new proposed changes to the protective order

Counsel,


We will shortly be moving to amend the September 11, 2009 Protective
Order and Procedures for Counsel Access and the January 7, 2009
TS/SCI Protective Order and Procedures for Counsel Access, as Amended
on January 9, 2009, to address potential national security risks and
separation of powers concerns created by the recent interpretation of
Paragraph 29 of the Protective Order and Paragraph 31 of the Counsel
Access Procedures allowing a document compiling a detainee's
statements from classified materials to be shared in certain
circumstances with that detainee once the compilation document has
undergone a review by the Privilege Review Team. The changes we
propose (detailed below) would allow petitioners' counsel to share
with a detainee classified or protected information only that counsel
learn from that detainee during the course of communications with the
detainee via legal mail or counsel visits. Of course, as already
permitted under the amended Protective Order and Procedures for
Counsel Access, counsel would be able to disclose to a detainee
information, including detainee statements, properly declassified for
disclosure to the detainee. The changes to be sought through our
motion reflect the practice under and interpretation of the
Protective Order regime that existed until the recent Court orders.
Also, the classification authorities are working to produce
expediently declassified versions of documents containing detainee
statements, so that such declassified documents may be provided to
you.


Proposed Amended Protective Order Paragraph 29 [We would propose
analogous language for corresponding Paragraph 30 of the TS/SCI
Protective Order.]


Petitioners' counsel shall not disclose to a petitioner-detainee
classified information which was not communicated by that
petitioner-detainee directly to counsel during the course of
communications (i.e., legal mail, counsel meeting). Statements of the
petitioner-detainee that counsel acquires from classified documents
cannot be shared with the petitioner-detainee absent authorization
from the appropriate government agency authorized to declassify the
classified information. Should a petitioner's counsel desire to
disclose classified information not communicated directly by that
petitioner-detainee to counsel during the course of communications
(i.e., legal mail, counsel meeting), that petitioner's counsel will
provide in writing to the privilege review team, see infra Section
II.G, a request for release clearly stating the classified
information they seek to release. The privilege review 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 review team will inform
petitioner's counsel of the determination once it is made.


Proposed Amended Protective Order Paragraph 39 [We would propose
analogous language for corresponding Paragraph 40 of the TS/SCI
Protective Order.]


Petitioners' counsel shall not disclose to a petitioner-detainee
classified information which was not communicated by that
petitioner-detainee directly to counsel during the course of
communications (i.e., legal mail, counsel meeting) without prior
concurrence of government counsel or express permission of the Court.


Proposed Amended Procedures for Counsel Access Paragraph 31


Counsel may not divulge to the petitioner-detainee classified
information which was not communicated by that petitioner-detainee
directly to counsel during the course of communications (i.e., legal
mail, counsel meeting). Statements of the petitioner-detainee that
counsel acquires from classified documents cannot be shared with the
petitioner-detainee absent authorization from the appropriate
government agency authorized to declassify the classified
information. Counsel may not otherwise divulge classified information
related to a detainee's case to anyone except those with the
requisite security clearance and need to know using a secure means of
communication. Counsel for detainees in these coordinated cases are
presumed to have a "need to know" information in related cases
pending before this Court. Counsel for respondents in these cases may
challenge this presumption on a case-by-case basis for good cause
shown.


Proposed Amended TS/SCI Procedures for Counsel Access Paragraph 34


Counsel may not divulge to the petitioner-detainee classified
information which was not communicated by that petitioner-detainee
directly to counsel during the course of communications (i.e., legal
mail, counsel meeting). Statements of the petitioner-detainee that
counsel acquires from classified documents cannot be shared with the
petitioner-detainee absent authorization from the appropriate
government agency authorized to declassify the classified
information. Counsel may not otherwise divulge classified information
related to a detainee's case to any person, except those authorized
under these Procedures of the TS/SCI Protective Order, the Court, and
government counsel with the requisite security clearance and need to
know.