
combatant at GTMO.
6. “Privilege Team” means a team comprised of one or more DoD attorneys and
one or more intelligence or law enforcement personnel who have not taken part
in, and, in the future, will not take part in, any domestic or foreign court,
military commission, or combatant status tribunal proceedings involving the
detainee. If required, the Privilege Team may include interpreters/translators,
provided that such personnel meet these same criteria.
15
7. “Special Litigation Team” means a team comprised of one or more Department
of Justice (“DoJ”) attorneys 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. The Special
Litigation Team is authorized to represent the Privilege Team with respect to
the execution of its duties.
8. “Legal mail” means letters written between a detainee’s counsel and the
detainee that are related to the counsel’s representation of the detainee, as well
as privileged documents and publicly filed legal documents relating to that
representation. The Court is the final arbiter of whether documents fall within
the definition of legal mail.
C. Requirements for Access to and Communications with Detainees
9. Security Clearance.
a. Counsel must hold a valid, current United States security clearance at
the TS/SCI level or its equivalent, as determined by appropriate DoD
intelligence personnel.
b. Counsel who possess a valid security clearance shall provide, in writing,
the date of their background investigation, the date such clearance was
granted, the level of the clearance, and the agency that granted the
clearance. Access will be granted only after DoD verification of the
security clearance.
c. Counsel who do not currently possess a TS/SCI clearance are required to
submit an application for clearance to the Department of Justice,
Litigation Security Division.
10. Acknowledgment of and Compliance with Access Procedures.
a. Before being granted access to a detainee, counsel will receive a copy of
these Procedures. To have access to a detainee, counsel must agree to
comply fully with these Procedures and must sign the Affirmation,
attached hereto as Exhibit C, acknowledging an agreement to comply
with them.
b. This Affirmation will not be considered an acknowledgment by counsel
that these Procedures are legally permissible. Even if counsel elect to
challenge these Procedures, counsel may not knowingly disobey an
obligation imposed by these Procedures until such time, if any, that the
Procedures are modified or revoked by DoD, a United States District
Court or Court of Appeals, or the United States Supreme Court.
16
c. DoD expects that counsel, counsel’s staffs, and anyone acting on
counsel’s behalf will fully abide by the requirements of these
Procedures. Counsel are required to provide DoD with signed
Affirmations from interpreters/translators, paralegals, investigators and
all other personnel or support staff employed or engaged to assist in the
litigation, upon use of those individuals by counsel in a manner that
implicates these Procedures.
d. Should counsel fail to comply with these Procedures, access to or
communication with detainees will not be permitted.
11. Verification of Representation.
a. Prior to being permitted access to a detainee, counsel must provide DoD
with a Notification of Representation. This Notification must include
counsel’s licensing information, business and email addresses, and phone
number, as well as the name of the detainee counsel represents.
Additionally, counsel shall provide evidence of their authority to
represent the detainee.
b. Counsel shall provide evidence of their authority to represent the
detainee as soon as practicable and, in any event, not later than ten days
after the conclusion of a second visit with a detainee. The Court
recognizes that counsel may not be in a position to present such evidence
after the initial meeting with a detainee. Counsel for detainees and
counsel for respondents shall cooperate to the fullest extent possible to
reach a reasonable agreement on the number of counsel visits allowed.
Should a detainee’s counsel believe the government is unreasonably
limiting the number of visits with the detainee, counsel may petition the
Court at the appropriate time for relief.
c. If counsel withdraw from representation of a detainee, or if
representation is otherwise terminated, counsel shall inform DoD
immediately of that change in circumstances.
d. Counsel must provide DoD with a signed representation stating (a) that,
to the best of counsel’s knowledge after reasonable inquiry, the source of
funds to pay counsel any fees or reimbursement of expenses are not
funded directly or indirectly by persons or entities counsel believes are
connected to terrorism or the product of terrorist activities, including
“Specially Designated Global Terrorists,” identified pursuant to Exec.
Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 2001) or Exec.
Order No. 12,947, 60 Fed. Reg. 5079 (Jan. 23, 1995), and (b) counsel
has complied with ABA Model Rule 1.8(f).
