Title: Def Repl to Gov Motion for Prot Order, 13 Mar 12

Release Date: 2014-03-20

Text: UNITED STATESDEFENSE REPLY TOGOVERNMENT MOTIONFOR PROTECTIVE ORDERV.MANNING, Bradley E., PFCU.S. Army,Headquarters and Headquarters Company, U.S.Army Garrison, Joint Base Myer-Henderson Hall,Fort Myer, VA 2221 1DATED: 13 March 2012RELIEF SOUGHT1. The Defense requests that the Court deny the Govemment?s proposed Protective Order. TheDefense requests that the Court grant the Defense?s proposed Protective Order (with orwithout the minor amendments referenced herein). See M.R.E. 505(g)(1). Additionally, theDefense requests that Mr. Prather and the relevant OCA be produced as witnesses for themotions argument.A-nothe following additional evidence:7 Aside from all Motions and attachments already in evidence, the Defense references hereinAttachment A: Government Email to Defense Dated 26 February 2012Attachment B: Court Protective Order ?United States v. DiazAttachment C: Memorandum of 18 September 2010 to Sta?' Judge Advocate re:?Preliminary Classi?cation Review of the Aecused?s Mental Statesv. PFC Bradley Manning?ARGUMENT3. The Govemment?s proposed Protective Order is not only nonsensical, it is it downrightdraconian. The Defense maintains that if the Govemment?s Proposed Protective Order isapproved, PFC Manning will be denied his right to counsel in contravention of the SixthAmendment of the United States Constitution. Moreover, the Defense is dumbfounded that CPTFein would indicate in his 26 February 2012 email to Mr. Coombs that the Govemment?sProtective Order would be something that the Defense would ?likely be 98% amenable with.?See Attachment A. The Government could not have been more off-the-mark. The Defensemaintains that the Government?s Protective Order is the equivalent of using dynamite to kill a4.M.R.E. 505(g)( l) allows a court to make an "appropriate" protective order to guard against"disclosure of classified information.". Here the Government's requested order is both not"appropriate" within the meaning ofM.R.E. 505(g)( l), nor it is designed to guard only"classified" information. It is designed to guard information that is not classified, but that theGovernment feels should be "treated as classified." Moreover, the restrictions that theGovernment would attempt to place on the Defense are far outside of the realm of the measurescontemplated under M.R.E. 505(g)( l )(A)-(G).15. At the outset, the Defense would note that its Protective Order does not contain "countlesslegal and factual errors" as stated by the Government.See Prosecution Response to DefenseMotion for Appropriate Relief UnderMilitary Rule of Evidence 505, page 2. Simply becausethe Government does not like the Defense's Protective Order does not mean that the ProtectiveOrder contains "countless legal and factual errors."(See discussion, infraat C.).6. The Defense's Protective Order was adapted from the Protective Order inDiaz, 2009 CCA LEXIS 79 (N-M.C.C.A. Feb. 19, 2009),aff'd,United States v.69M.J. 127 (C.A.A.F. 2010).Indeed, the Protective Order endorsed by the military judge inDiaz had been drafted andproposed by the Government in that case (not the Defense).SeeAttachmentB.Thus, theProtective Order the Defense submits should govern this case-one which apparently containscountless factual and legal errors-was very similar to a Protective Order advanced by theGovernment, and adopted by the Military Judge in Diaz. Notably, theDiaz court thought that aProtective Order in the nature of what the Defense is currently submitting was appropriate todeal with classified infonnation that was not already available in the public realm. Additiomilly,theDiaz case has been reviewed by both the Navy-Marine Court of Criminal Appeals and theCourt of Appeals for the Armed Forces; neither of these courts expressed any concern with theProtective Order in that case.7. To the extent that there are differences between the Diaz Protective Order and the currentDefense Protective Order, this was simply designed to deal with the issue of inadvertent spillage.From a review of the Government's motion, it appears that it too also had access to.th eDiazProtective Order. If the Government did have access to the Diaz Protective Order, this makes itsattack regarding the Defense's "countless" errors particularly disingenuous.1(1) Protective order. If the government agrees to disclose classified information to the accused, the military judge,at the request of the government, shall enter an appropriate protective order to guard against the compromise of theinforniation disclosed to the accused. The terms of any such protective order may include provisions:(A) Prohibiting the disclosure of the information except