Case Coverage: Military Commissions

1/28 Hearing #4: What You Can't Disclose, and What You Need to Know

By Wells Bennett, Sophia Brill
Monday, January 28, 2013, 12:14 PM
The protective order, and J. Connelll III’s now-famous demonstrative slides, return to center stage.  The lawyer’s subject: the protective order's definition of “unauthorized disclosure.”
The latter suggests that merely confirming the existence of classified information amounts to an improper disclosure---something that troubles Connell.  The existence of some classified information is itself not always a classified fact, he explains, referring to the Glomar doctrine employed in FOIA cases.  It turns out that Trial Counsel doesn’t object to Connell’s proposed edit to the protective order---or, rather, the government's proposal to tweak the language to add a qualifier: unauthorized disclosure can include confirming or denying the existence of certain information where the very existence of that information is classified. Connell agrees that this language would bring the order into conformity with Glomar.  The court thus immediately approves the revision, and AE13R is granted.
On to its next-door neighbor, AE13S.  It concerns, among other things, precisely how defense lawyers can communicate with each other. In short, defense lawyers are concerned that they cannot share classified information with their colleagues (all of whom have security clearances) unless all involved are deemed to have a “need to know” (“NTK”).  So who decides the NTK question, and how often?  Right now, the answer lies in the protective order’s NTK provision, paragraph 5(a)(3).  It says that NTK determinations are made an Official Classifying Authority (“OCA”).  But Connell thinks that’s quite wrong.  NTK approvals are not categorical, explains Connell---usually they go to particular information.  How can one obtain OCA endorsement for individual items, on a day to day basis? Thus the defense lawyer wants to tweak the protective order, to make clear that everyday “need to knows” within the case indeed can be decided by authorized holders of classified material---not by some distant OCA. Connell illustrates some security-themed case law with a diagram, one depicting the relationship between various kinds of classified material---such material generally, material that the defense “needs to know,” material that the prosecution must turn over, and so on.  His point: the prosecution’s discovery duties do not define NTK, no more than the OCA can manage the concept on a daily basis for the defense.  That’s an interesting issue, says the court---exactly how do you access classified material that the prosecution doesn’t choose to give you in the first place?  Doesn’t all such information come from prosecutors?  No, Connell says:  I read ostensibly “classified” stuff in the New York Times quite often; the lawyer also marks his client interview notes as classified, too.  And yet, he underscores, no OCA has conferred the requisite “need to know” in the foregoing situations---thus hypothetically placing Connell in violation of the (in Connell’s view) overbroad and unlawfully wrought paragraph 5(a)(3).  (Pause for some commissions joy: your correspondents could never do justice, with words, to the lawyerly beauty of a slide that now gladdens the Ft. Meade screen.  It is a complex, twisting-and-turning flowchart, in vivid color, describing the defense's view of the process by which NTK determinations are made.  Sadly, the rules prohibit the taking of photographs here at Smallwood Hall.) The lawyer acknowledges the technical nature of his request, sums up his broadside against the protective order’s NTK language, and then sits down.

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.