National Security Prosecutions

Protective Orders

Federal Judicial Center

April 2014

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop and conduct research and education programs for the judicial 

branch. Views expressed herein are not necessarily those of the Federal Judicial Center. 

iii

Table of Contents

Introduction ....................................................................................................................... v 

United States v. Fawwaz and Bary (Kenya and Tanzania): Lewis A. Kaplan, 

S.D.N.Y. ............................................................................................................................ 1 

 Protective Order (January 11, 2013) .......................................................................... 2 

United States v. Moalin: Jeffrey T. Miller, S.D. Cal. ..................................................... 23 

 Protective Order (September 17, 2012) .................................................................... 24 

United States v. Kim: Colleen Kollar-Kotelly, D.D.C. ................................................... 34 

 Protective Order (October 13, 2010) ........................................................................ 35 

 Supplemental Protective Order (November 18, 2010) ............................................. 53 

United States v. Sedaghaty (Ashland and Moscow): Michael R. Hogan, D. Or. ............ 59 

 Protective Order (March 19, 2010) .......................................................................... 60 

United States v. Boyd: Louise W. Flanagan, E.D.N.C. .................................................. 81 

 Protective Order (February 18, 2010) ...................................................................... 82 

United States v. Ghailani (Kenya and Tanzania): Lewis A. Kaplan, S.D.N.Y. ............ 105 

 Protective Order: Unclassified (July 14, 2009) ...................................................... 106 

 Protective Order: Classified (July 21, 2009) .......................................................... 110 

 Filing Order (October 27, 2009) ............................................................................. 131 

United States v. Shnewer (Fort Dix): Robert B. Kugler, D.N.J. ................................... 133 

 Protective Order (May 29, 2008) ............................................................................ 134 

United States v. Holy Land Foundation (Prosecution of a Charity): 

A. Joe Fish and Jorge A. Solis,N.D. Tex. ..................................................................... 150 

 Protective Order (Judge Fish) (April 5, 2005) ........................................................ 151 

 Protective Order (Judge Solis) (May 7, 2008) ........................................................ 170 

United States v. Ahmed (Atlanta): 

Clarence Cooper and Gerrilyn G. Brill, N.D. Ga. ......................................................... 192 

 Protective Order: Unclassified (December 20, 2006) ............................................ 193 

 Protective Order: Classified (February 8, 2007) .................................................... 201 

United States v. Hassoun (Dirty Bomber): Marcia G. Cooke, S.D. Fla. ....................... 222 

 Protective Order (April 28, 2006) .......................................................................... 223 

 Filing Order (August 31, 2006) .............................................................................. 239 

United States v. Franklin (Giving State Secrets to Lobbyists):

T.S. Ellis III, E.D. Va. ................................................................................................... 243 

 Franklin Protective Order (June 16, 2004) ............................................................. 244 

 Rosen Protective Order (September 19, 2005) ....................................................... 259 

 Weissman Protective Order (September 19, 2005) ................................................ 279 

United States v. Abu Ali (A Plot to Kill President Bush):

Gerald Bruce Lee, E.D. Va. .......................................................................................... 299 

 Protective Order (September 16, 2005) .................................................................. 300 

United States v. Warsame (Minneapolis): John R. Tunheim, D. Minn. ....................... 311 

 Protective Order (March 8, 2005) .......................................................................... 312 

United States v. Lindh (American Taliban): T.S. Ellis III, E.D. Va. ............................ 325 

 Protective Order (February 27, 2002) .................................................................... 326 
iv

United States v. Moussaoui (Twentieth Hijacker): 

Leonie M. Brinkema, E.D. Va. ..................................................................................... 343 

 Protective Order (January 22, 2002) ...................................................................... 344 

United States v. Regan (A Would-Be Spy): Claude M. Hilton, E.D. Va. .................... 361 

 Protective Order (September 4, 2001) .................................................................... 362 

United States v. El-Hage (Kenya and Tanzania): Leonard B. Sand, S.D.N.Y. ............. 384 

 Protective Order (July 29, 1999) ............................................................................ 385 
v 

Introduction

Assembled here are protective orders used by federal judges in criminal prosecutions in national security cases. Among the most important goals of the protective 

orders here is the protection of classified information. Most of these protective 

orders were used in cases described in two companion publications: National Security Case Studies: Special Case-Management Challenges (full case studies) and 

National Security Case Management: An Annotated Guide (summary guide with 

case-study annotations).

These and other resources potentially helpful to judges presiding over national 

security cases are assembled at the following FJC Online site: http://cwn.fjc.dcn/ 

fjconline/home.nsf/pages/1227.

These protective orders frequently refer to “court security officers,” which 

was a term used until January 15, 2011, for information security experts provided 

to the courts by the Department of Justice’s Litigation Security Group and now 

known as “classified information security officers.” 

United States v. Fawwaz and Bary

(S.D.N.Y. 1:98-cr-1023-15 and -17)

Protective Order ................................................................................................... 2

1
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

- - - - - - - - - - - - - X 

UNITED STATES OF AMERICA 

- v. -

KHALID AL FAWWAZ, and 

ADEL ABDEL BARY I 

Defendants . 

- - - X 

JUDGE KA.PL"'N'C Ci-'AM3ERS 

98 Cr . 1023 LAK) 

mu~S~D~S~S~D ~======~ 

DCJ :'JMENT 

ELECTRONICALLY FILED 

DOC#: 

DATE L- _:---~~-

PROTECTIVE ORDER 

PERTAINING TO CLASSIFIED INFORMATI ON 

This matter comes before the Court upon the Government's 

Motion for a Protective Order pursuant to Section 3 of the 

Classified Information Procedures Act ("CIPA"), 18 U . S . C. App . 3 

§ 3, to protect against the disclosure in this case of any 

classified information disclosed by the Government to, or 

otherwise in the possession of, the Defendant or the Defense. 

Pursuant to the author ity granted under Sections 3 and 9 of 

CIPA, the Security Procedures Established Pursuant to Pub. L. No . 

96-456, 94 Stat. 2025, by the Chief Justice of the United States 

for the Protection of Classified Information (reprinted following 

CIPA § 9), Rules 16(d) and 57 of the Federal Rules of Criminal 

Procedure, and the general supervisory authority of the Court, 

and to protect the national security, the following Modified 

Protective Order is entered . 

2
General Provisions 

1. The Court finds that this case will involve information 

that has been currently classified in the interest of national 

security of the United States pursuant to Executive Order 13526, 

as amended. The storage, handling and control of this 

information will require special security precautions mandated by 

statute, executive order, and regulation, and access to which 

requires the appropriate security clearances, and a "need to 

know" determination pursuant to Executive Order 13526. 

2. The purpose of this Order is to establish procedures 

that must be followed by the Defense and the Government, and any 

other person who receives access to, or otherwise is in 

possession of, classified information as a result of their 

participation in this case . These procedures will apply to all 

pretrial, trial, post-trial, and appellate matters concerning 

classified information, and may be modified from time to time by 

further order of the Court pursuant to Rule 16(d) of the Federal 

Rul es of Criminal Procedure, Secti ons 3 and 9 of CIPA, and the 

Court's inherent supervisory authority to ensure a fair and 

expeditious trial . 

Definit i ons 

3. The following definitions shall apply to this Order: 

a . The term "Defense" shall mean any counsel for the 

defendant, employees or contractors of counsel for the Defendant 

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(including, without limitation, investigators, paralegals, 

experts and translators), and any witnesses for the Defendant so 

authorized by the Court. 

b. The term "classified information" shall include: 

(i) Any document or information contained therein, 

which has been classified by any Executive Branch agency in the 

interests of national security pursuant to Executive Order 13526, 

as amended, or its predecessor orders, as "CONFIDENTIAL," 

"SECRET," "TOP SECRET," or additionally controlled as "SENSITIVE 

COMPARTMENTED INFORMATION" ("SCI"); 

(ii) Any document or information that is currently 

properly classified, as set forth in (i), and that has been 

approved by the Government or the Court for release to the 

Defendants. All classified information that is approved for 

release to the Defendant will contain an appropriate 

classification marking and will be marked "Releasable to Fawwaz," 

"Releasable to Bary," and/or "Releasable to Fawwaz and Bary," 

respectively; 

(iii) Any document or information now or formerly 

in the possession of a private party which (A) has been derived 

from information from the United States Government that was 

classified, and (B) has subsequently been classified by the 

United States pursuant to executive order as "CONFIDENTIAL," 

"SECRET," "TOP SECRET," or additionally controlled as SCI; 

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(iv) Any document or information that the Defense 

knows or reasonably should know contains classified information, 

including information acquired or conveyed orally; 

(v) Any information, regardless of place of 

origin, to include "foreign government information" as that term 

is defined in Executive Order 13526, that could reasonably be 

believed to contain classified information or potentially convey 

classified information, and that refers or relates to national 

security or intelligence matters; and 

(vi) Any document or information as to which the 

Defense has been notified orally or in writing contains 

classified information. 

c. The terms "document" and "information" shall 

include, but are not limited to, all written, printed, visual or 

audible matter of any kind, formal or informal, including 

originals, conforming copies, and non-conforming copies (whether 

different from the original by reason of notation made on such 

copies or otherwise) . The terms "document" and "information'' 

shall also include without limitation, notes (handwritten, oral, 

or electronic); letters; correspondence; memoranda; reports; 

summaries; photographs; maps; charts; graphs; inter-office 

communications; notations of any sort concerning conversations, 

meetings or other communications; bulletins; teletypes; 

telecopies; telegrams; telexes; cables; facsimiles; invoices; 

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worksheets and drafts; microfiche; microfilm; videotapes; sound 

recordings of any kind; motion pictures; electronic, mechanical 

or electric records of any kind, including but not limited to 

tapes, cassettes, disks, recordings, films, typewriter ribbons, 

word processing or other computer tapes, disks, or thumb drives 

and all manner of electronic data processing storage; and 

alterations, modifications, changes and amendments of any kind to 

the foregoing . 

d. The term "access to classified information" shall 

mean having access to , reviewing, reading, learning, or otherwise 

coming to know in any manner classified information . 

e. The term "Secure Area" shall mean a sensitive 

compartmented information facility ("SCIF") accredited by a Court 

Security Officer for the storage, handling, and control of 

classified information. 

Classi f i ed Info rmation, General Provi sions 

4. All classified documents, and information contained 

therein, shall remain classified unless the documents bear a 

clear indication that they have been "declassified" by the agency 

or department that originated the document or information 

contained therein ("originating agency") . 

5. Any classified information provided to the Defense by 

the Government is to be used solely by the Defense and solely for 

the purpose of preparing the defense. The Defense may not 

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disclose or cause to be disclosed in connection with this case 

any information known or reasonably believed to be classified 

information except as otherwise provided herein. 

6. The Defense may not disclose classified information to 

the Defendants unless that same information has been previously 

provided to the Defense by the Defendants . The Defense may not 

confirm or deny to the Defendants the assertions made by the 

Defendants based on knowledge the Defense may have obtained from 

classified information, except where that classified information 

has been provided to the Defendants. 

7. The Defense shall not disclose classified information 

to any person, except to the Court, Government personnel who hold 

appropriate security clearances and have been determined to have 

a need to know that information, and those authorized pursuant to 

this Order. 

8. Information that is classified that also appears in the 

public domain is not thereby automatically declassified unless it 

appears in the public domain as the result of an official 

statement by a U.S. Government Executive Branch official who is 

authorized to declassify the information. Individuals who by 

virtue of this Order or any other court order are granted access 

to classified information may not confirm or deny classified 

information that appears in the public domain. Prior to any 

attempt by the Defense to have such information confirmed or 

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denied at trial or in any public proceeding in this case, the 

Defense must comply with the notification requirements of Section 

5 of CIPA and all provisions of this Order. 

9. In the event that classified information enters the 

public domain, the Defense is precluded from making private or 

public statements where the statements would reveal personal 

knowledge from non-public sources regarding the classified status 

of the information, or would disclose that the Defense had 

personal access to classified information confirming, 

contradicting, or otherwise relating to the information already 

in the public domain. The Defense is not precluded from citing 

or repeating information in the public domain that counsel does 

not know or have reason to believe to be classified information, 

or derived from classified information. 

Security Procedures 

10. In accordance with the provisions of CIPA and the 

security procedures promulgated by the Chief Justice of the 

United States pursuant to that Act, this Court designates Michael 

P. Macisso as the Classified Information Security Officer 

("CISO") and Christine E. Gunning, Jennifer H. Campbell, Branden 

M. Forsgren, Daniel 0. Hartenstine, Joan B. Kennedy, Maura L. 

Peterson, Harry J. Rucker, and W. Scooter Slade as alternate 

CISOs for this case, for the purpose of providing security 

arrangements necessary to protect against unauthorized disclosure 

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any classified information that has been made available to the 

Defense in connection with this case. The Defense shall seek 

guidance from the CISO with regard to appropriate storage, 

handling, transmittal, and use of classified information. 

11. The Court has been advised, through the CISO, that 

Assistant United States Attorneys Sean S. Buckley, Rachel P. 

Kovner, Stephen J. Ritchin, and their supervisors, as well as 

certain other Department of Justice employees ("Counsel for the 

Government"), have the requisite security clearances allowing 

them to have access to the classified information that relates to 

this case. 

12. Protection of Classified Information. The Court finds 

that, in order to protect the classified documents and 

information involved in this case, no person, including the 

Defense, except for government attorneys, appropriately cleared 

Department of Justice employees, personnel of the originating 

agency, shall have access to the classified documents and 

information in this case. No defense counsel or defense counsel 

employee, including any translator, shall have access to any 

classified documents and information in this case unless that 

person shall first have: 

a. Received from the CISO the appropriate security 

clearance for the level of the classified information involved in 

this casei 

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b . A "need to know" the classified information at 

issue in this proceeding; and 

c. Signed the Memorandum of Understanding in the form 

attached hereto agreeing to comply with the terms of this Order . 

The signed Memorandum of Understanding shall be filed with the 

Court. The substitution, departure, or removal for any reason 

from this case, of counsel for the Defendants or any other member 

of the Defense, shall not release that individual from the 

provisions of this Order or the Memorandum of Understanding 

executed in connection with this Order . 

13. Pursuant to Section 4 of the security procedures 

promulgated pursuant to CIPA, no court personnel (except for the 

Judge) required by this Court for its assistance shall have 

access to classified information involved in this case unless 

that person shall first has received the necessary security 

clearance as determined by the CISO. 

14. Standard Form 86, "Questionnaire for National Security 

Positions," attached releases, and full fingerprints shall be 

completed and submitted to the CISO forthwith by all defense 

counsel not otherwise already cleared, a ll persons whose 

assistance the defense reasonably requires, and by such courtroom 

personnel as the Court requires for its assistance . The CISO 

shall undertake all reasonable steps to process all security 

clearance applications in accordance with applicable 

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regulations. 1 

15. Prior security clearance and a "need to know" as 

determined by any government entity as applying to one person 

does not automatically give that person the authority to disclose 

any classified information to any other individual, even if that 

individual also has a security clearance. By way of example, but 

not limitation, defense counsel with appropriate clearances and a 

need to know, as determined by the Government, are not authorized 

to discuss or otherwise disclose such classified information with 

an uncleared defendant absent approval of the Court or written 

permission of the Government . 

16 . Secure Area for the Defense. The CISO shall arrange 

for an approved Secure Area for use by the Defense . The CISO 

shall establish procedures to assure that the Secure Area is 

accessible during business hours to the Defense, and at other 

times upon reasonable request as approved by the CISO. The 

Secure Area shall contain a separate working area for the Defense 

and will be outfitted with any secure office equipment requested 

by the Defense that is reasonable and necessary to the 

preparation of the defense. The CISO, in consultation with 

counsel for the Defendants, shall establish procedures to assure 

The parties note for the Court that the representatives 

of the Defense that have been appointed as counsel in this matter 

as of the date of this filing previously each have provided their 

respective completed Standard Form 86, as well as fingerprints to 

the CISO in order to obtain the necessary clearances . 

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that the Secure Area may be maintained and operated in the most 

efficient manner consistent with the protection of classified 

information. No classified documents may be removed from the 

Secure Area unless so authorized by the CISO with notice provided 

to the Court. The CISO shall not reveal to the Government the 

content of any conversations he may hear among the Defense, nor 

reveal the nature of the documents being reviewed, or the work 

being generated. The presence of the CISO shall not operate to 

render inapplicable the attorney-client privilege. 

17. Filing of Papers by the Defense. Any pleading or other 

document filed by the Defense that counsel for the Defendants 

knows or reasonably should know contains classified information 

as defined in paragraph 3(b), shall be filed as follows: 

a. The document shall be filed under seal with the 

Court Security Officer or a designee and shall be marked, "Filed 

in Camera and Under Seal with the Court Security Officer. " The 

time of physical submission to the CISO (or alternate CISO 

designated by the CISO) shall be considered the date and time of 

filing. Within a reasonable time after making a submission to 

the CISO, the Defense shall file on the public record in the 

CM/ECF system a "Notice of Filing" notifying the Court that the 

submission was made to the CISO or a designee of his choosing who 

has obtained the necessary security clearance and providing a 

title of the document which does not disclose any potentially 

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classified information . 

b. The CISO or a designee of his choosing who has 

obtained the necessary security clearance shall promptly examine 

the pleading or document and, in consultation with 

representatives of the appropriate departments or agencies, 

determine whether the pleading or document contains classified 

information . If it is determined that the pleading or document 

contains classified information, the CISO shall ensure that the 

relevant portion of the document, and only that portion, is 

marked with the appropriate classification marking and remains 

under seal. All portions of all papers filed by the Defense that 

do not contain c l assified information shall be immediately 

unsealed by the CISO and placed in the public record . The CISO 

shall immediately deliver under seal to the Court and Counsel for 

the Government any pleading or document to be filed by the 

Defense that contains c l assified information, unless the pleading 

or document is an ex parte filing. 

18. Filing of Papers by the Government . Only the portions 

of pleadings or documents filed by the Government that contain 

classified information shall be filed under seal with the Court 

through the CISO. Such pleadings and documents shall be marked, 

"Filed In Camera and Under Seal with the Court Security Officer." 

The time of physical submission to the CISO (or designee) shall 

be considered the date and time of filing . The CISO shall 

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immediately deliver under seal to the Court and counsel for the 

Defendants any pleading or document to be filed by the Government 

that contains classified information, unless the pleading or 

document is an ex parte filing. Within a reasonable time after 

making a submission to the CISO, the Government shall file on the 

public record in the CM/ECF system a "Notice of Filing" notifying 

the Court that the submission was made to the CISO or a designee 

of his choosing who has obtained the necessary security clearance 

and providing a title of the document which does not disclose any 

potentially classified information. 

19. Record and Maintenance of Classified Filings. The CISO 

shall maintain a separate sealed record for those materials which 

are classified. The CISO shall be responsible for the 

maintaining of the secured records for purposes of later 

proceedings or appeal. 

20. The Classified Information Procedures Act. Procedures 

for public disclosure of classified information in this case 

shall be those established by CIPA. The Defense shall comply 

with the requirements of CIPA Section 5 prior to any disclosure 

of classified information during any proceeding in this case. As 

set forth in Section 5, the Defense shall not disclose any 

information known or believed to be classified in connection with 

any proceeding until notice has been given to Counsel for the 

Government and until the Government has been afforded a 

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reasonable opportunity to seek a determination pursuant to the 

procedures set forth in CIPA Section 6, and until the time for 

the Government to appeal such determination under CIPA Section 7 

has expired or any appeal under Section 7 by the Government is 

decided . Pretrial conferences involving classified information 

shall be conducted in camera in the interest of national 

security, be attended only by persons with access to classified 

information and a need to know, and the transcripts of such 

proceedings shall be maintained under seal. 

