The Protective Order on Khadr’s Interrogators and the John Adams Project

In addition to the bombshell that Omar Khadr’s military commission will start Wednesday, less than a day after lawyers in the case will have received the thick manual laying out the rules for the newfangled military commissions, Gitmo released one more thing today: the protective order covering “intelligence identities” that applied to Khadr’s old-fangled military commission. (h/t Carol Rosenberg)

Given the witch hunt launched against the John Adams project (in which detainee lawyers employed investigators to figure out the identity of detainees’ torturers, in response to which the CIA has been demanding the lawyers be charged with violating the Intelligence Identities Protection Act), I’m particularly interested in this language (assuming, of course, that these protective orders are fairly standard).

2. Accordingly, IT IS HEREBY ORDERED:

a. Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused, may be disclosed to members of the Defense team, such as paralegals, investigators, and administrative staff, with an official need to know. However, such information shall not be disclosed to the accused or to anyone outside of the Defense team other than the Military Commission panel subject to the limitations below;

b. Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing. Any mention of the name or other identifying information of intelligence personnel must occur in closed session and any filing to the Military Commission panel that includes such information shall be filed under seal.

First, let’s read a: “Names or other identifying information of intelligence personnel that have been or may, from time to time, be disseminated to or obtained by the Defense Counsel for the accused”–note they don’t explain why those intelligence personnel would have been disclosed to defense counsel. And they also describe both “names” and “identifying information”–which would presumably include photographs (the CIA is particularly pissed that pictures of interrogators have been passed among detainees at Gitmo).

It goes on: “However, such information shall not be disclosed to the accused.” I’m curious what you lawyers think about this? Is there a parallel in civilian trials? In any case, the protective order makes it clear that the government is trying to protect these identities, first of all, from disclosure to those who were abused by said intelligence personnel.

Then there’s part b: “Unless disclosure has been authorized by the Military Judge, names or other identifying information of any intelligence personnel shall not be disclosed in open court or in any unsealed filing.” Call me picky, but this seems to be sloppy writing here. Since this passage does not refer explicitly back to part a, it would seem that the prohibition on disclosing “such information” would not be limited to information “disseminated” to lawyers for the accused. And in any case, part a includes language about information “obtained by” lawyers for the accused.

What is the significance of this for lawyers who, in an attempt to get information not disseminated (and therefore witnesses who may have exonerating information not produced) have gotten investigators to find out the identities of those who tortured their clients? Furthermore, note that the protective order doesn’t qualify the limit of those whose identities are protected here at all. What happens if a defense lawyer doesn’t know if someone is an intelligence professional but has a suspicion that the person might have been the guy who tortured his client, and in any case is probably a contractor? Does showing the client a picture count as disclosing identifying information, even if the only one who can confirm that the person in question is affiliated (however loosely) with US intelligence is your client?

In any case, this protective order only calls for sanctions, not the IIPA charges that CIA seems to be clamoring for. And this protective order appears to have been operative in 2007, not necessarily 2009 and 2010. I’m not a lawyer, but if the CIA is trying to equate this with security agreements in order to criminally charge defense attorneys, I’m skeptical it’ll work.

But it does give one snapshot of how Kafkaesque the Bush-era military commission process was (as distinct from how Kafkaesque the Obama-era one day rule cramming is).

12 replies
  1. crossword says:

    Reposted from this post because I feel it’s relevant:

    umm, what constitutes “intelligence personnel”?
    Does that include JSOC?
    Contractors working under a compartmentalized program?

    Just some questions to ask.

  2. earlofhuntingdon says:

    My guess is that most of this is novel and untried, like these military commissions and their newly minted rules of evidence and procedure.

    In a mundane analogy, if local police cite you for a traffic violation, but the officer fails to show and to give evidence based on firsthand observation of the claimed illegal behavior and to allow you to cross-examine him or her in open court, the judge dismisses the case.

    This order is akin to saying the defendant is not allowed to know what that officer saw or witnessed your behavior, not allowed to cross examine them, and not allowed to know what that officer did when s/he dragged you out of your car and applied a night stick where a suppository is supposed to go, which behavior might make any evidence obtained against you inadmissible.

    Protecting intelligence identities is of vital national concern. Clearly, even with federal statutes on point, that concern is not absolute. Mr. Bush did not think so when his government outed Valerie Plame. It ought not to be when there is credible evidence that someone with such a claimed identity – employed by or working as a contractor or subcontractor for the government – committed a felony in the course of such work, which felony materially affects the viability of the case against the defendant.