as authorized by the military judge;(B) Requiring storage of material in a manner appropriate for the level of classification assigned to thedocuments to be disclosed;(C)Requiring controlled access to the material during normal business hours and at other times uponreasonable notice;(D) Requiring appropriate security clearances for persons having a need to examine the information inconnection with the preparation of the defense;(E)Requiring the maintenance of logs regarding access by all persons authorized by the military judge tohave access to the classified information in connection with the preparation of the defense;(F) Regulating the making and handling of notes taken from material containing classified information; or(G) Requesting the convening authority to authorize the assignment of government security personnel andthe provision of government storage facilities.28. Below, the Defense will separately address the following issues:A. Ftmdamental Problems with the Government?s Protective OrderB. Other Problems with the Govemment?s Protective OrderC. Addressing the Govemment?s Concerns with the Defense?s Protective Order andAssociated MotionsIn sum the Defense maintains that the Government has lost all perspective on this issue. Thecase has been ongoing for nearly two years, largely without incident. That the Governmentviews a ?xture potential and internal ?spillage? (or ?spillage? by inference) as having thepotential to cause ?exceptionally grave darnage? to the national security of the United States?when it acknowledges that the information is already in the public domain is whollyunreasonable and out of touch with reality. See Government Proposed Protective Order,paragraph 3.q. By this statement, the Defense certainly does not intend to minimize theimportance of safeguarding information; however, it approaches the issue with a modicum ofcommon sense in light of the realities of criminal litigation.A. Fundamental Problems with the Govern ment?s Protective Order9. The Government?s Protective Order is far too broad. lt treats unclassi?ed information asclassi?ed information and requires that the Defense (but not the Government) take onerous stepsto safeguard this unclassi?ed information.3 In this respect, the Defense will address:i) The Government?s creation of a new category of information, ?information treatedas classi?ed.?ii) The scope of the de?nitions of classi?ed information.The Govemment?s proposal that all Defense team members work on all non-procedural matters from a classi?ed computer at an appropriate ?govemmentfacility.?iv) The Govemment?s procedure for ?ling documents.v) The Govemment?s sanctions for disclosing ?classi?ed? information.10. Information ?Treated as? Classi?ed: The Government has invented a new category ofinformation that it believes should be subject to a Protective Order?infonnation that is ?treatedas classi?ed?. The Government has prepared a list on its own, entitled Judicial Order to TreatCertain Information As Classified Information (?Supplemental Order?), wherein lists facts,information, or things that it believes should be ?treated as classi?ed.? See GovernmentProposed Protective Order, paragraph There is no such category of information to be?t:reated as dassi?ed? information is either classi?ed or it is not. As the Government is so apt2 Under Executive Order 13526, it is only Top Secret information that has the potential to cause exceptionally gravedamage to national security. See l.2( 1). PFC Manning is not even charged disclosing Top SecretInformation. Moreover, the Defense believes that the damage assessments that it has been requesting in discoveryfor years will reveal that the original alleged disclosures did not cause less ?exceptionally gravedamagc??to national security. If this is the case, how can a second disclosure of that same information causeexceptionally grave damage? The Government loses all credibility when it makes such ridiculous assertions.3 This is ironic given that the Government has, on at least two occasions, inadvertently disclosed classi?edinformation itsel?to point out, only the 0CAs can determine whether something is or is not classi?ed. By adoptingthe ?treated as classi?ed? procedure, the Government has usurped the role of the OCAs byunilaterally deeming certain things to be ?off limits? for either the Defense or the Court tomention.11. If this list were approved in writing by the relevant OCAs as actually being classi?ed, theDefense would obviously not reference the information. Presumably this could have been doneand submitted to the Court and the Defense as part of this motion.? Tellingly, the Governmentacknowledges ?that the Supplemental Order is n_ot a substitute