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Full text of "gov.uscourts.dcd.116163"

Case 1 :05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 1 of 8 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN RE: 

GUANTANAMO BAY 
DETAINEE LITIGATION 



Misc. No. 08-442 (TFH) 
Civil Action Nos. 
02-CV-0828, 04-CV-1136 



04-CV-1194 
04-CV-2022 
04-CV-2215 
05-CV-0270 
05-CV-0359 
05-CV-0520 
05-CV-0634 
05-CV-0764 
05-CV-0881 
05-CV-0892 
05-CV-0995 
05-CV-1048 
05-CV-1220 
05-CV-1347 
05-CV-1457 
05-CV-1490 
05-CV-1505 
05-CV-1555 
05-CV-1601 
05-CV-1623 
05-CV-1645 
05-CV-1678 
05-CV-1971 
05-CV-2083 
05-CV-2112 
05-CV-2199 
05-CV-2349 
05-CV-2378 
05-CV-2381 
05-CV-2386 
05-CV-2444 
06-CV-0618 
06-CV-1684 
06-CV-1691 
06-CV-1761 
06-CV-1767 
07-CV-2338 
08-CV-1101 



04-CV-1254 
04-CV-2035 
05-CV-0023 
05-CV-0280 
05-CV-0392 
05-CV-0526 
05-CV-0748 
05-CV-0833 
05-CV-0883 
05-CV-0993 
05-CV-0998 
05-CV-1124 
05-CV-1236 
05-CV-1353 
05-CV-1458 
05-CV-1497 
05-CV-1506 
05-CV-1590 
05-CV-1602 
05-CV-1638 
05-CV-1646 
05-CV-1704 
05-CV-1983 
05-CV-2088 
05-CV-2185 
05-CV-2200 
05-CV-2367 
05-CV-2379 
05-CV-2384 
05-CV-2387 
05-CV-2477 
06-CV-1668 
06-CV-1688 
06-CV-1758 
06-CV-1765 
07-CV-1710 
08-CV-0987 
08-CV-1104 



04-CV- 
04-CV- 
04-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
06-CV 
06-CV 
06-CV 
06-CV 
07-CV 
08-CV 
08-CV 



1164, 
1937, 
2046, 
0247, 
0329, 
0492, 
0569, 
0763, 
0877, 
0889, 
0994, 
0999, 
1189, 
1244, 
1429, 
1487, 
1504, 
1509, 
1592, 
1607, 
1639, 
1649, 
1725, 
2010, 
2104, 
2186, 
2249, 
2371, 
2380, 
2385, 
2398, 
2479, 
1674, 
1690, 
1759, 
1766, 
2337, 
1085, 
1153, 



Case1:05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 2 of 8 



08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 



1185, 
1222, 
1227, 
1230, 
1233, 
1236, 
1310, 



08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 



1207, 
1223, 
1228, 
1231, 
1234, 
1237, 
1360, 



08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 



1221, 
1224, 
1229, 
1232, 
1235, 
1238, 
1440 



Case 1 :05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 3 of 8 



RESPONDENTS' RESPONSE TO 
THE COURT'S AUGUST 20. 2008 ORDER 

In its August 20, 2008 Minute Order, the Court ordered respondents to respond to 
petitioners' request that the standard Protective Order in these cases, 1 where applicable, 2 be 
amended to require the government to "provide to counsel and the Court a version of each court 
filing containing classified or protected information that is suitable for filing on the public record 
within two weeks of the original filing date." See also Joint Report in Response to Court's July 
11, 2008 Scheduling Order at 3 n.l (Misc. No. 08-0442). For the reasons explained below, 
respondents oppose petitioners' proposal. 