17
12. Logistics of Counsel Visits.
a. Counsel shall submit to DoJ any request to meet with a detainee.
Requests shall specify dates of availability for a meeting, the desired
duration of the meeting, and the language that will be utilized during the
meeting with the detainee. Reasonable efforts will be made to
accommodate counsel’s requests regarding the scheduling of a meeting.
Once a request is approved, DoJ will contact counsel with the date and
duration of the meeting.
b. Legal visits shall take place in a room designated by JTF-Guantanamo.
No more than two attorneys (or one attorney and one assistant) plus one
interpreter/translator shall visit with a detainee at one time, unless
approved in advance by the Commander, JTF-Guantanamo. Such
approval shall not be unreasonably withheld.
c. Due to the mission and location of GTMO, certain logistical details,
including arrangements for travel and lodging, will need to be
coordinated by counsel prior to arrival. DoJ will provide specific
information regarding these issues.
d. In order to travel to GTMO, counsel must have a country and theater
clearance for that specific visit. In order to begin processing country
and theater clearances, counsel must have confirmed flight information
for travel to GTMO and a valid, current United States security clearance
at the TS/SCI level or its equivalent, as determined by appropriate DoD
intelligence personnel. Country and theater clearances require twenty
days to process. Accordingly, counsel shall provide DoD, through DoJ,
with the required information no later than twenty days prior to the
GTMO visit date, or as soon as a visit is scheduled. Requests for visits
made inside of 20 days will not normally be granted.
D. Procedures for Correspondence Between Counsel and Detainees
13. Mail Sent by Counsel to Detainees (“Incoming Mail”).
a. Counsel shall send incoming legal mail for detainees to the Privilege
Team at the appropriate address provided by government counsel. Each
envelope or mailer shall be labeled with the detainee’s name and
Internment Serial Number (“ISN”) 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.”
b. Each page of legal mail shall be labeled “Attorney-Detainee Materials.”
18
No staples, paper clips or any non-paper items shall be included with the
documents.
c. Upon receiving legal mail from counsel for delivery to the detainee, the
Privilege Team shall open the envelope or mailer to search the contents
for prohibited physical contraband. Within two business days of receipt
of legal mail, and assuming no physical contraband is present, the
Privilege Team shall forward the mail to military personnel at GTMO in
a sealed envelope marked “Legal Mail Approved by Privilege Team”
and clearly indicating the identity of the detainee to whom the legal mail
is to be delivered. The Privilege Team shall return to the sender any
incoming mail that does not comply with the terms of paragraphs 13.a
and 13.b of these Procedures.
d. Within two business days of receipt of legal mail from the Privilege
Team, personnel at GTMO shall deliver the envelope or mailer marked
by the privilege team as “Legal Mail Approved by Privilege Team” to
the detainee without opening the envelope or mailer. If counsel desire
confirmation that documents were delivered to the detainee, counsel
shall provide a stamped, self-addressed envelope for that purpose. The
detainee shall be responsible for mailing any confirmation of delivery to
counsel as outgoing legal mail. This method shall be the sole and
exclusive means by which confirmation of delivery is provided to
counsel.
e. Written correspondence to detainees not falling within the definition of
legal mail shall be sent through the United States Postal Service to the
appropriate address provided by government counsel. Nonlegal mail
includes, but is not limited to, letters from persons other than counsel,
including family and friends of the detainee. These non-privileged
communications will be reviewed by military personnel at GTMO under
the standard operating procedures for detainee nonlegal mail.
f. Counsel shall treat all information learned from a detainee, including
any oral and written communications with a detainee, as classified at the
TS/SCI level, unless and until the information is submitted to the
Privilege Team and the Privilege Team, this Court, or another court
determines it to be otherwise. Accordingly, if counsel’s correspondence
contains any summary or recitation of or reference to a communication
with a detainee that has not been previously determined to be
unclassified, the correspondence shall be prepared, marked, transported
and handled as classified material as required by Executive Order 12958,
DOD Regulation 5200.1-R and AI 26, OSD Information and Security
Supplement to DOD Regulation 5200.1R.
19
g. Written and oral communications with a detainee, including all incoming
legal mail, shall not include any of the following information, in any
form, unless directly related to the litigation of this action: (1)
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; (2) information
relating to the current political events in any country; (3) information
relating to security procedures at GTMO, including names of U.S.
