More on the Abandonment Of Presumptive Classification

This just in from defense lawyers in the 9/11 case: A statement regarding the government's changed position on the handling of statements made by the accused in United States v. Mohammed et al; a copy of the government's proposal for a modified protective order,  which reflects the change; and, finally, a side-by-side comparison of the prosecutions initial and revised proposals, with edits reflected in redline. Recall that prosecutors recently departed from past practice, by scuttling their bid to have all of the accuseds' statements treated as "presumptively classified," pending a classification review.  As for the government's new proposed approach, I haven't yet looked over the prosecution's recent filing (but will post once I've had a chance to). In the meantime, here's how the statement, from lawyer James Connell III, begins:

Yesterday, the military commission released a public version of the government’s most recent pleading on presumptive classification (AE013L), which abandons its previous position that all statements of the defendants were presumptively classified. Specifically, the government asks to eliminate the provision it proposed in April which defines as “classified information”:

statements made by the Accused, which, due to these individual’s exposure to classified sources, methods, or activities of the United States, are presumed to contain information classified as TOP SECRET / SCI.

According to the government, under its new proposal, defense counsel must “treat and handle as classified only information that they know or have a reason to know is classified.” Yesterday, defense counsel for Ammar al Baluchi responded to the government’s concession by proposing their own protective order (AE013M). Under the defense proposal, the government would have to give notice to the public before attempting to close a hearing. “If the military commission agrees that presumptive classification violates American national security regulations, that will be an important start,” said James Connell, counsel for al Baluchi. “But there is still a long way to go to establish transparency at the military commissions.” In the upcoming hearing scheduled to begin October 15, the military judge will hear arguments from the defense, the ACLU, and a coalition of media organizations seeking greater public access to military commissions proceedings. The government opposes these efforts. A copy of AE013L and a “redline” highlighting the differences between the government’s original proposed protective order and its modified proposed protective order are attached. The defense pleading is under seal pending security review.