October 16 Commission Session #5: All Protective Order, All The Time

The technical goof apparently is resolved, so discussion picks up once more. James Connell III continues with defense security officer matters.  He thus reviews with Judge Pohl, closely, what the duties of such an officer would look like.  As Judge Pohl sees it, Connell's proposal would permit a DSO to communicate with the classifying authority on the defense’s behalf.  It is a bit more than that, Connell seems to say: the DSO would act as a liason with classifying authorities, and offer guidance and declassification assistance.   So, the court asks, will that mean the DSO will act as your declassification advocate before, say, the intelligence services?  Advocate, yes, answers Connell, but not in any lawyerly sense.  The lawyer tracks back, describing the process as not terribly different than the “information courier” proposed by the government.  For Connell, the issue really boils down to having some mechanism for defense classification review, and ensuring privilege protection during that review. (Pause: Judge Pohl expresses confusion as to which secrecy motion is under discussion.  The presumptive classification and defense security officer questions overlapped greatly in AE09 and AE13, two of the filings concerning classified materials.) Moments later, the court again inquires about precisely what the defense wants.  Connell’s response is that there’s a lot of information that he must handle, and that is not obviously classified or addressed by current classification guidance.  Say we read something relating to national security in the paper, Connell goes on.  Was the news item released by the White House?  Was it leaked?  Or was it declassified? The only way to know for sure is if we have some mechanism to uncover the status of doubtful information.  He wants a DSO to to that.  His requested relief summarized, the lawyer sits down. Does Connell's argument bring the protective order matter to rest?  Not by a long shot.  News organizations and the ACLU have not yet had their say about the protective order's allegedly serious First Amendment violations.  We'll hear from their lawyers next.