21. Access to Classified Information. In the interest of 

the national security, representatives of the Defense granted 

access to classified information shall have access to classified 

information only as follows: 

a . All classified information produced by the 

Government to counsel for the Defendants in discovery or 

otherwise, and all classified information possessed, created or 

maintained by the Defense, including notes and any other work 

product, shall be stored, maintained and used only in the Secure 

Area established by the CISO. 

b. The Defense shall have free access to the 

classified information made available to them in the Secure Area 

established by the CISO and shall be allowed to take notes and 

prepare documents with respect to those materials. 

c. No representative of the Defense (including, but 

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not limited to, counsel, investigators, paral egals, translators, 

experts and witnesses) shall copy or reproduce any classified 

information in any manner or form, except with the approval of 

the CISO or in accordance with the procedures established by the 

CISO for the operation of the Secure Area . 

d . All documents prepared by the Defense (including, 

without limitation, pleadings or other documents intended for 

filing with the Court) that do or may contain classified 

information must be prepared in the Secure Area on word 

processing equipment approved by the CISO. All such documents 

and any associated materials (such as notes, drafts, copies, 

typewriter ribbons, magnetic recordings, exhibits) containing 

classified information shall be maintained in the Secure Area 

unless and until the CISO determines that those documents or 

associated materials are unclassified in their entirety . None of 

these materials shall be disclosed to counsel for the Government 

or any other party. 

e. The Defense shall discuss classified information 

only within the Secure Area or in an area authorized by the CISO. 

f. The Defense shall not disclose, without prior 

approval of the Court, classified information to any person not 

named in this Order except the Court, Court personnel, and 

Government personnel identified by the CISO as having the 

appropriate clearances and the need to know. Counsel for the 

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Government shall be given an opportunity to be heard in response 

to any Defense request for disclosure to a person not identified 

in this Order. Any person approved by the Court for access to 

classified information under this paragraph shall be required to 

obtain the appropriate security clearance, to sign and submit to 

the Court the Memorandum of Understanding appended to the Order, 

and to comply with all the terms and conditions of the Order. If 

preparation of the defense requires that classified information 

be disclosed to persons not identified in this Order, the 

Department of Justice shall promptly seek to obtain security 

clearances for them at the request of counsel for the Defendant. 

g . The Defense shall not discuss classified 

information over any standard commercial telephone instrument or 

office intercommunication systems, including but not limited to 

the Internet, or in the presence of any person who has not been 

granted access to classified information by the Court. 

h. Any documents written by the Defense that do or 

may contain classified information shall be transcribed, 

recorded, typed, duplicated, copied, or otherwise prepared only 

by persons who have received an appropriate approval for access 

to classified information . 

i. The Defense shall not disclose classified 

information to the Defendants -- other than materials marked 

"Releasable to Fawwaz," "Releasable to Bary," and/or "Releasable 

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to Fawwaz and Bary," respectively-- absent leave of this Court 

or written permission of the Government. Counsel for the 

Government shall be given an opportunity to be heard in response 

to any Defense request for disclosure to the Defendants of such 

classified information . 

22. Any unauthorized disclosure of classified information 

may constitute violations of United States criminal laws. In 

addition, any violation of the terms of this Order shall be 

brought immediately to the attention of the Court and may result 

in a charge of contempt of Court and possible referral for 

criminal prosecution . Any breach of this Order may also result 

in termination of an individual's access to classified 

information. Persons subject to this Order are advised that 

direct or indirect unauthorized disclosure, retention or 

negligent handling of classified documents or information could 

cause serious damage, and in some cases exceptionally grave 

damage to the national security of the United States or may be 

used to the advantage of a foreign nation against the interests 

of the United States. The purpose of this Order is to ensure 

that those authorized to receive classified information in 

connection with this case will never divulge that information to 

anyone not authorized to receive it, without prior written 

authorization from the originating agency and in conformance with 

this Order. 

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23. All classified documents and information to which the 

Defense has access in this case are now and will remain the 

property of the United States. Upon demand of the CISO, these 

persons shall return to the CISO all classified information in 

their possession obtained through discovery from the Government 

in this case, or for which they are responsible because of access 

to classified information. The notes, summaries and other 

documents prepared by the Defense that do or may contain 

classified information shall remain at all times in the custody 

of the CISO for the duration of the case. At the conclusion of 

this case, all such notes, summaries, and other documents are to 

be destroyed by the CISO in the presence of counsel for the 

Defendant. 

24. Nothing contained in this Order shall be construed as a 

waiver of any right of the Defendants. No admission made by the 

Defendants or their counsel during pretrial conferences may be 

used against the Defendants unless it is in writing and signed by 

the respective Defendant. See CIPA § 2. 

25. A copy of this Order shall be issued forthwith to 

counsel for the Defendants who shall be responsible for advising 

the Defendants and representatives of the Defense of this Order. 

Counsel for the Defendants, and any other representatives of the 

Defense who will be provided access to the classified 

information, shall execute the Memorandum of Understanding 

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described in paragraph 8 of this Order, and counsel for the 

Defendants shall file executed originals of such documents with 

the Court and the CISO and serve an executed original upon the 

Government. The execution and filing of the Memorandum of 

Understanding is a condition precedent for counsel for the 

Defendant and any other representative of the Defense to have 

access to classified information . 

Dated: New York, New York 

January 11, 2013 

United States District Judge 

Southern District of New York 

20
UNITED STATES DISTRI CT COURT 

SOUTHERN DISTRICT OF NEW YORK 

- - - - - - - - - - - - - X 

UNITED STATES OF AMERICA 

- v. -

KHALID AL FAWWAZ, and 

ADEL ABDEL BARY I 

Defendants. 

- - - - - - - - - - - - - - - X 

98 Cr . 1023 (LAK) 

MEMORANDUM OF UNDERSTANDING REGARDING RECEIPT OF 

CLASSIFIED INFORMATION 

Having familiarized myself with the applicable statutes, 

regulations, and orders, related to, but not limited to, Title 18 

United States Code, including unauthorized disclosure of 

classified information, espionage and related offenses; The 

Intelligence Agents Identities Protection Act, Title 50 U. S.C . 

Section 421;; Title 18 U. S . C. Section 641; Title 50 U. S . C. 

Section 783; 28 C.F .R. 17 et , and Executive Order 13526; I 

understand that I may be the recipient of information and 

documents that concern the present and future security of the 

United States and belong to the United States, and that such 

documents and information together with the methods and sources 

of collecting it are classified by the United States Government . 

In consideration for the disclosure of classified information and 

documents: 

(1) I agree that I shall never divulge, publish, or 

reveal either by word, conduct or any other means, such 

21
classified documents and information unless specifically 

authorized in writing to do so by an authorized representative of 

the United States Government; or as expressl y authorized by the 

Court pursuant to the Classified Information Procedures Act and 

the Protect ive Order entered in the case of United States v. 

Khalid al Fawwaz & Adel Abdel Bary, 98 Cr. 1023 (LAK), Southern 

District of New York. 

( 2) I agree that this Memorandum and any other nondisclosure agreement signed by me will remain forever binding on 

me. 

(3) I have received, read, and understand the 

Protective Order entered by the United States District Court for 

the Southern District of New York on ----------------, 2013, in the 

case of United States v. Khalid al Fawwaz & Adel Abdel Bary, 98 

Cr . 1023 (LAK), relating to c l assified information, and I agree 

to comply with the provisions thereof . 

Michael P. Macisso 

Classified Information Security Officer 

------~~----~~~ ' Esq . Counsel for Khalid al Fawwaz 

-----------------------' Esq . Counsel for Adel Abdel Bary 

Date 

Date 

Date 

22
United States v. Moalin

(S.D. Cal. 3:10-cr-4246)

Protective Order ................................................................................................. 24

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

BASAALY SAEED MOALIN (1),

Defendants.

 

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Case No. 10cr4246 JM

PROTECTIVE ORDER

This matter comes before the Court upon the parties’ Joint Motion for Protective Order to

prevent the unauthorized use, disclosure or dissemination of classified national security information and

documents that will be reviewed by or made available to, or are otherwise in the possession of, defense

counsel in this case.

Pursuant to the authority granted under section 3 of the Classified Information Procedures Act,

18 U.S.C. App. 3 (2006) (“CIPA”); the Security Procedures established pursuant to Pub. L. 96-456, 94

Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information

(reprinted following CIPA § 9) (hereinafter the “Security Procedures”); the Federal Rules of Criminal

Procedure 16(d) and 57; the general supervisory authority of the Court; and, in order to protect the

national security,

/ / /

/ / /

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IT IS HEREBY ORDERED:

1. The Court finds that this case will involve classified national security information, the

storage, handling, and control of which, by law or regulation, requires special security precautions, and

access to which requires a security clearance and a need-to-know.

2. The purpose of this Protective Order (“Order”) is to establish the procedures that must be

followed by all counsel of record, their designated employees, all other counsel involved in this case,

translators for the defense, and all other individuals who receive access to classified information or

documents in connection with this case.

3. The procedures set forth in this Order and CIPA shall apply to all pre-trial, trial,

post-trial, and appellate aspects of this case; and may be modified from time to time by further order of

the Court acting under Federal Rules of Criminal Procedure 16(d), sections 3 and 9 of CIPA, and this

Court’s inherent supervisory authority to ensure a fair and expeditious trial.

Definitions

4. As used herein, the terms “classified national security information and documents,”

“classified information,” “classified documents,” and “classified material” refer to:

A. Any classified document or information that has been classified by any Executive

Branch agency in the interest of national security or pursuant to Executive Order 13526, as amended, or

its predecessors, as “CONFIDENTIAL,” or “SECRET” or “TOP SECRET” or any information

contained in or derived from such documents;

B. Any document or information, regardless of its physical form or characteristics,

now or formerly in the possession of a private party, which has been derived from a United States

Government classified document, information, or material;

C. Classified information conveyed verbally to defense counsel;

D. Any document or information, including verbal information, which the defense

counsel have been notified orally or in writing contains classified information;

E. Any information, regardless of place or origin and including “foreign government

information” as that term is defined in Executive Order 13526, as amended, or its predecessors, or that

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refers or relates to national security or intelligence matters, that could reasonably be believed to contain

classified information.

5. The words “documents,” “information,” and “material” shall include, but are not limited

to, all written or printed matter of any kind, formal or informal, including originals, conforming copies

and non-conforming copies (whether different from the original by reason of notation made on such

copies or otherwise), and further include, but are not limited to:

A. Papers, correspondence, memoranda, notes, letters, reports, summaries, photographs, maps, charts and graphs, interoffice and intra-office communications, notations of any sort

concerning conversations, meetings or other communications, bulletins, teletypes, telegrams and

telefacsimiles, invoices, worksheets and drafts, alterations, modifications, changes, and amendments of

any kind to the foregoing;

B. Graphic records or representations of any kind, including but not limited to

photographs, charts, graphs, microfiche, microfilm, videotapes, sound recordings of any kind, and

motion pictures;

C. Electronic, mechanical or electric records of any kind, including but not limited to

tapes, cassettes, disks, recordings, films, typewriter ribbons, word processing or other computer tapes or

disks, and all manner of electronic data processing storage; and

D. Any form of document reflecting information acquired orally or verbally.

6. “Access to classified information” means having access to, reviewing, reading, learning

or otherwise coming to know in any manner any classified information.

7. “Secure Area” shall mean a physical facility approved by the Court Information Security

Officer for the storage, handling, and control of classified information.

8. All classified documents or material and the information contained therein shall remain

classified unless the documents or material bear a clear indication that they have been declassified by the

agency or department that is the originating agency (hereinafter the “Originating Agency”) of the

document, material, or information contained therein.

9. Classified Information Security Officer. In accordance with the provisions of CIPA and

the Security Procedures, the Court designates Winfield S. Slade as Classified Information Security

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Officer (“CISO”) for this case, and Jennifer H. Campbell, Branden M. Forsgren, Christine E. Gunning,

Daniel O. Hartenstine, Joan B. Kennedy, Maura L. Peterson, Michael P. Macisso, Carli V. RodriguezFeo and Harry J. Rucker as Alternate Classified Information Security Officers for the purpose of

providing security arrangements necessary to protect from unauthorized disclosure any classified 

information to be made available in connection with this case. Defense counsel shall seek guidance

from the CISO with regard to appropriate storage, handling, transmittal, and use of classified information.

10. Government Attorneys. The Court has been advised that the Government attorneys

working on this case, Assistant United States Attorneys William P. Cole and Caroline P. Han, and

Department of Justice, National Security Division, Counterterrorism Section Trial Attorneys Steven P.

Ward and S. Elisabeth Poteat, and their respective supervisors (collectively referred to hereinafter as the

“Government Attorneys”), have the requisite security clearances for access to the classified information

that relates to this case. 

11. Protection of Classified Information. The Court finds that, in order to protect the

classified information involved in this case, only the Government Attorneys, appropriately cleared

Department of Justice employees, personnel of the Originating Agency, defense counsel, employees of

defense counsel, or translators employed by defense counsel, shall have access to the classified

information in this case. 

A. Defense counsel, employees of defense counsel or defense translators may obtain access

to classified documents or information only if such person has:

1. Received the necessary security clearance at the appropriate level of classification,

through or confirmed by the Classified Information Security Officer;

2. Received permission of the Court, either through this Order (for those named or

listed in paragraph 12 below) or by a separate Court order upon showing of a need-to-know. 

3. Signed the Memorandum of Understanding (MOU) in the form attached hereto,

agreeing to comply with the terms of this Order. 

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B. Before receipt of any classified information, defense counsel shall file originals of the

executed MOU with the Court and CISO under seal and serve executed originals of such document upon

the Government. 

C. The substitution, departure or removal for any reason from this case of counsel for a

defendant, or anyone associated with the defense as an employee or otherwise, shall not release that

person from the provisions of this Order or the Memorandum of Understanding executed in connection

with this Order; and

12. Defense Counsel. Subject to the provisions of paragraph 11, the following attorney(s) for

the defense and their approved employee(s) and translator(s) (collectively referred to hereinafter as “the

Defense”), shall be given access to classified information as required by the Government’s discovery

obligations: Thomas Durkin, Linda Moreno, Joshua Dratel, Alice Fontier and Ahmed Ghappour. Any

additional person whose assistance the Defense reasonably requires may have access to classified

information in this case only after obtaining from the Court -- with sufficient notice to the Government --

an approval for access to the appropriate level of classification on a need-to-know basis, and after

satisfying the other requirements described in this Order for access to classified information. The CISO

will expeditiously process any additional applications for security clearances necessitated under the

provisions of this paragraph.

13. Secure Area of Review. The CISO shall arrange for an appropriately approved Secure

Area for use by the Defense. The CISO shall establish procedures to assure that the Secure Area is

accessible to the Defense during normal business hours and at other times upon reasonable request as

approved by the CISO in consultation with the U.S. Marshals Service. The Secure Area shall contain a

separate working area for the Defense, and will be outfitted with any secure office equipment requested

by the Defense that is reasonable and necessary to the preparation of the defense in this case. The CISO,

in consultation with defense counsel, shall establish procedures to assure that the Secure Area may be

maintained and operated in the most efficient manner consistent with the protection of classified

information. No documents or other material containing classified information may be removed from

the Secure Area unless authorized by the CISO. The secure area shall not be accessible to the Government Attorneys. The CISO shall not reveal to the Government the content of any conversations he or she

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may hear among the Defense, nor reveal the nature of documents being reviewed by them, nor the work

generated by them. In addition, the presence of the CISO shall not operate to waive, limit, or otherwise

render inapplicable, the attorney-client or work product privilege.

14. Filings with the Court. Until further order of this Court, any motion, memorandum, or

other document filed by the Defense that defense counsel knows, or has reason to believe, contains

classified information in whole or in part, or any document the proper classification of which defense

counsel is unsure, shall be filed under seal with the Court through the CISO or his designee. Any

pleading filed under seal with the CISO, or his designee, shall be marked: 

Filed With The Classified 

Information Security 

Officer

In Camera 

Under Seal

and shall include an introductory statement that it is being filed under seal pursuant to this Order, but

need not be accompanied by a separate motion to seal. The date and time of physical submission to the

CISO or his designee shall be considered as the date and time of court filing. The CISO shall promptly

examine the document and, in consultation with representatives of the appropriate Government agencies,

determine whether the document contains classified information. If the CISO determines that the

document contains classified information, he or she shall ensure that the classified portions of the

document, and only those portions, are marked with the appropriate classification marking and that the

document remains under seal. All portions of any document filed by the Defense that do not contain

classified information shall immediately be unsealed by the CISO and placed in the public record. The

CISO shall make arrangement for the prompt delivery under seal to the Court and counsel for the

Government any document to be filed by the Defense that contains classified information. At the time of

making a physical submission to the CISO, or his designee, defense counsel shall file on the public

record in the CM/ECF system a notice of filing. The notice should contain only the case caption and an

unclassified title of the filing.

15. Any document filed by the Government containing classified information, or which the

Government has reason to believe contains classified information, shall be filed under seal with the

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Court through the CISO or his designee. Pleadings filed under seal with the CISO, or his designee, shall

be marked: Filed With The Classified 

Information Security

Officer

In Camera 

Under Seal

and shall include in the introductory paragraph a statement that the item is being filed under seal

pursuant to this Order, but need not be accompanied by a separate motion to seal. The date and time of

physical submission to the CISO shall be considered the date and time of filing. Unless the pleading is

filed “EX PARTE,” the CISO shall make arrangement for the prompt delivery under seal to the Court

and defense counsel any document to be filed by the Government that contains classified information. 

At the time of making a physical submission to the CISO, or his designee, defense counsel shall file on

the public record in the CM/ECF system a notice of filing. The notice should contain only the case

caption and an unclassified title of the filing.

16. Sealing of Records: The CISO shall maintain a separate sealed record for those pleadings

containing classified materials and retain such record for purposes of later proceedings or appeal. 

17. Access to Classified Information. The Defense shall have access to classified information

only as follows:

A. All classified information produced by the Government to the Defense, in

discovery or otherwise, and all classified information possessed, created or maintained by the Defense,

shall be stored, maintained and used only in the Secure Area established by the CISO;

B. The Defense shall have free access to the classified information made available to

them in the Secure Area, and shall be allowed to take notes and prepare documents with respect to those

materials;

C. The Defense shall not copy or reproduce any classified information in any form

except with the approval of the CISO, or in accordance with the procedures established by the CISO for

the operation of the Secure Area;

D. All documents prepared by the Defense (including, without limitation, pleadings

or other documents intended for filing with the Court) that do or may contain classified information,

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shall be transcribed, recorded, typed, duplicated, copied or otherwise prepared only by persons who have

received an appropriate approval for access to classified information, and in the Secure Area on

approved word processing equipment, and in accordance with the procedures approved by the CISO. All

such documents and any associated materials (such as notes, drafts, copies, typewriter ribbons, electronic

media , exhibits, etc.) containing classified information shall be maintained in the Secure Area, unless

and until the CISO determines that those documents or associated materials are unclassified in their

entirety. None of these materials shall be disclosed to counsel for the Government; 

E. The Defense shall discuss classified information only within the Secure Area or in

another area authorized by the CISO and shall not discuss or attempt to discuss classified information

over any standard commercial telephone instrument, office intercommunication system, or any other

method of communication not specifically authorized by the CISO; and

F. The Defense shall not disclose, without prior approval of the Court, any classified

information to any person not authorized pursuant to this Order, including the defendants and defense

witnesses, except the Court, court personnel, and the Government Attorneys who have been identified by

the CISO as having the appropriate clearances and the need-to-know that information. Counsel for the

Government shall be given an opportunity to be heard in response to any request by the Defense for

disclosure of classified information to a person not named in this Order. Any person approved by the

Court for disclosure under this paragraph shall be required to obtain the appropriate security clearance,

to sign and submit to the Court the Memorandum of Understanding appended to this Order, and to

comply with all terms and conditions of this Order. If preparation of the Defense requires that classified

information be disclosed to persons not named in this Order, then, upon approval by the Court and upon

prior notice to the Government, the CISO shall promptly seek to obtain security clearances for them at

the request of defense counsel.

18. Procedures for the use or disclosure of classified information by the Defense in any

manner in connection with any trial or pretrial proceeding shall be those provided in sections 5, 6 and 8

of CIPA and this Protective Order. To facilitate Defense filings of notices required under CIPA Section

5, the CISO shall make arrangements with the appropriate agencies for a determination of the classification level, if any, of materials or information either within the possession of the Defense or about which

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the Defense has knowledge and which the Defense intends to use in any way at any trial or pretrial

proceeding. Nothing submitted by the Defense to the CISO pursuant to this paragraph shall be made

available to counsel for the Government unless so ordered by the Court, or so designated by the Defense. 