for a classi?cation review by anappropriate Authority.? See Government Proposed Protective Order, paragraph If that isthe case, why weren?t the items in the Supplemental Order shown to the OCAs and actuallydetermined by the OCAs to be classi?ed, rather than ?treated as classi?ed??12. The fact the Government chose to put things on its list, but not to get an OCA statement thatthe material is, in fact, classi?ed should speak volumes. It signals that the information is notactually classi?ed?it is simply information that the Govemment does not want the Defense toreference. Absent a showing that something is actually classi?ed, the Govermnent does not getto restrain the Defense?s speech in this manner.13. The Government justi ?es its ?treated as classi?ed? category of information as being a wayto ?facilitate an ef? cient ?ling process that protects classi?ed information.? See GovernmentProposed Protective Order, paragraph 3.n. (4). The Government?s proposal is anything bute?icient, as discussed below. Moreover, the Government is wrong when it says that it is aprocess for ?protect[ing] classi?ed information? it is instead a process for protecting what theGovernment thinks should be ?off limits? for the Defense.14. The Government?s position on the ?treated as classi?ed? information is also internallyincoherent. If the information is on the Govemment?s list, it is deemed to be classi?ed and itcannot be referenced. If instead, the Court Security Of?cer sees something in a ?ling that is noton the list, but he believes is classi?ed, then the Government proposes that the parties go throughthe process of having the OCA determine whether the information is classi?ed. If theGovernment envisages a role for the OCAs, why have the OCAs not approved the governrnent-created list?15. The implication of the Govemment?s position is that motions and ?lings which do notactually contain classi?ed information (but simply information that the Government deemsshould be ?treated as classi?ed?) will be shielded from public view. Undoubtedly, this is anancillary bene?t to the Government, who will be protected ?om public scrutiny in a high-pro?lecase.Indeed, at page 1 of its Supplement to Prosecution Motion fora Protective Cider, the Government refers toEnclosure 1 as providing just a ?small sampling of classi?ed information tint might otherwise seem unclasa?cd, buthas been determined to be classi?ed by the appropriate The Defense questions why, to the extent that a listof classi?ed items is appropriate, this list of actually classi?ed items, is not the approrriatc one to be using in theinstant case? As long as everything on the list has been determimd to be classi?ed by the OCA and evidence isprovided to that e?ect, the Defense would not object to a list416. To the extent that the Court would consider creating a category of information that should be?treated as classi?ed? (which the Defense submits the Court should not consider), the Defenserequests that it have the ability to challenge certain things on the list by submitting a request tothe relevant OCA as to whether the material is actually classi?ed. The Defense objects torelying on the sheer say-so of the Government that something should be ?treated as classi?ed.?'tion of ?Cl i?ed? Info ation am a 3. c. 1 . The Defense objects to theGovemment?s de?nition of ?classi?ed? information in paragraph and in itsproposed Protective Order. The scope of these provisions is alarmingly broad and would deemalmost everything to be classi?ed.18. For instance, paragraph 3.c.(l of the Govemment?s proposed Protective Order says that?classi?ed? inforrnati on is ?any information that refers or relates to national security orintelligence matters.? 5 Para. is similar in that it covers ?any information obtained ?'omany agency, department or other governmental entity .. . that refers to national security orintelligence matters.? This could mean that almost every document involved in this case wouldbe classi?ed, as they can all be construed as ?referring? or ?relating? to national security orintelligence matters.19. Paragraph of the Government?s Protective Order states that ?classi?ed?information includes ?any document and information, including non-written, aurally [sic.]acquired information, which the accused or defense counsel have been noti?ed orally or inwriting that such document or information may be classi?ed.? (emphasis added). Notably, theGovernment does not state that the information is actually classi?ed. Rather, all it would takefor the Government to prevent the Defense from mentioning something in a ?ling (or having to?le something under classi?ed procedures) is for the Government to say that ?We believe factis classi?ed.? If the Government genuinely believes fact?