The opinion
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
MUSTAFA AHMED AL-HAWSAWI,
Petitioner,
v. No. 21-cv-2907 (RJL)
JOSEPH R. BIDEN JR. et al.,
Respondents.
AMENDED PROTECTIVE ORDER FOR HABEAS CASE INVOLVING TOP SECRET/
SENSITIVE COMPARTMENTED INFORMATION
PROCEDURES FOR COUNSEL GOEL ana NERS 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 case involves national security information
or documents, including up to TOP SECRET/SENSITIVE COMPARTMENTED
INFORMATION (“TS/SCTI”), 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
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 Amended Protective Order for Habeas Case 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’’) applies in the
above-captioned civil case:
I. PROTECTIVE ORDER FOR HABEAS CASE INVOLVING TOP
SECRET/SENSITIVE COMPARTMENTED INFORMATION
A. Overview and Applicability
l. This TS/SCI Protective Order establishes procedures that must be followed by
petitioner and his respective counsel, all other counsel involved in this matter,
interpreters and translators for the parties, personnel or support staff employed or
engaged to assist in this matter, and all other individuals who, in connection with
this matter, 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 this
matter 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 this matter.
4. As appropriate and needed, petitioner’s counsel are responsible for advising
their employees, petitioner, and others of this TS/SCI Protective Order’s
contents.
5: Petitioner’s 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 petitioner’s counsel in their access to and interaction
with petitioner 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
petitioner’s counsel or petitioner, 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.
B. Definitions
7. As used in this TS/SCI Protective Order, the words “documents” and
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“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.
d.
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;
graphic or oral records or representations of any kind, including, but not
limited to, photographs, charts, graphs, microfiche, microfilm, videotapes,
sound recordings of any kind, and motion pictures;
electronic, mechanical or electric records of any kind, including, but not
limited to, tapes, cassettes, disks, recordings, electronic mail, films,
typewriter ribbons, word processing or other computer tapes or disks, and all
manner of electronic data processing storage; and
information acquired orally.
Unless otherwise stated, the terms “classified national security information and/or
documents,
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classified information” and “classified documents” mean:
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 13526, as amended, or its predecessor
Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or
additionally controlled as “SENSITIVE COMPARTMENTED
INFORMATION (SCJ),” or any classified information contained in such
document;
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 13526, as
amended, or its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or
“TOP SECRET,” or additionally controlled as “COMPARTMENTED
INFORMATION (SCI)”;
verbal or non-documentary classified information known to petitioner or
petitioner’s counsel; or
any document and information as to which petitioner or petitioner’s
counsel were notified orally or in writing that such document or
information contains classified information.
All classified documents, and information contained therein, shall remain
classified unless the documents bear a clear indication that they were
3
10.
11.
12.
13.
14.
15.
16.
declassified by the agency or department that is the original classification
authority of the document or the information contained therein (hereinafter,
“original classification authority”).
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 Judge Hogan in 08-
mc-442 on September 11, 2008, not suitable for public filing.
As used in this TS/SCI Protective Order, the term “petitioner’s 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.
“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.
“Secure area” means a physical facility accredited or approved for the storage,
handling, and control of classified information.
“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.
C. Designation of Court Security Officer
The Court designates Harry J. Rucker, Litigation Security Group, U.S. Department of
Justice, as Classified Information Security Officer for this case, along with Daniel O.
Hartenstine, Daniella M. Medel, Matthew W. Mullery, Carli V. Rodriguez-Feo, and
Winfield S. Slade as Alternate Classified Information Security Officers (collectively,
“CISO”) 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 this case. Petitioner’s counsel shall seek guidance from
the CISO with regard to appropriate storage, handling, transmittal, and use of
classified documents or information.
D. Access to Classified Information and Documents
Without authorization from the government, no petitioner or petitioner’s counsel
shall have access to any classified information involved in this case unless that
person has done the following:
17.
18.
19,
20.
21s
22,
23.
24.
25.
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.
Petitioner’s 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 CISO 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.
The substitution, departure, or removal of any 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 MOU executed in connection with this TS/SCI Protective
Order.