Should the CISO confirm that the material or information is classified and the Defense intend to use

such classified information, the Defense shall file a CIPA Section 5 notice. The Defense shall not use,

disclose or cause to be disclosed any classified information in any manner in connection with any trial or

pretrial proceeding contrary to this Order or other order of this Court, unless and until the procedures

under CIPA have been followed or waived by the Government in writing. 

19. Information in the public domain is ordinarily not classified. However any confirmation,

corroboration, or denial of such information that is based on classified information is subject to the

provisions of CIPA. Therefore, any attempt by defendants or defense counsel to elicit such a confirmation, corroboration, or denial at trial, or in connection with any pre-trial or other proceeding in this case,

shall be governed by CIPA and this Order.

20. Violations of this Order. Unauthorized use or disclosure of classified information may

constitute violations of United States criminal laws. In addition, violation of the terms of this Order

shall be immediately brought to the attention of the Court, and may result in a charge of contempt of

Court and possible referral for criminal prosecution. Any breach of this Order may result in the

termination of a person’s access to classified information. Persons subject to this Order are advised that

direct or indirect unauthorized use, disclosure, retention or negligent handling of classified information

could cause serious damage, and in some cases exceptionally grave damage, to the national security of

the United States, or may be used to the advantage of a foreign nation against the interests of the United

States. This Order is to ensure that those authorized to receive classified information will never divulge

the classified information disclosed to them to anyone who is not authorized to receive it, or otherwise

use the classified information without prior written authorization from the Originating Agency and in

conformity with this Order.

21. All classified information to which the Defense has access in this case is now and will

remain the property of the Government. The defense counsel, defense counsel employees, defense

translators, and anyone else who receives classified information pursuant to this Order shall return all

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such classified information in their possession obtained through discovery from the Government in this

case or for which they are responsible because of access to classified information, upon demand of the

CISO. The notes, summaries and other documents prepared by the Defense that do or may contain

classified information shall remain at all times in the custody of the CISO for the duration of this case. 

At the conclusion of all proceedings, including any final appeals, all such notes, summaries and other

documents are to be destroyed by the CISO in the presence of defense counsel if so requested.

22. Declassified Information. As used herein, the term “declassified information” refers to

any and all classified information, which may be declassified pursuant to the procedures outlined in

CIPA and this Order. Any declassified information will be treated by the defense as “Sensitive

Discovery” under the Amended Protective Order entered February 25, 2011.

23. Nothing in this Order shall preclude the Government from seeking a further protective

order pursuant to CIPA and/or Rule 16(d) as to particular items of discovery material. 

24. A copy of this Order shall be issued forthwith to counsel for the defendants, who shall be

responsible for advising the defendants and defense counsel employees of the contents of this Order.

IT IS SO ORDERED.

DATED: September 17, 2012

 Hon. Jeffrey T. Miller

 United States District Judge

I:\Chambers Miller\__SIGNED ORDERS\9 17 12\10CR4246_protective order_9 17 12.wpd 10 10cr4246

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United States v. Kim

(D.D.C. 1:10-cr-225)

Protective Order ................................................................................................. 35

Supplemental Protective Order ........................................................................ 53

34
(rJ) 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES OF AMERICA ) 

) 

v. ) 

) 

STEPHEN JIN-WOO KIM, ) 

also known as Stephen Jin Kim, ) 

also known as Stephen Kim, ) 

also known as Leo Grace, ) 

) 

Defendant. ) 

Cr. No.: 10-225 (CKK) 

CIPA PROTECTIVE ORDER 

This matter comes before the Court upon the Government's Unopposed Motion for a CIPA 

Protective Order to prevent the unauthorized disclosure or dissemination of classified national 

security documents and information which will be reviewed by, or made available to, or are 

otherwise in the possession of, the defendant and defense counsel in this case. 

Pursuant to the authority granted under Section 3 ofthe Classified Information Procedures 

Act, 18 U.S.C. App. 3 ("CIPA"); the Security Procedures Established Pursuant to Pub. L. 96-456, 

94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information 

(reprinted following CIPA Section 9; hereinafter referred to as the "Security Procedures"); Rules 

16( d) and 57 of the Federal Rules of Criminal Procedure; the general supervisory authority of the 

.d; 

Court; and in order to protect the national security, it is this /3 day of October, 2010, hereby 

ORDERED that the Government's Unopposed Motion for a CIPA Protective Order is 

GRANTED; and it is 

FURTHER ORDERED that: 

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1. The Court finds that this case will involve classified national security documents and 

information, the storage, handling and control of which, by law or regulation, requires special 

security precautions, and access to which requires a security clearance and a "need-to-know." 

2. The purpose of this Order is to establish the procedures that must be followed by the 

defendant, all defense counsel of record, their designated employees, all other counsel involved in 

this case, translators for the defense, any Court personnel, and all other individuals who receive 

access to, or otherwise are in possession of, classified documents or information in connection with 

this case. 

3. The procedures set forth in this Protective Order and CIP A shall apply to all pre-trial, 

trial, post-trial, and appellate aspects of this case, and may be modified from time to time by further 

order ofthe Court acting under Fed. R. Crim. P. 16(d); Sections 3 and 9 ofCIPA; and the Court's 

inherent supervisory authority to ensure a fair and expeditious trial. 

Definitions 

4. As used herein, the terms "classified national security information and documents," 

"classified information," and "classified documents" refer to: 

a. Any classified document or information which has been classified by any 

Executive Branch agency in the interests of national security or pursuant to Executive Order 13526 

or its predecessor Orders as "CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally 

controlled as '·SENSITIVE COMPARTMENTED INFORMATION (SCI);" 

b. Any document or information, regardless of its physical form or 

characteristics, now or formerly in the possession of a private party, which has been derived from 

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United States government information that was classified, regardless of whether such document or 

information has subsequently been classified by the United States pursuant to Executive Order 13526 

or its predecessor Orders as "CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally 

controlled as "SENSITIVE COMPARTMENTED INFORMATION (SCI);" 

c. Verbal classified information known to the defendant or defense counsel; 

d. Any document and information, including verbal information, as to which the 

defendant or defense counsel have been notified orally or in writing that such document or 

information contains classified information; or, 

e. Any information, regardless of place or ongm and including '"foreign 

government information," as that term is defined in Executive Order 13526, that could reasonably 

be believed to contain classified information, or that refers or relates to national security or 

intelligence matters; and, 

f. Any information obtained from any agency, department or other governmental 

entity, including a member of the Intelligence Community, as defined in 50 U.S.C. § 401 a, that could 

reasonably be believed to contain classified information or that refers to national security or 

intelligence matters. 

5. The words "documents" or "information" shall include, but are not limited to, all 

written or printed matter of any kind, formal or informal, including originals, conforming copies and 

non-conforming copies (whether different from the original by reason of notation made on such 

copies or otherwise), and further include, but are not limited to: 

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a. Papers, correspondence, memoranda, notes, letters, reports, summanes, 

photographs, maps, charts and graphs, inter-office and intra-office communications, notations of any 

sort concerning conversations, meetings, or other communications, bulletins, cables, telexes, 

telecopies, teletypes, telegrams, and telefacsimiles, invoices, accountings, worksheets, and drafts, 

alterations, modifications, changes and amendments of any kind to the foregoing; 

b. Graphic or oral records or representations of any kind, including, but not 

limited to, photographs, maps, charts, graphs, microfiche, microfilm, videotapes, sound recordings 

of any kind, and motion pictures; 

c. Electronic, mechanical or electric records of any kind, including, but not 

limited to, tapes, cassettes, disks, recordings, films, typewriter ribbons, word processing or other 

computer tapes or disks, and all manner of electronic data processing storage; and, 

d. Information acquired orally or verbally. 

6. All classified documents, and information contained therein, shall remain classified 

unless the documents bear a clear indication that they have been declassified by the agency or 

department that is the originating agency of the document or the information contained therein 

(hereinafter, the "originating agency"). 

7. Information in the public domain is ordinarily not classified. However, if classified 

information is reported in the press or otherwise enters the public domain, the information does not 

lose its classified status merely because it is in the public domain. And information reported in the 

press or otherwise in the public domain may be considered classified and subject to the provisions 

ofCIP A if the information in fact remains classified and is confirmed by any person who has, or had, 

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such access to classified information and that confirmation corroborates the information in question. 

Accordingly, any attempt by the defense to have classified information that has been reported in the 

public domain confirmed or denied at trial or in any public proceeding in this case shall be governed 

by CIP A and all provisions of this Order. 

8. "Access to classified information" means having access to, reviewing, reading, 

learning, or otherwise coming to know in any manner any classified information. 

9. "SCIF" shall mean a sensitive compartmented information facility accredited by a 

Court Security Officer for the storage, handling, and control of classified documents and 

information. 

10. Comi Security Officer- In accordance with the provisions of CIPA and the Security 

Procedures, the Court designates Security Specialist Christine E. Gunning as Court Security Officer 

for this case and Jennifer H. Campbell, Carli Rodriguez-Feo, Branden M. Forsgren, Daniel 0. 

Hartenstine, Joan B. Kennedy, Michael P. Macisso, Maura L. Peterson and W. Scooter Slade as 

Alternate Court Security Officers, for the purpose of providing security arrangements necessary to 

protect from unauthorized disclosure any classified documents or information to be made available 

to the defendant or defense counsel in connection with this case that may be in the possession of the 

defendant or defense counsel. Defense counsel shall seek guidance from the Court Security Officer 

with regard to the appropriate storage, handling, transmittal, and use of all classified documents and 

information. 

11. Government Attorneys - The Court has been advised that the following government 

attorneys working on this case, Assistant United States Attorneys G. Michael Harvey and Jonathan 

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M. Malis, and United States Department of Justice Trial Attorney Patrick Murphy, and their 

respective supervisors, have the requisite security clearances to have access to the classified 

documents and information that relate to this case. All references to government attorneys, or 

attorneys for the government, as used in this Order, refer only to the attorneys listed in this paragraph 

and their respective supervisors. 

12. Protection of Classified Information - The Court finds that, in order to protect the 

classified documents and information involved in this case, no person, including the defendant and 

any witness for the defense, except government attorneys, appropriately cleared Department of 

Justice employees, personnel of the originating agency, defense counsel, and defense counsel 

employees, including translators, shall have access to the classified documents and information in 

this case. No defense counsel or defense counsel employee, including any translator, shall have 

access to any classified documents and information in this case unless that person shall first have: 

a. Signed the Memorandum of Understanding in the form attached hereto, 

agreeing to comply with the terms of this Order. The signed Memorandum of Understanding shall 

be filed with the Court. The substitution, departure, or removal for any reason from this case of 

counsel for the defendant, or anyone associated with the defense as an employee or otherwise, shall 

not release that person from the provisions of this Order or the Memorandum of Understanding 

executed in connection with this Order. 

b. Persons other than government attorneys, appropriately cleared Department 

of Justice employees, and personnel of the originating agency, can only obtain access to classified 

documents and information after having been granted a security clearance by the Court Security 

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Officer and with permission of the Court, either through this Order (for those named in paragraph 

13 below), or by a separate Order upon a showing of a need to know. Before any person other than 

government attorneys, appropriately cleared Department of Justice employees, and personnel of the 

originating agency, is pern1itted by the Court to inspect and review classified documents or 

information, that person must also sign the Memorandum of Understanding. 

13. Defense Counsel- Subject to the provisions of paragraph 12, the following attorneys 

for the defense, their approved partners and employees, and their translator(s) (collectively referred 

to herein as "the defense" or "defense counsel") shall be given access to classified documents and 

information as required by the government's discovery obligations and otherwise as necessary to 

prepare for proceedings in this case: Abbe D. Lowell and Ruth Wedgwood. This Order shall apply 

to any substituted counsel in the event that any of the above-named attorneys discontinue their 

involvement in this matter. 

Any additional person whose assistance the defense reasonably requires may only have access 

to classified documents and information in this case after obtaining from the Court - with prior 

notice to the United States- an approval for access to the appropriate level of classification on a 

need-to-know basis, and after satisfying the other requirements described in this Order for access to 

classified documents and information. The substitution, departure, or removal for any reason from 

this case of defense counsel or anyone associated with the defense as an employee or witness or 

otherwise, shall not release that person from the provisions of this Order or the Memorandum of 

Understanding executed in connection with this Order. 

-7-

41
14. Unless already holding an appropriate security clearance and approved for access to 

classified documents and information in this case, for the purpose of establishing security clearances 

necessary for access to classified documents and information that may be involved in this case, 

standard Form 86 ("Security Investigation Data for Sensitive Position"), attached releases, and 

fingerprints shall be completed and submitted to the Court Security Officer forthwith by defense 

counsel, all persons whose assistance the defense reasonably requires, and by such Court personnel 

as the Court requires for its assistance. The Court Security Officer shall take all reasonable steps to 

process all security clearance applications. 

15. Area of Review - The Court Security Officer shall arrange for an appropriately 

approved SCIF for use by the defense. The Court Security Officer shall establish procedures to 

assure that the SCIF is accessible to the defense during normal business hours and at other times on 

reasonable request as approved by the Court Security Officer. The SCIF shall contain a separate 

working area for the defense and will be outfitted with any secure office equipment requested by the 

defense that is reasonable and necessary to the preparation of the defendant's defense in this case. 

The Court Security Officer, in consultation with defense counsel, shall establish procedures to assure 

that the SCIF is maintained and operated in the most efficient manner consistent with the protection 

of classified documents and information. No documents containing classified information may be 

removed from this SCIF unless authorized by the Court Security Officer. The Court Security Officer 

shall not reveal to the United States the content of any conversations she or he may hear among the 

defense, nor reveal the nature of documents being reviewed by them, or the work generated by them. 

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42
In addition, the presence of the Court Security Officer shall not operate as a waiver of, limitation on, 

or otherwise render inapplicable, the attorney-client privilege. 

16. If, upon the entry of a separate order of the Court, it becomes necessary for the 

defendant to review or discuss classified matters, or otherwise meet with defense counsel, in the 

SCIF, this will only occur under appropriate supervision to ensure that the defendant does not escape, 

attempt to escape, cause physical injury to himself or others, or remove, copy, alter, or destroy 

classified documents and information, or obtain access to classified documents and information that 

the defendant is not entitled to review, and to ensure that the defendant does not use the opportunity 

to review the classified materials to circumvent any applicable security restrictions, including any 

Special Administrative Measures imposed by the Bureau of Prisons, other prison regulations, and 

the other orders of this Court governing discovery in this case. 

17. Filings with the Court - Until further order of this Court, any pleading or other 

document filed by the defense shall be filed under seal with the Court through the Court Security 

Officer by 4 p.m. on the day of filing, unless defense counsel has obtained from the Court Security 

Officer permission, specific to a particular, non-substantive pleading or document (e.g., motions for 

extensions oftime, continuances, scheduling matters, etc.) not containing information that is or may 

be classified or under seal, to file the pleading or documents not under seal. Pleadings filed under 

seal with the Court Security Officer shall be marked, "Filed in Camera and Under Seal with the 

Com1 Security Officer." The date and time of physical submission to the Court Security Officer or 

her designee shall be considered the date and time of filing. At the time of making a submission to 

the Court Security Officer, defense counsel shall file on the public record in the CM/ECF system a 

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43
"'Notice of Filing" notifying the Court that the submission was made to the Court Security Officer 

and providing a title of the document which does not disclose any potentially- classified information. 

The Court Security Officer shall promptly examine the pleading or document and, in 

consultation with representatives of the appropriate agencies, determine whether the pleading or 

document contains classified information. If the Court Security Officer determines that the pleading 

or document contains classified information, she or he shall ensure that that portion of the pleading 

or document, and only that portion, is marked with the appropriate classification marking and that 

the pleading or document remains under seal. All portions of any pleading or document filed by the 

defense that does not contain classified information shall immediately be unsealed by the Court 

Security Officer and placed in the public record. The Court Security Officer shall immediately 

deliver under seal to the Court and counsel for the United States (unless such filing is ex parte) any 

pleading or document to be filed by the defense that contains classified information. 

18. Any pleading or other document filed by the United States containing classified 

information shall be filed under seal with the Court through the Court Security Officer following the 

same procedures as outlined in paragraph 17. The date and time of physical submission to the Court 

Security Officer shall be considered the date and time of the filing. The Court Security Officer shall 

immediately deliver under seal to the Court and counsel for the defense (unless such filing is ex 

parte) any pleading or document to be filed by the government that contains classified information. 

19. The Court Security Officer shall maintain a separate sealed record for those materials 

which are classified. The Court Security Officer shall be responsible for also maintaining the 

secured records for purposes of later proceedings or appeal. 

-10-

44
20. Access to Classified Information- Defense counsel, their designated employees and 

translators, shall have access to classified documents and information only as follows: 

a. All classified documents and information produced by the United States to 

the defense, in discovery or otherwise, and all classified documents and information possessed, 

created. or maintained by the defense, shall be stored, maintained, and used only in the SCIF 

established by the Court Security Officer; 

b. The defense shall have free access to the classified documents and information 

made available to them in the SCIF, and shall be allowed to take notes and prepare documents with 

respect to those materials. However, the defense shall not, except under separate Court order, 

disclose the classified documents and information, either directly, indirectly, or in any manner which 

would disclose the existence of such, to pursue leads or in the defense of the defendant; 

c. No person, including the defense, shall copy or reproduce any classified 

documents and information in any form, except with the approval of the Court Security Officer or 

in accordance with the procedures established by the Court Security Officer for the operation of the 

SCIF; 

d. All documents prepared by the defense (including without limitation, 

pleadings or other documents intended for filing with the Court) that do or may contain classified 

information, shall be transcribed, recorded, typed, duplicated, copied, or otherwise prepared only by 

persons who have received an appropriate approval for access to classified documents and 

information, and in the SCIF on approved word processing equipment and in accordance with the 

procedures approved by the Court Security Officer. All such documents and any associated materials 

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45
(such as notes, drafts, copies, typewriter ribbons, magnetic recordings, and exhibits) containing 

classified information shall be maintained in the SCIF unless and until the Court Security Officer 

determines that those documents or associated materials are unclassified in their entirety. None of 

these materials shall be disclosed to counsel for the United States; 

e. The defense shall discuss classified documents and information only within 

the SCIF authorized by the Court Security Officer, and shall not discuss or attempt to discuss 

classified documents or information over any standard commercial telephone instrument or office 

intercommunication system, including but not limited to the Internet; 

f. The defense shall not disclose, without prior approval by the United States 

in the first instance or by the Court upon notice to and opportunity to be heard by the United States, 

the contents of any classified documents or information to any person not authorized pursuant to this 

Order, including the defendant and defense witnesses, except the Court, Court personnel, and the 

attorneys for the United States, who have been identified by the Court Security Officer as having the 

appropriate clearances and the need to know that information. Counsel for the United States shall 

be given notice of and an opportunity to be heard by the Court in response to any defense request to 

the Court for disclosure to a person not named in this Order. Any person approved by the United 

States in the first instance or by the Court upon notice to and an opportunity to be heard by the 

United States for disclosure under this paragraph shall be required to obtain the appropriate security 

clearance as necessary, to sign and submit to the Court the Memorandum ofUnderstanding appended 

to this Order, and to comply with all terms and conditions of this Order. If preparation of the defense 

requires that classified documents or information be disclosed to persons not named in this Order, 

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46
then, upon approval by the United States in the first instance or by the Court upon notice and an 

opportunity to be heard by the United States, the Court Security Officer shall promptly seek to obtain 

security clearances for them at the request of defense counsel. 

