Over to Cheryl Bormann, who notes a few issues that (she says) Connell’s presentation didn’t touch upon. Suppose, for example, an investigator for the defense team goes out into the world and uncovers information which may be classified. That investigator, under the current order, would have to obtain permission from the OCA (that is, await the requisite NTK determination) before sharing the information with members of the defense team. Its another unreasonable burden on defense counsel. Bormann also recalls, parenthetically, that prosecutors have opposed a direct defense line to OCAs, for purposes of obtaining classification guidance.LCDR Kevin Bogucki adds two cents on behalf of Ramzi bin al Shibh. He starts in on the basic conceptual underpinnings of NTK—at which point Judge Pohl cuts him off to say he understands those underpinnings all too well. Bogucki then compares the language of Executive Order 13526 (regarding the control of classified information) to the language of the protective order, noting what he characterizes as an important discrepancy. While Executive Order 13526 requires that classified information’s recipient “need to know” the information—with the NTK determination made within the executive branch—the protective order requires an NTK “as determined by the [OCA].” At any rate, Bogucki’s point appears to be that the protective order’s language departs from the ordinary principle that authorized holders of classified information bear the responsibility—and likewise are entrusted with the discretion—to make the requisite NTK determinations.
The government’s CIPA expert is Johanna Baltes. Her view is that, under the protective order, members of the “defense”—defined as all defense lawyers, paralegals, consultants, and so forth—hold the same NTK, provided they each hold security clearances, too. So much for Cheryl Bormann’s hypothetical, then: it consists of two cleared parties, both with the NTK required to exchange classified material. Problem solved, she seems to say (and to ask, what’s this all about?) Judge Pohl presses the prosecutor a bit. Does David Nevin really need to get the sign-off from the OCA, every time he wishes to talk about classified material with James Connell? Again, everyone in that situation has the same NTK, and is cleared, Baltes says. (She pauses: defense counsel, she notes, hasn’t yet signed the memorandum of understanding, as required by the protective order: that’s holding up the production of classified discovery in this case’s most recent iteration.) Judge Pohl and Baltes then march through various examples of information that could be shared freely among defense personnel, all without obtaining any additional NTK approvals by an OCA. The answer is the same for each: one OCA approval initially, and then free interchange of information as among the defense. And, Baltes adds, the defense’s claim about the protective order’s wording—that it doesn’t reflect the true NTK process, day to day—is false. The order’s current language is taken from protective orders used in many other national security cases—and altering it would work great harm to the longstanding mechanism for handling secrets in the courtroom. She then distinguishes some important criminal CIPA authorities—which the defense has mis-cited badly—and then sits down.
We’ve got the authorities cited properly, argues Connell in reply. Only one case addresses the identity of who (or what) gets to make an NTK determination under conditions such as these, In Re: Continued Access to Guantanamo Detainees. That’s the obviously relevant precedent, and it cuts squarely Connell’s way: the ruling says individual-item NTKs are not to be made, day-to-day, by the OCA. The court is confused by the lawyer’s persistent objection, which Baltes’ presentation seemed to address. Here’s Judge Pohl: internal defense exchanges are okay, once somebody gets an initial, works-for-all-purposes OCA approval, right? You’re in the “cleared field,” in that event–so what gives? Connell returns to the meaning of the words of the protective order, which don’t jive with that view.
Baltes is up for a minute, to note objection to Connell’s remarks ever briefly—and emphasize that, no, the defense does not need NTK permission for every classified conversation as among cleared defense personnel. The sequence is twofold: clearance, and then OCA need-to-know. After that, the defense can discuss amongst itself, consistent with the protective order.
That does it for 13S. We’ll return at 13:30, and likely turn to voluntariness matters. Enjoy the lunch break.