UNCLASSIFIEDIIFOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL J UDICIARY GUA NTANAMO BA Y, CUBA UNITED STATES OF AMERICA AE009 Government's Response To Defense Mot ion To End Presumptive Classificat ion 2 May 20 12 v. KHALID SHAIKH MOHAMMAD, WALID M UHAMMAD SALIH M UBARAK BIN ATTASH, RAM ZI BINALSHIBH, ALI ABDUL AZIZ ALI, M USTAFA AHMED ADAM AL HAWSAWI 1. Timeliness. Th is response is fil ed time ly pursuant to Mili tary Commiss ions Trial Judic iary Rul e of Court 3.7.c( I). 2. Relief Sought. The governme nt respectfu ll y requests that the Commiss ion deny the defense's mot ion cha ll engin g th e presumpt ive-cl ass ificat ion process used to protect properl y cl assified infonnat ion from di sclosure. 3. Overview. This case in volves c lass ifi ed in format ion that deals with in telli gence sources and methoos by which th e Uni ted States defends itself again st intern ati onal terrori st organizat ions, includin g a1 Qaeda and its affili ates,l Each of the accuse d is in the unique pos ition of hav ing had access to cl ass ifi ed in telli gence sou rces and methods. The govern ment, like the defense, must protect that cl ass ifi ed in fonnat ion from d isc losure, I In support of this motion, the Government respectfully requests that the Commission consider the Central Intelligence Agency ('"CIA") Declaration filed in support of the Government's Motion for a Protective Order for Classified Material , which invokes the classified information privilege and explains how disclosure of the classified information at issue would be detrimental to national security. See AE 13. This document has been renumbered to AEOO9A effective 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ". ) Page 1 of 15 UNCLASSIFIEDIIFOR PUBLIC RELEASE To that end, the government uses a process whereby statements of the accused are treated as class ifi ed until an Ori ginal Class ificat ion Authority ("OCA") conducts a class ificat ion review. The OCA neither class ifi es nor declass ifies any statements of the accused during the class ificat ion review. Instead , the OCA reviews the statements to determine what statements are class ifi ed, if any, and that determination is based on prev iously establi shed gu idelines . The process, wh ich infonna ll y has been tenned presumpt ive classificat ion, simply is the control mechani sm used to protect from disclosure the c lass ifi ed informat ion to wh ich the accused is pr ivy. Contrary to the defense's assert ion that the government seeks to "prevent or delay the release of infoI111at ion that does not require protect ion in the interest of nat ional security" (AE 009, p. 15), the government' s purpose in using the presumpt ive-c lass ificat ion process is quite the opposite . The government seeks to prevent the release of classifi ed infoI111ation that requires protect ion in the in terest of national security, wh il e ensuring manageable handling procedures that enab le the accused and cou nsel access to ev id ence that is material to the preparat ion of the defense in the least burdensome manner. The derense mischaracterizes the government's efforts to protect class ifi ed informat ion as " institutionaliz[ing] the pract ice of cla ss ify ing unclassifi ed but potentiall y embarrass in g infoI111at ion. " AE 009, p. 2. Th is simply is not true. To be clear, the govern ment doe s not classify unclassifi ed informat ion. The defen se's argument is prem ised o n the termin ology used by the govern ment, i. e.: presumptive class ificat ion, suggesting that the terminology illu strates the govern ment's purported attempt to create a new category of classifi ed informat ion that has no bas is in law. The government, however, did not create a new category of classifi ed informat ion. The govern me nt merely uses a process to id entify what fact s w ith in the accused's statements are c lass ifi ed and , after identify ing the cl assifi ed portions, the government sepa rates the uncl ass ifi ed This document has been renumbered to AEOO9A ellecti~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ,,.) Page2o/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE infonnat ion in order to mini mize that wh ich must be protected from disclosu re. Stated differently, the government' s use of the presumpt ive-class ificat ion process all ows it to maximize the release of unclass ified in format ion "born " contemporaneously w ith class ified in format ion. Accord in gly, the Comm ission should deny the defen se's motion to end the governme nt's presumpt ion-classif icat ion process used to protect classif ied informat ion from di sclosure. 