21. Procedures for the use or the public disclosure of classified documents and 

information by the defense shall be those provided in Sections 5 and 6 of CIP A. No classified 

documents or information may be used or disclosed by the defense except: 

a. To the Court, Court personnel, and government attorneys and their agents and 

employees identified by the Court Security Officer as holding proper approvals for access to 

classified information; 

b. In accordance with the procedures ofCIPA and the procedures established by 

the Court Security Officer; 

c. To persons who have been authorized to have access to classified documents 

or information pursuant to this Order or to CIP A; and, 

d. To representatives of the agency or department originating the classified 

information, who have been identified by the Court Security Officer as holding appropriate security 

clearances and having the need to know the classified information. 

To facilitate the defense filing of notices required under Section 5 of CIPA, the Court 

Security Officer shall make arrangements with the appropriate agencies for a determination of the 

classification level, if any, of materials or information either within the possession of the defense or 

about which the defense has knowledge and which the defense intends to use in any way at any 

pretrial proceeding, deposition or at trial. Nothing submitted by the defense to the Court Security 

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47
Officer pursuant to this paragraph shall be made available to counsel for the United States unless so 

ordered by the Court, or so designated by the defense. Any and all items which are classified shall 

be listed in the defendant's Section 5 notice. 

22. Violations of this Order- Any unauthorized disclosure or dissemination of classified 

documents or information may constitute violations ofUnited States criminal laws. In addition, any 

violation of the terms of this Order shall be immediately brought to the attention of the Court and 

may result in a charge of contempt of the Court and possible referral for criminal prosecution. Any 

breach of this Order may also result in the termination of a person's access to classified documents 

or information. Persons subject to this Order are advised that direct or indirect unauthorized use, 

disclosure, retention, or negligent handling of classified documents or information could cause 

serious damage, and in some cases exceptionally grave damage, to the national security of the United 

States or may be used to the advantage of a foreign nation against the interests of the United States. 

This Order is intended to ensure that those authorized by the Order to receive classified documents 

or information will never divulge the classified documents or information disclosed to them in 

connection with this case to anyone who is not now authorized to receive it, or otherwise use the 

classified documents or information, without prior written authorization from the originating agency 

and in conformity with this Order. 

23. All classified documents and information to which defense counsel and defense 

counsel employees, including translators, have access in this case are now and will remain the 

property of the United States. The defense counsel and defense counsel employees, including 

translators, who receive classified documents and information shall return all such classified 

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48
documents and information in their possession obtained through discovery from the United States 

in this case, or for which they are responsible because of access to classified documents and 

information, upon demand of the Court Security Officer. The notes, summaries, and other 

documents prepared by the defense that do or may contain classified information shall remain at all 

times in the custody ofthe Court Security Officer for the duration of this case. At the conclusion of 

this case, all such notes, summaries, and other documents are to be destroyed by the Court Security 

Officer in the presence of defense counsel, if so desired. 

24. Nothing in this Order shall preclude the United States from seeking a further 

protective order pursuant to Rule 16( d) as to particular items of discovery material. 

25. A copy of this Order shall be issued forthwith to counsel for the defendant, who shall 

be responsible for advising the defendant and defense counsel employees, including translators, of 

the contents of this Order. The defense counsel and defense counsel employees to be provided 

access to classified information shall execute the Memorandum of Understanding appended to this 

Order, and defense counsel shall file executed originals with the Court and the Court Security Officer 

and serve executed originals of such document upon the United States. The execution and filing of 

the Memorandum of Understanding is a condition precedent for defense counsel, defense counsel 

employees, and any other person working for the defense to have access to classified information. 

It is also a condition precedent for the defendant and any defense witness to have access to classified 

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49
information pursuant to paragraph 20f above. 

copied to: 

G. Michael Harvey 

Jonathan M. Malis 

Assistant United States Attorneys 

United States Attorney's Office 

555 4th Street, NW, 11th Floor 

Washington, D.C. 20530 

Patrick Murphy 

Trial Attorney 

U.S. Department of Justice 

1400 New York A venue, NW 

Washington, D.C. 20005 

Counsellor the Government 

Abbe D. Lowell, Esq. 

McDermott Will & Emery 

600 13th Street, NW 

Washington, D.C. 20005-3096 

Ruth Wedgwood, Esq. 

1619 Massachusetts Ave., NW 

Washington, D.C. 20036 

Counsel for Defendant Stephen Kim 

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50
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES OF AMERICA ) 

) 

~ ) Cr. No.: 10-225 (CKK) 

) 

STEPHEN JIN-WOO KIM, ) 

also known as Stephen Jin Kim, ) 

also known as Stephen Kim, ) 

also known as Leo Grace, ) 

) 

Defendant. ) 

MEMORANDUM OF UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I have already 

received and/or may be the future recipient of information and documents which pertain to the 

national security of the United States and which are the property of the United States, and that such 

information and documents, together with the methods of collecting such information, are classified 

according to security standards set by the United States goverrunent. 

2. I agree that I shall never divulge, publish, or reveal, either by word, conduct, or any 

other means, such classified information or documents unless specifically authorized in writing to 

do so by an authorized representative ofthe United States goverrunent, or as authorized by the Court 

pursuant to the Classified Information Procedures Act ("CIP A") or the CIP A Protective Order 

entered in the above-captioned case, or as otherwise ordered by the Court, 

3. I agree that this Memorandum of Understanding and any other nondisclosure 

agreement signed by me in connection with this case will remain forever binding upon me. 

51
4. I have received, read, and understand the CIPA Protective Order entered by the 

United States District Court for the District of Columbia in the above-captioned case, and I agree to 

comply with the provisions contained therein. 

5. I declare under penalty of perjury under the laws of the United States that the 

foregoing is true and correct to the best of my knowledge, information, and belief. 

Name: 

Date and Place of Birth: ---------------

(signature) 

Date: ------------

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52
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES OF AMERICA ) 

) 

v. ) 

) 

STEPHEN JIN-WOO KIM, ) 

also known as Stephen Jin Kim, ) 

also known as Stephen Kim, ) 

also known as Leo Grace, ) 

) 

Defendant. ) 

Cr. No.: 10-225 (CKK) 

FIRST SUPPLEMENTAL CIPA PROTECTIVE ORDER 

This matter comes before the Court upon the Government's Unopposed Motion for First 

Supplemental CIP A Protective Order to prevent the unauthorized disclosure or dissemination of 

classified national security documents and information which will be reviewed by, or made 

available to, or are otherwise in the possession of, defendant Stephen Jin-Woo Kim. 

Pursuant to the authority granted under Section 3 of the Classified Information 

Procedures Act, 18 U.S.C. App. 3 ("CIP A"); the Security Procedures Established Pursuant to 

Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of 

Classified Information (reprinted following CIP A Section 9; hereinafter referred to as the 

"Security Procedures"); Rules 16(d) and 57 ofthe Federal Rules of Criminal Procedure; the 

general supervisory authority of the Court; and in order to protect the national security, it is this 

-« /8 day ofNovember, 2010, hereby 

ORDERED that the Government's Unopposed Motion for First Supplemental CIPA 

Protective Order is GRANTED; and it is 

FURTHER ORDERED that: 

53
1. The purpose of this First Supplemental CIPA Protective Order is to establish the 

procedures that must be followed by the defendant, who does not presently possess an active 

security clearance, prior to his being granted authorized access to any classified documents and 

information in connection with this case. 

2. This Order incorporates by reference the terms of the CIPA Protective Order 

issued on October 13, 2010 (hereinafter, "CIPA Protective Order"). 

3. The procedures set forth in this First Supplemental Protective Order shall apply to 

all pre-trial, trial, post-trial, and appellate aspects of this case, and may be modified from time to 

time by further order ofthe Court acting under Fed. R. Crim. P. 16(d); Sections 3 and 9 ofCIPA; 

and the Court's inherent supervisory authority to ensure a fair and expeditious trial. 

4. At the Government's election or by order of this Court under paragraph 20(f) of 

the CIPA Protective Order, the defendant may be given access in discovery to certain classified 

national security documents and information. As set forth in the Government's Motion, pursuant 

to the Nondisclosure Agreements that the defendant signed when he was granted authorized 

access to classified documents and infomiation as part of his work for the United States 

government, the defendant has a continuing contractual obligation to the government not to 

disclose to any unauthorized person any classified documents or information known to him or 

that he possesses. The government is entitled to enforce its Nondisclosure Agreements with the 

defendant to maintain the secrecy of the classified documents and information that the defendant 

may obtain as a result of this case. Consequently, pursuant to federal common law and the 

ordinary principles of contract law, the defendant shall fully comply with his Nondisclosure 

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54
Agreements and shall not disclose any classified documents or information to any unauthorized 

person unless authorized to do so by order of this Court. 

5. Further, the defendant shall comply with all terms ofthe CIPA Protective Order 

not inconsistent with the terms set forth herein, as well as the requirements of CIP A and any 

other orders issued by this Court pursuant to CIP A. 

6. A copy ofthis First Supplemental CIPA Protective Order shall be issued forthwith 

to counsel for the defendant, who shall be responsible for advising the defendant of its contents. 

Prior to his being given access to any classified documents or information in this matter, the 

defendant shall execute the Memorandum of Understanding appended to this Order, and defense 

counsel shall file executed originals with the Court and the Court Security Officer and serve an 

executed original of such document upon the United States. The execution and filing of the 

Memorandum of Understanding is a condition precedent for the defendant to have access to 

classified documents and information in this matter. 

copied to: 

G. Michael Harvey 

Jonathan M. Malis 

Assistant United States Attorneys 

United States Attorney's Office 

555 41h Street, NW, 11th Floor 

Washington, D.C. 20530 

Judge 

~llee(/f::Kotl ffL_- ~ United States District Court 

for the District of Columbia 

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55
Patrick Murphy 

Trial Attorney 

U.S. Department of Justice 

1400 New York Avenue, NW 

Washington, D.C. 20005 

Counsel for the Government 

Abbe D. Lowell, Esq. 

McDermott Will & Emery 

600 131

h Street, NW 

Washington, D.C. 20005-3096 

Counsel for Defendant Stephen Kim 

-4-

56
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES OF AMERICA ) 

) 

v. ) 

) 

STEPHEN JIN-WOO KIM, ) 

also known as Stephen Jin Kim, ) 

also known as Stephen Kim, ) 

also known as Leo Grace, ) 

) 

Defendant. ) 

Cr. No.: 10-225 (CKK) 

MEMORANDUM OF UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I may have 

already received, and may be the future recipient of information and documents, that pertain to 

the national security of the United States and which are the property of the United States, and that 

such information and documents, together with the methods of collecting such information and 

documents, are classified according to security standards set by the United States government. 

2. I agree that I shall never divulge, publish, or reveal, either by word, conduct, or 

any other means, such classified information or documents unless specifically authorized in 

writing to do so by an authorized representative of the United States government, or as 

authorized by the Court pursuant to the Classified Information Procedures Act ("CIPA"), the 

CIPA Protective Order issued on October 13, 2010 ("CIPA Protective Order"), or as otherwise 

ordered by the Court. 

3. I understand that this Memorandum of Understanding and any other 

Nondisclosure Agreements previously signed by me as a condition of my access to classified 

57
documents and information as part of my work for the United States government, will remain 

forever binding upon me. 

4. I received, read and understand the CIP A Protective Order and the First 

Supplemental CIP A Protective Order entered by the United States District Court for the District 

of Columbia in the above-captioned case, and I agree to comply with the provisions contained 

therein. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information, and belief. 

Name ------------------------------------- Stephen Jin-Woo Kim 

Date and Place of Birth: -------------------------

(signature) 

Date 

Witness Name 

Witness Signature· 

-2-

58
United States v. Sedaghaty

(D. Or. 6:05-cr-60008)

Protective Order ................................................................................................. 60

59
UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

UNITED STATES OF AMERICA Case No. 05-cr-60008-02-HO 

v. 

PIROUZ SEDAGHATY, 

Defendant. 

I' I" i I) PROTECTIVE ORDER 

PERTAINING TO CLASSIFIED 

INFORMATION 

This matter is before the Court upon the Government's Motion for a Protective Order 

Pertaining to Classified Information to prevent the unauthorized disclosure or dissemination of 

classified national security information and documents which may be reviewed by or made available 

to counsel for the defendant in this case. 

Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. 3 ("CIP A"), requires 

entry of a protective order upon motion by the government. The government has moved for an order 

to protect against the disclosure of classified information to be disclosed by the United States to 

defense counsel in this case. 

Pursuant to the authority granted under Section 3 of CIP A; the Security Procedures 

Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for 

the Protection of Classified Information (reprinted following Section 9 of CIPA) ("Security 

Procedures"); Rule 16(d) of the Federal Rules of Criminal Procedure; the general supervisory 

authority of the Court; and in order to protect the national security, 

60
THE COURT HEREBY FINDS AND ORDERS: 

1. By order dated February 26,2010 (CR 278), the Court authorized the government 

to provide a classified summary of certain specific classified national security information to defense 

counsel. This case will therefore involve classified national security information, the storage, 

handling and control of which, by law or regulation, requires special security precautions, and access 

to which requires a security clearance and an actual need to know. 

2. The purpose of this Order is to establish the procedures that must be followed by 

defense counsel, other counsel involved in this case, persons assisting defense counsel, other Court 

personnel, and all other individuals who are granted access to classified information or documents 

in connection with this case. It is a further purpose of this Order to ensure that those authorized by 

the Order to receive classified information do not divulge the classified information disclosed to 

them to anyone who is not authorized to receive it, or otherwise use the classified information, 

except in conformity with this Order or with prior written authorization from the originating agency. 

3. The procedures set forth in this Protective Order and in CIP A will apply to all 

pretrial, trial, post-trial and appellate aspects concerning classified information in this case, and may 

be modified from time to time by further order of the Court acting pursuant to Fed. R. Crim. P. 

16( d), CIP A, and the Court's inherent supervisory authority to ensure a fair trial. 

4. Definitions. The following definitions shall apply to this Order: 

a. The terms "classified national security information and documents," 

"classified documents and information," "classified information," and "classified documents" refer 

to: 

Ill 

[1!1'!mlt!BilllltJI] Protective Order Pertaining to Classified Information Page2 

61
i. Any document that has been classified by any Executive Branch 

agency in the interests of national security or pursuant to Executive Order 12958, as amended, as 

"CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally controlled as "SENSITIVE 

COMPARTMENTED INFORMATION" (SCI), and any information contained in such documents; 

ii. Any document or information that the defendant or the defense know, 

or should reasonably know, has been derived from United States government information that was 

classified, regardless whether such document or information has subsequently been classified by the 

government pursuant to Executive Order 12958 as amended; 

iii. Verbal classified information that has been disclosed by attorneys for 

the government or by a witness in a court proceeding to the defendant or the defense; or 

iv. Any document or information, including verbal information and 

"foreign government information" (as that term is defined in Executive Order 12958, as amended), 

that the defendant or the defense has been notified is classified, unless already possessed by or 

known to the defendant or the defense, provided that such knowledge is not derived from materials 

described in subparagraph S(a)(i),(ii), or (iii) above. 

b. The words "document" and "information" shall include, but are not limited 

to, all written or printed matter of any kind, formal or informal, including originals, conforming 

copies and non-conforming copies (whether different from the original by reason of notation made 

on such copies or otherwise), and further include, but are not limited to: 

i. Papers; correspondence; memoranda; notes; letters; reports, 

summaries; interoffice and intra-office communications; notations of any sort concerning 

conversations, meetings or other communications; bulletins; telexes; cables; teletypes; telegrams; 

[PIUfr 11 ~I Protective Order Pertaining to Classified Information Page3 

62
facsimiles; e-mails; invoices; worksheets; and drafts, alterations, modifications, changes and 

amendments of any kind to the foregoing; 

ii. Graphic or oral records or representations of any kind, including, but 

not limited to, photographs, maps, charts, graphs, microfiche, microfilm, videotapes, sound 

recordings of any kind and motion pictures; 

iii. Electronic, mechanical, magnetic, optical or electric records of any 

kind, including, but not limited to, data stored on tapes, cassettes, CD-ROMS, disks, recordings, 

films, typewriter ribbons, word processing or other computer tapes or disks, and all manner of 

electronic data processing storage; and 

iv. Information acquired aurally. 

c. "Access to classified information" means having access to, reviewing, 

reading, learning, or otherwise coming to know in any manner any classified information. 

d. "Secure area" shall mean a physical facility accredited for the storage, 

handling, and control of classified information. 

e. "The defense" means any person assisting the defendant with the preparation 

of his defense in this case including (but not limited to) counsel for the defendant and employees 

of, consultants to or contractors for defense counsel. 

f. "Attorneys for the government," "government counsel," and "counsel for the 

government" means the attorneys listed in paragraph 9. 

g. "Originating agency" means the government agency, department or entity 

from which the classified document or the information contained therein originated. 

Ill 

[P.i •t 111l] Protective Order Pertaining to Classified Information Page4 

63
5. Any document or information provided by attorneys for the government to the 

defense referencing, mentioning, originating from, or concerning any agency, or part of an agency, 

that is a member of the United States "intelligence community" (as defined in Section 3.4 of the 

National Security Act ofl947, codified at 50 U.S.C. § 40la(4)), other than the FBI, or information 

in possession of such agency, or part thereof, other than the FBI, shall be presumed to fall within 

the meaning of classified information unless and until the Court Security Officer or an attorney for 

the government advises otherwise in writing. 

6. All classified documents and information shall remain classified unless such 

document or information bears a clear indication that it has been declassified by the originating 

agency. 

7. Information in the public domain is ordinarily not classified. However, such 

information may be considered classified, and therefore subject to the provisions of CIP A, if it is 

confirmed by any person who has had access to the classified information, and that confirmation 

corroborated the information in question. Any attempt by the defendant or the defense to have such 

information confirmed or denied at trial, or in connection with any pretrial, post-trial or other 

proceeding in this case, shall be governed by CIP A and the provisions of this Order. 

8. In accordance with the provisions of CIP A and the Security Procedures, the Court 

designates Security Specialist Winfield S. "Scooter" Slade as Court Security Officer for this case 

and Security Specialists John D. Arszulowicz, Jennifer H. Campbell, Miguel A. Ferrer, Christine 

E. Gunning, Daniel 0. Hartenstine, Joan B. Kennedy, Michael P. Macisso, and Maura P. Peterson 

as Alternate Court Security Officers (collectively "the CSO"), for the purpose of providing security 

arrangements necessary to protect from unauthorized disclosure any classified documents or 

[Piiifi "1l] Protective Order Pertaining to Classified Information PageS 

64
information to be made available in connection with this case. The defense shall seek guidance from 

the CSO with regard to the appropriate storage, handling, transmittal, and use of classified 

information. 

9. The Court has been advised that the following government attorneys will be working 

on this case: Assistant United States Attorneys Charles F. Gorder, Jr. and Christopher L. Cardani, 

along with various supervisory attorneys and other attorneys specifically designated in the United 

States Attorney's Office, District of Oregon. The Court has also been advised that the government 

attorneys have the requisite security clearances to have access to the classified information which 

is the subject of the Court's Order ofFebruary 26, 2010 (CR 278) in this case. The government may 

add additional attorneys with notice to the Court and defense counsel. 

10. Protection of Classified Documents and Information: The Court finds that, in order 

to protect the classified documents and information involved in this case, no person except the 

attorneys for the govermnent, personnel of the originating agency and other intelligence agencies, 

appropriately-cleared Department of Justice employees, judicial personnel, and members of the 

defense, shall have access to the elassified documents and information in this case. 

a. Judicial personnel, other than the Court, may obtain access to classified 

documents or information after having been granted security clearance by the CSO. 

b. No member of the defense shall have access to any classified documents or 

information in this case unless that person shall first have: 

i. received approval for access to the particular classified documents or 

information from the government or, should the government reject the request, from the Court in a 

Ill 

[P1 r; nell) Protective Order Pertaining to Classified Information Page6 

65
separate order, which shall not occur except upon a showing of a need to know the particular 

classified information and upon consideration of any responsive pleading from the government; 

ii. received the necessary security clearance at the appropriate !eve! of 

classification as determined by the Department of Justice Security Officer working in conjunction 

with the CSO; and 

iii. signed a Memorandum ofUnderstanding (a form for which is attached 

hereto), agreeing to comply with the terms of this Order. 

c. Subject to the provisions of subparagraph b above, the following attorneys 

for the defendant shall be given access to classified documents and information as required by the 

government's discovery obligations and otherwise as necessary to prepare for proceedings in this 

case: Steven T. Wax, Lawrence Matasar, and William Teesdale. 

d. Any additional person whose assistance the defense reasonably requires may 

only have access to classified information in this case after obtaining from the Court-with prior 

notice to the government-an approval for access to the appropriate level of classification on a needto-know basis, and after satisfYing the other requirements described in this Order for access to 

classified information. The substitution, departure, or removal for any reason from this case of 

defense counsel or anyone associated with the defense as an employee or otherwise, shall not release 

that person from the provisions of this Order or the Memorandum of Understanding executed in 

connection with this Order. 

e. The substitution, departure or removal of counsel for the defense or anyone 

associated with the defense as an employee, consultant, contractor, witness or otherwise shall not 

Ill 

[JI'IIp&&at) Protective Order Pertaining to Classified Information Page7 

66
release that person from the provisions of this Order or the Memorandum ofUnderstanding executed 

in connection with this Order. 

f. The defendant shall not have access to any classified documents or 

information in this case. 

