October 16 Commission Session #4: More On Secrets, and a Quick Recess

The sound of the gavel is really two sounds at once: that of restarting proceedings in United States v. Mohammed et al., and that of the dorkosphere quickly digesting, and already debating, today’s ruling from the D.C. Circuit in Hamdan II.  Our resumption is a late one---its after 2:00---and that, in Judge Pohl’s view, warrants postponing Cheryl Bormann’s motion, regarding the conditions in the defense’s offices, until tomorrow. We thus resume with the topic of day, secrecy.  Prosecutor Johanna Baltes wants to say a bit more about AE013, the government’s proposal for an order protecting classified national securiy information.  First she highlights the protective order in Ghailani’s case in SDNY, which, according to Baltes, mimics the approach proposed by the government here.  Also, Baltes notes the government’s approach simply codifies obligations imposed already on the parties by the MCA and the relevant rules: this provides the greatest protection against unauthorized disclosure.  Next the prosecutor further articulates her objections to the idea of a defense-aligned security officer.  In a case such as this, the original classification authority is almost always intelligence service. Requiring such a service to interact with defense lawyers (who must zealously advocate for their clients) is, she strongly emphasizes, simply inappropriate.  The better approach is to employ a commission security officer, who can act as intermediary between the defense and the classifier.  (Judge Pohl likens the intermediary to Western Union---only here, the sent cash is actually classified material, or guidance about what is and what is not classified.)  Baltes closes by emphasizing the need to defer to the executive’s determination of whether something is classified or not in the first place. James Connell III is back, and wants to address some arguments that, he says, the government did not raise in its brief.  One has to do with interim classification: under Defense Department guidance, the standard is subjective; but here, the prosecution proposed an objective, “reasonably believed” standard for information that a defense lawyer does not know to be classified.  There’s also the security “consultant” in the defense counsel’s office, to which Baltes referred in her argument.  In Connell’s view, the consultant’s job does not involve classification review or classification guidance---functions that a defense security officer would serve.  And Connell and others may (indeed must) make classification challenges, but they cannot do so through an intermediary along the lines of the court security officer proposed by the government.  Connell himself has no way of, say, sending a document to a classification authority.  A question from Judge Pohl: haven’t court security officers traditionally been assigned to the court only, so as to prevent the officers from becoming witnesses for either party? No problem there, says Connell: our request for a DSO is identical to past requests in court martial cases.  And in any case, the only real area of disagreement between the government and defense is that the latter proposes to keep its own security officer within the defense privilege bubble. Suddenly, Judge Pohl perceives what he describes as a technical problem.  It warrants an immediate but brief recess.