Case Coverage: Military Commissions

October 16 Commission Session #3: Presumptive Classification, Debated (Kinda)

By Wells Bennett
Tuesday, October 16, 2012, 1:34 PM

The drum roll sounds and we move to the day’s most anticipated issue: the government’s proposal for an order protecting classified national security information---in particular, the prosecution’s recent modifications to that proposal.  You recall that earlier, the government sought an order in which defense counsel would treat all of their clients' statements as “presumptively classified,” pending review.  Now, the government is pushing something narrower: prosecutors say that their defense counterparts need only handle as classified information that is a) actually classified, or b) reasonably believed to be so.   (That definition includes, unsurprisingly, all information about the defendants "participation" in the CIA's classified interrogation program.)  There’s some logistical back and forth about how to address the matter, as it encompasses a battery of different pleadings on the court’s agenda.  Around this time, the court jumps asks whether the government’s change of position affects the defense’s objections.  James Connelll III, a lawyer for Aziz Ali, says that it does---though he’s still quite eager to bring presumptive classification to the fore, and to clarify the issues before Judge Pohl.

The government’s change in tack, Connell explains, does not affect the relief he seeks: he still desires an order that, among other things, declares presumptive classification to be unlawful and prohibits its incorporation into the protective order.  He also points out that the extent of the government’s change is hardly clear: although even its definition of “classified” no longer indicates that everything from the defendant’s mouth must be presumed classified, the government’s modified protective order elsewhere preserves the “presumptively classified” formulation.  The inconsistency prompts the court to recognize Johanna Baltes, a member of the prosecution team.

Baltes acknowledges an apparent inconsistency between the government’s narrower definition of “classified”---which chucks the “presumptively classified” formulation---and other paragraphs in its proposed protective order.  Instead of resolving this, she explains the reason for the modifications.  The idea, she says, was to lessen the burden on defense counsel. Originally, our proposal called upon lawyers to treat all of their clients’ remarks as classified; now, the government only wants defense lawyers to treat as classified material that is actually classified or reasonably believed to be so, and material bearing on the accused’s treatment, capture, and interrogation prior to September of 2006.  Okay, says Pohl --- then why refer to presumptive classification in your papers, if you’re no longer interested in the a at all concept of presumptive classification at all?  It thus appears that “presumptively classified” was nothing more than sloppy drafting.  Baltes says she’s happy to work with Connell to clarify the inconsistent language, so as to leave no doubt that the government no longer desires a protective order that employs a broad-brush “presumptive classification” approach.  The government, she emphasizes, certainly has no intention to make it difficult for defense lawyers publicly to discuss obviously unclassified information, like what their clients ate for lunch.  The question answered, Baltes passes the baton to Connell.

Peace has broken out---or at least that’s the import of the questions posed by the court to the Aziz Ali's lawyer.  What if defense counsel comes into information that might be classified?  Connell says the procedures are derived both from E.O 135236---the executive order regarding classified information---and related Defense Department guidance.  If an employee receives information that is believed to be classified, it must be handled as such, and then transmitted to the original classifying authority (“OCA”).  The OCA then has up to ninety days to respond, Connell says.  In the interim, the information in question cannot be inserted into a court filing.  No need any protective order, in other words.  Okay, the court observes---again-- then there’s no real dispute as to how to handle possibly classified materials.  If that’s true, then do you really object to the government’s proposal?  In Connell’s view, classified information is classified; unclassified information is not.   If the government agrees with that, Connell argues, then there’s really no daylight between them---though he notes that the government’s “reasonably believed” standard is objective, and thus departs from the subjective standard employed by the Department of Defense’s classification guidance.   Lastly, Judge Pohl asks Connell about the defense’s desire for a defense security officer (“DSO”).  Does Connell still want such a person, a security official aligned with the defense?  Yes, says Connell.