Background. The current standard Protective Order requires that, with certain 
exceptions, all filings be made through the Court Security Officer ("CSO"), who then forwards 
the filings to appropriate agencies for review to determine whether the filing contains any 
classified or protected information. Upon such review, such agencies typically created a version 
of the submission suitable for public filing on the Court's electronic filing system, i.e., a version 
with any classified or protected information redacted. See Protective Order, ]} 46, 344 F. Supp. 
2d 174, 182 (D.D.C. Nov. 8, 2004). In the July 11, 2008 Joint Status Report, respondents, with 
the concurrence of the Court Security Officer, proposed certain amendments to the filing 



1 See In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. Nov. 8, 2004); 
Order Supplementing and Amending Filing Procedures Contained in November 8, 2004 
Amended Protective Order in In re Guantanamo Detainee Cases, No. 02-CV-0299, et al. 
(D.D.C. Dec. 13, 2004); Order Addressing Designation Procedures for "Protected Information" 
mln re Guantanamo Detainee Cases, No. 02-CV-0299, et al. (D.D.C. Nov. 10, 2004). 

2 The standard Protective Order does not apply in Nos. 06-CV-1690, 08-CV-1085, 
08-CV-1207, and 08-CV-1360. See Order (Aug. 19, 2008) (Misc. No. 08-0442). 

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Case 1 :05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 4 of 8 

procedures reflected in the Protective Order. See Joint Report in Response to Court's July 11, 
2008 Scheduling Order at 1-2 & Resps' Ex. 1 (Misc. No. 08-0442). The amended filing 
procedures update and improve the process for submitting filings in two significant respects. 
First, petitioner's counsel would be authorized to submit filings directly on Court's electronic 
filing system if counsel do not believe and have no reason to believe that a filing contains 
classified or protected information. Second, filings containing only "protected information," as 
defined by the Protective Order, but not classified information, would be submitted pursuant to 
Local Civil Rule 5.1(j), the local rule of this Court governing under seal filings. Id. Filings that 
petitioner's counsel knows or has reason to believe contains classified information, or is 
uncertain whether they contains classified information, continue under the amended filing 
procedures to be filed under seal with the Court Security Officer, who then forwards the filings to 
appropriate agencies for review for any classified or protected information and creation of a 
redacted version for public filing. Id. 

Argument. Petitioner's proposal to require the government to provide within two weeks 
of the original filing date a version of each Court filing containing classified or protected 
information that is suitable for filing on the public record should not be adopted. The proposal 
will result in significant and inappropriate burdens on the government. 

Petitioner's proposal is misleading in that it assumes that review of documents for 
purposes of ascertaining the presence of classified and protected information is straightforward 
and quick, with any classified or protected information readily and easily identifiable. 
Identification of classified or protected material in filings can be quick and easy at times, but 



2- 



Case 1:05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 5 of 8 

time-consuming and labor-intensive in other circumstances. The magnitude of the task is 
dependent upon a variety of factors. 

One of the primary factors is how classified information is presented in a filing. A mere 
citation to or quotation of an obviously classified passage in a classified document or source may 
be easy enough to identify and mark as classified. But filings are rarely so limited. There may be 
discussion of classified information that is intermingled with discussion of unclassified 
information. Information from classified source materials may be reworded, paraphrased, or 
recast. Each respective iteration makes the task of identifying classified information that must be 
redacted more difficult, complex, or time-consuming. Further, often discussions or assertions in 
a filing that recast classified information or are not specifically sourced require research, 
comparison with classified materials, or even consultation with original classification authorities 
or subject matter experts to determine whether a passage or discussion in a filing, in fact, is 
classified. Thus, depending on how a document is written and how it is sourced, identification of 
classified information can be difficult, complex, and time-consuming such that it would be 
inappropriate to impose an arbitrary two-week time limit on such review in every case. 3 

Another reason that a two-week deadline for classification review and redaction of each 
and every filing involving classified or protected information is inappropriate is that, going 
forward in these cases, there could, and most likely will, be a very large number of merits-related 
and other filings potentially involving classified or protected information. For example, while 



3 To help facilitate classification reviews, the proposed modifications to the standard 
Protective Order require petitioner's counsel to identify passages in a document that may contain 
classified information. Joint Report, Resps' Ex. 1. While this may help reviewing agencies to 
hone in on areas of a filing to review, it would not necessarily alleviate the types of burdens 
described above. 