Government personnel and the layout of camp facilities; or (4)
information relating to the status of other detainees.
14. Mail Sent by Detainees to Counsel (“Outgoing Mail”).
a. Detainees will be provided with paper to prepare communications to
counsel. In the presence of military personnel, the detainee will seal the
written communication in an envelope and it will be annotated as
“Attorney-Detainee Materials-For Delivery To Counsel.” Each
envelope shall be labeled with the detainee’s and counsel’s names and
the detainee’s ISN. Envelopes annotated with the names of persons other
than the detainee’s counsel, including family, friends, or other attorneys,
shall be processed according to the standard operating procedures for
detainee nonlegal mail.
b. Pending an appropriate classification review by the Privilege Team, any
outgoing legal mail will be handled as if it is classified at the TS/SCI
level, as defined by the TS/SCI Protective Order.
c. Military personnel will collect the outgoing legal mail within one
business day of being notified by a detainee that the communication is
prepared for sealing and mailing.
d. After outgoing legal mail is collected from a detainee, the envelope will
be sealed into a larger envelope by military personnel at GTMO. The
larger envelope will be marked as “Attorney-Detainee Materials-For
Delivery To Counsel” and will be annotated with the detainee’s and
counsel’s names and the detainee’s ISN. The outgoing legal mail will be
placed into a courier bag, which will then be locked and hand delivered
to a Privilege Team member at GTMO. The Privilege Team member
will send all approved legal mail to the secure facility in the
Washington, D.C., area through a secure electronic point-to-point
transfer system, or via a government-designated courier in a sealed
container, in a manner designed to protect the classified material and
attorney-client confidentiality. All originals of outgoing legal mail will
be stored in a safe located in the secure area at GTMO in a manner
designed to protect the classified material and attorney-client
confidentiality. The Privilege Team will notify counsel via email when
20
legal mail is received at the secure facility in the Washington, D.C.,
area.
e. Detainees also are permitted to send nonlegal mail, including written
communications to persons other than counsel, through the United States
Postal Service. These communications shall be reviewed by military
personnel at GTMO under the standard operating procedures for
detainee nonlegal mail.
f. In the event any nonlegal 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
nonlegal mail.
g. Classified information may not be sent through nonlegal mail channels.
E. Materials Brought into Meetings with Detainees and Counsel
15. Counsel shall bring only approved legal mail, writing utensils, and paper into
any meeting with a detainee, unless counsel receives prior approval from the
Commander, JTF-Guantanamo. The Commander shall not unreasonably
withhold approval for counsel to bring into a meeting with a detainee letters,
tapes, or other communications introducing counsel to the detainee, if the
government has first reviewed the communication and determined that sharing
the communication with the detainee would not threaten the security of the
United States. All legal mail counsel seeks to bring into a meeting with a
detainee must be processed under the general review procedures of paragraph
D.13 of these Procedures and be submitted to the Privilege Team for review
and return at least 14 days prior to counsel’s scheduled visit. During a meeting,
counsel may provide the detainee with any written documents that were
approved to be brought into the meeting. Subject to an appropriate contraband
review, the detainee may bring back to his cell all such privileged documents
and any documents, notes, and communications created by the detainee and
counsel during the course of the meeting.
16. Written and oral communications with a detainee, including all documents
brought into a meeting with a detainee, shall not include any of the following
information, in any form, unless directly related to the litigation of this action:
(1) 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; (2) information relating to the
current political events in any country; (3) information relating to security
procedures at GTMO, including names of U.S. Government personnel and the
layout of camp facilities; or (4) information relating to the status of other
21
detainees.
F. Materials Brought out of Meetings with Detainees and Counsel
17. Even if unclassified when brought into meetings, all materials brought out of
meetings with detainees and counsel are presumptively TS/SCI. Upon
completion of counsel’s visit to GTMO, a Privilege Team member at GTMO
will review originally unclassified materials brought out of the meeting to
determine whether they were modified in any way.
