8/20 Motions Session #8: Open Source Protection

James Connell III, an attorney for Ammar al-Baluchi and the day’s undisputed protective order maven, returns.  Now his subject is AE013II, wherein counsel has moved to clarify the protective order’s rules for the handling of open source material.  Those, Connell says, dog his office more than any other of the order’s objectionable features.  Right now, the protective order insists that the defense treat certain open source documents as classified; and yet recent guidance issued by an original classifying authority (“OCA”) does not.  (Indeed, the OCA’s security person just relayed new guidance to Connell at lunch, which he dutifully passes to the court for review.) The gist: Connell wants the court to rework the protective order, and to adopt the OCA’s approach---which has evolved a bit, as Connell vividly illustrates by means of his signature courtroom slides.

We’re not here talking about WikiLeaks documents, or intelligence reports.  No, Connell intones, this is about articles in the New York Times, or the Constitution Project’s recent report on detainee treatment.  To prove this point, Connell walks the court through a detailed comparison of the protective order and the OCA guidance---all the while emphasizing that the former insists, perversely, on treating open source items as if they were classified. The lone exception here is for pleadings: popping open source stuff into a filing implies a voucher of accuracy from a lawyer, and thus can require more sensitive handling.  (The precise origin of the OCA document is murky; security officials would not tell Connell who authored it, according to Connell. And he only learned of it after receiving an OCA response to a request for classification review of media accounts of Zero Dark Thirty.)

The lawyer raises a few more points, on declassified information and statements of counsel about open source information, and then finishes.  Again, all Connell wants is to ensure that he and other defense counsel can talk about open-source matters of common knowledge and concern---Snowden and whatnot---without fear of violating secrecy rules.  That’s the rule in habeas cases and other settings, and it should be so here, too.  Connell adds that, to the extent the court intends only to prevent further dissemination of leaked material that appears in newspapers, the protective order could be adjusted so as to do that---and no more.

The baton passes to trial counsel.  LT Kiersten Korczynski sees no “there” there: she agrees with the court’s suggestion that the protective order’s open source rules are, in fact, entirely consistent with OCA guidance to which Connell appeals.  The court then asks about information, generated by foreign sources and reported in the press.  Any problem there?  The prosecutor is careful to note that the issue posed by public domain information is the same, regardless of whether the information found its way into the public by means of a leak, or by means of a foreign official’s statement.  And at any rate, the prosecutor believes the current protective order’s definitional language regarding “classified information” is sufficient to address Connell’s concerns.  As for declassification, obviously, Korczynski says, that stuff isn’t implicated by executive branch policy or the court’s order.  She sits.

David Nevin rises to underscore the importance of the issue before the court.  During the commission case’s earlier go-round, security personnel advised Nevin to “use common sense” about classified information management and disclosure.  But that lead him to a bad place, and to well-publicized accusations of leaking---even though Nevin was, of course, exonerated.  It’s a big deal.

The penultimate word belongs to Korczynski, and concerns Connell’s submission of press accounts regarding Zero Dark Thirty.  That submission doesn’t implicate an OCA, the prosecutor says, as the information was obviously open-source in nature.

That leaves the last word, which has been reserved for Connell.  He doubts Korczynski’s claims about the just-fine-doesn’t-need-changing definition of “classified information,” and illustrates his proposed amendment on the courtroom display.  Judge Pohl is confused: counsel already need not treat as classified any information--open source or otherwise---reasonably believed to be unclassified, right?  Connell pushes nevertheless, citing favorable D.C. Circuit precedent, along with (of course) the OCA language.

Wait: it turns out Cheryl Bormann, not Connell, will get the last word after all.  An investigative report Bormann commissioned was compiled entirely from foreign sources, she explains.  But it nevertheless cannot be viewed by the defense counsel outside of a SCIF; in fact, it took her months to arrange delivery of the report, so as to avoid sanctions. Under the protective order, the report must be treated as classified information, despite the fact that the information is based on non-U.S. sources.