-3- 



Case1:05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 6 of 8 

the number of such filings by petitioners in any given timeframe, and the degree to which such 
filings will involve classified information, cannot be known, respondents will be regularly 
submitting factual returns that will involve significant amounts of classified information. 
Assuming petitioners each file a traverse or a dispositive motion of some nature based on 
respondents' classified submissions or otherwise, respondents' classification review 
responsibilities basically double, becoming onerous, to say the least. Tack onto that the fact that, 
as merits-related litigation continues, potentially numerous other motions or filings will be made 
each month referencing classified information, and a requirement that filings be reviewed and 
redacted in a two-week period regardless of the volume of filings becomes oppressive to the 
point of impossibility. 

An important aspect of the resource considerations is that many of the same classification 
and subject matter experts who would be required to perform classification reviews are the same 
resources that are being devoted to processing documents for use in the classified factual return 
filings and then subsequent development of unclassified versions of the returns. Depending on 
the number of other filings made by petitioners, a two-week deadline for classification review 
and redaction of all filings will doubtless require at least periodic diversion of those resources 
from the processing of materials for factual returns. 

Further, a two-week review requirement unnecessarily risks unauthorized disclosure of 
classified information. The government has taken the extraordinary step in this litigation of 
providing hundreds of petitioners' counsel with access to classified information, and the 
government has a compelling interest in the protection of that information from unauthorized 
disclosure and distribution. The proposed requirement that respondents finish in two weeks 

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Case1:05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 7 of 8 

classification review of all filings - no matter how numerous or few or how large or small - 
places respondents in the untenable position of accelerating the often complicated process of 
classification review to meet an artificial deadline. Such pressures could result in erroneous 
decisions and potentially compromise respondents' interests in maintaining security over 

classified national security information. See Boumediene v. Bush, U.S. , 128 S. Ct. 2229, 

2276 (2008) ("the Government has a legitimate interest in protecting sources and methods of 
intelligence gathering; and we expect that the District Court will use its discretion to 
accommodate this interest to the greatest extent possible"). 

On the other hand, such erroneous decisions could result in the marking of information as 
classified or protected when a more detailed or thorough investigation might have resolved the 
matter to the contrary, had time permitted. Neither the public interest nor the interest of 
petitioners is served by such a situation that could result from an abbreviated review schedule. 

For these reasons, a rigid, two-week deadline for classification review and redaction of 
filings is unworkable, unreasonable, and inappropriate. The more appropriate approach is that 
existing under the current standard Protective Order. Under the current regime, no deadlines are 
imposed for classification review and redaction, albeit the government makes efforts to effect a 
classification review as quickly as circumstances permit. In the meantime, of course, the filing at 
issue is available to the Court and petitioner's counsel for consideration. And in any situation in 
which petitioner's counsel believe that classification review is unduly delayed, petitioner is free 
to raise the matter with the government, or if necessary, the Court. The Court should permit this 
current system to remain, and, therefore, should not adopt petitioner's proposal. 



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Case 1:05-cv-01458-UNA-AK Document 56 Filed 08/26/2008 Page 8 of 8 

Conclusion. For these reasons, the Court should reject petitioner's proposal that the 

standard Protective Order in these cases be amended to require the government to "provide to 

counsel and the Court a version of each court filing containing classified or protected information 

that is suitable for filing on the public record within two weeks of the original filing date." 

Dated: August 1, 2008 Respectfully submitted, 

GREGORY G. KATSAS 
Assistant Attorney General 

JOHN C. O'QUINN 

Deputy Assistant Attorney General 

/s/ Terry M. Henry 



JOSEPH H. HUNT (D.C. Bar No. 43 1 134) 

VrNCENT M. GARVEY (D.C. Bar No. 127191) 

JUDRY L. SUBAR (D.C. Bar No. 347518) 

TERRY M. HENRY 

ANDREW I. WARDEN 

PAUL AHERN 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. 

Washington, DC 20530 

Tel: (202)514-4107 



Attorneys for Respondents 



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