18. Upon completion of each meeting with a detainee or during any break in a
meeting session, counsel will give the notes or documents used or produced
during the meeting, except those left in the detainee’s possession, to a
designated individual at GTMO. These materials shall be sealed in counsel’s
presence and handled as TS/SCI material. If further meetings are scheduled at
which some or all of these materials may be used, counsel will identify which
materials may be used. The identified materials will be placed in a separate
envelope and made available to counsel for use at the next meeting.
19. Upon completion of counsel’s visit to GTMO, unclassified materials shall be
sealed in counsel’s presence and placed in an envelope labeled as “Attorney-
Detainee Meeting Documents–For Delivery to Counsel.” The envelope shall be
sealed into a larger envelope marked as “Attorney-Detainee Meeting Documents-
For Mail Delivery To Counsel” and annotated with the detainee’s and counsel’s
names and the detainee’s ISN. The envelope shall be sealed and, within two
business days following completion of counsel’s visit to GTMO, mailed to an
address provided by counsel or, if no address is provided, to the secure facility
in the Washington, D.C., area. Materials other than unclassified materials also
shall be sealed in counsel’s presence and placed in an envelope labeled as
“Attorney-Detainee Meeting Documents–For Delivery to Counsel.” The envelope
shall be sealed into a larger envelope marked as “Attorney-Detainee Meeting
Documents-For Delivery To Counsel” and annotated with the detainee’s and
counsel’s names and the detainee’s ISN. The envelope will be placed into a
courier bag, which will then be locked and hand delivered to a Privilege Team
member at GTMO. The Privilege Team member will send the materials to the
secure facility in the Washington, D.C., area through a secure electronic point-
to-point transfer system, or via a government-designated courier in a sealed
container, in a manner designed to protect the classified material and attorney-
client confidentiality. The original materials will be stored in a safe located in
the secure area at GTMO in a manner designed to protect the classified material
and attorney-client confidentiality. The Privilege Team will notify counsel via
email when the electronic materials are received at the secure facility in the
Washington, D.C., area.
22
20. Correspondence or messages from a detainee to individuals other than his
counsel, including family, friends, or other attorneys, will not be handled
through this process. If a detainee provides these communications to counsel
during a visit, counsel shall give those communications to military personnel at
GTMO to be processed under the standard operating procedures for detainee
nonlegal mail.
G. Classification Determination of Detainee Communications
21. Pending an appropriate classification review, all information provided and
materials sent by a detainee to counsel or, subject to the review described
above, brought out of a meeting by counsel shall be handled and treated as
classified at the TS/SCI level.
22. Counsel may submit information learned from a detainee to the Privilege Team
located at the secure facility in the Washington, D.C., area 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 transported, prepared, handled, and treated in a secure manner, as
required by Executive Order 12958, DOD Regulation 5200.1-R and AI 26,
OSD Information Security Supplement to DOD Regulation 5200.1R. No
information derived from these submissions shall be disclosed outside the
Privilege Team pursuant to these Procedures until the Privilege Team has
reviewed it for security and intelligence purposes. With counsel’s consent, the
Privilege Team may consult with an individual or individuals in appropriate
federal agencies for the purpose of identifying classified information and
marking documents with the appropriate classification. If counsel does not
consent to such consultation, information for which consultation is required will
remain classified. Absent express consent of the Court, or except as otherwise
provided in these Procedures, the submissions shall not be disclosed to any
person involved in the interrogation of a detainee, and no such individual may
make any use of those communications, nor shall the submissions be disclosed
to any government personnel involved in any domestic or foreign court, military
commission, or combatant status tribunal proceedings involving the detainee.
23. Other than information contained in a court filing that is served on government
counsel, the Privilege Team shall not disclose outside the Privilege Team any
information counsel submit for classification review, except as provided by
these Procedures or as permitted by counsel who submitted the information or
the Court, or unless the disclosure is to the Special Litigation Team for the
purpose of representing the Privilege Team. The Special Litigation Team may
not disclose information provided by the Privilege Team or any information
counsel provides to the Privilege Team for review, except as provided by these
Procedures or as permitted by counsel who submitted the information or the
23
Court. Through the Special Litigation Team, the Privilege Team may inform
the Court of any issues or problems related to the release or processing of
information related to a case.