4. Burden of proof. As the mov ing party, the defense must demonstrate by a prepondera nce of the evidence that the reque sted relief is warranted . R.M.C .905(c)( J)-(2). 5. Facts. On 3 1 May 20 11 and 26 January 20 12, pursuant to the M ili tary Comm iss ions Act of 2009, charges related to the II September 200 1 terror ist attacks were sworn against Khalid She ikh Mohammad, Walid Muhammad Salih Bin Attash, Ramzi Binalshibh , A li Abdu l Az iz Ali , and Mustafa Ahmed Adam al Hawsaw i (coll ect ively referred to as the "accused") . These charges were referred jointl y to this cap ital M ili tary Commiss ion on 4 Apr il 20 12. The accused are charged w ith Conspiracy, Attackin g Civ ilians, Attack ing C ivili an Objects, In tentionall y Caus in g Serious Bodily Injury, Murder in Violat ion of the Law of War, Destruct ion of Property in V io lat ion of the Law of War, Hijacking an A ircraft, and Terror ism. On II September 200 1, a group of al Qaeda operat ives hijacked four c ivili an airliners in the Uni ted States. After the hijackers killed or incapac itated the a irline pil ots, a pil ot-h ijacker deliberately slanuned American A irlin es Fli ght II in to the North Tower of the World Trade Center in New York , New York. A second pil ot-h ijacker intentionall y flew Uni ted A irlines Fl ight 175 in to the South Tower of the World Trade Ce nter. Both towers coll apsed soon thereafter. Hij ackers also deliberately slammed a third airliner, Amer ican Airlines Fli ght 77, in to the Pentagon in Northern V irg ini a. A fourth hijacked a irliner, Uni ted A irlin es Fli ght 93 , crashed This document has been renumbered to AEOO9A ellecti~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ,,.) Page30/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE in to a field in Shanksv ille, Pennsylvani a, after passengers and crew resisted the hijackers and fou ght to reclaim contro l of the aircraft. A total of 2,976 people were murdered as a resu lt of a1 Qaeda's II September 200 1 attacks on the Un ited States. Numerou s other c ivili ans and military personn el also were injured. The a1 Qaeda leadersh ip pra ised the attacks, vow ing that the Uni ted States wou ld not "enjoy secu rity" until a1 Qaeda's demands were met. The Uni ted States Congress responded on 18 September 200 1 with an Authorizat ion for Use of Mili tary Force. In response to the terrori st attacks on II September 200 I, the Un ited States in stituted a program run by the C IA to detain and interrogate a number of known or suspected hi gh-value terrorists, or "hi gh-valu e detainees" ("HVDs") . Th is CIA program involves informat ion that is class ifi ed TOP SECRET I SENS ITIVE COMPARTMENTED INFORMATION (TS/SC I) , the di sclosure of wh ich would cause except ionall y grave damage to nat ional secu rity. The accused are HVDs and , as such, they were part ic ipants in the CIA program. Because the accused were part ic ipants in the CIA program, they were exposed to class ifi ed sou rce s, methods, and act ivities. Due to their exposure to class ifi ed informat ion, the accused are in a positi on to disclose classifi ed informat ion public ly through the ir statements . Consequently, any and all statements by the accused are presumpt ively c lass ifi ed until a class ificat ion review can be completed. On 6 September 2006, Pres ident George W. Bush offic iall y acknow ledged the ex istence of the CIA program and he ann ou nced that a group of HVDs had been transferred by the CIA to Department of Defense ("DoD") custody at Joint Task Force - Guantanamo (JTF-GTMO). See Pres ident George W. Bush, President Discusses Creatiol1 of Milita ry Commissions to Try Suspected Terrorists, Remarks from the East Room of the White House, Sep. 6, 2006, available at http://georgewbush-wh itehouse.arch ives.gov/news/re leasesl2006/09120060906-3 .html. The This document has been renumbered to AEOO9A ellectiv& 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ,,.) Page4o/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE five accused were among the group of HVDs transferred to ODD custody , and they have remain ed in detention at ITF-GTMO s ince that time. Since 6 September 2006, a li mited amount of infonnation relat in g to the CIA program has been decl ass ifi ed and offic iall y acknowledged, often directly