  3. freepatriot says:

    Is there a parallel in civilian trials?

    I am not a lawyer, but I think the word you’re looking for is “Star Chamber” trial

    high everybody

    (drive-by wave)

  4. Palli says:

    Certainly the accused deserve this information.
    Public knowledge of individuals who practiced (or practice) torture, American or not, is in the public interest as well. These military people or contractors walk among us or will. If I lived in Seattle I would steer clear of Jensen and Mitchell, as I would any “underling” who I knew practiced torture, for my family’s safety and mental health. If someone was told to torture and did torture, well, that is precisely why I want to know who they are- and I am not a torture victim needing evidence.

    • kgb999 says:

      If I lived in Seattle I would steer clear of Jensen and Mitchell, as I would any “underling” who I knew practiced torture

      Well, technically it’s Spokane. The screwed up thing is … how the heck do you know? You can’t just start every bar conversation: “Hi, did you ever hang out with the CIA torturing people?”. Kind of creepy to think about. I fully expect at some point for the local news to reveal a guy with his own basement torture chambers and half a dozen captives snatched from the street kids.

  5. Palli says:

    I don’t mean to deflect the real needs of lawyers and victims in these military tribunals. But this is human behavior that should not be sanctioned on any level and I am just a citizen.
    I am the daughter of a POW and there is no allowance to be made for anyone over the age of 18 who behaves barbarically because they were “told to” or “ordered to”. …wonder if witness protection will be warped to recreate lives for some of these guilty Americans.

  6. klynn says:

    But it does give one snapshot of how Kafkaesque the Bush-era military commission process was (as distinct from how Kafkaesque the Obama-era one day rule cramming is).

    (my bold)

    Kafkaesque has been flying around our house lately.

    In any case, the protective order makes it clear that the government is trying to protect these identities, first of all, from disclosure to those who were abused by said intelligence personnel.

    If there are no identities, there are no torturers.

  7. ondelette says:

    Not sure what the lawyers will think of your cited paragraph. But this person is being charged with war crimes (however dubious that charge is) in a military tribunal. International humanitarian law would seem to be the rule of law.

    Common Article 3 is considered to not only be fundamental IHL, but to be “essential considerations of humanity” (Nicaragua v. U.S.A., 1986). It provides that,

    (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    What that clause means was delineated in Article 75 of the 1st Additional Protocols of 1977, an article that is known in IHL as the “Fundamental Guarantees”, for that reason. The U.S. acknowledges Article 75 as customary IHL (1987, Michael J. Matheson). Paragraph (4) states (my bold):

    4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
    (a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
    (b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
    (c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
    (d) anyone charged with an offence is presumed innocent until proved guilty according to law;
    (e) anyone charged with an offence shall have the right to be tried in his presence;
    (f) no one shall be compelled to testify against himself or to confess guilt;
    (g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    (h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
    (i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
    (j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised.

    I am aware that the MCA of 2006 attempted to rewrite the War Crimes Act to give the President the right to decide what is and is not a war crime. The above is customary IHL, and in the case of common Article 3, also statutory IHL, and is therefore the supreme law of the land according to Article 6 of the U.S. Constitution. In the case of Article 3, all the nations in the world have signed and ratified it, in the case of Article 75, 160 nations have signed and ratified it and others, in particular the U.S. have acceded to it as customary. It is binding and it says that defendants can confront their witnesses in court. End of story.

  8. earlofhuntingdon says:

    Khadr is being charged with crimes – murder, attempted murder – that are not war crimes, in a forum that has no jurisdiction over such crimes. He is alleged to have violated a US federal statute that did not exist at the time those alleged actions took place. He was also a child at the time of those alleged actions, which either makes questionable his ability to be charged with murder and/or gives him the protections awarded a “child soldier” under the relevant treaty in force at the time of those alleged actions.

    Mr. Obama has chosen as a centerpiece for his new and improved Bush military tribunals one of the weakest and most incendiary cases he inherited – and has since wholeheartedly adopted – from George W. Bush and Dick Cheney. It mocks everything he claims to believe in and have stood for, and what this society has accepted as its aspiration for justice for two centuries. He has adopted the practices of that oxymoron known as Texas justice.

  9. powwow says:

    To provide some context regarding the related protective order process used in the Guantanamo habeas cases in federal court:

    Judge Joyce Hens Green of the D.C. District, who ruled as follows, in January, 2005, in a group of consolidated Guantanamo (Uighur) cases that later became part of Boumediene…:

    In January 2005, in In re Guantanamo Detainee Cases, U.S. District Judge Joyce Hens Green denied the government’s motion to dismiss challenges to detention brought by eleven detainees and held that Guantanamo detainees have rights under the U.S. Constitution – specifically Due Process rights under the Fifth Amendment – as well as judicially enforceable rights under the Third Geneva Convention – specifically, a right to have their prisoner of war status determined by a competent tribunal.