24. All materials submitted for classification review must be in legible handwriting
or transcribed by typewriter or computer. Materials that are not in English
must be accompanied by an English translation. Each page of a document
submitted for classification review shall be marked “Attorney-Detainee
Materials” and “Classified.”
25. As soon as possible after conducting the classification review, the Privilege
Team shall advise counsel of the classification levels of the information
contained in the materials submitted for review. The Privilege Team shall
forward its classification determination directly to counsel after a review and
analysis period not to exceed, from the time of receipt by the privilege team:
a. seven business days for information written in English;
b. fourteen business days for any information that includes writing in any
language other than English, to allow for translations by the privilege
team; and
c. twenty business days for any information where the Privilege Team has
reason to believe that a code was used, to allow for further analysis.
26. While conducting classification review, the Privilege Team shall promptly
report to the Commander, JTF-Guantanamo any information that reasonably
could be expected to result in immediate and substantial harm to the national
security. In his discretion, the Commander, JTF-Guantanamo may disseminate
the relevant portions of the information to law enforcement, military, and
intelligence officials, as appropriate.
27. If, at any time, the Privilege Team determines that information in the
documents submitted for classification review relates to imminent acts of
violence, the Privilege Team shall report the contents of those documents 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.
H. Telephonic Access to Detainees
28. Requests for telephonic access to a detainee by counsel or other persons
normally will not be approved. Such requests may be considered on a
case-by-case basis due to special circumstances and must be submitted to
Commander, JTF-Guantanamo.
24
29. Any telephonic access by counsel is subject to appropriate security procedures.
Such procedures shall not include contemporaneous monitoring or recording.
30. Any telephonic access by persons other than counsel is subject to appropriate
security procedures, including contemporaneous monitoring and recording.
I. Counsel’s Handling and Dissemination of Information from Detainees
31. Subject to the terms of the TS/SCI Protective Order, see supra Section I, and
any other applicable protective order, counsel may disseminate the unclassified
contents of a detainee’s communications for purposes reasonably related to their
representation of that detainee.
32. Counsel shall treat all information learned from a detainee, including any oral
and written communications with a detainee, as information classified at the
TS/SCI level, unless and until the information is submitted to the 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. All documents containing
information about or related to materials classified at the TS/SCI level shall be
handled in accordance with the security procedures established in the TS/SCI
Protective Order and these Procedures. Materials classified at the TS/SCI level
shall not be handled by counsel outside the designated areas while at GTMO.
All classified material created by counsel or the detainee that relates to a
detainee’s case shall be transmitted from GTMO to the secure facility in the
Washington, D.C., area through a secure electronic point-to-point transfer
system, or via a government-designated courier in a sealed container, in a
manner designed to protect the classified material and attorney-client
confidentiality.
33. Counsel shall disclose to DoJ or Commander, JTF-Guantanamo any information
learned from a detainee involving future events that threaten national security or
involve imminent violence.
34. Counsel may not divulge classified information not learned from the detainee to
the detainee. Counsel may not otherwise divulge classified information related
to a detainee’s case to any person, except those authorized under these
Procedures or the TS/SCI Protective Order, the Court, and government counsel
with the requisite security clearance and need to know.
J. JTF-Guantanamo Security Procedures
35. Counsel 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
25
locations, as well as any supplemental procedures implemented by
JTF-Guantanamo personnel.
36. 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, but is not limited to, money, stamps,
cigarettes, and writing instruments. No items of any kind may be provided to a
detainee without the advance approval of the Commander, JTF-Guantanamo.
37. Photography or recording of any type is prohibited without the prior approval of
the Commander, JTF-Guantanamo. No electronic communication devices are
permitted. 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 and
purged of all information.
38. Upon arrival at JTF-Guantanamo, security personnel will perform a contraband
inspection of counsel using metal detectors, as well as a physical inspection of
counsel’s bags and briefcases and, if determined necessary, a physical
inspection of counsel’s persons.
39. Counsel shall not 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. Should permission be unreasonably
denied, counsel may seek an order from this Court granting permission for
good cause shown.