by the Presid ent. Th is informat ion includes a general description of the program; description s of the various "enhanced in terrogat ion techniques" that were approved for use in the program; the fact that the so-ca ll ed "waterboard" technique was used on three detain ees; and the fact that infonnat ion learned from HVDs in th is program helped identify and locate a1 Qaeda members and di srupt planned terrorist attacks . See id.; see also CIA In spector General, Special Review: COllnterte rrorism Detentiol1 and IlIferrogatiol1 Activities (September 2001 - October 2003), May 7, 2004, available at http://medi a.wash ingtonpos t .com/wp- srv/n a t ionl docu men ts/c ia_report. pdf. Other informat ion related to the CIA program has not been declassifi ed or offic iall y acknowled ged , and , therefore, such informat ion remains class ifi ed. Th is class ifi ed informat ion includ es all egat ions in vo lvin g (i) the locat ion of detention fac ili ties, (i i) the identity of cooperat ing forei gn govern ments, (i ii ) the id entity of personnel in volved in the capture, detention , transfer, or interrogat ion of deta inees, (iv) interrogation techniques as appli ed to spec ific detain ees, and (v) conditi ons of conf inement. The di sclosure of thi s cl ass ifi ed infonnation would case except ionall y grave damage to nat ional security. 6. Law and Argument. I. The determination whether to classify information is committed solely to the Executive Branch. The determination whether to class ify informat ion, and the proper cl ass ificat ion thereof, is a matter committed solely to the Executi ve Branch. See, e.g., Dep't of Navy v. Egan, 484 U.S . 5 18,527 ( 1988)("The authority to protect suc h in fonnat ion fall s on the Pres id ent as head of the This document has been renumbered to AEOO9A ellecti~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ,,.) Page50/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE Execut ive Branch and as Commander in Chief."). The Supreme Court has recognized thi s broad deference to the Execut ive Branch in matters of nat ional security, holding that, " it is the responsibili ty of the Director of Central1ntelli ge nce, not that of the judic iary, to we igh the variety of subtle and complex factors in detennining whether di sclosu re of informat ion may lead to an unacceptable ri sk of compromisin g the Agency's intelli gence-gathering process." CIA v. Sims ,47 1 U.S . 159, 180 ( 1985). The Commission should not conduct a de /lOVO review of the government' s deci sion to class ify infonnat ion, nor should it review the cla ss ificat ion level ass igned to infonnation by the government. See, e.g., M ili tary Commission Rule of Ev idence 505(f), Di scussion (stat in g the mili tary judge simply should determine "that the materi al in quest ion has been c lass ifi ed by the proper authorities in accordance w ith appropri ate regul at ions."). Whil e ac knowledgin g the fund amental role that courts serve in ensuring that the ri ghts of defend ants are protected and that procedures are fair, courts consistently have recogni zed the princ iple that neither an accuse d nor the courts can chall enge the cl ass ificat ion of infoI111ation. See, e.g., United States v. Smith , 750 F.2d 12 15, 12 17 (4th C ir. 1984) , vacated 0/1 other grounds, 780 F.2d 1102 (4 th C ir. 1985)(en banc)("lt is apparent, therefore , that the Government [] may determine what informat ion is c lass ifi ed . A defend ant cann ot chall enge this c lass ificat ion. A court cannot quest ion it."); see also, United States v. Are/, 2007 WL 6035 10, at * 1-4 (N D .N .Y . Feb. 22, 2007), affd, 533 F.3d 72 (2d C ir. 2008)(the Cou rt 's function in a CIPA case is not to hold mini -trials in wh ich the Judic iary-not the Executive Branch-becomes the arbiter of th is Country's national security.); United States v. Moussaoui , 65 Fed. Appx. 88 1, 887, n. 5 (4th Or. 2(03). The law is clear: the defen se may not chall enge the government's deci sion to cl ass ify informat ion. This document has been renumbered to AEOO9A ellecti..% 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ,,. ) Page60/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE Simpl y, the gove rnment has a "compellin g in terest" in withholding national security infonnat ion from unauthorized persons in the course of execut ive bus iness. Dep', of Navy v. Egan, 484 U.S . at 527 .. See also, SlIepp v. United States, 444 U.S . 