-to be classi?ed, the appropriatecourse of action is to determine through the OCA process whether fact? is actually classi?ed.Through this provision, the Government is trying to surreptitiously have the ability to play thetrump card on whether the Defense is able to reference certain infonnation.20. Restrictions on Accused?s Constitutional Right to Counsel: Equally troubling (or perhapseven more so) is the Government?s attempt, under the guise of a Protective Order, to deny PFCManning his right to counsel. In paragraph 3.k. of its Protective Order, the Governmentadvances an incredulous proposition: that Defense cotmsel shall prepare any and all pleadings orother documents, including substantive communications email), in a?govemrnent facility.?In short, the Government proposes that the Defense team literally move to a place with an5 The Defense Protective Order also deems classi?ed informationto be ?any information, regardless of place oforigin, that could reasonably be believed to contain classi?ed information, or that refersto national security orirtelligencc matters? In retrospect, and in light of the current motion, the Defense does not believethis to be an appropriate provision hr the Protective Order and would ask that the court strike that subsection fromthe Defense?s Protective Order. Under normal circumstances, that Defense would think that the parties wouldexercise common sense in imerpreting this provision. However, the Defense now believes that the Government willinterpret this provision as applying to all documents which re?arence or re?r to national security or intelligencetters, even if they are clearly not classi?ed or believed to be classi?ed.5approved ?govemment facility? (Kansas6, Washington D.C. or Maryland) for the next sixmonths while preparing for trial. Every time that Defense counsel would want to jot down notesfor a pleading or cross-exarnination, draft documents, or send the Court or Government an email,it would have to do so from an approved government facility. Such a suggestion is patentlyoutrageous. See also Protective Order, paragaph (all documents prepared by the defensethat ?do or may contain classified information? shall be ?prepared only by persons who havereceived an appropriate approval for access to classi?ed documents and information, and in thegovernment facility on the three provided laptop computers. . . 21. Moreover, there is no logical reason why Defense counsel would have to do all substantivework on this case in a government facility, while the Court would not. In other words, it makesno sense to distinguish between the Court and the Defense in this respect. If the Governmentbelieves that moving to a place with a government facility for the next six months is how theDefense must proceed, it must also believe that Your Honor must transact all business dealingwith this case (other than purely procedural issues) ?om a secure government facility.22. If the Defense is required to work only from a government facility, the accused will bedenied his right to eotmsel. Major Kemkes is currently attending ILE training, which wouldmake it physically impossible for him to work from a government facility. That would mean thatone of the accused?s counsel would not be able to work on this case at least for the next fewmonths.23. Mr. Coombs lives in Providence, Rhodc Island.7 He has a family and other professionalobligations. Under the Government?s proposed plan, Mr. Coombs will be forced to leave hisfamily for the next six months and secure housing and transportation in Maryland, at asigni?cant personal cost to him or his clients Moreover, every time Mr. Coombs would want towork on the case (which is very o?en), he would need to physically be in a government facility.If he were to wake up in the middle of the night and want to work on the case, he would need togo to a government facility and work on one of three designated laptops. If the Military Judgewere to ask Mr. Coombs to respond to an inquiry on a non-procedural matter ?what is yourposition on the Jones case??), Mr. Coombs would have to physically travel to a governmentfacility to respond.? Further, it seems that Mr. Coombs would not be able to use a blackberry orhis personal computer to receive email; any email related to this case would only be available ifMr. Coombs physically went to the government facility.The Government refers to the Trial Defense Service Omee on Fort Leavenworth, KS as being a ?governmentfzcility? within the meaning of the Protective Order. As the Government lcnows, PFC Manning was moved to FortMade prior to the arraignment in early February and is not scheduled to go back to