    Judge Green held that the Combatant Status Review Tribunal (CSRT) procedures did not provide detainees with sufficient due process. Judge Green found CSRTs to be constitutionally inadequate because they deny detainees access to material evidence used in determination of their “enemy combatant” status and do not permit the assistance of counsel to mitigate the government’s refusal to disclose classified information directly to the detainees. She further found the CSRTs violate detainees’ rights because of the vague and potentially overbroad definition of “enemy combatant” and the manner in which the tribunals handle allegations of torture. The government appealed the decision to the Court of Appeals for the District of Columbia Circuit. Petitioners cross-appealed certain parts of Judge Green’s decision.

    …issued a lengthy Protective Order in those cases on November 8, 2004 (amending and adding to an earlier – DOD-written? – Protective Order which is attached as Exhibit A):

    This matter comes before the Court upon Respondents’ Motion for Protective Order to prevent the unauthorized disclosure or dissemination of classified national security information and other protected information that may be reviewed by, made available to, or are otherwise in the possession of, the petitioners and/or petitioners’ counsel in these coordinated cases. Pursuant to the general supervisory authority of the Court, in order to protect the national security, and for good cause shown,


    1. The Court finds that these cases involve classified national security information or documents, the storage, handling and control of which require special security precautions, and access to which requires a security clearance and a “need to know.” These cases may also involve other protected information or documents, the storage, handling and control of which may require special precautions in order to protect the security of United States government personnel and facilities, and other significant government interests.

    2. The purpose of this Protective Order is to establish the procedures that must be followed by all petitioners’ counsel, their respective petitioner(s), all other counsel involved in these cases, translators for the parties, and all other individuals who receive access to classified national security information or documents, or other protected information or documents, in connection with these cases, including the privilege team as defined in Exhibit A.

    3. The procedures set forth in this Protective Order will apply to all aspects of these cases, and may be modified by further order of the Court sua sponte or upon application by any party. The Court will retain continuing jurisdiction to enforce or modify the terms of this Order.

    4. Nothing in this Order is intended to or does preclude the use of classified information by the government as otherwise authorized by law outside of these actions.

    5. Petitioners’ counsel shall be responsible for advising their employees, the petitioners, and others of the contents of this Protective Order, as appropriate or needed.

    6. Petitioners’ counsel are bound by the terms and conditions set forth in the “Revised Procedures For Counsel Access To Detainees At the U.S. Naval Base In Guantanamo Bay, Cuba,” and the procedures for handling mail and documents brought into and out of counsel meetings, attached hereto as Exhibit A. This Protective Order specifically incorporates by reference all terms and conditions established in the procedures contained in Exhibit A to the extent they place limitations on petitioners’ counsel in their access to and interaction with petitioners or handling of information. Any violation of the terms and conditions of those procedures will also be deemed a violation of this Protective Order. This paragraph does not apply with respect to provisions in the procedures contained in Exhibit A that are or have been overridden by the Court.

    7. The privilege team shall not disclose to any person any information provided by counsel for a petitioner or by a petitioner, other than information provided in a filing with the Court, unless such information, if it were monitored information, could be disclosed under Section X of Exhibit A. Such disclosure shall be consistent with the provisions of Section X of Exhibit A.


    9. The terms “classified national security information and/or documents,” “classified information” and “classified documents” refer to:

    a. any classified document or information that has been classified by any Executive Branch agency in the interests of national security or pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI),” or any classified information contained in such document;

    b. any document or information, regardless of its physical form or characteristics, now or formerly in the possession of a private party that has been derived from United States government information that was classified, regardless of whether such document or information has subsequently been classified by the government pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI)”;

    c. verbal or non-documentary classified information known to the petitioner or petitioners’ counsel; or

    d. any document and information as to which the petitioner or petitioners’ counsel have been notified orally or in writing that such documents or information contains classified information.


    11. The terms “protected information and/or documents,” “protected information” and “protected documents” refer to any document or information deemed by the Court, either upon application by counsel or sua sponte, as worthy of special treatment as if the document or information were classified, even if the document or information has not been formally deemed to be classified.