507, 509, n.3 ( 1980); United Statesv. Reynolds, 345 U.S . 1, 10 (1953); Tottell P. United States, 92 U.S. 105, 106 (1876). The Supreme Court has repeatedly stressed that courts should be "especiall y reluctant to intrude upon the authority of the Execut ive in ... nat ional security a ffairs." Egan, 484 U.S . at 530; see also, CIA v. Sims, 47 1 U.S . 159, 168- 169 ( 1985)(the Director of Central Intelli gence has broad authority to protect all sources of intelli gence informat ion from di sclosu re); Haig v. Agee, 453 U.S. 280, 307 ( 1981) (protecting the sec recy of the U.S . Government's fore ign in te lli gence operat ions is a compelling interest) . Here, the Execut ive Branch cl assifi ed certa in infoI111at ion in accordance with appropriate regu lat ions. The defense may not chall enge the Execut ive Branch's deteI111ination that certa in infonnat ion is classifi ed, nor may it chall enge the cl assificat ion level assigned to that infoI111ation. ll. The CIA properly classified the statements of the accused. In accordance with sect ion 1. 3(a)(2) of Execut ive Order 13526, the Pres id ent has designated the Director of the CIA as an offic ial who may cl ass ify informat ion origin all y as TOP SECRET. Class ificat ion determin at ions are not restricted to written mater ial and spec ificall y may include any knowled ge that can be communicated, regardless of its phys ical fonn. Exec. Order No . 13526 ?6.1 (t) . In this case, pursua nt to Sect ion 1.3(c) of Execut ive Order 13526, the Director of the CIA has dele gated that authority to an OCA with in the CIA . Because the accused have bee n exposed to hi ghly class ifi ed sources and methods, the public di sc losure of wh ich reasonably could be expected to cause except ionall y grave damage to This document has been renumbered to AEOO9A ellectiv~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ". ) Page7o/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE the nat ional security, the OCA properly decided that statements of the accused must be handled in a classifi ed mann er-thus the term presumpt ive ly class ifi ed-until an OCA conducts a class ification review to determine what in format ion conta in ed w ith in the stateme nts are in fact class ifi ed . When conduct ing the classificat ion review, the OCA does not class ify or declassify the statements; rather, the DCA reviews the statements for classif ied in fonnat ion based upon prev iously establi shed gu idelin es .2 S imply, the presumpt ive-classificat ion process is the means by which the government protects classifi ed informat ion uttered by the accused contemporaneously w ith uncl ass ifi ed information . Here, an OCA has determined that the accused are in possess ion of c lass ifi ed material that fall s w ithin one of the e ight substantive categories of material pursuant to Sect ion 1.4 and meets the condi tions set forth in Sect ion 1. 1(a) .3 Th is detennination provid es a mea ns to restrict 2 The CIA was chartered to coordinate intelligence activities relating to national security. See, e.g., H.R Rep. No. 961, 80'b Cong., I" Sess., 3 (1947); S. Rep. No. 239 80'b Con g., I" Sess. , I (1947). Under the direction of the Director of National Intelligence pursuant to Section I02A of the National Security Act of 1947. as amended, and consistent with section 1.6(d) of Executive Order 12333, the CIA is authorized to protect CIA sources and methods from unauthorized disclosure. 3 Executive Order 13526 is the current presidential order governing the classification of national security information. Section I. I (a) provides that information may be originally classified under the terms of the Order only if the following conditions are met: (I) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage. Section 1.4 of Executive Order 13526 requires that for information to be considered for classification , it must concern one of the eight substantive categories, which include: foreign government information; intelligence activities (including covert action), intelligence sources and methoos, or cryptology; and foreign relations or foreign activities of the United States, including confidential sources. Pursuant to Section 1.2 of Executive Order 13526, information may be classified as TOP SECRET, SECRET, OR CONFIDENTIAL based on the severity to the This document has been renumbered to AEOO9A ellecti~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ,,. ) Page80/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE the unauthorized d isclosu re of classifi ed in format ion that could cause except ionall y grave damage to the nat iona l security from an indi vid ual accused who does not hold a security clearance and who owes no duty of loyalty to the United States. W ithout a process to protect class ifi ed in fonnat ion that may be conta ined withj n the statements of the accused, the government would be in the unenviable pos ition of havin g to predict the accused's possible future behavior knowing that the ir interests are clearly inconsiste nt with the interests of the national secu rity. Indeed, if the statements of the accused were not presumed classifi ed, there would be no measure in place to protect again st the improper di sclosu re of c lass ifi ed in format ion. The defense's pos iti on would place the government in a Hobson's choice: the government either wou ld have to accept the ri sk of an accused improperl y di sclosin g classifi ed infonnat ion, thus jeopardiz in g the national secu rity of the Uni ted States, or the gove rnment cou ld decide not to prosecute the accused . Such a choice is tantamou nt to graymail- the very problem that Congress sought to eli minate when enact ing the Class ifi ed In formation Procedures Act ("CIPA,,).4 The presumpt ive-class ificat ion process used by the gove rnment is the least burdensome procedure that can be used to protect cl ass ifi ed informat ion wh il e not li mitin g the ri ghts of the accused or intrud ing into the attorney-cl ient relationship. 5 damage to the national security reasonably expected to result from the unauthorized disclosure of information. lllUS, if an unauthorized disclosure of information reasonably could be expected to cause damage to the national security , that information may be classified as CONFIDENTIAL. If an unauthorized disclosure of information reasonably could be expected to cause .~erious damage to the national security, that information may be classified as SECRET. Finally, if an unauthorized disclosure of information reasonably could be expected to cause exceptionally grave damage to the national security , that information may be classified as TOP SECRET. 4 Graymail is the practice of threatening the disclosure of classified information in order to force the govenlTllent to refrain from proceeding with a case. S. Rep. No. 96-823, at 2-5 (1980). s Section 1.8 of Executive Order 13526 encourages authorized holders of classified information to challenge the classification status in accordance with established agency procedures, if in good faith, they believe that the classification status is improper. This document has been renumbered to AEOO9A ellecti~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS ~pel." E'hibilOO9B (K8M., ,,. ) Page90/15 UNCLASSIFIEDIIFOR PUBLIC RELEASE ITI. Presumptive classification does not violate the First Amendment rights of government employees and contractors. The defen se correctly recogni zed that "[t]here is no First Amend ment ri ght to reveal properl y c lass ifi ed infonnat ion. " AE 009, p. 22 . See, e.g. , Stillman v. C. I.A. , 3 19 F.3d 546, 548 (D,c. C ir. 2003) (" If the Government c lass ifi ed the informat ion properl y, then [appell ant] simply has no first ame ndment ri ght to publi sh it."); see also, Sl1epp v. United States, 444 U.S . 507, 5 10 n. 3 ( 1980) ("The Govern ment has a compelling in terest in protect in g both the secrecy of in format ion important to our nat ional secu rity and the appearance of confidentiali ty so essenti al to the effect ive operat ion of our forei gn inte lligence service. "); see also, ACLU v. DOD, 584 F.Supp. 2d 19,25 (D.D.C. 2008)("There is obviously no First Amend ment ri ght to receive cl ass ifi ed in format ion. ") Nevertheless , the defen se cl aims that the government is violat in g its First Amendment ri ghts by usin g a presumpt ive-classificat ion process designed to protect class ifi ed in format ion from di sc losure. The defense ' s c la im has no merit. The defen se's legal analys is is misplace d, as it relies on in app licable case law where courts have fou nd that the government may not use prepublicat ion review s to prevent federa l employees from revealing uncl ass ifi ed informat ion. Here, the government is not prevent ing the defen se from revealin g uncl assifi ed informat ion. The OCA made a determination pursuant to the applicable Execut ive Order that certa in informat ion in the possess ion of the accused