October 17 Commission Session #3: Protective Order, Thoroughly Discussed

KSM’s presence is upon us---that is, both KSM himself, and his rights under the Military Commissions Act.  He’s in the courtroom, camouflage vest and all, and Mark Martins wants Judge Pohl to confirm that the accused’s earlier absence was completely, utterly, no-questions-about-it voluntary.  The Chief Prosecutor proposes to do that, among other things, by having KSM testify.  David Nevin sees no point to that, as his client is here already.  Neither does the court, who won’t hear from Mohammed himself.  The record, the court seems to think, is sufficient already. Back to Johanna Baltes, and her response to the ACLU.  Judge Pohl again wants to talk about the distinction between previously and currently classified material; Baltes says the government has no intention to protect de-classified stuff.  She then refers to Moussaoui, during which the press objected to courtroom closure and the sealing of certain filings.  But the court there said the defendant cannot seek, in a criminal proceeding, judicial review of the executive’s classification decision.  Finally, Baltes adds that nobody seeks courtroom closure right now.  When the time comes, the court can make findings, as set forth in the relevant commissions rules and the Supreme Court’s Press Enterprises decision.  This raises a question: why not excise the closure provision in the protective order altogether, and simply proceed under those rules? That seems fine to Baltes, as the closure paragraphs were mostly explanatory.  The court pushes further.  There’s a lot of other redundancy in the protective order, which could be cut out. The prosecutor appeals to caution: the protective order plays an explanatory function, one especially important in cases where lawyers may not have extensive experience with classified information.  That warrants preserving some of the more the protective order’s concededly duplicative features. The prosecutor wants to highlight specific paragraphs of the protective order.  One references a declaration filed ex parte, in support of the order.  But, says Baltes, his doesn’t invoke any privilege, despite the defense’s suggestion to the contrary.  That suggestion, moreover, is supported by inapposite authority: civil cases involving the state secrets privilege.  The prosecutor moves to another paragraph in the government’s proposal, that involving the appointment of a court security officer.  Judge Pohl says he is still unclear as to why a defense security officer (“DSO”)---a security official specifically aligned with the defense---could not be appointed.  Baltes responds as she did yesterday: the defense already has a consultant, who might well be able to fulfill the DSO’s function.  A defense-aligned security officer, though, is a bridge too far.  In Baltes’ view, no defense team member should have a direct line communication intelligence services that initially classified the material in question.  The defense and the intelligence agency’s interests are often at odds, too much so to permit the arrangement sought by the defense.     Talk turns to the protective order’s “classified information” provision, which Baltes would clarify a bit so as to reflect that, going forward, defense counsel must treat as classified all material that is actually classified or reasonably believed to be so.  That last part---“reasonably believed”—serves up a question from the court.  Remember yesterday, when James Connell III mentioned a different standard, that used by the Executive Order?  The latter is subjective, not objective, as “reasonably believed” is.  Why not use that?  Baltes agrees that the executive branch guidance is sound, but points out that the purposes of the Executive Order and the protective order are different. Judge Pohl says he plans to rule on the protective order’s contents by the end of the day.  It is like a tennis match litigating this issue, he says.  Baltes understands the problems posed by constant back-and-forth.  She concludes by strongly emphasizing the need to safeguard national security---to keep secrets secret, so as to allow the government to bring a case involving the murder of thousands. Connell, lawyer for Ali Abdul Aziz Ali, rises and promises not to assault every paragraph in the protective order.  Instead he highlights a broader problem: the protective order doesn’t address the challenges that confront defense counsel like him every day, when dealing with national security information.  And the order isn’t duplicative of existing rules, either.  There’s “padding,” as he puts it, which makes the attorneys’ jobs harder.  For one thing, Connell says, holders of classified information have an obligation to challenge classification decisions---but the government’s proposal doesn’t create a sufficient means for Connell to do so.  He explains: the issue arises when a documents is derivatively marked as classified by the government, as was an appellate exhibit that, not too long ago, Connell had to challenge with classification officials.  The court sees a problem and pipes up.  If you challenged the classification, then why do you need my help?  The lawyer says his challenge took extraordinary effort, and that he received special assistance from the commission’s security office.  And in any case, Connell’s declassification bid was rejected because it was not presented in the proper form.   Nobody could tell him what the proper form was; the Convening Authority ignored his request for help. Time to tick off other defects in the protective order.  State secrets cases are quite relevant to the order’s provisions (and the rules that underlie them), Connell argues, notwithstanding Baltes’ claims.  Language from Rule 505(c), for example, comes from Reynolds, a famed state secrets case---which happens to be inconsistent with the prosecution’s approach.  Or take the protective order’s definition of classified information.  The way to fix this, the lawyer argues, is for Judge Pohl to incorporate narrower definitions employed by Congress and the executive branch.  Perverse results will follow otherwise.  Connell mentions the date of his client’s birth.  The birthday is, arguably, “information derived from classified information.”  But under the government’s approach, the date of birth couldn’t be disclosed, even though its not, in fact, classified. Or what about RDI information?  The detainees’ ability to discuss their treatment with, say, the International Committee of the Red Cross, is unfettered.  For that reason, the prosecution cannot truly say it controls the observations and experiences of the accused; it therefore cannot fairly treat those things as classified, either, for protective order purposes.  Connell concedes that the government controls the accused themselves---it has them in custody here at Guantanamo.  Still, RDI information has been put well beyond the government’s control, at least within the meaning of the Executive Order.  Illustrating his point another way, Connell refers to certain patented national security technology, which the government guards jealously.  Eventually Judge Pohl interrupts, and seems to doubt the relevance of the technology example.  The court notes that the protective order lasts only as long as this case does.  Salim Hamdan is free, and thus no longer subject to the protective order entered in his case. (The audio by now has become crackled, and after a short while, the deterioration entirely precludes your correspondent from following along.  GTMO officials reportedly are working to resolve the problem, and hope to do so during the lunch recess---which Judge Pohl declares.)