    30. Petitioners’ counsel shall not disclose classified information not provided by petitioner-detainee to that petitioner-detainee. Should petitioners’ counsel desire to disclose classified information not provided by petitioner-detainee to that petitioner-detainee, petitioners’ counsel will provide in writing to the privilege review team (See Exhibit A) a request for release clearly stating the classified information they seek to release. The privilege review team will forward the petitioner counsel’s request to the appropriate government agency authorized to declassify the classified information for a determination. The privilege review team will inform petitioners’ counsel of the determination once it is made.


    33. The foregoing shall not prohibit petitioners’ counsel from citing or repeating information in the public domain that petitioners’ counsel does not know to be classified information or a classified document, or derived from classified information or a classified document.


    35. Without authorization from the government or the Court, protected information shall not be disclosed or distributed to any person or entity other than the following:

    a. petitioners’ counsel, provided such individuals have signed the Acknowledgment, attached hereto as Exhibit C, attesting to the fact that they have read this Protective Order and agree to be bound by its terms; and

    b. the Court and its support personnel.

    Exhibit A, Section IX:

    B. Counsel is required to treat all information learned from a detainee, including any oral and written communications with a detainee, as classified information, unless and until the information is submitted to the privilege team and determined to be otherwise. All classified material must be handled, transported and stored in a secure manner, as provided by Executive Order 12958, DOD Regulation 5200.1-R and AI 26, OSD Information Security Supplement to DOD Regulation 5200.1R.


    Exhibit B, Memorandum of Understanding language:

    Having familiarized myself with the applicable statutes, regulations, and orders related to, but not limited to, unauthorized disclosure of classified information, espionage and related offenses; The Intelligence Identities Protection Act, 50 U.S.C. § 421; 18 U.S.C. § 641; 50 U.S.C. § 783; 28 C.F.R. § 17 et seq.; and Executive Order 12958; I understand that I may be the recipient of information and documents that belong to the United States and concern the present and future security of the United States, and that such documents and information together with the methods and sources of collecting it are classified by the United States government. [Etc.]

    Further context regarding the timeline of the then-ongoing cases and appeals is provided by this July, 2007 (so pre-Boumediene) posting by a Ninth Circuit federal public defender involved in the habeas appeals:

    Thursday, July 05, 2007

    Guantánamo Update

    In October 2004, the District of Columbia District Court appointed 14 Federal Defender offices to represent about 50 aliens detained as enemy combatants at the Naval Base in Guantánamo Bay, Cuba. Since that time, attorneys, investigators, and legal assistants have received security clearances and met with clients in a wide range of different factual and legal situations. Teams have filed numerous legal pleadings and ranged the world obtaining corroboration of the factual innocence of many clients. With the dramatic grant of certiorari in Boumediene after an earlier denial with dissents, this is a good time to review the history of Boumediene, and to reassess where we are on the legal conflicts, the fate of our individual clients, and the larger context of our litigation.

    Initial Skirmishes Regarding Access And Rendition

    Our clients petitioned the courts in the immediate wake of Rasul, the June 2004 Supreme Court case establishing jurisdiction to review Guantánamo detention under the habeas corpus statute. Given the time from filing to appointment, the initial stage of litigation involved pleadings to accelerate security clearances and visitation and to protect our clients from rendition to countries where they might face violations of the Convention Against Torture. The scope of our initial efforts was limited by stays already in place pending litigation in the D.C. Court of Appeals to resolve conflicting District Court decisions regarding the right, or lack thereof, of aliens held in Guantánamo [one of which was the Green decision cited above].


    Despite the statutory norm of a return within three days of filing, and the historical norm of habeas corpus as a rapid and decisive equitable remedy for unlawful executive detention, the stays in place from the 2005 pro se filings still freeze out the detainees from obtaining a hearing, regardless of the evidence of complete innocence and lack of initial Defense Department jurisdiction.

    – Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon, 7/2007

    Judge Green’s Protective Order was eventually superceded (though much of its language was retained) by the September 11, 2008 Protective Order issued by Chief Judge Hogan in the wake of Boumediene, for habeas cases then resuming in the D.C. District:

    Accordingly, to protect the national security, and for good cause shown, the Court

    ORDERS that, in place of the Amended Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, first issued on November 8, 2004, 344 F. Supp. 2d 174 (D.D.C. 2004), as supplemented by the Order Addressing Designation Procedures for Protected Information, first issued on November 10, 2004, and the Order Supplementing and Amending Filing Procedures Contained in the November 8, 2004, Amended Protective Order, first issued on December 13, 2004, the following Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, apply in these coordinated matters:



    September 11, 2008

    /s/ Thomas F. Hogan
    United States District Judge

    The new Protective Order was put into perspective this way in one detainee’s case, in June, 2009, by Judge Richard Roberts (who is also overseeing Abu Zubaydah’s habeas petition):

    While the “Government has a legitimate interest in protecting sources and methods of intelligence gathering,” the procedures created by the district court for these habeas proceedings must allow a petitioner to have a “meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Boumediene, 128 S. Ct. at 2262, 2276 (quoting INS v. St. Cyr, 533 U.S. 289, 300-301 (2001)).