II. For the purpose of establishing the security clearances necessary for access to 

classified documents and information that may be involved in this case, the defense, and such Court 

personnel as the Court requires for its assistance shall forthwith complete and submit to the CSO 

Standard Form 86 ("Security Investigation Data for Sensitive Position"), the necessary releases, and 

full fingerprints, unless such person already holds an appropriate security clearance and is approved 

for access to classified documents and information in this case. The CSO shall take all reasonable 

steps to process all security clearance applications in a timely manner. The CSO shall not disclose 

to govermnent attorneys any information supplied by anyone applying for security clearance 

pursuant to this Order. 

12. The CSO shall arrange for and maintain an appropriately approved secure area for 

the use of the defense. The CSO shall establish procedures to ensure that the secure area is 

accessible during normal business hours, and at other times on reasonable request as approved by 

the CSO, to the defense. The secure area will be outfitted with any secure office equipment 

requested by the defense that is reasonable and necessary to the preparation of a defense in this case. 

The CSO, in consultation with defense counsel, shall establish procedures to assure that the secure 

area may be maintained and operated in the most efficient manner consistent with the protection of 

classified information. No documents containing classified information may be removed from the 

secure area by anyone, including the defense, unless authorized by the CSO. No person, including 

[1!'1 up 1111] Protective Order Pertaining to Classified Information PageS 

67
the defense, shall copy or reproduce any classified document or information in any form, except with 

the approval of the CSO or in accordance with the procedures established by the CSO for the 

operation of the secure area. 

13. Filing of Papers by the Defense: Any pleading or other document filed by the 

defense that contains classified information or information that is reasonably believed to be 

classified shaH be filed under seal with the Court through the CSO or his designee. Pleadings filed 

under seal with the CSO shall be marked, "Filed In Camera and Under Seal with the Court Security 

Officer or Designee." Such pleadings need not be accompanied by a separate motion to seal, but 

should include in the introductory paragraph a statement that the item is being filed under seal 

pursuant to this Order. At the time of making a physical submission to the Court Security Officer 

or designee, counsel shall file on the public record in the CM/ECF system a notice of filing that 

notifies the Court that a filing has been made. The CSO shall promptly examine the pleading or 

document and, in consultation with representatives of the appropriate agencies, determine whether 

the pleading or document contains classified information. If the CSO determines that the pleading 

or document contains classified information, he shall ensure that the portion of the document that 

contains classified information, and only that portion, is marked with the appropriate classification 

marking( s) and remains under seal. Any papers filed by the defense that do not contain any 

classified information shall be immediately unsealed by the CSO and placed in the public record. 

The CSO shall immediately deliver under seal to the Court and attorneys for the government any 

pleading or document filed by the defense that contains classified information. 

14. Filing of Papers by the Government: Any pleading or document filed by attorneys 

for the government that contains classified information shall be filed under seal with the Court 

[' • tiiiC¢11] Protective Order Pertaining to Classified Information Page9 

68
through the CSO or his designee. Such pleadings and documents shall be marked, "Filed In Camera 

and Under Seal with the Court Security Officer or Designee." Such pleadings need not be 

accompanied by a separate motion to seal, but should include in the introductory paragraph a 

statement that the item is being filed under seal pursuant to this Order. At the time of making a 

physical submission to the Court Security Officer or designee, counsel shall file on the public record 

in the CM/ECF system a notice of filing that notifies the Court that a filing has been made. The time 

of physical submission to the CSO shall be considered that date and time of filing or as otherwise 

determined by the CSO. The CSO shall immediately deliver under seal to the Court and the defense 

(unless such filing is an ex parte filing) any pleading or document filed by the government that 

contains classified information, provided that the defense has proper clearance and need-to-know 

to receive the pleading or document. 

15. Sealing of Records: The CSO shall maintain a separate sealed record for those 

pleadings or documents containing classified materials. The CSO shall be responsible for 

maintaining the secured records for purposes of later proceedings or appeal. 

16. Access to Classified Information: The defense shall have access to classified 

documents or information only as follows: 

a. All classified documents or information produced by the government to the 

defense, in discovery or otherwise, and all classified documents or information possessed, created, 

or maintained by the defense, shall be stored, maintained, and used only in the secure area 

established by the CSO or in another area authorized by the CSO. 

Ill 

Ill 

(I I il) Protective Order Pertaining to Classified Information Page 10 

69
b. The defense shall have free access in the secure area to the classified 

documents or information made available to them in accordance with this Order, and shall be 

aliowed to take notes and prepare documents with respect to those materials. 

c. All documents prepared by the defense (including pleadings or other 

documents intended for filing with the Court) that contain or deal in any way with classified 

information shall be transcribed, recorded, typed, duplicated, copied, and otherwise prepared only 

by persons who have received an appropriate approval for access to classified information, and only 

in the secure area on approved word processing and data handling equipment, and in accordance 

with the procedures approved by the CSO. All such documents and any associated materials (such 

as notes, drafts, copies, typewriter ribbons, magnetic recordings, and exhibits) containing classified 

information shall be maintained in the secure area unless and until the CSO determines that those 

documents or associated materials are unclassified in their entirety. None of these materials shall 

be disclosed to counsel for the government. 

d. The defense shall discuss classified documents or information only within the 

secure area or in another area authorized by the CSO, and shall not discuss or attempt to discuss 

classified information over any standard commercial telecommunications system or office 

communication system, including, but not limited to, by facsimile and over the internet. 

e. The CSO shall not reveal to the government or the Court the content of any 

conversation he may hear among the defense, reveal the nature of the documents being reviewed by 

them, or the work generated by them. In addition, the presence of the CSO shall not operate as a 

waiver of, limit, or otherwise render inapplicable, the attorney-client or work product privilege. 

II! 

[llil!&lffBI!IIId:l] Protective Order Pertaining to Classified Information Page 11 

70
17. Disclosure of Classified Infonnation: The defense shall not disclose, without prior 

approval of the Court, any classified document or infonnation to any person not authorized pursuant 

to this Order, except for the Court or those Court personnel, personnel of the originating agency and 

otherintelligence agencies, appropriately-cleared Department ofJustice employees, or attorneys for 

the government who have been identified by the CSO as having the appropriate clearances and the 

need-to-know and in accordance with the procedures ofCIPA and the procedures established by the 

CSO. Counsel for the government shall be given an opportunity to be heard in response to any 

defense request for disclosure to a person not named in this Order. Any person approved by the 

Court for disclosure under this paragraph shall be required to obtain the appropriate security 

clearance, to sign and submit to the Court a Memorandum of Understanding in the fonn attached 

to this Order, and to comply with all tenus and conditions of this Order. If preparation of the 

defense requires that classified documents or information be disclosed to a person not named in this 

Order, the CSO shall promptly seek to obtain a security clearance for such person at the request of 

defense counsel. 

a. No person shall discuss classified documents or infonnation in the presence 

of any person who has not been granted access by the Court to such classified documents or 

infonnation. 

b. No person shall disclose classified documents or infonnation to the defendant. 

c. Procedures for the use or the public disclosure of classified infonnation shall 

be those provided in Sections 5, 6 and 8 of CIP A. These provisions, and this Order, require that: 

1. Any and all items which are classified that the defense seeks to use 

shall be listed in the defendant's Section 5 notices. 

[Pr 9J19sed] Protective Order Pertaining to Classified Information Page 12 

71
ii. To facilitate the filing of notices required under Section 5 of CIPA, 

the CSO shall make arrangements with the appropriate agencies for a determination of the 

classification level, if any, of materials or information either within the possession of the defense 

or about which the defense has knowledge and which the defense intends to use in any way at any 

pretrial proceeding, deposition, trial or post-trial or other proceeding. Nothing submitted by the 

defense to the CSO pursuant to this paragraph shall be made available to counsel for the government 

unless so ordered by the Court or so designated by the defense. 

18. Any unauthorized use or disclosure of classified information may constitute a 

violation of United States criminal law. In addition, any violation of the terms of this Order shall 

be immediately brought to the attention of the Court and may result in a charge of contempt of the 

Court and possible referral for criminal prosecution. Any breach of this Order may also result in the 

termination of the person's access to classified documents and information. Persons subject to this 

Order are advised that direct or indirect unauthorized use, disclosure, retention ornegligent handling 

of classified documents or information could cause serious damage, and in some cases exceptionally 

grave damage, to the national security of the United States and may be used to the advantage of a 

foreign power against the interests of the United States. 

19. All classified documents and information to which the defense has access in this case 

are now and forever remain the property of the government. Any member of the defense who 

receives classified documents or information shall return all such documents and information in their 

possession or for which they are responsible, upon demand of the CSO. Any notes, summaries, or 

other documents prepared by the defense that contain classified information shall remain at all times 

in the custody of the CSO for the duration of this case. All such notes, sununaries, and other 

[I!: ope sed] Protective Order Pertaining to Classified Information Page 13 

72
documents shall be destroyed by the CSO in the presence of defense counsel, should they choose 

to be present, (a) one year after the judgment in this case is final or (b) at the conclusionoflitigation 

(including appeals) of any motion filed pursuant to 28 U.S.C. § 2255, if said motion was filed within 

one year after the judgment became final, whichever event is later. 

20. A copy of this Order shall be issued to the attorneys for the government, the CSO, 

and counsel of record for the defendant. Counsel for the defense shall be responsible for advising 

any other member of the defense who should be made aware of the contents of this Order. Counsel 

for the defendant and any other individuals who will be provided access to classified documents or 

information pursuant to this Order shall execute the Memorandum of Understanding in the form 

attached hereto. Counsel for the defendant shall file executed originals of such documents with the 

Court, and serve copies of executed originals of such documents upon the CSO and the government 

The execution and filing of the Memorandum of Understanding is a condition precedent for any 

member of the defense or any other individual to have access to classified information. 

21. This Protective Order is not intended to modify, amend, or supersede the Court's 

Order of May 16,2008 (CR 103) which remains in full force and effect until further order of this 

or another Court. In addition, this Protective Order does not cover any aspects of access to or use 

of the material subject to the Order of May 16, 2008. Should that Order be changed, a new 

Protective Order addressing that material will be required before the defense can communicate, 

review the material, or prepare any pleadings. 

/If 

Ill 

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[ru fPGiill] Protective Order Pertaining to Classified Information Page 14 

73
Case 6:05-cr-60008-HO Document 294-2 Filed 03/18/2010 Page 15 of 21 

22. The Court may amend this Protective Order and/or issue additional Protective Orders 

as needed. 

Dated this ~ay of...::....;--f-=-::::....;:::~2010. 

Presented by: 

DWIGHT C. HOLTON, OSB #09054 

United States Attorney 

District of Oregon 

Is! Charles F. Gorder. Jr. 

CHARLES F. GORDER, JR., OSB #91287 

Assistant United States Attorney 

Is/ Christopher L. Cardani 

CHRISTOPHER L. CARDANI 

Assistant United States Attorney 

[Jt.p 11d] Protective Order Pertaining to Classified Information Page 15 

74
UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

UNITED STATES OF AMERICA Case No. 05-cr-60008-02-HO 

v. 

PIROUZ SEDAGHATY, 

Defendant. 

MEMORANDUM OF 

UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I have already 

received, and may be the future recipient of information and documents, that pertain to the national 

security of the United States, and which are the property of the United States, and that such 

documents and information, together with the methods of collecting such information, are classified 

according to security standards set by the United States govermnent. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States govermnent, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

of trial in United States v. Pirouz Sedaghaty, Criminal Case No. 05-cr-60008-02-HO, and any 

subsequent related proceedings including the appellate process. 

75
4. I have received, read and understand the Protective Order entered by the United 

States District Court for the District of Oregon in the above-styled case, and I agree to comply with 

the provisions contained therein. 

I declare under penalty ofpeljury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

STEVEN T. WAX 

Counsel for Defendant Pirouz Sedaghaty 

Date 

Witness Name 

Witness Signature 

Memorandum of Understanding Page2 

76
UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

UNITED STATES OF AMERICA Case No. 05-cr-60008-02-HO 

v. 

PIROUZ SEDAGHATY, 

Defendant. 

MEMORANDUM OF 

UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that! have already 

received, and may be the future recipient of information and documents, that pertain to the national 

security of the United States, and which are the property of the United States, and that such 

documents and information, together with the methods of collecting such information, are classified 

according to security standards set by the United States govermnent. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States govermnent, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

of trial in United States v. Pirouz Sedaghaty, Criminal Case No. 05-cr-60008-02-HO, and any 

subsequent related proceedings including the appellate process. 

77
4. I have received, read and understand the Protective Order entered by the United 

States District Court for the District of Oregon in the above-styled case, and I agree to comply with 

the provisions contained therein. 

I declare under penalty of perjury under the Jaws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

LAWRENCE MATASAR 

Counsel for Defendant Pirouz Sedaghaty 

Date 

Witness Name 

Witness Signature 

Memorandum of Understanding Page2 

78
UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

UNITED STATES OF AMERICA Case No. 05-cr-60008-02-HO 

v. 

PIROUZ SEDAGHATY, 

Defendant. 

MEMORANDUM OF 

UNDERSTANDING 

1. Having familiarized myself with the applicable laws,! understand that I have already 

received, and may be the future recipient of information and documents, that pertain to the national 

security of the United States, and which are the property of the United States, and that such 

documents and information, together with the methods of collecting such information, are classified 

according to security standards set by the United States govermnent. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States government, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

of trial in United States v. Pirouz Sedaghaty, Criminal Case No. 05-cr-60008-02-HO, and any 

subsequent related proceedings including the appellate process. 

79
4. I have received, read and understand the Protective Order entered by the United 

States District Court for the District of Oregon in the above-styled case, and I agree to comply with 

the provisions contained therein. 

I declare under penalty of peijury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

WILLIAM TEESDALE 

Chieflnvestigator for Counsel for 

Defendant Pirouz Sedaghaty 

Date 

Witness Name 

Witness Signature 

Memorandum of Understanding Page2 

80
United States v. Boyd

(E.D.N.C. 5:09-cr-216)

Protective Order ................................................................................................. 82

81
UNITED STATES DISTRICT COURT FOR THE 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

NO. 5:09-CR-216-FL 

UNITED STATES OF AMERICA, 

v. 

DANIEL PATRICK BOYD, a/k/a 

"Saifullah" 

HYSEN SHERIFI 

ANES SUBASIC 

ZAKARIYA BOYD, a/k/a/ "Zak;" 

DYLAN BOYD, a/k/a "Mohammed;") 

MOHAMMAD OMAR ALY HASSAN; 

and 

ZIYAD YAGHI, 

Defendants. 

PROTECTIVE ORDER 

This matter comes before the Court upon the Government's 

Stipulated Motion for Protective Order to prevent the unauthorized 

use, disclosure or dissemination of classified national security 

information and documents that will be reviewed by or made 

available to, or are otherwise in the possession of, defense 

counsel in this case. 

Pursuant to the authority granted under section 3 of the 

Classified Information Procedures Act, 18 U.S.C. App. 3 (2006) 

("CIPA"); the Security Procedures established pursuant to Pub. L. 

96-456, 94 Stat. 2025, by the Chief Justice of the United States 

Page 1 of 23 

82
for the Protection of Classified Information (reprinted following 

CIPA § 9) (hereinafter the "Security Procedures"); Federal Rules 

of Criminal Procedure 16 (d) and 57; the general supervisory 

authority of the Court; and, in order to protect the national 

security, 

IT IS HEREBY ORDERED: 

1. The Court finds that this case will involve classified 

national security information, the storage, handling, and control 

of which, by law or regulation, requires special security 

precautions, and access to which requires a security clearance and 

a need-to-know. 

2. The purpose of this Protective Order ("Order") is to 

establish the procedures that must be followed by all defense 

counsel of record, their designated employees, all other counsel 

involved in this case, translators for the defense, any court 

personnel, and all other individuals who receive access to 

classified information or documents in connection with this case. 

3. The procedures set forth in this Order, CIPA and the 

Foreign Intelligence Surveillance Act of 1978, as amended, 50 

U.S.C. §§ 1801, et seq. ("FISA"), shall apply to all pre-trial, 

trial, post-trial, and appellate aspects of this case; and may be 

modified from time to time by further order of the Court acting 

under Federal Rules of Criminal Procedure 16 (d), sections 3 and 9 

of CIPA, FISA, and this Court's inherent supervisory authority to 

Page 2 of 23 

83
ensure a fair and expeditious trial. 

Definitions 

4. As used herein, the terms "classified national security 

information and documents," "classified information," "classified 

documents," and "classified material" refer to: 

A. Any classified document or information that has been 

classified by any Executive Branch agency in the interest of 

national security or pursuant to Executive Order 12958, as amended 

by Executive Order 13292, or its predecessor orders as 

"CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally 

con trolled as "SENSITIVE COMPARTMENTED IN FORMAT ION" ("SCI") , or any 

information contained in such documents; 

B. Any document or information, regardless of its 

physical form or characteristics, now or formerly in the possession 

of a private party, which has been derived from a United States 

Government classified document, information, or material, 

regardless of whether such document, information, or material has 

itself subsequently been classified by the Government pursuant to 

Executive Order 12958 or its predecessor orders as "CONFIDENTIAL," 

"SECRET," "TOP SECRET," or additionally controlled as SCI; 

C. Verbal classified information known to the defense 

counsel; 

D. Any document or information, including verbal 

information, which the defense counsel have been notified orally or 

Page 3 of 23 

84
in writing contains classified information; 

E. Any information, regardless of place or origin and 

including "foreign government information" as that term is defined 

in Executive Order 12958, that could reasonably be believed to 

contain classified information, or that refers or relates to 

national security or intelligence matters; and 

F. Any information that defense counsel receives as 

discovery in this case including, but not limited to, any 

information obtained from the Central Intelligence Agency, the 

National Security Agency, the Defense Intelligence Agency, the 

Department of State, the National Security Council, the Federal 

Bureau of Investigation, or similar entity, with the exception of 

items seized by the Federal Bureau of Investigation during the 

execution of a duly authorized search warrant under Rule 41 of the 

Federal Rules of Criminal Procedure, shall be presumed to fall 

within the meaning of classified information, unless and until the 

Court Security Officer or an authorized attorney for the Government 

advises otherwise in writing. 

5. The words "documents," "information," and "material" 

shall inc 1 ude but are not 1 imi ted to all writ ten or printed rna t ter 

of any kind, formal or informal, including originals, conforming 

copies and non-conforming copies (whether different from the 

original by reason of notation made on such copies or otherwise), 

and further include but are not limited to: 

Page 4 of 23 

85
A. Papers, correspondence, memoranda, notes, letters, 

reports, summaries, photographs, maps, charts and graphs, 

interoffice and intra-office communications, notations of any sort 

concerning conversations, meetings or other communications, 

bulletins, teletypes, telegrams and telefacsimiles, invoices, 

worksheets and drafts, alterations, modifications, changes, and 

amendments of any kind to the foregoing; 

B. Graphic or oral records or representations of any 

kind, including but not limited to photographs, charts, graphs, 

microfiche, microfilm, videotapes, sound recordings of any kind, 

and motion pictures; 

C. Electronic, mechanical or electric records of any 

\ 

kind, including but not limited to tapes, cassettes, disks, 

recordings, films, typewriter ribbons, word processing or other 

computer tapes or disks, and all manner of electronic data 

processing storage; and 

D. Information acquired orally or verbally. 

6. "Access to classified information" means having access 

to, reviewing, reading, learning or otherwise coming to know in any 

manner any classified information. 