Kansas. As such, it is unclearwhy this is listed as a ?govemment facility? as it is not a viable location from which to operac.7 My apologies for the (somewhat obnoxious) reference to myself in the third-person. It seemed to be the clearestway to delineate between the accused?s counsel.A conservative guess ofthe expenses that Mr. Coombs would incur is in the range 9 In all likelihood. the government facility that Mr. Coombs would be wcrking from is the trailer on Fort Meade,Maryland Altlmigh TDS oi?ces are also on the list of ?government facilities,? the Defense does not believe thatTDS would allow civilian counsel ml] and unfettered access to TDS o?ices to work on a case for six months orlonger.24. This is all in stark contrast with Government cotmsel. All the Government attorneys in thecase could work on tmelassi?ed matters on their personal computers and could receive and sendemails on their personal computers or handheld devices. They could work on motions in theirof?ce or in the comfort of their home, according to their personal schedule. They would be ableto respond to emails from the Com, witnesses, and relevant parties instantaneously and withease. Meanwhile, Mr. Coombs would be ?guratively shackled to Fort Meade, Maryland for sixor more months, travelling to the ?government facility? any time he had any thoughts or wishedto send any non-procedural email. This proposal is absolutely ludicrous. No counsel shouldhave to try to defend a client under these draconian restrictions. The Defense would hazard toguess that no court martial proceeding, or any criminal proceeding in the United States, has beentried under these conditions. Not only would this violate the accused?s right to counsel incontravention of the Sixth Amendment, it would be an impermissible restriction on the libertyinterests of the Defense team.25. This ?solution? o?ered by the Government would have the obvious effect of dampening thevigor with which the Defense team could mount a defense. It would have the correspondingbene?t for the Government of litigating against a weaker opponent. The Defense believes thatthis was actually the intent of the provision and is genuinely disappointed in the Government, arepresentative of the United States, for resorting to such tactics.26. The Defense has, for almost two years, been able to vigorously defend the accused withoutthe need for such unprecedented measures. There has been only one incident of claimed spillageby the Defense a ?spillage? that the Government concedes was only such because theinformation was classi?ed by inference. The Defense cannot fathom how the Governmentcould, in good faith, advance this restriction as part of its Protective Order to deal with pleadingsand ?lings which are unclassi?ed. The Defense is ?illy aware of its responsibilities to guardclassified information; it does not need to be in virtual lockdown to guard against the possibilitythat something it might say (which it knows not to say) might be determined by the Governmentto constitute unauthorized dis closure by inference.27. Filings with the Court: The Government?s proposal for only the Defense") to ?le everydocument (other than strictly procedural in nature) under seal even if it does not containclassi?ed information is tmnecessary. It places an undue burden on the Defense because itrequires that the document be ?led in person or through secure email, even where it isabundantly clear that the document is not classi?ed.28. At paragraphs and (S) of its Protective Order, the Government seems to contemplatethat it will be the Defense security experts who will physically ?le the relevant motions. It is notclear why it must be the Defense experts who ?le the motions and not the Defense attorneys(given that, under the Government?s proposal, the Defense attorneys will be at Fort Meade).Hard copy delivery would be impossible in most cases, as the Defense security experts are notphysically located at Fort Meade, but rather in Washington D.C. And all of these measures areproposed to be in place in order to provide the Court Security O?icer with what everyone knowsis an unclassi?ed document.The Government is not placed tmderthe same burden as the Defense to ?le every document other that ?purelyadministrative rmtions, such as extersions of time or continuances? under seal. Se paragraph 3.0.729. At paragraph of its Protective Order, the Government indicates that all Defense?lings must be submitted to the Court Security Of?cer by midnight on the date of ?ling. Thereis also a corresponding provision for the Government at paragraph 3.0. Is the Governmentsuggesting the Court Security Of?cer stay in his of?ce until after midnight on the dates ofDefense and