The government has arranged for one appropriately approved secure area for
petitioners’ counsel’s use in the Guantanamo habeas cases. The secure area shall
contain a working area supplied with secure office equipment reasonably necessary
for preparing petitioner’s case. The government shall bear expenses for the secure
area and its equipment.
The CISO shall establish procedures to ensure that the secure area is accessible to
petitioner’s counsel during normal business hours and at other times on reasonable
request as approved by the CISO. The CISO shall establish procedures to ensure
the secure area is maintained and operated in the most efficient manner consistent
with the protection of classified information. The CISO or CISO 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 Guantanamo habeas proceedings.
All classified information the government provides to petitioner’s counsel, and all
classified information petitioner’s counsel otherwise possesses or maintains, 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 CISO or CISO designee supervising the area.
Consistent with other provisions of this TS/SCI Protective Order, petitioner’s
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.
Petitioner’s counsel shall not copy or reproduce any classified information in any
form, except with the CISO’s approval or in accordance with the procedures
established by the CISO for the operation of the secure area.
All documents prepared by petitioner or petitioner’s counsel that contain or may
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26,
27.
28.
29,
30.
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 CISO. Ail 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 CISO 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 petitioner’s counsel, or as
otherwise provided in this TS/SCI Protective Order.
Petitioner’s counsel may discuss classified information within the secure area or
another area authorized by the CISO only. Petitioner’s 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.
The CISO or CISO designee shall not reveal to any person the content of any
conversations he or she hears by or among petitioner’s 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 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 CISO or CISO designee shall not be construed to waive, limit, or
otherwise render inapplicable the attorney-client privilege or work product
protections,
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,
Petitioner’s 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. Petitioner’s
counsel may seek, on a case-by-case basis, authorization from appropriate officials
to disclose classified 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
petitioner’s counsel believe authorization is being unreasonably withheld, counsel
may seek this Court’s intervention.
Petitioner’s counsel shall not disclose to a petitioner-detainee classified information
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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.
Except as otherwise provided herein, neither petitioner nor petitioner’s counsel 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 stated in this paragraph, and to ensure the security of the
United States of America, at no time, including any period subsequent to the
conclusion of these proceedings, shall petitioner’s 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.
E.
385
34.
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.
All documents containing classified information prepared, possessed or maintained
by, or provided to, petitioner’s counsel—except filings submitted to the Court and
served on government counsel—shall remain at all times in the CISO’s control for
the duration of these cases. Upon final resolution of these cases, including all
appeals, the CISO shall destroy all such documents.
Designation Procedures for and Access to Protected Information and Documents
35.
36.
37.
38.
39,
Should government counsel in this case wish to have the Court deem any document
or information “protected,” government counsel shall disclose the information to
qualified counsel for petitioner—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. Petitioner’s counsel shall treat
such disclosed information as protected unless and until the Court rules that the
information should not be designated as protected.
Without authorization from the government or the Court, protected information
shall not be disclosed or distributed to any person or entity other than the following:
a. petitioner’s 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.
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.
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.
Petitioner’s 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. Petitioner’s counsel 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. Petitioner’s counsel shall maintain all protected information and
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40.
41.
42.
43.
44,
45.
46.
47,
48.
documents received through this proceeding in a confidential manner.
Petitioner’s 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.
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 this case.
At no time, including any period subsequent to the conclusion of these
proceedings, will petitioner’s 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.
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.
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.
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.
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
[OMITTED TO FACILITATE CONSISTENCY OF PARAGRAPH NUMBERING
WITH SIMILAR ORDERS IN OTHER GUANTANAMO CASES]
Filings by Petitioner. Any pleading or other document filed by petitioner shall be
filed, along with three copies, under seal with the CISO by 4:00 p.m., unless the
petitioner obtains from the CISO permission, specific to a particular, non-
substantive pleading or document (e.g., motions for extensions of time,
continuances, scheduling matters) not containing information that is or may be
9
classified or protected, to file the pleading or document not under seal. Such
pleading or document must be marked with the appropriate classification marking
(e.g., “TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION”), if
any. The time of physical submission to the CISO shall be considered the date and
time of filing. At the time of making a submission to the CISO, petitioner’s
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 CISO and specifying in
general terms the nature of the filing without disclosing any potentially classified
information.
a. Upon receipt, the CISO will deliver to the Court and government counsel any
pleading or other document petitioner files. The CISO 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, petitioner’s 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 CISO must ensure that the document is marked
with the appropriate classification marking and that the document remains
under seal. The CISO 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 CISO.” 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 CISO for review.
b. If it is determined that the entire pleading or other document is classified,
petitioner’s 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 CISO
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 CISO for review.