    Paragraph 29 of the Protective Order of September 11, 2008 states that “Petitioners’ counsel shall not disclose to a petitioner-detainee classified information not provided by that petitioner-detainee.” (Protective Order ¶ 29.) Paragraph 39 states that “Petitioners’ counsel shall not disclose protected information not provided by a petitioner-detainee to that petitioner-detainee without prior concurrence of government counsel or express permission of the Court.” (Protective Order ¶ 39.) In In re Guantanamo Bay Detainee Litigation, Civil Action No. 05-1244 (TFH/CKK), 2009 WL 122803, at *1 (D.D.C. January 15, 2009), Judge Hogan interpreted the Protective Order to “permit counsel for a petitioner to review with the petitioner statements in the exhibits to the Classified Factual Return for that petitioner that the Privilege Review Team determines were made by that petitioner to agents of the United States government.” Id. Judge Hogan ruled that petitioners’ counsel were not allowed to share with a petitioner “information contained in the exhibits to the Classified Factual Return beyond the text of petitioner’s statements, petitioner’s name, and the dates the statements were made.” Id. The documents created by petitioner’s counsel to conform to Judge Hogan’s opinion were to be “marked, transported, handled, and maintained as classified material” under the provisions of the Protective Order.” Id. Judge Hogan later clarified his order by explaining that

    If the government completes a declassification review of a petitioner’s classified statements made to agents of the United States government before petitioner’s counsel is scheduled to review such statements with petitioner, any document created by petitioner’s counsel containing petitioner’s classified statements must be screened by the Privilege Review Team. The Privilege Review Team will compare counsel’s document with the declassified material. If the Privilege Review Team determines that a statement in counsel’s document should be redacted because it is not declassified, counsel must present that statement before the appropriate Merit Judge for a particularized determination if it should be released for review with petitioner. Documents created by petitioner’s counsel that contain petitioner’s classified statements made to agents of the United States government are only subject to this declassification screening if (i) the government has completed its declassification review of petitioner’s classified statements made to agents of the United States government and (ii) there is sufficient time for the appropriate Merit Judge to adjudicate on whether petitioner can review his classified statements.

    In re Guantanamo Bay Detainee Litigation, Civil Action No. 05-1244 (TFH/CKK), 2009 WL 234956, at *1-2 (D.D.C. January 30 2009).1

    [Footnote 1: The government has moved to alter the Protective Order to prohibit petitioners’ counsel from sharing statements made by the petitioners with the petitioners if those statements are not declassified. In light of that motion, Judge Hogan issued a Minute Order on April 10, 2009, suspending the January 15, 2009 and January 30, 2009 Orders but allowing merits judges to supercede that suspension for individual cases. (See Minute Order of April 10, 2009, 08-mc-442.)]

  10. powwow says:

    One other pertinent section of Steve Sady’s July, 2007 account is worth highlighting, as it demonstrates the gross imbalance of power between what the government is and has been able to get away with, and what the many gagged pro bono and other attorneys are confronted with in trying to diligently represent Guantanamo detainees:

    In June 2006, three detainees died in custody, resulting in a clamp down on prisoners and even harsher confinement. A month later, the government revealed that investigators had seized and reviewed attorney-client documents as part of their investigation into the deaths. On July 7, 2006, eight days after Hamdan, the government belatedly sought approval for the violation of attorney-client privilege by requesting that the District Courts approve creation of “filter teams” to review the seized documents for evidence related to the deaths and to violations of the protective order governing attorney-client communications.

    Judge Leon heard the first group of motions. After a prolonged hearing on the legal and practical difficulties of the government’s proposal, on August 28, 2006, he issued an opinion denying the government’s motions (available here). He found that his discretion should not be exercised in such a manner and that the government would review attorney-client material at its legal peril. Then, Judge Robertson granted the motions before him, approving of the procedure for the investigation (available here). Other judges have not ruled on the question to this date. The conflicting decisions have not been resolved, given that the government did not appeal its loss from Judge Leon, and the detainees before Judge Robertson filed no appeal.

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