8/15 Session: Hashing Out a Protective Order

Military judge J. Kirk Waits begins Monday's session in the military commission case against Hadi with some housekeeping matters: the detailing of a new member of the defense team, Lt. Col. Thomas Jasper, and the release of an outgoing member, Lt. Col. Chris Callen. The commission explains that it will not release Callen until his orders expire at the end of September to allow the defense to utilize him for the filing of ex parte and sealed listings of motions that the parties intend to bring in the case. Judge Waits also points out that with the addition of Jasper and impending departure of Callen, Hadi still has two military-detailed counsel, when the military commission rules allow only one such detailed counsel. Hadi must retain civilian counsel at no expense to the U.S. government. With those matters out of the way, Judge Waits briefly recaps a Sunday conference he held with counsel on some scheduling and other matters, after which the commission turns to AE 013, a government motion for a protective order for classified information in the case. Because the government has the burden on this motion, civilian prosecutor Mikeal Clayton rises on behalf of the government. Clayton points first to the language of the Military Commissions Act and 10 U.S.C. § 949p-3, which say that the commission "shall" issue a protective order of this kind at the request of the government. He notes that what the defense objects to is the "additional granularity" in the government's proposed order, such as the roles of various personnel and the processes for filing and handling information. Clayton turns to an objection-by-objection analysis. The defense would like the protective order only to cover facts concerning "enhanced interrogation techniques," while the government proposes it cover "interrogation techniques." Clayton explains that there are many classified facts pertaining to "an interrogation technique, enhanced or otherwise." Nor were enhanced interrogation techniques applied to Hadi, so adding the word "enhanced" in this case would render that portion of the order useless. Next, the defense proposes specifying that information may not be disclosed "where the very existence of the information is classified." While the government does not object to this change, Judge Waits says the commission might have trouble with the addition without a further specification that this would constitute an "unauthorized disclosure." Clayton accepts thats change so that the sentence in the order would now read: "Confirming or denying information where the very existence of the information is classified constitutes unauthorized disclosure of that information." On to the next objection—the defense rejects a portion that designates the original classification authority ("OCA") as the body that determines what information is "need-to-know." Clayton explains that the executive branch owns classified information and may designate the individuals who make "need-to-know" determinations. Finally, Clayton responds to the defense's general objection to applying the order to Hadi's observations. If the objection is to classifying his observations, Clayton notes that courts give "great deference" to the government on such questions. However, if the objection is to restricting the accused from relaying his observations to others outside the context of this litigation, Clayton says that the order would only restrict the defense team from sharing classified information revealed by Hadi with others outside the context of the litigation, or Hadi from sharing classified information revealed as evidence during the trial with others. Air Force Maj. Ben Stirk rises for the defense. He starts by noting that the two sides "are actually very close together" on the issues, and the defense requested this oral argument primarily to object more broadly to the "body of secret evidence and secret discovery that may not be available to" Hadi. Turning to the defense's specific objections, Stirk withdraws the objection to classifying Hadi's observations in light of the prosecution's clarification, as well as the request to add the word "enhanced" after the government's admission that Hadi was not subjected to enhanced interrogation techniques. The defense also accepts the language on unauthorized disclosure that Clayton and Judge Waits discussed. The defense's primary concern, says Stirk, is the need to clear the documents it deems important to its case through a court security officer and the OCA in order to discuss them with Hadi. Further, Stirk notes the danger of a conflict where the OCA prohibits the defense team from sharing documents with Hadi, while the commission determines that those same documents must be disclosed under discovery rules. Judge Waits acknowledges the defense's objection and turns to the government for the last word. Clayton explains that the commission statute has multiple remedies to address the defense's concerns about conflicts between discovery rules and a "need-to-know" determination. Those remedies must be applied on a case-by-case basis when necessary, rather than a broad ruling now by the commission. Judge Waits runs through some final scheduling matters and then declares the commission in recess until November 17.