7. "Secure Area" shall mean a physical facility accredited 

for the storage, handling, and control of classified information. 

8. All classified documents or material and the information 

contained therein shall remain classified unless the documents or 

Page 5 of 23 

86
material bear a clear indication that they have been declassified 

by the agency or department that is the originating agency 

(hereinafter the "Originating Agency") of the document, rna ter ial, 

or information contained therein. 

9. Court Security Officer. In accordance with the 

provisions of CIPA and the Security Procedures, the Court 

designates Jennifer H. Campbell as Court Security Officer for this 

case, and John Arszulowicz, Miguel Ferrer, Christine E. Gunning, 

Daniel 0. Hartenstine, Joan B. Kennedy, Michael P. Macisso, Jaret t 

Merk, Maura Peterson, Barbara J. Russell, W. Scooter Slade, and 

Angela Strause as Alternate Court Security Officers for the purpose 

of providing security arrangements necessary to protect from 

unauthorized disclosure any classified information to be made 

available in connection with this case. Defense counsel shall seek 

guidance from the Court Security Officer with regard to appropriate 

storage, handling, transmit tal, and use of classified information. 

10. Government Attorneys. The Court has been advised that 

the Government attorneys working on this case (U.S. Department of 

Justice Attorney Jason Kellhofer, Assistant United States Attorney 

Barbara D. Kocher), other appropriately cleared Government 

attorneys, and their respective supervisors (collectively referred 

to hereinafter as the "Government Attorneys"), have the requisite 

security clearances to have access to the classified information 

that relates to this case. 

Page 6 of 23 

87
11. Protection of Classified Information. The Court finds 

that, in order to protect the classified information involved in 

this case, only Government Attorneys, appropriately cleared 

Department of Justice employees, personnel of the Originating 

Agency, defense counsel, employees of defense counsel, or 

translators employed by defense counsel, shall have access to the 

classified information in this case. The defendant and defense 

witnesses shall not have access to classified information in this 

case. No defense counsel, employee of defense counsel or defense 

translator shall have access to any classified information in this 

case unless that person has first: 

A. Signed the Memorandum of Understanding in the form 

attached hereto, agreeing to comply with the terms of this Order. 

His or her signed Memorandum of Understanding shall be filed with 

the Court. The substitution, departure or removal for any reason 

from this case of counsel for the defendant, or anyone associated 

with the defense as an employee or otherwise, shall not release 

that person from the provisions of this Order or the Memorandum of 

Understanding executed in connection with this Order; and 

B. Persons 

appropriately cleared 

other than 

Department of 

Government Attorneys, 

Justice employees, and 

personnel of the Originating Agency, can obtain access to 

classified information only after having been granted a security 

clearance through, or that is confirmed by, the Court Security 

Page 7 of 23 

88
Officer, and with permission of the Court, either through this 

Order (for those named in paragraph 12 below) or by a separate 

Court order upon showing of a need-to-know. Before any person 

other than Government Attorneys, appropriately cleared Department 

of Justice employees, and personnel of the Originating Agency, is 

permitted by the Court to inspect and review classified 

information, he or she must also sign the Memorandum of 

Understanding. 

12. Defense Counsel. Subject to the provisions of paragraph 

11, the following attorney(s) for the defense and their approved 

employee (s) and translator(s) (collectively referred to hereinafter 

as "the Defense"), shall be given access to classified information 

as required by the Government's discovery obligations: Debra 

Graves, Rosemary Godwin, Joseph Zes zotars ki, Myron Hi 11, John 

Keating Wiles, Robert McAfee, Daniel Boyce, and J. Douglas 

McCullough. Any additional person whose assistance the Defense 

reasonably requires may have access to classified information in 

this case only after obtaining from the Court -- with at least 

three weeks prior notice to the Government -- an approval for 

access to the appropriate level of classification on a need-to-know 

basis, and after satisfying the other requirements described in 

this Order for access to classified information. The substitution, 

departure or removal for any reason from this case of defense 

counsel or anyone associated with the Defense as an employee, 

Page 8 of 23 

89
witness or otherwise, shall not release that person from the 

provisions of this Order or the Memorandum of Understanding 

executed in connection with this Order. 

13. Unless they already hold an appropriate security 

clearance and are approved for access to classified information in 

this case, the Defense, all persons whose assistance the Defense 

reasonably requires, and such court personnel as the Court requires 

for its assistance, shall complete and submit to the Court Security 

Officer a Standard Form 86 ("Security Investigation Data for 

Sensitive Position"), attached releases, and "major case" 

fingerprints in order to obtain security clearances necessary for 

access to classified information that may be involved in this case. 

The Court Security Officer shall take all reasonable steps to 

process all security clearance applications. 

14. Secure Area of Review. The Court Security Officer shall 

arrange for an appropriately approved Secure Area for use by the 

Defense. The Court Security Officer shall establish procedures to 

assure that the Secure Area is accessible to the Defense during 

normal business hours and at other times on reasonable request as 

approved by the Court Security Officer. The Secure Area shall 

contain a separate working area for the Defense, and will be 

outfitted with any secure office equipment requested by the Defense 

that is reasonable and necessary to the preparation of the 

defendant's defense in this case. The Court Security Officer, in 

Page 9 of 23 

90
consultation with defense counsel, shall establish procedures to 

assure that the Secure Area may be maintained and operated in the 

most efficient manner consistent with the protection of classified 

information. No documents or other material containing classified 

information may be removed from the Secure Area unless authorized 

by the Court Security Officer. The Court Security Officer shall 

not reveal to the Government the content of any conversations he or 

she may hear among the Defense, nor reveal the nature of documents 

being reviewed by them, nor the work generated by them. In 

addition, the presence of the Court Security Officer shall not 

operate to waive, limit, or otherwise render inapplicable, the 

attorney-client privilege. 

15. If, upon the en try of a separate order of the Court, the 

defendant becomes entitled to review or discuss classified matters, 

or otherwise meet with defense counsel in the Secure Area, this 

will occur only under appropriate supervision to ensure that the 

defendant does not (1) escape, attempt to escape, or cause physical 

injury to himself or others; (2) remove, copy, alter or destroy 

classified information; (3) obtain access to classified information 

the defendant is not entitled to review; or (4) circumvent any 

applicable security restrictions, including any Special 

Administrative Measures imposed by the Bureau of Prisons, other 

prison regulations, and the other orders of this Court governing 

discovery in this case. 

Page 10 of 23 

91
16. Filings with the Court. Until further order of this 

Court, any motion, memorandum, or other document filed by the any 

party that counsel knows, or has reason to believe, contains 

classified information in whole or in part, or any document the 

proper classification of which counsel is unsure, shall be filed 

under seal with the Court through the Court Security Officer as set 

forth below. The date and time of physical submission to the Court 

Security Officer shall be considered as the date and time of court 

filing. 

17. Filing of Papers by Defendant. Any pleading or other 

document filed by the defendant shall be filed under seal with the 

Court through the Court Security Officer or her designee, unless 

defense counsel has obtained from the Court Security Officer 

permission, specific to a particular, non-substantive pleading or 

document (e.g., motions for extensions of time, continuances, 

scheduling matters, etc.) not containing information that is or may 

be classified or under seal, to file the pleading or documents not 

under seal. Pleadings filed under seal with the Court Security 

Officer or her designee shall be marked, "Filed in Camera and Under 

Seal with the Court Security Officer or designee." At the time of 

making a physical submission to the Court Security Officer or 

designee, counsel shall file on the public record in the CM/ECF 

system a Notice of Filing of In Camera Submission with Court 

Security Officer that notifies the Court that a filing has been 

Page 11 of 23 

92
made. The notice should contain only the case caption and an 

unclassified title of the filing. 

The Court Security officer shall immediately deliver, under 

seal, to the Court and counsel for the United States any pleading 

or document to be filed by the defendant that may contain 

classified information. The Court Security Officer shall promptly 

examine the pleading or document and, in consultation with 

representatives of the appropriate agencies, determine whether the 

pleading or document contains classified information. If the Court 

Security Officer determines that the pleading or document contains 

classified information, he or she shall ensure that the portion of 

the document containing classified information, and only that 

portion, is marked with the appropriate classification marking and 

remains under seal. All portions of all paper filed by the 

defendants that do not contain classified information will be 

placed in the public record. 

18. Filing of Papers by the United States. Those portions of 

pleadings or documents filed by the United States that contain 

classified information shall be filed under seal with the court 

through the Court Security Officer or her designee. Such pleadings 

and documents shall be marked, "Filed In Camera and Under Seal with 

the Court Security Officer or designee" The date and time of 

physical submission to the Court Security Officer or designee shall 

be considered the date and time of filing. At the time of making 

Page 12 of 23 

93
a physical submission to the Court Security Officer or designee, 

counsel shall file on the public record in the CM/ECF system a 

Notice of Filing of In Camera Submission with Court Security 

Officer that notifies the Court that a filing has been made. The 

notice should contain only the case caption and an unclassified 

title of the filing. The Court Security Officer shall immediately 

deliver, under seal, to the Court and counsel for the defendant 

(unless such filing is an ex parte filing) any pleading or document 

to be filed by the government that contains classified information. 

19. Access to Classified Information. The Defense shall have 

access to classified information only as follows: 

A. All classified information produced by the 

Government to the Defense, in discovery or otherwise, and all 

classified information possessed, created or maintained by the 

Defense, shall be stored, maintained and used only in the Secure 

Area established by the Court Security Officer; 

B. The Defense shall have free access to the classified 

information made available to them in the Secure Area, and shall be 

allowed to take notes and prepare documents with respect to those 

materials. However, the Defense shall not, except under separate 

Court order, disclose the classified information, either directly, 

indirectly, or in any other manner which would disclose the 

existence of such, to pursue leads or in the defense of the 

defendant; 

Page 13 of 23 

94
C. The Defense shall not copy or reproduce any 

classified information in any form, except with the approval of the 

Court Security Officer, or in accordance with the procedures 

established by the Court Security Officer for the operation of the 

Secure Area; 

D. All documents prepared by the Defense (including, 

without limitation, pleadings or other documents intended for 

filing with the Court) that do or may contain classified 

information, shall be transcribed, recorded, typed, duplicated, 

copied or otherwise prepared only by persons who have received an 

appropriate approval for access to classified information, and in 

the Secure Area on approved word processing equipment, and in 

accordance with the procedures approved by the Court Security 

Officer. All such documents and any associated materials (such as 

notes, drafts, copies, typewriter ribbons, magnetic recordings, 

exhibits, etc.) containing classified information shall be 

maintained in the Secure Area, unless and until the Court Security 

Officer determines that those documents or associated materials are 

unclassified in their entirety. None of these materials shall be 

disclosed to counsel for the Government; 

E. The Defense shall discuss classified information 

only within the Secure Area or in another area authorized by the 

Court Security Officer, and shall not discuss or attempt to discuss 

classified information over any standard commercial telephone 

Page 14 of 23 

95
instrument or office intercommunication system; and 

F. The Defense shall not disclose, without prior 

approval of the Court, any classified information to any person not 

authorized pursuant to this Order, including the defendant and 

defense witnesses, except the Court, court personnel, and the 

Government Attorneys who have been identified by the Court Security 

Officer as having the appropriate clearances and the need-to-know 

that information. Counsel for the Government shall be given an 

opportunity to be heard in response to any request by the Defense 

for disclosure of classified information to a person not named in 

this Order. Any person approved by the Court for disclosure under 

this paragraph shall be required to obtain the appropriate security 

clearance, to sign and submit to the Court the Memorandum of 

Understanding appended to this Order, and to comply with all terms 

and conditions of this Order. If preparation of the Defense 

requires that classified information be disclosed to persons not 

named in this Order, then, upon approval by the Court and upon 

prior notice to the Government, the Court Security Officer shall 

promptly seek to obtain security clearances for them at the request 

of defense counsel. 

20. Foreign Intelligence Surveillance Act (FISA). The 

defendant has rights under the United States Constitution, federal 

statutes, and the Federal Rules of Criminal Procedure to pre-trial 

discovery. The Government recognizes its obligation to provide 

Page 15 of 23 

96
such discovery materials to defense counsel in the most expeditious 

manner possible, consistent with public safety and the 

confidentiality of sensitive ongoing investigations. Therefore, to 

the extent that FISA-obtained or derived information is provided to 

the defense counsel: 

A. The parties agree that both the Defense and the 

Government shall have access to such FISA information regardless of 

prior minimization efforts undertaken by the Government upon 

initial review of the materials; 

B. The parties agree that any draft transcripts or 

summaries of translated electronic and paper materials that may be 

provided shall not be used in any proceeding for any purpose, 

including cross-examination of any witness, except pursuant to 

further order of this Court; and 

C. The parties agree, notwithstanding any other 

provisions of this Order or any subsequent order, that the 

disclosure and discovery of materials that may be provided to the 

Court, in camera and ex-parte, pursuant to FISA for legal 

determinations, including but not limited to any FI SA applications, 

orders, or materials, shall be governed by the provisions of FISA. 

21. Procedures for the use or disclosure of classified 

information by the Defense shall be those provided in sections 5 

and 6 of CIPA. No classified information may be used or disclosed 

by the Defense, except: 

Page 16 of 23 

97
A. To the Court, court personnel, and Government 

Attorneys, their agents and employees identified by the Court 

Security Officer as holding proper approvals for access to 

classified information; 

B. To representatives of the Originating Agency of the 

classified information who have been identified by the Court 

Security Officer as holding proper security clearances and having 

the need-to-know the classified information; 

C. To persons who have been authorized to have access 

to classified information pursuant to this Order or to CIPA; and 

D. In accordance with the procedures of CIPA and the 

procedures established by the Court Security Officer. 

22. To facilitate the Defense's filing of notices required 

under section 5 of CIPA, the Court Security Officer shall make 

arrangements with the appropriate agencies for a determination of 

the classification level, if any, of materials or information, 

either within the possession of the Defense or about which the 

Defense has knowledge and which the Defense intends to use in any 

way at any pre-trial proceeding, deposition or at trial. Nothing 

submitted by the Defense to the Court Security Officer pursuant to 

this paragraph shall be made available to counsel for the 

Government unless so ordered by the Court, or so designated by the 

Defense. Any and all i terns that are classified shall be listed in 

the defendant's CIPA section 5 notice. To the extent that any 

Page 17 of 23 

98
classified information is the basis of any motion filed by the 

Defense, such motion shall be preceded by a CIPA section 5 notice. 

23. Information in the public domain is ordinarily not 

classified. However any confirmation, corroboration, or denial of 

such information that is based on classified information is subject 

to the provisions of CIPA. Therefore, any attempt by the defendant 

or defense counsel to elicit such a confirmation, corroboration, or 

denial at trial, or in connection with any pre-trial or other 

proceeding in this case, shall be governed by CIPA and all 

provisions of this Order. 

24. Violations of this Order. Unauthorized use or disclosure 

of classified information may constitute violations of United 

States criminal laws. In addition, violation of the terms of this 

Order shall be immediately brought to the attention of the Court, 

and may result in a charge of contempt of Court and possible 

referral for criminal prosecution. Any breach of this Order will 

result in the termination of a person's access to classified 

information. Persons subject to this Order are advised that direct 

or indirect unauthorized use, disclosure, retention or negligent 

handling of classified information could cause serious damage, and 

in some cases exceptionally grave damage, to the national security 

of the United States, or may be used to the advantage of a foreign 

nation against the interests of the United States. This Order is 

to ensure that those authorized by the Order to receive classified 

Page 18 of 23 

99
information will never divulge the classified information disclosed 

to them to anyone who is not authorized to receive it, or otherwise 

use the classified information, without prior written authorization 

from the Originating Agency and in conformity with this Order. 

25. All classified information to which the Defense has 

access in this case is now and will remain the property of the 

Government. The defense counsel, defense counsel employees, 

defense translators, and anyone else who receives classified 

information pursuant to this Order shall return all such classified 

information in their possession obtained through discovery from the 

Government in this case, or for which they are responsible because 

of access to classified information, upon demand of the Court 

Security Officer. The notes, summaries and other documents 

prepared by the Defense that do or may contain classified 

information shall remain at all times in the custody of the Court 

Security Officer for the duration of this case. At the conclusion 

of all proceedings, including any final appeals, all such notes, 

summaries and other documents are to be destroyed by the Court 

Security Officer in the presence of defense counsel. 

26. Any and all summaries and translations of classified 

information that may be provided by the Government to the Defense 

in pre-trial discovery are intended only as an aid to the Defense 

in its trial preparation. These documents shall not be used in any 

proceeding for any purpose, including cross-examination of any 

Page 19 of 23 

100
witness by defense counsel, unless otherwise agreed to in writing 

by the Government. 

27. Declassified Information. As used herein, the term 

"declassified information" refers to any and all papers; 

correspondence; memoranda; notes; letters; reports; summaries; 

photographs; maps; charts and graphs; interoffice and intra-office 

communications; notations of any sort concerning conversations, 

meetings or other communications; bulletins; teletypes, telegrams 

and telefacsimiles; invoices; graphic or oral records or 

representations of any kind, including but not limited to 

photographs, charts, graphs, microfiche, microfilm, videotapes, 

sound recordings of any kind and motion pictures; electronic, 

mechanical or electric records of any kind, including but not 

limited to tapes, cassettes, disks, recordings, films, typewriter 

ribbons, word processing or other computer tapes or disks; all 

manner of electronic data processing storage; and any drafts, 

summaries, transcripts, alterations, modifications, changes and 

amendments of any kind to the above, which may be declassified and 

provided by the Government to defense counsel as part of discovery 

in this case. 

28. Pursuant to Rule 16(d) of the Federal Rules of Criminal 

Procedure all declassified information shall be governed by the 

following provisions: 

Page 20 of 23 

101
A. The Defense shall not disclose any declassified 

information to any person other than the defendant, witnesses 

which they may be interviewing or preparing for trial, and 

attorneys, law clerks, secretaries, translators, technical and 

other experts, and investigators, involved in the representation 

of the defendant in this case; 

B. The declassified information is now and will forever 

remain the property of the United States Government. At the 

conclusion of this case the defense counsel, defense counsel 

employees, defense translators, and anyone e 1 s e who obtains 

declassified information through discovery from the Government will 

return the declassified information and all copies thereof to the 

Court Security Officer; 

C. The Defense will store the declassified information 

in a secure place and will use reasonable care to ensure that the 

declassified information is not disclosed to third persons, 

including the media, in violation of this agreement; 

D. If the Defense makes any further copies of any of 

the declassified information, the Defense will inscribe on each 

copy the following notation: "U.S. Government Property; May Not 

Be Used Without U.S. Government Permission"; 

E. If the Defense releases custody of any of the 

declassified information, or their copies, summaries or 

transcripts thereof, to any person described in subparagraph (A), 

Page 21 of 23 

102
the Defense shall provide such recipients with copies of this 

Order, and advise them that such information is the property of the 

United States Government and that any unauthorized use may 

constitute a violation of law or contempt of court; 

F. Nothing herein constitutes a waiver of any right of 

the defendant, nor does anything herein restrict in any way the 

right of the Defense to use the declassified information in 

connection with any pleading or proceeding in this case; and 

G. The above provisions in no way modify or alter the 

obligation of all counsel to handle classified information in a 

manner consistent with CIPA and such protective orders as may be 

entered by the Court in this case. 

29. Nothing in this Order shall preclude the Government from 

seeking a further protective order pursuant to Rule 16(d) as to 

particular items of discovery material. 