is c lass ifi ed, and where the accuse d reveals that infonnat ion, there must be protect ions in place to prevent its improper di sc losure. See, e.g., Al Odah v. United States, 346 F.Supp. 2d 1, 8- 14 (D.D. C. 2(04) (court determined that the government' s nat ional secu rity concerns were legitimate and , therefore, the defen se was required to have a security clearance and to treat all informat ion obta ined durin g the course of the ir representat ion as cl ass ifi ed until a cl ass ificat ion review was conducted). This document has been renumbered to AEOO9A ellec1iJP 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS~ pel." E'hibilOO9B (K8M., ,,.) Page 1001 15 UNCLASSIFIEDIIFOR PUBLIC RELEASE IV. The defense ha s been provided with a mechanism to seek classification guidance. The defense requests that the Convening Author ity authorize a mechani sm for a class ification review w ithout the defense wa iv ing the ir attorney-client privil ege. Such a process already has been suggested by the government in its proposed Protect ive Order # 1 and , as such, there is no reason to cons ider whether the Convenin g Authority has the authority to provid e the relief requested by the defense . Spec ifica lly, the government' s proposed order prov ides: (I) a Commission Secur ity Officer (CSO) to be appo inted by the Commiss ion for the purpose of providin g security arrangements necessary to protect against unauthorized disclosure of any cl ass ifi ed documents or in formation in connect ion w ith th is case; (2) the part ies shall seek guidance from the CSO w ith rega rd to the appropri ate storage, handling, and use of class ifi ed informat ion ; (3) the CS O shall consu lt w ith the OCA of classif ied documents or infonnat ion, as necessary, to address cl ass ificat ion deci s ions or other rel ated issues; (4) the CSO shall not reveal to a ny person, including the government, the content of any conversat ions the CSO hears by or among the defense, nor may it reveal the natu re of the documen ts be in g reviewed by the defen se or the work generated by the defen se, except as necessary to report v iolat ions of the Protect ive Order to the Commiss ion after appropri ate consultation w ith the defen se or to carry out other duties pursuant to the Protect ive Order; and (5) the prese nce of the CSO shall not operate as a waiver of any applicable priv il ege under the M ili tary Commiss ions Act of 2009, 10 U.s.c. ? 948a, et seq. (M .c.A.), the Rules for M ili tary Commission ("R.M .C."), or the M ili tary Commiss ion Rules of Evidence ("M il. Comm . R. Evid ."). The procedures outlin ed in the government' s proposed Protect ive Order # I would all ow the defen se to have an OCA separate the class ifi ed and uncl ass ifi ed in fonnat ion uttered by the This document has been renumbered to AEOO9A ellec1iJJ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS~ pel." E'hibilOO9B (K8M., ,,.) Page 11 of 15 UNCLASSIFIEDIIFOR PUBLIC RELEASE accused, thus prov idin g the defen se w ith a quick and confidentia l determination of which statements offered by the accused are in fact c1a ss ifi ed. 6 Th is procedure has been employed in military -commiss ion cases since 2008 , and it is be in g used in other act ive mili tary-commiss ion cases. S imply, the process prov ides the defen se w ith the appropriate class ificat ion level for defense-generated mater ia l wh il e simultaneously reducing the ri sk of inadvertent and unauthorized disclosures of classifi ed material. V. The presumptive-classif1cation process is the least intrusive means by which the parties can protect classified information from improper disclosure. The defense in th is case is granted access to the accused onl y after it obta ins a TSISC I security clearance and signs a Memorand um of Und erstanding (MOU) acknowledgin g its duties and responsib ili ties w ith re spect to the handlin g of class ifi ed in fonnat ion. The defen se has the same responsib ili ty as the government to ensure that neither party improperl y di scloses class ifi ed in formation, informat ion reasonab ly beli eved to be class ifi ed, or in fonnat ion that either party should know is cl ass ifi ed. As it stands, the defense has the option to receive informat ion from the accused and, if it so desires, the defen se may submit the informat ion to the designated OCA for a c lass ificat ion review . If the defen se decides not to submit the informat ion to the OCA, the defense is required to handle the informat ion received from the accused in a cl ass ifi ed manner. The reason for th is is simp le: when the accused speaks, both cl assifi ed and uncl assifi ed infonnat ion is "born " . Onl y the OCA ca n separate the class ifi ed informat ion from the uncl assifi ed infonnation whil e also preserving the attorne y-client privil ege over that informat ion. 6 In consultation s with the defense about classification issues, the OCAs agree not to disclose the information provided to them unless the information possesses a current threat to loss of li fe or presents an immediate safety issue in the detention facility. Despite several years of this practice in the habeas litigation and in commission cases, the defense cites no instance where an OCA provided government counsel with privileged information. This document has been renumbered to AEOO9A e"ectiJ~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS~ pel." E'hibilOO9B (K8M., ,,. ) Page 120/ 15 UNCLASSIFIEDIIFOR PUBLIC RELEASE Alth ough the defense all eges that the presumpt ive-classificat ion process burdens the attorney-cl ient relationship, the most expeditious mann er and least intrus ive way to protect class ifi ed informat ion wh il e also respecting the attorney-cl ient relationship is the process in place. The alternat ive- having an OCA monitor the conversat ions betwee n the accused and cou nsel so that the DCA can prov ide a contemporaneous class ification review- is far more in trusive and burdensome. Ind eed , in that in stance, the accused would have to accept the presence of the OCA at the ir attorney-cli ent meetin gs, the defen se wou ld lose the flexibility to decide what infonnation to provid e the OCA for class ificat ion review, and the defen se would need to schedule meetings with the accused based in part on the OCA's schedule. Simp ly, there can be no doubt that hav ing the OCA prese nt during each attorney-cl ient meet in g is far more in trusive than all ow in g the defen se to decide what infoI111at ion it wishes the OCA to review for class ification purposes. 7. Conclusion. The Comm iss ion should deny the defense's mot ion to end the presumptive-class ificat ion process used by the gove rnment to protect properl y classifi ed informat ion. The process is not used to classify uncl assified infoI111at ion. In stead, the government uses the process to ident ify what port ions of the accused's statements are class ifi ed and, after identify in g the class ifi ed port ions, the govern ment separates the uncl ass ifi ed informat ion in order to mini mize that wh ich must be protected by law from di sclosu re . Accord ingly, the Commiss ion should deny the defense's motion. 8. Oral Argument. The government respectfu ll y requests that the Commiss ion consider and rule on the defense reque st in an exped ited mann er. The government is willing to wa ive oral argument This document has been renumbered to AEOO9A ellec1iJ.l 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS~ pel." E'hibil OO9B (K8M., ,,.) Page 1301 15 UNCLASSIFIEDIIFOR PUBLIC RELEASE should the Commiss ion decide to rule on the plead in gs; however, if the defense has an opportuni ty to present oral argument, the government reque sts an opportu ni ty to be heard. The government further requests that oral argument be heard on 5 May 20 12. 9. Witnesses and Evidence. The government w ill not rely on any w itnesses or evid ence in support of th is mot ion. 10. Attachments. A. Cert ificate of Serv ice dated 2 May 20 12. Respectfu lly submitted , Ilsll Joann a Baltes Deputy Trial Cou nsel Mark Mart ins Ch ief Prosecutor Office of the Ch ief Prosecutor Office of M ili tary Commissions 1610 Defen se Pentagon Washin gton, D.C. 2030 1 This document has been renumbered to AEOO9A ellec1iJIi 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS~ pel." E'hibilOO9B (K8M., ,,. ) Page 1401 15 UNCLASSIFIEDIIFOR PUBLIC RELEASE CERTIFICATE OF SERVICE I certify that on the 2nd day of May 20 12, I tiled AE 009, the Gove rnment's Response to Defense Motion To End Presumpt ive Class ificat ion with the Office of Mili tary Comm iss ions Trial Judic iary and 1 served a copy on counsel of record. IIsll Joann a Baltes Deputy Trial Cou nsel Office of the Ch ief Prosecutor Office of Mili tary Commissions This document has been renumbered to AEOO9A e"ectiJ~ 5 May 2012. Filed with TJ 3 May 2{)12 UNCLASSIFIEDIIFOR PUBLIC RELEAS~ pel." E'hibilOO9B (K8 M., ,,.) Page 150/ 15