8/20 Motions Session #3: Protect-o-Rama, Part Two

James Connell III marches on to the next installment in our nine-strong protective order motions argument: AE013FF, a defense motion to amend the order’s “secure area” requirement.  (Nine motions on the arcana surrounding how to manage secret information: for sanity’s sake, we’ll deal only briskly with this and other protective order arguments.)

Our dispute derives from a seemingly uncontroversial notion---that the defense can interview most any third-party witness, apart from government personnel, most anywhere, so long as classified material isn’t disclosed to the witness.  But some security personnel have suggested otherwise, claiming that, under the protective order, some quite critical defense interviews in fact can’t occur outside of secure facilities.  Connell hints at these folks’ concern with a hypothetical: what if a non-government witness never has possessed a clearance, or information owned, produced or controlled by the U.S.---but nevertheless knows some things encompassed by the protective order’s definition of classified information?  Where must that discussion take place: in France (or whatever country), or inside a SCIF?  The court sees the problem, but wonders about Connell’s proposed language fix.

No amendment to the order is called for, says prosecutor Johanna Baltes.  There’s ample guidance already as to when and how secret stuff must be handled.  Judge Pohl repeats his earlier query, about optimal language regarding facilities security.  The government’s lawyer sympathizes with the defense here, but still cites existing guidance---which bears on this particular case.  And in any event, Baltes doesn’t want to make new rules for what’s classified and what isn’t; that is addressed by existing rules, which simply don’t affect public source items.  Sure, there’s nuance in how public-source information is jotted down---defense counsel can’t confirm or attribute things that might implicate classified material, for example---but the rules are fine as written.

Al-Baluchi’s lawyer rises in reply, and notes that his proposed amendment stems from near---but not quite actual---agreement with the prosecution. But he expresses a willingness to compromise further as to information handling requirements.

After a brief recess, there’s input from other defense counsel.  A lawyer for Khalid Sheikh Mohammed, David Nevin, highlights the overbreadth of the protective order’s definition of classified information---it still captures, for example, facts that have been declassified since, by the executive branch.  (Think the KSM-was-waterboarded-183-times statistic.)  So which controls in such cases, the court ruling or the executive ruling?  It matters greatly for the defense, when a foreign witness tells a lawyer about, say, public source information regarding enhanced interrogation.  This, in Nevin’s view, belies the government’s claim regarding the adequacy of existing secrecy rules.  Or what if Nevin wants to discuss what the foreign witness told him, either with the witness or internally, with his other defense colleagues?  Cheryl Bormann, an attorney for Walid Bin Attash, builds on Nevin’s question, wondering aloud how investigators can ask any follow-up questions of foreign witnesses, who provide public source information about subjects covered by the protective order.  The ambiguity, she says, hinders our efforts; but she believes that Connell’s proposed language is sound.  A few remarks more: counsel for Ramzi Bin al Shibh, James Harrington, recounts his own experience in the case, and points out the silliness in treating public source material as classified; counsel for Mustafa al-Hawsawi, CDR Walter Ruiz, appeals to the court’s authority, to prevent the case from going forward on a capital basis.  That’s inappropriate, he argues, given the arbitrariness and rigor of existing secrecy rules.