30. A copy of this Order shall be issued forthwith to counsel 

for the defendant, who shall be responsible for advising the 

defendant and defense counsel employees, of the contents of this 

Order. The defense counsel, defense counsel employees, and defense 

translators to be provided access to classified information shall 

execute the Memorandum of Understanding appended to this Order, and 

defense counsel shall file executed originals with the Court and 

the Court Security Officer and serve executed originals of such 

document upon the Government. The execution and filing of the 

Page 22 of 23 

103
Memorandum of Understanding is a condition precedent for the 

defense counsel, defense counsel employees, and defense translators 

to have access to classified information in this case. 

SO ORDERED this ~ day of~ 2010. 

,-.,J. L/ " 'uSE w-.-FLAN~~N~O------~------

Chief United States District Judge 

Page 23 of 23 

104
United States v. Ghailani

(S.D.N.Y. 1:98-cr-1023-9)

Protective Order: Unclassified ........................................................................ 106

Protective Order: Classified ............................................................................ 110

Filing Order ...................................................................................................... 131

105
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

UNITED STATES OF AMERICA 

X 

~L:~~~~~~ JUDGE KAPLAN'S CHAMBERS 

- v. - (SlO) 98 Cr. 1023 (LAK) 

AHMED KHALFAN GHAILANI, 

Defendant. 

- X 

·-i~s·o·~~.~-;;~--·-=::::--===..::_~ ·· '·'· -· c ,jDN'( 

DOCUMENT 

ELECTRONICALLY FILED 

DOC#: 

UPON application of the Government, and with consent of 

the defense: 

IT IS HEREBY ORDERED pursuant to Rule 16(d) of the Federal 

Rules of Criminal Procedure that the Government shall segregate 

the discovery materials it produces to the defendant and his 

counsel of record 1 into two categories: (1) general discovery 

materials and (2) particularly sensitive discovery materials. 

The category to which particular discovery materials belong shall 

be clearly identified by the Government; 

IT IS FURTHER ORDERED that "general discovery materials" 

shall not be further disseminated2 by the defendant or his 

counsel to any individuals, organizations or other entities, 

other than: (i) members of the defense team (co-counsel, 

1 Counsel of record means Gregory E. Cooper, Esq., and Peter 

Enrique Quijano, Esq. 

2 "Disseminated" means to provide a copy of the particular 

piece of discovery or quotations from it. 

106
paralegals, investigators, translators, litigation support 

personnel, the defendant, and secretarial staff); and (ii) 

experts retained to assist in the preparation of the defense. 

Notice of proposed dissemination to defense experts shall be 

provided directly to the Court ex parte and under seal and no 

dissemination to such experts shall be made until approved by the 

Court. Each of the individuals to whom disclosure is made 

pursuant to the above provision shall be provided a copy of this 

protective order and will be advised that he or she shall not 

further disseminate the materials except by the express direction 

of counsel of record. In addition, the attorneys of record for 

the defendant, any co-counsel, and any defense investigator may 

show (but not provide copies of) any of such general discovery 

materials to witnesses or potential witnesses, if it lS 

determined that it is necessary to do so for the purpose of 

preparing the defense of the case; 

IT IS FURTHER ORDERED that "particularly sensitive discovery 

materials" shall not be further disseminated by the defendant or 

his counsel to any individuals, organizations or other entities, 

other than: (i) members of the defense team (co-counsel, 

paralegals, investigators, translators, litigation support 

personnel, the defendant, and secretarial staff); and (ii) 

experts retained to assist in the preparation of the defense. 

Notice of proposed dissemination to defense experts shall be 

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107
provided to the Court ex parte and under seal and no 

dissemination to such experts shall be made until approved by the 

Court. Each of the individuals to whom disclosure is made 

pursuant to the above provision shall be provided a copy of this 

protective order and will be advised that he or she shall not 

further disseminate the materials except by the express direction 

of counsel of record. In addition, any copies provided by 

counsel shall be clearly marked as sensitive discovery materials. 

It is expressly understood that the attorneys of record for the 

defendant may not show any of such particularly sensitive 

discovery materials to witnesses or potential witnesses. The 

defendant may seek relief from these provisions as to a 

particular item or items of discovery by providing notice to the 

Court of intent to show particular identified item(s) to a 

witness and the purpose ln doing so. The Notice shall be filed 

under seal. No disclosure of the item(s) to the witness(s) shall 

be made until the Court so permits; 

IT IS FURTHER ORDERED that all such discovery materials are 

to be provided to the defense, and used by the defense, solely 

for the purpose of allowing the defendant to prepare his defense 

and that none of the discovery materials produced by the 

Government to the defense shall be disseminated to, or discussed 

with, the media; 

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108
IT IS FURTHER ORDERED that none of the discovery materials 

produced by the Government to the defense shall be disseminated 

to, or discussed with, the media by the Governmenti 

IT IS FURTHER ORDERED that any papers to be served upon the 

court by either party which include discovery materials or refer 

to the contents of the particularly sensitive discovery materials 

shall be filed under seali 

IT IS FURTHER ORDERED that any papers to be served upon the 

Court in response to papers served in conformity with the 

preceding paragraph shall also be filed under seali and 

FINALLY, IT IS ORDERED that nothing in this Order shall 

preclude the Government from seeking a further protective order 

pursuant to Rule 16(d) as to particular items of discovery 

material. 

Dated: New Y~rf, New York 

July l!f' 2009 

-4-

HON. LEWIS A. 

United States District Judge 

Southern District of New York 

109
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

- - - - - - - - - - - X 

UNITED STATES OF AMERICA 

- v. -

AHMED KHALFAN GHAILANI, 

Defendant. 

- - - - - X 

l• cc "t:SDNY~,.··"··~"c·--~"· 

I

. DOCUMENT 

. ELECTRONICALLY FILED 

,! DOC#: --~-r:-:t-::;:;;­

!i~D~A;_IE~FI~L~ED~#·;.,;· ~~3;;d] 

(S10) 98 Cr. 1023 (LAK) 

MODIFIED PROTECTIVE ORDER 

PERTAINING TO CLASSIFIED INFORMATION 

This matter comes before the Court upon the Government's 

Motion for a Modified Protective Order pursuant to Section 3 of 

the Classified Information Procedures Act ("CIPA"), 18 U.S.C. 

App. 3 § 3, to protect against the disclosure in this case of any 

classified information disclosed by the Government to, or 

otherwise in the possession of, the Defendant or the Defense. 

Pursuant to the authority granted under Sections 3 and 9 of 

CIPA, the Security Procedures Established Pursuant to Pub. L. No. 

96-456, 94 Stat. 2025, by the Chief Justice of the United States 

for the Protection of Classified Information (reprinted following 

CIPA § 9), Rules 16(d) and 57 of the Federal Rules of Criminal 

Procedure, and the general supervisory authority of the Court, 

and to protect the national security, the following Modified 

Protective Order is entered. 

General Provisions 

1. The Court finds that this case will involve information 

that has been currently in the interest of national security of 

110
the United States pursuant to Executive Order 12958, as amended. 1 

The storage, handling and control of this information will 

require special security precautions mandated by statute, 

executive order, and regulation, and access to which requires the 

appropriate security clearances, and a "need to know" 

determination pursuant to Executive Order 12958. 

2. The purpose of this Order is to establish procedures 

that must be followed by the Defense and the Government, and any 

other person who comes into possession of classified information 

as a result of their participation in this case. These 

procedures will apply to all pretrial, trial, post-trial, and 

appellate matters concerning classified information, and may be 

modified from time to time by further order of the Court acting 

under its inherent supervisory authority to ensure a fair and 

expeditious trial. 

Definitions 

3. The following definitions shall apply to this Order: 

a. The term "Defense" shall mean any counsel for the 

defendant, employees or contractors of counsel for the Defendant 

(including, without limitation, investigators, paralegals, 

'Executive Order 12958 was amended by Executive Order 13292. 

See E.O. No. 13292, 68 Fed. Reg. 15315 (Mar., 28, 2003). All 

citations to E.O. 12958 are to that Executive Order as amended by 

E.O. 13292. See E.O. 12958, 3 C.F.R. 333 (1995), reprinted as 

amended in 50 U.S.C.A. § 435, note at 180 (Supp. 2007). 

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111
experts and translators), and any witnesses for the Defendant so 

authorized by the Court. 

b. The term "classified information" shall include: 

(i) Any document or information contained therein, 

which has been classified by any executive agency in the 

interests of national security pursuant to Executive Order 12958, 

as amended, or its predecessor orders, as "CONFIDENTIAL," 

"SECRET," "TOP SECRET," or additionally controlled as "SENSITIVE 

COMPARTMENTED INFORMATION" ("SCI") ; 

) Any document or information that is currently 

properly classified, as set forth in (i), and that has been 

approved by the Government or the Court for release to the 

Defendant. All classified information that is approved for 

release to the Defendant will contain an appropriate 

classification marking and will be marked "Releasable to 

Ghailani"; 

(iii) Any document or information now or formerly 

in the possession of a private party which (A) has been derived 

from information from the United States Government that was 

classified, and (B) has subsequently been classified by the 

united States pursuant to executive order as "CONFIDENTIAL," 

"SECRET," "TOP SECRET," or additionally controlled as SCI; 

(iv) Any document or information that the Defense 

knows or reasonably should know contains classified information, 

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112
including information acquired or conveyed orally; 

(v) Any information, regardless of place of 

origin, to include nforeign government information# as that term 

in defined in Executive Order 12958, that could reasonably be 

believed to contain classified information, or that refers or 

relates to national security or intelligence matters; and 

(vi) Any document or information as to which the 

Defense has been notified orally or in writing contains 

classified information, including but not limited to the 

following four areas of classified information, which may be at 

issue in this case, and for which the Defense has received notice 

of its classified nature: 

(a) Information that would reveal or tend to 

reveal the foreign countries in which the Defendant was held from 

on or about July 25, 2004 through September 6, 2006; 

(b) The names, identities, and physical 

descriptions of any officers responsible for the capture, 

transfer, detention, or interrogation of the Defendant from on or 

about July 25, 2004 through June 9, 2009; 

(c) The Enhanced Interrogation Techniques 

that were applied to the Defendant from on or about July 25, 2004 

through September 6, 2006, including descriptions of the 

techniques as applied, the duration, frequency, sequencing, and 

limitations of those techniques; and 

-4 

113
{d) Descriptions of the Defendant's 

conditions of confinement from on or about July 25, 2004 through 

June 9, 2009. 

c. The terms "document" and "information" shall 

include, but are not limited to, all written, printed, visual or 

audible matter of any kind, formal or informal, including 

originals, conforming copies, and non-conforming copies (whether 

different from the original by reason of notation made on such 

copies or otherwise) . The terms "document" and "information" 

shall also include without limitation, notes (handwritten, oral, 

or electronic); letters; correspondence; memoranda; reports; 

summaries; photographs; maps; charts; graphs; inter-office 

communications; notations of any sort concerning conversations, 

meetings or other communications; bulletins; teletypes; 

telecopies; telegrams; telexes; cables; facsimiles; invoices; 

worksheets and drafts; microfiche; microfilm; videotapes; sound 

recordings of any kind; motion pictures; electronic, mechanical 

or electric records of any kind, including but not limited to 

tapes, cassettes, disks, recordings, films, typewriter ribbons, 

word processing or other computer tapes, disks, or thumb drives 

and all manner of electronic data processing storage; and 

alterations, modifications, changes and amendments of any kind to 

the foregoing. In addition, the term "information" shall include 

without limitation observations and experiences of the Defendant 

-5 

114
with respect to matters set forth in subparagraphs (3) (b) (vi) (a)-

{d), above. 

d. The term "access to classified information" shall 

mean having access to, reviewing, reading, learning, or otherwise 

coming to know in any manner classified information. 

e. The term "Secure Area" shall mean a sensitive 

compartmented information facility ("SCIF") accredited by a court 

Security Officer for the storage, handling, and control of 

classified information. 

Classified Information, General Provisions 

4. All classified documents, and information contained 

therein, shall remain classified unless the documents bear a 

clear indication that they have been "declassifiedn by the agency 

or department that originated the document or information 

contained therein {"originating agency") . 

5. Any classified information provided to the Defense by 

the Government is to be used solely by the Defense and solely for 

the purpose of preparing the defense. The Defense may not 

disclose or cause to be disclosed in connection with this case 

any information known or reasonably believed to be classified 

information except as otherwise provided herein. 

a. The Defense may not disclose classified 

information to the Defendant unless that same information has 

been previously provided to the Defense by the Defendant. The 

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115
Defense may not confirm or deny to the Defendant the assertions 

made by the Defendant based on knowledge the Defense may have 

obtained from classified information, except where that 

classified information has been provided to the Defendant. 

b. The Defense shall not disclose classified 

information to any person, except to the Court, Government 

personnel who hold appropriate security clearances and have been 

determined to have a need to know that information, and those 

authorized pursuant to this Order. 

c. Information that is classified that also appears in 

the public domain is not thereby automatically declassified 

unless it appears in the public domain as the result of an 

official statement by a u.s. Government Executive Branch official 

who is authorized to declassify the information, Individuals who 

by virtue of this Order or any other court order are granted 

access to classified information may not confirm or deny 

classified information that appears in the public domain. Prior 

to any attempt by the Defense to have such information confirmed 

or denied at trial or in any public proceeding in this case, the 

Defense must comply with the notification requirements of Section 

5 of CIPA and all provisions of this Order. 

d. In the event that classified information enters 

the public domain, the Defense is precluded from making private 

or public statements where the statements would reveal personal 

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116
knowledge from non-public sources regarding the classified status 

of the information, or would disclose that the Defense had 

personal access to classified information confirming, 

contradicting, or otherwise relating to the information already 

in the public domain. The Defense is not precluded from citing 

or repeating information in the public domain that counsel does 

not know or have reason to believe to be classified information, 

or derived from classified information. 

Security Procedures 

6. In accordance with the provisions of CIPA and the 

security procedures promulgated by the Chief Justice of the 

United States pursuant to that Act, this Court designates Michael 

P. Macisso as Court Security Officer("CSO") and Joan B. Kennedy, 

Christine E. Gunning, James P. Londergan, Barbara J. Russell, 

Nathaniel Johnson, Miguel Ferrer, Jennifer H. Campbell, Daniel o. 

Hartenstine, Charline Dasilva, and Erin Hogarty as alternate csos 

for this case, for the purpose of providing security arrangements 

necessary to protect against unauthorized disclosure any 

classified information that has been made available to the 

Defense in connection with this case. The Defense shall seek 

guidance from the CSO with regard to appropriate storage, 

handling, transmittal, and use of classified information. 

7. The Court has been advised, through the cso, that the 

Assistant United States Attorneys David Raskin, Leslie C. Brown, 

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117
and Nicholas J. Lewin (collectively, "Counsel for the 

Government"), as well as certain other Department of Justice 

employees, have the requisite security clearances allowing them 

to have access to the classified information that relates to this 

case. 

8. No Defendant or representative of the Defense shall 

have access to classified information at issue in this case 

unless the person shall first have: 

a. Received from the cso the appropriate security 

clearance for the level of the classified information involved in 

this case; 

b. A "need to know" the classified information at 

issue in this proceeding; and 

c. Signed the Memorandum of Understanding in the form 

attached hereto agreeing to comply with the terms of this Order. 

The signed Memorandum of Understanding shall be filed with the 

Court. The substitution, departure, or removal for any reason 

from this case, of counsel for the Defendant or any other member 

of the Defense, shall not release that individual from the 

provisions of this Order or the Memorandum of Understanding 

executed in connection with this Order. 2 

2 The sole exception to the requirements set forth in this 

paragraph is that, pending receipt of the necessary security 

clearances, defense counsel Gregory E. Cooper, Esq., Peter 

Enrique Quijano, Esq., and Michael K. Bachrach, Esq., shall be 

permitted access to classified information known to the Defendant 

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9. Pursuant to Section 4 of the security procedures 

promulgated pursuant to CIPA, no court personnel (except for the 

Judge) required by this Court for its assistance shall have 

access to classified information involved in this case unless 

that person shall first has received the necessary security 

clearance as determined by the cso. 

10. Standard Form 86, "Questionnaire for National Security 

Positions," attached releases, and full fingerprints shall be 

completed and submitted to the CSO forthwith by all defense 

counsel not otherwise already cleared, all persons whose 

assistance the defense reasonably requires, and by such courtroom 

personnel as the court requires for its assistance. The cso 

shall undertake all reasonable steps to process all security 

clearance applications in accordance with applicable regulations. 

11. Prior security clearance and a "need to know" as 

determined by any government entity as applying to one person 

does not automatically give that person the authority to disclose 

any classified information to any other individual, even if that 

individual also has a security clearance. By way of example, but 

not limitation, defense counsel with appropriate clearances and a 

by virtue of his observations and experiences, as described in 

subparagraphs (3) (b) (vi) (a)-(d). The Government agrees to this 

exception based on counsel's commitment to abide by the Special 

Administrative Measures; the Government's expectation that 

counsel will soon receive security clearances; and to promote 

effective representation of the Defendant. 

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119
need to know, as determined by the government, are not authorized 

to discuss or otherwise disclose such classified information with 

an uncleared defendant absent approval of the Court or written 

permission of the Government. 

12. Secure Area for the Defense. The CSO shall arrange for 

an approved Secure Area for use by the Defense. The CSO shall 

establish procedures to assure that the Secure Area is accessible 

during business hours to the Defense, and at other times upon 

reasonable request as approved by the CSO. The Secure Area shall 

contain a separate working area for the Defense and will be 

outfitted with any secure office equipment requested by the 

Defense that is reasonable and necessary to the preparation of 

the defense. The CSO, in consultation with counsel for the 

Defendant, shall establish procedures to assure that the secure 

Area may be maintained and operated in the most efficient manner 

consistent with the protection of classified information. No 

classified documents may be removed from the Secure Area unless 

so authorized by the cso with notice provided to the Court. The 

CSO shall not reveal to the Government the content of any 

conversations he may hear among the Defense, nor reveal the 

nature of the documents being reviewed, or the work being 

generated. The presence of the cso shall not operate to render 

inapplicable the attorney-client privilege. 

13. Filing of Papers by the Defense. Any pleading or other 

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document filed by the Defense that counsel for the Defendant 

knows or reasonably should know contains classified information 

as defined in paragraph 3(b), shall be filed under seal with the 

Court Security Officer or a designee and shall be marked, nFiled 

in Camera and Under Seal with the Court Security Officer." The 

time of physical submission to the cso (or alternate cso 

designated by the CSO) shall be considered the date and time of 

filing. The cso shall promptly examine the pleading or document 

and, in consultation with representatives of the appropriate 

departments or agencies, determine whether the pleading or 

document contains classified information. If it is determined 

that the pleading or document contains classified information, 

the cso shall ensure that the relevant portion of the document, 

and only that portion, is marked with the appropriate 

classification marking and remains under seal. All portions of 

all paper filed by the Defense that do not contain classified 

information shall be immediately unsealed by the CSO and placed 

in the public record. The cso shall immediately deliver under 

seal to the Court and Counsel for the Government any pleading or 

document to be filed by the Defense that contains classified 

information, unless the pleading or document is an ex parte 

filing. The Court shall then direct the clerk to enter on the 

docket sheet the title of the pleading or document, if the title 

itself would not tend to reveal classified information, the date 

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121
it was filed, and the fact that it has been filed under seal with 

the cso. 

14. Filing of Papers by the Government. Only the portions 

of pleadings or documents filed by the Government that contain 

classified information shall be filed under seal with the Court 

through the cso. Such pleadings and documents shall be marked, 

"Filed In Camera and Under Seal with the Court Security Officer." 

The time of physical submission to the cso (or designee) shall be 

considered the date and time of filing. The CSO shall 

immediately deliver under seal to the Court and counsel for the 

Defendant any pleading or document to be filed by the Government 

that contains classified information, unless the pleading or 

document is an ex parte filing. The court shall then direct the 

clerk to enter on the docket sheet the title of the pleading or 

document, if the title itself would not tend to reveal classified 

information, the date it was filed, and the fact that it has been 

filed under seal with the cso. 

15. Record and Maintenance of Classified Filings. The CSO 

shall maintain a separate sealed record for those materials which 

are classified. The cso shall be responsible for the maintaining 

of the secured records for purposes of later proceedings or 

appeal. 