Government ?lings to order to receive the relevant information (whether by secureemail or by hand delivery)? If so, it is impossible to reconcile this requirement with theGovemment?s position that having Mr. Prather testify about his role in a preliminary hearing istoo onerous a requirement to place on him. See page 5 Prosecution Response to Defense Motionfor Appropriate Relief under Military Rule of Evidence 505.30. Moreover, the Govemment?s proposal for ex parte ?lings by the Defense at paragraphis laughable, as it contemplates the Government examining the potentially classi?edportion of the axpartc ?ling. The Government notes that if the Court Security Of?cerdetermines that the ex parte ?ling may contain classi?ed information, he must inform theDefense and Trial Counsel of that fact. The Defense must then provide a ?classi?ed informationsupplement? and turn that over to the Trial Counsel. Under the Govemment?s proposal, ?Thetrial counsel shall then consult with the appropriate agencies to determine whether thesupplement contains classi?ed infonnati on.? The Defense does not understand how the ex partenature of the ?ling is maintained if the Government has a role in reviewing the information inconjunction with the OCAs.31. Violation of the Protective Order: The Government states at paragraph 3.q. of its proposedProtective Order that:Any unauthorized disclosure or dissemination of classi?ed documents or informationconstitute violations of United States criminal laws. In addition, any violation of theterms of this Order shall be immediately brought to the attention of the Court and mayresult in a charge of contempt of the Court and possible referral for criminal prosecution.Any breach of this Order _rr_gy also result in the termination of a person's access toclassi?ed documents or information and a formal complaint to that person?s state barassociation.32. Apparently, the Government believes that by underlying the word this is somehowresponsive to the Defense?s and Court?s concerns about being subject to contempt proceedingsand disbarment in the event of unauthorized disclosure. The way the Government?s ProtectiveOrder is drafted, almost everything is deemed to be classi?ed. The potential for the Defense andfor the Court to violate the Government? Protective Order is not only real, but likely.33. The term ?may? does not explain any of the following: Who decides whether a Defense orCourt dis closure should be reported to bar association? Will the Government prosecute theDefense or Military Judge for disclosing classi?ed information? If so, under what standard?What if the information is not actually classi?ed, but simply deemed to be classi?ed (or, in thewords of the Government, ?treated as classi?ed?)? Does disclosing information that is ?treatedas classi?ed? but not actually classi?ed subject the Defense and the Court to criminal ordisciplinary sanction? Is there a distinction between intentional, negligent and accidentaldisclosure? Under what circumstances will a violation of the order result in a suspension ofsecurity clearances? Who decides whether the Defense?s or the Court?s security clearances willbe revoked?34. The point is that the Government has not provided any standard?much less a clearstandard?to govern the very real concerns of the Defense and the Court. Given the incrediblybroad nature of the Protective Order sought by the Government, the Defense is very concernedabout inadvertently disclosing ?classi?ed? information. Where the Defense is not permitted toreference any actually classi?ed information, information ?to be treated as classified? orinformation ?referring? or ?relating? to national securi or intelligence matters, the Defense willbe walking on eggshells for the next six months. The Defense does not wish to risk criminalsanctions and professional disciplinary proceedings because the Government wishes for anythingand everything to be deemed classi?ed. The whole purpose of the system put in place by theDefense?s motion is to immunize it (and the Court) from criminal and ethical sanctions so longas the appropriate protocols are followed. The Govemm ent?s Protective Order contains no suchlimitations.35. The Govemment?s Protective Order has the Defense wondering whether this is just a badjoke. The Defense cannot fathom how the Government could not see the failings of the system itproposes be in place to safeguard information which, while classi?ed, has been in the publicrealm for the past two years.B. Other Problematic Aspects of the Govemment?s Protective Order36. The Defense would also point to the following (non-exhaustive) list of issues with theGovemment?s Protective Order:0 -Under the Govemment?s Protective Order, there