LCDR Kevin Bogucki rises on behalf of Ramzi Binalshibh.  His topic?  The burdens imposed on defense counsel by presumptive classification.  The lawyer insists on addressing this, even though, as Judge Pohl interjects, the government no longer seeks to impose a broad presumption of classification in its protective order papers.  Ah, yes, but the presumption still lurks, Bogucki argues: recall that the “presumptively classified” phrase still shows up in the government’s proposed order, albeit not in the operative part.   That doesn’t obviously impress Judge Pohl, who reminds Bogucki of Baltes’ offer to amend the still-offending parts of the prosecution's proposed order.  The lawyer pivots, and emphasizes the extraordinary burdens that presumptive classification imposes upon defense counsel.  Even the most innocuous and obviously unclassified statements must be handled as classified, he says, until the government says otherwise.  But, the court asks again (for what, by my count, is the third or fourth time), why wouldn’t the government’s new proposal address that?  For Bogucki, it is enough to remind the court that, under the extant presumptive classification regime, the couldn’t even tell his client’s children that his client had asked the kids to stay focused on their homework.

That leads the court to ask: if the government has classified information, do I have any authority to overturn its decision to do so?  For Bogucki, the answer is “yes,” and that’s a whopper of a surprise for Judge Pohl.  He continues: when the government exposes detainees, on an involuntary basis, to classified material, then it necessarily loses the power to preserve its classification.  Bogucki trots out a hypothetical to prove his point: suppose the CIA has an assassination program that’s classified, and further that it tries ---but fails---to kill its target? Under these circumstances, argues the defense attorney,  the government obviously cannot prevent the target from discussing the attempt publicly.

He concludes by once more emphasizing the burdens imposed by the seemingly-no-longer-sought-in-this-case presumptive classification regime:  under it, defense lawyers cannot discuss the information in question with potential witnesses, who may not have the requisite clearances or the need to know.  Bogucki urges Judge Pohl to reject the government’s proposal, and sits down.  (Other defense lawyers then add some roughly similar two cents: Nevin, speaking for KSM, says you cannot classify the experiences and observations of accused, especially when classified information was forced on them without consent; Bormann, speaking for Bin Attash, adds that the burdens on defense counsel are onerous enough without presumptive classification.)

Back to Baltes.  She wants to be brief, because, as she says, there’s not much in dispute.   (Naturally she rejects Bogucki’s assertion that the court can go behind the executive branch’s classification determinations.)  She quickly summarizes presumptive classification’s history: the notion came about in habeas cases, she says, and has been employed in military commission cases, too.  The idea behind it was to prevent government intrusion into attorney-client discussions.  To avoid this, the district court in al-Odah adopted a mechanism whereby habeas counsel would handle statements in a classified way.  But again, that was yesterday, and this is today: in consultation with defense counsel and with classifying authorities, the government now recommends that the defense handle as classified only actually classified material and material reasonably believed to be classified --- including RDI information.  Some of that isn’t contained in the government’s proposed protective order, Judge Pohl worries; instead, its in the government’s motion.  Baltes agrees, but explains that the definition of “classified information” in the proposed order is broad enough to cover the items referred to more specifically in the motion.

The judge’s concluding point is mechanical: why not create a defense security officer, as Connell proposed earlier? Baltes begins by noting that in federal practice, a security officer is assigned by the executive branch to the court, but nevertheless plays a neutral role: by advising the defense on classification matters, and ensuring adherence to security procedures, among other things.  The implication is that the current security regime---one security officer for prosecution and defense alike---is adequate.  She adds that she has no objection to providing the defense with a security consultant (indeed, she thinks they might have one already).  The trouble with appointing a defense security officer is twofold.  In the past, Baltes says, the defense had asked for a security officer with original classification authority.  That is a nonstarter.  Practical problems also necessarily would follow, if the defense received its own dedicated security advisor: if you create a defense entity that has a relationship with original classifying authorities, then that could create litigation --- won’t the parties argue about what the defense security officer told to the classifying authority in this or that case, when seeking guidance on behalf of the defense?  The parade of horribles doesn’t obviously persuade Judge Pohl, who continues to struggle with the issue of why, in principle, the defense could not have its own security officer.

That’s on his mind when we reach 12:30---the appointed hour for our lunch break.