8/20 Motions Session #5: Protect-o-Rama, Part Four

13HH beckons.

That’s a bid to “secure privileged classification review,” as the motion, made on behalf of Ammar al-Baluchi, puts it.  Connell clears his throat.  Under current rules, he says, trouble can arise when potentially confidential or attorney-client privileged material is submitted to security personnel, and to original classifying authorities, for classification review.  Al-Baluchi’s counsel thus is keen to tweak the protective order’s language, in order to better safeguard privileged items---among other things, by precluding, explicitly, any disclosure by reviewers to the prosecution team.

This much, Connell says, isn’t even controversial.  But he suspects that related issues are, and would draw objection from the government.  Chief among these is what Connell calls “compartmentalization,” the classifying authorities’ discussion of defense information with other interested components of the U.S. government.  The court clarifies: you want a non-disclosure agreement, as between the defense and the classifying folks? Right, says Connell; after all, the government has contract remedies as against me, if I disclose information inappropriately.  Why not take the same approach as against them?  A contract might also obligate reviewers to document their final determinations about whether documents are classified or not.  That would better protect national security, and Connell’s client, than the current setup does: it allows reviewers to decide classification calls orally.

The United States, in the person of LT Kiersten Korczynski, takes no issue with the defense’s effort to ensure the sanctity of privileged communications.  But it certainly does, as Connell suspected, take issue with any effort to impose compartmentalization or similar requirements on original classifying authorities, or “OCAs.”  She all but waves a copy of the Egan case in front of the court, insisting, unsurprisingly, that classification decisions not be subjected to defense-imposed restrictions. The judge is seemingly on board: he notes that a review request might require consultation, for example, with this or that intelligence agency.  He’s also on board with Connell’s interest in preserving his privilege, and thus seeks, and obtains, a confirmation from Korczynski that review requests won’t trigger the waiver of legal privileges.  Ditto a memorialization requirement for classification calls: the government attorney likewise wouldn’t object to that, either.  She parses a little more, expressing agreement here but disagreement there, and then returns to her seat.

Korczynski passes Connell as he walks forward to the podium.  Before the latter gets far, Judge Pohl inquires: what if one OCA needs to confer with another entity, in situations when the latter has special expertise?  Ah, says, Connell: our proposal doesn’t preclude that, provided that there is, in fact, an expert elsewhere in the government.  At any rate, what matters most to Connell is an enforceable ban on inappropriate disclosure at every phase of a classification review.  Right now nothing prevents a subject matter person from passing on reviewed stuff to, say, the HVD group down at Guantanamo.  And compartmentalization isn’t at all onerous, your honor: indeed, intelligence agencies are steeped in compartmentalization already.

Bormann throws her hat in the ring, if only for a moment.  It’s not enough to prevent disclosure of reviewed, privileged communications to prosecutors, she argues; disclosure by the government to anyone is always inappropriate.

(The debate turns, ever briefly, to the subject of 13KK: a broader motion to make so-called “conforming changes” to the protective order---that is, to marry current practices to the order’s requirements. Connell says there’s no objection from prosecutors there; then prosecutors confirm that indeed, there isn’t.)

Al-Baluchi’s lawyer then pivots back to AE013HH for a spell, and addresses some residual questions from the court about Connell’s sought relief.  The issue is the relationship between the role of the trial judiciary, and the classification review process for the OCA.  But we don’t get to far into that, however, as the court elects instead to add another motion to the undisputed-and-therefore-done column.  It seems that there is no dispute as to another motion in the AE013 series, AE013CC.  So scratch that one from your race cards, Lawfare-ers.