is virtually no role for the DefenseSecurity Experts. It seems that the Government envisages the Defense Security Expertsas merely facilitating and opining on logistics handling, storage). The Governmentstates at paragraph 3.f. that ?Detailed defense security experts are not authorized to makeindependent classi?cation determination, that is, whether information is classi?ed.? Asthe Defense has repeatedly stated, the Government is missing the boat. The Defenseexperts would not make an ?independent classi?cation determination??they wouldsimply advise whether the Defense is permitted to say/write something in light of existingOCA determinations. Incidentally, it is ironic that the Government is so opposed toDefense experts making an ?independent classi?cation determination? when that isexactly what the Government is doing through the ?treat as classi?ed" designation.0 The Government excludes from paragraph 3.i. of its Protective Order one attorney whohas been assigned to the Defense, CPT Joshua Tooman.0 The Defense opposes requesting approval of security clearances through the TrialCounsel as suggested at paragraph 3.i of its Protective Order. The Government does nothave any incentive to process such requests expeditiously, as demonstrated by priorhistory in this case. Instead, the Defense submits that the requests be processed throughthe Court Security Officer.•The Government's restrictions with paragraph 3.1.(6) do not account for the Defensespeaking with any of the OCAs either by deposition or by other pretrial interview.Additionally, this provision does not address situations where the Defense is interviewingunit witnesses, such as other intelligence analysts from PFC Manning's unit. Thesewitnesses have knowledge of classified and other information that is the subject of thiscase. Under the Government's Protective Order, the Defense would have to engage inadversarial litigation in order to have equal access to key witnesses.•The Government's restrictions on the accused's access to classified information inparagraph 3.m. of Protective Order are both unclear and unreasonable. The sectionindicates that "[i]f it becomes necessary for the accused to review or discuss classifiedmatters, or otherwise meet with defense counsel, then the trial counsel shall coordinatethis meeting. The defense counsel shall notify the trial counsel in writing, no less thanten calendar days in advance." It is unclear whether the Government's position is that forany meeting ("or otherwise meet with defense counsel"), the Defense counsel must pre­approve this request with the Government1 0 daysin advance. 11 The Defense assumesthat this cannot be what the Gov ernment intended, as it does not need the Government'spermission to visit the accused. As such, it must mean that if classified information is tobe discussed, the Government needs10 days to arrange the meeting.This is anunreasonable requirement. The Defense understands that there may be some logisticalconcerns with the confmement facility, but the Government does not need a week and ahalf to coordinate the accused's movement.C. Addressing the Government's Concerns with the Defense's Protective Order andAssociated Motions37. The Government goes to great lengths to explain why the Defense's Protective Order"contains countless legal and factual errors"/ "clerical errors" and why the Order "violates thespirit ofMRE 505(g)(l)." See Prosecution Response to Defense Motion for Appropriate ReliefUnder Military Rule of Evidence 505, page 2. There are no such errors. In reality, theGovernment simply does not like the Defense's order because it takes the power away from theGovernment and places it in the hands of a third party neutral.38. The Government says that a "major concern" is that the Defense is giving too much to theCourt Security Officer to do. "Requiring the CSO to absorb all of these tasks ... may causefuture delays, in addition to unnecessarily burden an expert upon whom the parties and the Courtrely heavily." See Prosecution Response to Defense Motion for Appropriate ReliefUnderMilitary Rule of Evidence11505, page2. The Government makes much ado about nothing. AllIt is not clear whether the Government believes that the Defense must disclose the content of the classifiedinformation as a precondition to the meeting. This issue has arisen in the past, and the Defense submitted aMemorandum on 18 September 2010 detailing its position. See Attachment C. To the extent that the proposedprovision can be read as requiring disclosure of the contents of the classified information, the Defense maintains thatUnited Statesv.Schmidt, 60 M.J. 1 (C.A.A.F.) precludes the Government from requiring such disclosure.10these