@ 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 consistent with the regular electronic filing practices of this Court,
see LCvR 5.4, and make specific reference to the earlier docket entry
notifying the Court that the document was submitted to the CISO for review.
The docket entry description shall also state that the CISO 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 CISO AND CLEARED FOR
PUBLIC FILING.”
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d. If it is determined that the pleading or other document does not contain
classified information but does contain protected information, counsel shall
file the pleading or document in accordance with the procedures outlined in
Section I.F.50 of this TS/SCI Protective Order.
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 CISO by 4:00 p.m. The time of physical submission to
the CISO shall be considered the date and time of filing. The CISO shall
serve a copy of any classified pleading or document on petitioner’s counsel at
the secure facility. At the time of making a submission to the CJSO,
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 CJSO 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-d 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 petitioner or petitioner’s counsel access to such submissions or
information. Except for good cause shown in the filing, the government shall
provide petitioner’s counsel or petitioner with notice served on petitioner’s
counsel on the date of the filing.
50. Protected Information Filing by Petitioner 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 contains protected information shall be filed under seal pursuant to Local
Civil Rule 5.1(h). Further, any pleading or other document that does not
contain classified information but that petitioner’s counsel or respondents
have reason to believe contains or petitioner’s counsel is uncertain whether it
contains protected information shall be filed under seal pursuant to Local
Civil Rule 5.1(h). 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
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i.
52.
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-d of this TS/SCI Protective Order.
b, This TS/SCI Protective Order shall constitute authorization for petitioner
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 petitioner or petitioner’s counsel access to such submissions or
information. Except for good cause shown in the filing, the government shall
provide counsel for the petitioner or petitioner with notice served on counsel
on the date of the filing.
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 CISO, 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 CISO 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
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 13526, 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 protective
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 TS/SCI Protective Order.
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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.
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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
k 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 and information
obtained through access to a detainee by that counsel are covered by the procedures
established in the Military Commissions Act, its implementing rules and regulations,
as well as any applicable order of the military judge in those proceedings.
B. Definitions
Bh. “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 GIMO.
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, except
in a similar role to that provided in these Access Procedures. If required, the
Privilege Team may include interpreters/translators, provided that such personnel
meet these same criteria.
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
14
10.
authorized to represent the Privilege Team with respect to the execution of its
duties.
“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.
. Requirements for Access to and Communications with Detainees
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 to to the
Department of Justice, Litigation Security Division, 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.
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.
15
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 DoJ 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 DoJ
immediately of that change in circumstances.
d. Counsel must provide DoJ 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), as amended, and (b) counsel has complied with ABA
Model Rule 1.8(f).
16
12.
13.
Logistics of Counsel Visits.
Counsel shall submit to DoD any request to meet with a detainee. DoD
annually distributes guidance (Habeas Counsel Information Letter) for
management of detainee visits and for making requests for such visits,
including requirements for supplying information regarding specification of
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 visit/meeting.
Legal visits shall take place in a room designated by JTF-Guantanamo. No
more than two attorneys (or one attorney and one assistant) plus one
interpreter/translator shall visit with a detainee at one time, unless approved
in advance by the Commander, JTF-Guantanamo. Such approval shall not
be unreasonably withheld.
Due to the mission and location of GTMO, certain logistical details,
including arrangements for travel and lodging, will need to be
coordinated by counsel prior to arrival. DoD will provide specific
information regarding these issues.