40. Counsel will meet with detainees in conference facilities provided by GTMO.
These facilities are subject to visual monitoring by closed circuit TV for safety
and security reasons. The only other method of visual observation available is
for the door to remain open with military police sitting outside the door. No
oral communications between counsel and the detainees will be heard.
41. At the conclusion of meetings with detainees, counsel will again be inspected
using a metal detector and, if deemed necessary, by physical inspection of their
persons.
SO ORDERED.
January 7, 2009 /s/
Thomas F. Hogan
United States District Judge
26
Exhibit A
EXHIBIT A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE: Misc. No. 08-0442 (TFH)
GUANTANAMO BAY Civil Action No. 0___-_____
DETAINEE LITIGATION
MEMORANDUM OF UNDERSTANDING REGARDING ACCESS TO
CLASSIFIED NATIONAL SECURITY INFORMATION
Having familiarized myself with the applicable statutes, regulations, and orders related
to, but not limited to, unauthorized disclosure of classified information, espionage and related
offenses; The Intelligence Identities Protection Act, 50 U.S.C. § 421; 18 U.S.C. § 641; 50
U.S.C. § 783; 28 C.F.R. § 17 et seq.; and Executive Order 12958; I understand that I may be
the recipient of information and documents that belong to the United States and concern the
present and future security of the United States, and that such documents and information
together with the methods and sources of collecting it are classified by the United States
government. In consideration for the disclosure of classified information and documents:
(1) I agree that I shall never divulge, publish, or reveal either by word, conduct or
any other means, such classified documents and information unless specifically
authorized in writing to do so by an authorized representative of the United
States government, or as expressly authorized by the TS/SCI Protective Order
entered in the United States District Court for the District of Columbia in the
above-captioned case(s).
(2) I agree that this Memorandum of Understanding and any other non-disclosure
agreement signed by me will remain forever binding on me.
(3) I have received, read, and understand the TS/SCI Protective Order entered by
the United States District Court for the District of Columbia in the above-
captioned case(s), and I agree to comply with the provisions thereof.
Dated: ____________________ __________________________________________
Exhibit B
EXHIBIT B
ACKNOWLEDGMENT
The undersigned hereby acknowledges that he/she has read the TS/SCI Protective
Order first entered on January 7, 2009, in the United States District Court for the District of
Columbia in case numbers 06-cv-1690, 08-cv-1207, 08-cv-1360, and 08-cv-2083, understands
its terms, and agrees to be bound by each of those terms. Specifically, and without limitation,
the undersigned agrees not to use or disclose any protected information or documents made
available to him/her other than as provided by the TS/SCI Protective Order. The undersigned
acknowledges that his/her duties under the TS/SCI Protective Order shall survive the
termination of this case and are permanently binding, and that failure to comply with the terms
of the Protective Order may result in the imposition of sanctions by the Court.
DATED: ____________________ BY: ____________________________________________
(type or print name)
SIGNED: _______________________________________
Exhibit C
EXHIBIT C
AFFIRMATION
The undersigned hereby acknowledges that he/she has read the Procedures for Counsel
Access to Detainees at the U.S. Naval Base in Guantanamo Bay, Cuba, in Habeas Cases
Involving TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION first entered
on January 7, 2009, in the United States District Court for the District of Columbia in case
numbers 06-cv-1690, 08-cv-1207, 08-cv-1360, and 08-cv-2083, understands its terms, and
agrees to be bound by each of those terms. The undersigned acknowledges that his/her duties
under the Procedures for Counsel Access to Detainees at the U.S. Naval Base in Guantanamo
Bay, Cuba, in Habeas Cases Involving TOP SECRET/SENSITIVE COMPARTMENTED
INFORMATION shall survive the termination of this case and are permanently binding, and
that failure to comply with the terms of the Procedures for Counsel Access to Detainees at the
U.S. Naval Base in Guantanamo Bay, Cuba, in Habeas Cases Involving TOP
SECRET/SENSITIVE COMPARTMENTED INFORMATION may result in revocation of
counsel’s security clearance, suspension or termination of counsel’s access to the U.S. Naval
Base in Guantanamo Bay, Cuba, and/or the imposition of sanctions by the Court.
DATED: ____________________ BY: ____________________________________________
(type or print name)
SIGNED: _______________________________________