tasks are not administratively ctmibersome. They involve veri?cation ofbadges/paperwork; being the liaison for any persons who, in ?xture, need security clearances(though there may be no such persons); making sure that Defense requests for equipment aresubmitted to the relevant entities, etc. In short, the Defense is asking that the Court SecurityOfficer be the intermediary on these issues. That the Government claims these responsibilitiesare too burdensome for Mr. Prather, while the Defense claims they are not, underscores why Mr.Prather needs to testify as a witness.39. The Government also with some semantic issues in the Defense?s Protective Order.See Prosecution Response to Defense Motion for Appropriate Relief Under Military Rule ofEvidence 505, page 3. In response to the speci?c items raised by the Government:i) The Defense is not clear on why the Government believes that it has ?improperlyde?ne[d] [the] scope? of the Protective Order.ii) The de?nition of ?defense? is not problematic, as other provisions that are morespeci?c refer to ?defense experts.? However, the Defense is happy to broaden thatprovision.The provision related to 505(h) is unobjectionable; the Government simply thinks itshould be contained in a different motion.iv) If the Government believes that the term ?Government Intelligence Employees? istoo narrowly de?ned, the Defense is happy to amend the list.v) The Defense has included restrictions on the accused?s access to classifieddiscovery. See Defense Protective Order, paragraph 3.n.(l 0).40. The minor nature of the Govemment?s complaints shows that the Defense?s Protective Orderis virtually unobjectionable. This is not surprising given that the Defense has prsented a logical,ef?cient, and common sense way of proceeding in this case (also essentially the same orderoriginally used in the Diaz case). Indeed, it was ?in light of these concems??concems whichthe Defense just addressed in the two preceding paragraphs?that the Government asked theCourt to deny the Defense?s Protective Order. If these are indeed the Govemment?s concernswith the Defense Protective Order, these concems are very easily addressed.41. The Government asks that the Court deny the Defense request for the production of theOCA. After a and repetitive history of the OCA process, the Government argues in oneparagraph why the Defense?s request should be denied:In sum, the Defense has failed to articulate why the anticipated testimony of thereferenced OCA is ?relevant and necessary.? The witnesses? anticipated testimony,speci?cally to ?obtain clari?cation regarding the scope of its classi?cationdetennination on referencing the OCA within court ?lings and open court? is ?notrelevant and necessary? but instead simply rguested to assist the Defense in safeguarding classi?ed information. (citations omitted, emphasis added).See Prosecution Response to Defense Motion for Appropriate Relief Under Military Rule ofEvidence 505, page 5.1142. The Defense fully ?admits? that the OCA is requested to assist the Defense (and the Court)in safeguarding classi?ed information. The Defense is puzzled at why this means that the OCAis not ?relevant and necessary.? Ifthere is an OCA that could clarify what the Defense (and theCourt) can say and cannot say, how is that not ?relevant and necessary? in a proceeding todetermine how to protect infomiation? The Government inexplicably puts a nefarious spin onthe Defense requesting guidance on how to safeguard classi?ed information.43. Ultimately, the goal is to protect classi?ed information. In order to do so, the Defense andCourt must know what they can say or write without disclosing classi?ed information. In thiscase, there is an added complication in that the Government (and apparently the OCA) believesthat something can be ?classi?ed by inference.? Accepting that to be true for the moment, thenthe Defense and Court must know what combination of otherwise unclassi?ed informationamounts to an impermissible disclosure of ?classi?ed by inference? information. The OCA caneasily provide that guidance, likely in a 15 minute closed session. That way, all parties willknow where they stand and the there is no need for the ?treated as classi?ed? list that theGovernment has proposed. We will actually be treating as classi?ed that information which isactually classi?ed.CONCI 44. Based on the above, and its prior submissions, the Defense requests that the Court reject theGovernment?s Protective Order in its entirety. It also renews its request for the Court to adoptthe Defense?s Protective Order as outlined herein.Respectfully submitted,DAVID EDWARD COOMBSCivilian Defense Counsel12


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