In order to travel to GTMO, counsel must have multiple clearances and DoD
approvals for that specific visit. To begin the process of obtaining those
clearances and approvals, counsel must have identified 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. Accordingly, counsel shall provide DoD with the required
information no later than twenty-seven days prior to the GTMO visit date.
Requests for visits made inside of 27 days will not normally be granted.
Modification of this timeframe is permissible to accommodate pandemic
response measures.
D. Procedures for Correspondence Between Counsel and Detainees
Mail Sent by Counsel to Detainees (“Incoming Mail’’).
Counsel shall send incoming legal mail for detainees to the Privilege Team at
the appropriate address provided by DoD. 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.”
Each page of legal mail shall be labeled “Attorney-Detainee Materials.” No
staples, paper clips or any non-paper items shall be included with the
documents.
31
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 prepare the mail for transport via an appropriate courier system 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.
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.
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 DoD. 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.
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 13526, DOD Manual 5200.01 (Volumes 1-3), and other
applicable DoD security regulations.
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.
32
14.
15.
Mail Sent by Detainees to Counsel (“Outgoing Mail”).
g.
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.
Pending an appropriate classification review through 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.
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.
After outgoing legal mail is collected from a detainee, the envelope will be
sealed into a larger envelope by military personnel at G[MO. 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 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 legal mail is received in
the Washington, D.C., area.
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.
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.
Classified information may not be sent through nonlegal mail channels.
E. Materials Brought into Meetings with Detainees and Counsel
Counsel shall bring only approved legal mail, writing utensils, and paper into any
33
16.
17.
18.
19.
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.
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 detainees.
F. Materials Brought out of Meetings with Detainees and Counsel
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 that were
reviewed by the Privilege Team prior to the meeting to determine whether they
were modified in any way.
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.
Upon completion of counsel’s visit to GTMO, unclassified materials processed
consistent with Paragraph 17 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 Mecting 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,
34
20.
21.
a.
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 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
materials are received at the secure facility in the Washington, D.C., area.
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. Ifa 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
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.
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 13526, DOD Manual 5200.01 (Volumes 1-3), and other applicable
DoD security regulations. No information derived from these submissions shall be
disclosed outside the Privilege Team pursuant to these Procedures until it has been
reviewed through the Privilege Team 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.
35
23:
24.
295%
26.
ais
28.
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 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.
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.”
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 the
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.
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.
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
Requests for telephonic access to a detainee by counsel or other persons
normally will not be approved
36
29.
30.
I.
31.
32.
33:
34.
35.
36.
Any telephonic access by counsel is subject to appropriate security procedures.
Such procedures shall not include contemporaneous monitoring or recording.
Any telephonic access by persons other than counsel is subject to appropriate
security procedures, including contemporaneous monitoring and recording
Counsel’s Handling and Dissemination of Information from Detainees
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.
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 13526, DOD
Manual 5200.01 (Volumes 1-3), and other applicable DoD security regulations. Al]
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 via a government-designated courier in a sealed container,
in a manner designed to protect the classified material and attorney-client
confidentiality.
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.
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
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 locations, as well as
any supplemental procedures implemented by JTF-Guantanamo personnel.
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,
37
37,
38.
39.
40.
41.
and writing instruments. No items of any kind may be provided to a detainee
without the advance approval of the Commander, JTF-Guantanamo.
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.
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.
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.
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.
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.
ZI lf 22 202 ! MA
~~ Richard J.Teda
United States District Judge
38
Exhibit A
EXHIBIT A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
|
|
USTAFA AHMED AL-HAWSAWI,
Vv.
JOSEPH R. BIDEN JR. et al.,
Petitioner,
No. 21-cv-2907 (RJL)
Respondents.
Dated:
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 13526; 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)
(2)
(3)
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).
I agree that this Memorandum of Understanding and any other non-disclosure
agreement signed by me will remain forever binding on me.
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.
Exhibit B
EXHIBIT B
ACKNOWLEDGMENT
The undersigned hereby acknowledges that he/she has read the TS/SCI Protective
Order entered in Hawsawi v. Biden, No. 21-cv-2107 (D.D.C), 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 entered in
Hawsawi v. Biden, No. 21-cv-2107 (D.D.C), 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: