AE 18 Supplement to prosecution motion for protective order.pdf

7/28/2019 AE 18 Supplement to prosecution motion for protective order.pdf

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UNITD SAS O AERCA

v.

anng, Bradley .PC, U.S. Amy,HHC, U.S. Amy Garrson,Joint Base ye-Hederso Hall ot er, Vinia 22211

)) Supplement to

)) Prosectin ti fr Prtective Order

))

) 8 arch 2012

)

RLI SOUGHT

he United States in te above case requess hat h Cour adop he enclosed Protective Order, Supplement to the Ptective Order Goveng Classied Information, d selecprocedures for closing the courrom

URDN O PRSUASION AND BURDN O PROO

Te burden of proof on y factual issue the resoluion o which is necessy o decide a moion shall be by preponderance of the evidence. See Mual for oursMial, United States, C.M. 905(c)1) (008). The burden of persuasion on y factual issue the resolution of wich is necessy to decide a motion shall be on he moving pty. See RC.M. 905(c)().Although the defense is te original moving py, the United States is the appropriate moving party for a protective order for classied inormation. See Mual for CoursMaial, nited Staes, Mil R Evid. 505(g)(1).

ACTS

e nited States ncoorates tose acs containe in Posecio Motio o a Protecive Order.

Based on he volume of classied information, which spans more th ten differentOriginal Classication Authoriies (OAs), d he complexities volved ih deermg whether certain information is or is not classied, te United States as endeavored t develo a process that will facilitate d expedite te lng process wt minimizing the conce ha a spillage may occur by any pty or te Cour. See Enclosure 1 (providing ust a small samplg o classied information that might otherwise seem unclassied, but as been determned to be classied by he appropriate OCs ).

On 1 Mch 2012, he Unied States requested tat ''the defense security consultans be gred access to Secret Inteet Proocol Rouer ework (SIPE) for te limited purpose of communicatg, on bealf of te defense team, wit te mlty dge, cour information security ocer, d the prosecuon. Enclosure .

On March 01, the epy Cief of Sta for Intelligence approved the above requestSee id.

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WITNSSS/VDNC

Te United States does not request y itnesses be produced for tis response. Te United States respectlly requests tat te Co consider te followng enclosures to tis response:

1 Evidence Classication Examples, 8 Marc 0. Request d Approval for Limited efense Access to SIPET, 1- Mrc 013 Prtective Order (w/ Encl)4 Supplement to te Ptective Order Goveg Classied Information, 8 Mc 015. Script for Initia Closure eing 6 Close Courrom Battle rill 7. Baili Script for Closed Sessions

LGAL AUTHORTY AND ARGUNT

Te United States relies upon te legal autority d agument advanced in Prosecution otion for a Protecive Order.

T UNITD STATS RQUSTS THA TH COURT ADOPT A

SUPPLNT TO T ROTCTV ORDR OR TH ICINT,YT CAUTOUS, HANDLNG AND STORG O ORATON.

In addition to te enclosed Protective Order, te nited States pposes tat te Cour implement a Supplement to te Prtective Order Goveing Classied nformation (ereinaer Supplement) for ceain facts ad categories of information, wic will ensue tat all pies d te Cour e dling and storing classied information in a manner consistent wit ter makings, classication reviews, d te protective order, witout requiring OCAs directinvlvement each time a substtive ling, comunication, d other administrative decision is made. See Enclosur 3-4

Tis Supplement would require te pies, ter security expers, d umately te cour security ocer, to mk any substtive ling containing information listed on te Supplementwit te given classication level. or examle Assume te Supplement requires tat "act A" d any associated relationsip wit "act A" be treated as " SECRET//ORCON/OO. f during te ling process, as outlined te protective order, te defense security expers or te cour secity ocer discover "act A" or a reference to "act A, ten te expert /or cour security ocer will mk the ente document " reat as SECRET//ORCON/OO " and tis document will be stored d andled as i it was classied " SECRET/ORCON/OO" witout requiring y unneeded dela by aving te cour security ocer contact OCA for a classication decision.

If a topic ises tat is not covered by te Supplement, ten te defense securiy experts will noti te cour security ocer of te potential for additional classied information tat is not covered by te current Supplement. In abundance o caution, te information will be tentatively treated as classied at te apprpriate level, in order to not inder any ling process.



Te cour security ocer will then coordnate toug te trial counsel wit te appropriate CA or teir elegate for a eenation weter tis information soul be treate as classied he psecution will simply act as the conuit for ecent communications between te co security ocer d te C or te delegate, d will not me ny classication deteinations based on the presnted information

nder te proposed Supplement, if te defense intends to use nformation tha is mked classied or treated as classied pursuant to tis Supplement, ten tey will be requred to give notice uner MRE 505(), upon wic te prsecution will initiate te pceures under MRE 05() Ifte prosecuton intends to use information tat is mked classied or treated as classie pursuant to tis Supplement, ten te prosecution will coordinate wit te CA in a manner consistent wit its ongog processes ssuming CAs provide use approva, ten the prosecution will obtan classication reviews whic sould suce to pvide te Cour with a factual background to me te appropriate dings to close te Cour under RCM 806(b )(2)d Grnden See nited States v Grnden, 2 MJ 116, 121 (CM 97)

Additionally, under te proposed Supplement, te Cour will self-impose limitations on wat iformation sould be considered classied fr its own documets d orders Te cour security ocer will be able to use te Supplement as te stdrd to ensure te Co does nothave accidental disclosures of classied infomation

Te Supplement will elimate te need to ave te prosecution or our security ocer drectly coordinate wit dierent OCs for eac ling r durng an Arcle 9(a) session (if uintended discussions occur) because al pries will be on notice as to wat normation sould be treated as classied dditionally, this pocess will allow te pies to le the motions and other substtive documents, pursut to te protective order, witout requirng te cour security ocer or y oter individual to corinate wit OCA for eac ling and eac time issue ises for classication Te cour securit ocer will be able to review docments ollowing te Supplement d mae detenations, not based on wat information is actually classied, ich requres C eterinations, but rather err on te side of caution nd not slow the judicial process

ased on put om relevant Cs d upon motion by te govement, tis Supplement c be updated as new information is introdced durng te juicial process

II: THE UNITED STATES EQUSTS THAT THE COURT

PROSPCTIVELY ADOT PROCDRES FOR CLOSING THECUROOM UNDER GUNDEN.

Te nited States ticipates tat cerain porions of evidentiay motions engs and the trial, picully tose focused on classied evidence, will cause bot paies to ove the Cour to conduct a closed session or puposes of ting classied evidence Te nied States ticipates wo tes of closed session - planned and unplanned closures



Te United States oers te underlying poceres for lanned closures of te courom

Te United States respecty reqests tat te Cou adopt te pcedures tat follow o lanned closes of te courroom Imedately prior to litigatng classied evidentiy

motions at the desgnated icle 39(a) session or durng te Grnden heing sceduled on the cour clend te nited States d deense mst le motions to reqest te Cou to conduct a Gnden eing under CM 806b)(2) d provide te adeqate basis for a cour closre The puose of tis request is to moion the Co to eview classied inforaion or evidence tateac pty ticipates to use drig all ture sessions e puose of tis Initial Cosure Herig will be fo te Cour to deteine weter te information at b warrts cosure under ME 505)(5) CM 806(b)(2) d Gnde d if so ten me the requisie ndngs on the ecord for all cassed ormation to e consdered Te nitial Closure eingseres as an ecient metod for te ou to lace all requred ndings ner CM 806(b)(2)on te record prior to te information beg presente e te nitia Cose Hein te noral motions ractice or trial will begn Once a pr reaches the point in a session that te

intended to elicit classied testimony or reference classied information or evidence ten te pry will motion the Cour to cloe te session based on the " nitial Closure eing lnge nited States oers te enclosed scripts d processes or the " nitial Closre eingOpenng he Courroom d Closing te Courroom See Enclosures 5-7

Te Unied States oers te undelying rocedures for unplanned closres of e courom

e nited States respectly requests tat te Cour adopt the below rocedures for uplanned cosures of the courroom o best explain unplaned closures te nited States oers te below excerp om te United States Navy mility ustice primer for cours-matial involing classied infoation See nited States Nav Primer for Litigating Classed Inforaton Cases - Procutng, Defending ad Ajudcating Cass Involvig Cassed Iormaton National Security and ntelligence Law Division (Code 17) (now Code 30) at 10-9d 1010 2008

An ''nplanned closure will occur wen counsel te cour secrity ocer eqity owner subject mater expe witness or oter individual informs te mility judge of te need for a closed session if testimony strays toward disclosure of cassied iformation wen testimony is given in open session Denver Post Co. v. US, my isc 20041215 (23 Febr 200)(Unpubop at 4) is may result om te person recogning tat a question contains cassied informaton or calls for a classied swer Oen e secrit ocer will have a pre-arrged signal o device that c be used to ndcate to the judge that ths dange is present Wtnesses sould be adised that te believe tat swer to a eston o the queston tsel ma invole cassed nomation to noti the milty judge ediatel in a dscreetmanner

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he miita jude shoud then iediate hat the testimon,questionin or gument No reason should be iven on the record at that time as to the reason for ha the proceedings he milit jude sould proceed to hold a conference under RCM

802 with the securit ocer d the pies i order to detere whether there is, in fact, suspected classied information at issueAs counsel oen do not hae eperience with the cassied information at issue, it ma well be that te did not intend for the question to evoke a classied answer In such a case, a simple render instrction to the witness to keep his answer uncassied will usuall be sufcient

If there is, indeed, a desire on the p of one of the paies todiscuss cassied information that has not previousl been the subject of a [Initial Closure He], the militar jude should

proceed it a 39(a) session outside the presence of the members in order to mke the deteinations requred b RCM 806(b )(2) If the 39(a) session itself is closed, te milita judge should be sure to clude an uncassied summ of his dins on the uncassied record Even in the middle of trial, it is necess toconsider reasonable ateatives to the use of the classied formation Generall, it is normal possible for the witness toraise the factua lee of his testimon so that the information is more eneric and the source is obscured, ie, provide unassied testimon

Fal, all pties at the trial should be aware of the possibilit that when members pose questions during a trial that invoves cassied matters, a question could prompt swer that is classied he better practice is to have all written members questions reiewed b the court securit ocer before the ae provided to the jude so that the cour securit ocer can ae the

jude of wheter the question poses a risk open cour his alows the jude to remin the witness to swer in an uncassied manner, d to instrct the witness to simpl aler the jude if the itness needs to swer with assed information he cour securit ocer ma be ae to assist the judge sliht rewordin of questions to avoid these issues all toether

Given the inherent difcuies associated with upned courom closures, the nited States respectll requests that the Cour prospectiel adopt the above procedures for unpanned closures of the courroom

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CONCUSION

he nited States requests the Cour enter appropriate protective order to gud against the compromise of classie formation by te accused defense counsel d any individual detailed to the defense te

ASDN FN CPT JA rial Counsel

ceri that served or caused to be sered a tre copy of the above on M. David Coombs Civilian Defense Counsel and Major Mattew Kees Senior Military Defense Counsel via electronic mail on 8 Marc 20.

ASDN F

CPT JA rial Counsel

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AE 18 Supplement to prosecution motion for protective order.pdf

Documents

Transcript of AE 18 Supplement to prosecution motion for protective order.pdf