16. The Classified Information Procedures Act. Procedures 

for public disclosure of classified information in this case 

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shall be those established by CIPA. The Defense shall comply 

with the requirements of CIPA Section 5 prior to any disclosure 

of classified information during any proceeding in this case. As 

set forth in Section 5, the Defense shall not disclose any 

information known or believed to be classified in connection with 

any proceeding until notice has been given to counsel for the 

Government and until the Government has been afforded a 

reasonable opportunity to seek a determination pursuant to the 

procedures set forth in CIPA Section 6, and until the time for 

the Government to appeal such determination under CIPA Section 7 

has expired or any appeal under Section 7 by the Government is 

decided. Pretrial conferences involving classified information 

shall be conducted in camera in the interest of national 

security, be attended only by persons with access to classified 

information and a need to know, and the transcripts of such 

proceedings shall be maintained under seal. 

17. Access to Classified Information. In the interest of 

the national security, representatives of the Defense granted 

access to classified information shall have access to classified 

information only as follows: 

a. All classified information produced by the 

Government to counsel for the Defendant in discovery or 

otherwise, and all classified information possessed, created or 

maintained by the Defense, including notes and any other work 

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product, shall be stored, maintained and used only in the Secure 

Area established by the CSO. 

b. The Defense shall have free access to the 

classified information made available to them in the Secure Area 

established by the CSO and shall be allowed to take notes and 

prepare documents with respect to those materials. 

c. No representative of the Defense (including, but 

not limited to, counsel, investigators, paralegals, translators, 

experts and witnesses) shall copy or reproduce any classified 

information in any manner or form, except with the approval of 

the CSO or in accordance with the procedures established by the 

CSO for the operation of the Secure Area. 

d. All documents prepared by the Defense (including, 

without limitation, pleadings or other documents intended for 

filing with the Court) that do or may contain classified 

information must be prepared in the Secure Area on word 

processing equipment approved by the CSO. All such documents and 

any associated materials (such as notes, drafts, copies, 

typewriter ribbons, magnetic recordings, exhibits) containing 

classified information shall be maintained in the Secure Area 

unless and until the CSO determines that those documents or 

associated materials are unclassified in their entirety. None of 

these materials shall be disclosed to counsel for the Government 

or any other party. 

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e. The Defense shall discuss classified information 

only within the Secure Area or in an area authorized by the cso. 

f. The Defense shall not disclose, without prior 

approval of the Court, classified information to any person not 

named in this Order except the court, Court personnel, and 

Government personnel identified by the CSO as having the 

appropriate clearances and the need to know. Counsel for the 

Government shall be given an opportunity to be heard in response 

to any Defense request for disclosure to a person not identified 

in this Order. Any person approved by the Court for access to 

classified information under this paragraph shall be required to 

obtain the appropriate security clearance, to sign and submit to 

the Court the Memorandum of Understanding appended to the Order, 

and to comply with all the terms and conditions of the Order. If 

preparation of the defense requires that classified information 

be disclosed to persons not identified in this Order, the 

Department of Justice shall promptly seek to obtain security 

clearances for them at the request of counsel for the Defendant. 

g. The Defense shall not discuss classified 

information over any standard commercial telephone instrument or 

office intercommunication systems, including but not limited to 

the Internet, or in the presence of any person who has not been 

granted access to classified information by the Court. 

h. Any documents written by the Defense that do or 

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125
may contain classified information shall be transcribed, 

recorded, typed, duplicated, copied, or otherwise prepared only 

by persons who have received an appropriate approval for access 

to classified information. 

i. The Defense shall not disclose classified 

information to the Defendant -- other than materials marked 

"Releasable to Ghailani" - absent leave of this Court or written 

permission of the Government. Counsel for the Government shall 

be given an opportunity to be heard in response to any Defense 

request for disclosure to the Defendant of such classified 

information. 

18. Any unauthorized disclosure of classified information 

may constitute violations of United States criminal laws. In 

addition, any violation of the terms of this Order shall be 

brought immediately to the attention of the Court and may result 

in a charge of contempt of Court and possible referral for 

criminal prosecution. Any breach of this Order may also result 

in termination of an individual's access to classified 

information. Persons subject to this Order are advised that 

direct or indirect unauthorized disclosure, retention or 

negligent handling of classified documents or information could 

cause serious damage, and in some cases exceptionally grave 

damage to the national security of the United States or may be 

used to the advantage of a foreign nation against the interests 

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of the United States. The purpose of this Order is to ensure 

that those authorized to receive classified information in 

connection with this case will never divulge that information to 

anyone not authorized to receive it, without prior written 

authorization from the originating agency and in conformance with 

this Order. 

19. All classified documents and information to which the 

Defense has access in this case are now and will remain the 

property of the United States. Upon demand of the cso, these 

persons shall return to the cso all classified information in 

their possession obtained through discovery from the Government 

in this case, or for which they are responsible because of access 

to classified information. The notes, summaries and other 

documents prepared by the Defense that do or may contain 

classified information shall remain at all times in the custody 

of the cso for the duration of the case. At the conclusion of 

this case, all such notes, summaries, and other documents are to 

be destroyed by the cso in the presence of counsel for the 

Defendant. 

20. Nothing contained in this Order shall be construed as a 

waiver of any right of the Defendant. No admission made by the 

Defendant or his counsel during pretrial conferences may be used 

against the Defendant unless it is in writing and signed by the 

Defendant. See CIPA § 2. 

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21. A copy of this Order shall be issued forthwith to 

counsel for the Defendant who shall be responsible for advising 

the Defendant and representatives of the Defense of this Order. 

Counsel for the Defendant, and any other representatives of the 

Defense who will be provided access to the classified 

information, shall execute the Memorandum of Understanding 

described in paragraph 8 of this Order, and counsel for the 

Defendant shall file executed originals of such documents with 

the Court and the CSO and serve an executed original upon the 

Government. The execution and filing of the Memorandum of 

Understanding is a condition precedent for counsel for the 

Defendant and any other representative of the Defense to have 

access to classified information. 

Dated: New York, New York 

July~\, 2009 

SO QRDEREp· 

L 

United States District Judge 

Southern District of New York 

128
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

- - - - - - - - - - - - - X 

UNITED STATES OF AMERICA 

- v. -

AHMED KHALFAN GHAILANI, 

Defendant. 

- - - - - - - - - - - - - - - X 

(SlO) 98 Cr. 1023 (LAK) 

MEMORANDUM OF UNDERSTANDING REGARDING RECEIPT OF 

CLASSIFIED INFORMATION 

Having familiarized myself with the applicable statutes, 

regulations, and orders, related to, but not limited to, Title 18 

United States Code, including unauthorized disclosure of 

classified information, espionage and related offenses; The 

Intelligence Agents Identities Protection Act, Title 50 u.s.c. 

Section 421;; Title 18 U.S.C. Section 641; Title 50 U.S.C. 

Section 783; 28 C.F.R. 17 et seq., and Executive Order 12356; I 

understand that I may be the recipient of information and 

documents that concern the present and future security of the 

United States and belong to the United States, and that such 

documents and information together with the methods and sources 

of collecting it are classified by the United States Government. 

In consideration for the disclosure of class ied information and 

documents: 

(1) I agree that I shall never divulge, publish, or 

reveal either by word, conduct or any other means, such 

classified documents and information unless specifically 

129
authorized in writing to do so by an authorized representative of 

the United States Government; or as expressly authorized by the 

Court pursuant to the Classified Information Procedures Act and 

the Protective Order entered in the case of United States v. 

Ahmed Khalfan Ghailani, (SlO) 98 Cr. 1023 (LAK), Southern 

District of New York. 

( 2) I agree that this Memorandum and any other nondisclosure agreement signed by me will remain forever binding on 

me. 

( 3) I have received, read, and understand the 

Protective Order entered by the United States District Court for 

the Southern District of New York on , 2009, in the 

case of United States v. Ahmed Khalfan Ghailani, (SlO) 98 Cr. 

1023 (LAK) , relating to classified information, and I agree to 

comply with the provisions thereof. 

Court Security Officer 

Gregory E. Cooper, Esq. 

counsel for Ahmed Khalfan Ghailani 

Peter Enrique Quijano, Esq. 

Counsel for Ahmed Khalfan Ghailani 

Date 

Date 

Date 

130
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-----------------------------------------------------------)( 

UNITED STATES OF AMERICA, 

-against98 Cr. 1023 (S-10) (LAK) 

AHMED KHALF AN GHAILANI, 

Defendant. 

-----------------------------------------------------------)( 

ORDER 

LEWIS A. KAPLAN, District Judge. 

Pursuant to, inter alia, the Classified Information Procedures Act ("CIP A"), 18 

U.S.C. App. 3 §§ 1-16, and the Classified Information Protective Order, dated, July 21, 

2009 (Document No. 765, herein), the following procedures shall govern the electronic 

tiling (i.e., "ECF" filing) of material related to classified information in the instant case: 

( 1) Three unredacted copies of the filing must be provided to 

~ 

~ourtroom 

(2) 

(3) 

(4) 

(5) 

(6) 

Security Officer ("CSO"), or his/her designee. 

The CSO (or his/her designee) must possess the necessary security 

clearance required to be permitted to transport or review said files. 

The Court ~fi!I*~CSO Michael Macisso possesses the necessary 

security clearance required by CIPA and thi!s~O~r~d:fi.er~·--r-----,r-"L::-') 

.. The CSO (or his/her desig !]}_~hen e 1ver one copy o t e 

unredacted filing directly to amber~rid one unredacted copy directly to 

the United States Attorney's Office, sSecifically an Assistant United States 

Attorney (or his/her designee) who is assigned to this case and who 

possesses the necessary security clearance required to be permitted to 

transport or review said files. 

The CSO (or his/her designee) must then deliver the final unredacted copy 

of the filing to a separate "review team" composed of members of the 

United States intelligence community who review the unredacted 

document(s) for potential classified information and redact any 

information that is determined to be classified. 

For each document that is provided by the defendant to the CSO (or 

his/her designee) for filing, a self-redacted copy of the filing must also be 

immediately filed by ECF. This self-redacted copy is referred to as a 

131
(7) 

(8) 

"half-sheet" and maylonU:JCc;ntain} the cover-page and/or caption of the 

document itself. For example, if tli.e defendant intends to file a 30-page 

memorandum containing potentially classified information, only the cover 

page is filed by ECF to ensure that only non-classified material is 

electronically filed. The purpose of filing the half-sheet by ECF is to alert 

the public that the filing occurred, and to make a public record of when it 

occurred, but at the same time protecting the integrity of the potentially 

classified information. 

In order to alert the Clerk's Office that a half-sheet is being filed in 

conjunction with this Order, a stamp indicating that a copy was "Filed 

With The Court Security Officer" should be affixed to the document. The 

stamp stating that a copy was "Filed With The Court Security Officer" 

may be placed on half-sheets as well as on other appropriate documents as 

determined by the CSO. 

...J) 

Once t]!tt) unredacted filing has been thoroughly reviewed fm. appropriate~ 

red acta by the "review team", a redacted copy · P!9..Y}ded to the 

defendant for public filing via ECF. '$ LcJ.,..£l ~ 

(9) The version of the document that has been returned to the defendant 

review for redaction by the "review team" W.the 1 e y the defendant 

via ECF, with a notation that it relates to the previously filed half-sheet. 

( 1 0) The final version of the document may or may not contain redactions. 

depending on the determinations of the "review team". 

(11) At no time, however, is any person permitted to possess, file, or review the 

unredacted copy of the filing prior to its review and release by the "review 

team", unless that person has li@8et'f~ the necessary security clearance 

required to be permitted to possess or review said document(s). 

SO ORDERED 

Dated: New York, New York 

October J:}_, 2009 

Lewis A. Ka an 

United States District Judge 

132
United States v. Shnewer

(D.N.J. 1:07-cr-459)

Protective Order ............................................................................................... 134

133
UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

lJNITED STATES OF AMERICA 

v. 

MOHAMAD IBRAHIM SHNEWER, 

DRIT AN DUKA, 

a/k/a "Tony Duka," 

ELNJRDUKA, 

a/k/a "Sulayman," 

SHATNDUKA, 

a/k/a "Shaheen," 

and 

SERDAR TATAR 

Criminal No. 07-459 (RBK) 

PROTECTIVE ORDER FOR CLASSIFIED MATERIALS 

This matter is before the Court upon the Government's motion for a protective order to 

prevent the unauthorized disclosure or dissemination of classified national security information in 

this case. Having considered the Government's motion and proposed protective order, the Court 

finds: 

Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. III, ("CIPA") 

requires entry of a protective order upon motion by the Government. The Government has moved 

for an order to protect against the disclosure of classified information disclosed by the United States 

to the defense in this case. 

The Government has demonstrated the need to safeguard national security information at all 

phases of this criminal proceeding, including any appellate proceedings. While the following order 

in no way binds the appellate courts, it does control and govern the conduct of all individuals 

granted access to classified information during this case at all times unless and until it is superseded 

134
.. 

by a protective order under CIPA issued by an appellate court. 

The Government's participation in any decision that the Court' may be asked to make 

concerning requests by defense counsel to share classified information with either a defendant or 

a third party is necessary and appropriate. First, the Government's participation is required to ensure 

that the Executive Branch maintains control over the dissemination of classified information in 

accordance with CIPA. Second, the Government is uniquely situated to advise the Court on the risks 

involved in disseminating classified information, whether because of the nature or source of the 

infonnation or because of the individual with whom it is to be shared. 

THEREFORE, pursuant to the authority granted under Section 3 of CIPA; the Security 

Procedures Established Pursuant To Pub. L. 96-456, 94 Stat. 2025, By The Chief Justice Of The 

United States For The Protection Of Classified Information (reprinted following Section 9 ofCIPA) 

("Security Procedures"); Rules 16(d) and 57 ofthe Federal Rules ofCriminal Procedure; the general 

supervisory authority ofthe Court; and in order to protect the national security, 

THE COURT HEREBY FINDS AND ORDERS: 

I. This case will involve classified national security intbnnation, the storage, handling 

and control of which, by law or regulation, requires special security precautions, and access to which 

requires a security clearance and an actual need to know. 

2. The purpose of this Order is to establish the procedures that must be followed by the 

Defendants, defense counsel, other counsel involved in this case, persons assisting defense counsel, 

other Court personnel, and all other individuals who are granted access to classified information or 

"Court" refers to both the District Court and the Magistrate Court insofar as this 

Order delegates authority (see 'I] 4, below). 

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documents in connection with this case. It is a further purpose of this Order to ensure that those 

authorized by the Order to receive classified information do not divulge the classified infomtation 

disclosed to them to anyone who is not authorized to receive it, or otherwise use the classified 

information, except in contormity with this Order or with prior written authorization from the 

originating agency. 

3. The procedures set forth in this Protective Order and in CIPA will apply to all 

pretrial, trial, post-trial and appellate aspects concerning classified information in this case, and may 

be modified from time to time by further order of the Court acting pursuant to Fed. R. Crim. P. 

16( d), CIPA, and the Court's inherent supervisory authority to ensure a fair triaL 

4. The Court may refer pretrial matters involving classified information to the 

Magistrate Judge for review and consideration consistent with this and any other applicable orders 

that may be issued by the Court pursuant to CIPA or any other applicable law. In the event of a 

referral, this Protective Order, and any other applicable orders, shall remain in effect and binding 

upon each of the parties and shall govern all proceedings that are held before the Magistrate Judge 

until such further order ofthis Court. The Magistrate Judge shall have the full authority to hear and 

determine any referred pretrial matter that is granted pursuant to 28 U.S.C. § 636 or any other 

applicable law. Because of the possibility of referrals, all references below to "the Court" shall 

include the Magistrate Court. 

5. Definitions. The following definitions shall apply to this Order: 

a. The terms "classified national security information and documents," 

"classified documents and information," "classified infom1ation," and "classified documents" refer 

to: 

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136
i. Any document that has been classified by any Executive Branch 

agency in the interests of national security or pursuant to Executive Order 12,958, as amended, as 

"CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally controlled as "SENSITIVE 

COMPARTMENTED INFORMATION" (SCI), and any information contained in such documents; 

ii. Any document or infom1ation that the defendants or the defense know, 

or should reasonably know, has been derived from United States Government intormation that was 

classified, regardless whether such document or information has subsequently been classified by the 

Government pursuant to Executive Order 12,958 as amended; 

iii. Verbal classified information that has been disclosed by attorneys for 

the Government or by a witness in a court proceeding to the defendants or the defense; or 

iv. Any document or information, including verbal information and 

"foreign government information" (as that term is det1ned in Executive Order 12,958, as amended), 

that the Defendants or the defense have been notified is classified, unless already possessed by or 

known to the Defendants or the defense, provided that such knowledge is not derived from materials 

described in subparagraph 5(a)(i),(ii), or (iii) above. 

b. The words "document" and "information" shall include, but arc not limited 

to, all written or printed matter of any kind, formal or informal, inchtding originals, conforming 

copies and non-conforming copies (whether different from the original by reason of notation made 

on such copies or otherwise), and further include, but are not limited to: 

i. Papers; correspondence; memoranda; notes; letters; reports, 

summaries; interoffice and intra-office communications; notations of any sort concerning 

conversations, meetings or other communications; bulletins; telexes; cables; teletypes; telegrams; 

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facsimiles; invoices; worksheets; and drafts, alterations, modifications, changes and amendments 

of any kind to the foregoing; 

ii. Graphic or oral records or representations of any kind, including, but 

not limited to, photographs, maps, charts, graphs, microfiche, microfilm, videotapes, sound 

recordings of any kind and motion pictures; 

iii. Electronic, mechanical, magnetic, optical or electric records of any 

kind, including, but not limited to, data stored on tapes, cassettes, CD-ROMS, disks, recordings, 

films, typewriter ribbons, word processing or other computer tapes or disks, and all manner of 

electronic data processing storage; and 

iv. Information acquired aurally. 

c. "Access to classitled intbrmation" means having access to, reviewing, 

reading, learning, or otherwise coming to know in any manner any classified infonnation. 

d. "Secure Area" shall mean a physical facility accredited for the storage, 

handling, and control of classified information. 

e. "The defense" means any person assisting the Defendants with the preparation 

of their defense in this case including (but not limited to) couusel for the Defendants and employees 

of, consultants to or contractors for defense counseL 

f. "Attorneys for the Government," "Government counsel," and "counsel for 

the Government" means the attorneys listed in paragraph I 0 herein and tl1eir respective supervisors. 

g. "Originating agency" means the government agency, department or entity 

from which the classified document or the information contained tl1erein originated. 

6. Any document or information provided by attorneys for the Government to the 

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Defendants or the defense referencing, mentioning, originating from, or concerning any agency, or 

part of an agency, that is a member of the United States "intelligence community" (as defined in 

Section 3.4 ofthe National Security Act of 1947, codified at 50 U.S.C. § 401a(4)), or information 

in possession of such agency, or part thereof, shall be presumed to fall within the meaning of 

classified information unless and until the Court Security Officer or an attorney for the Government 

advises otherwise in writing. 

7. All classified documents and information shall remain classified unless such 

document or information bears a clear indication that it has been declassified by the originating 

agency. 

8. Information in the public domain is ordinarily not classified. However, such 

information may be considered classified, and therefore subject to the provisions ofCIPA, if it is 

confim1ed by any person who has had access to the classified information, and that confillliation 

corroborated the information in question. Any attempt by the Defendants or the defense to have 

such information conf1rn1ed or denied at trial, or in connection with any pretrial, post-trial or other 

proceeding in this case, shall be governed by CIPA and the provisions of this Order. 

9. In accordance with the provisions ofCIPA and the Security Procedures, the Court 

designates Jennifer H. Campbell as Court Security Officer for this case and Christine E. Gunning, 

Michael P. Macisso, Daniel 0. Hartcnstine, Erin E. Hogarty, James P. Londergan, Barbara J. 

Russell, Joan B. Kennedy, Nathaniel A. Johnson, Charline A. DaSilva, and Miguel A. Ferrer as 

Alternate Court Security Officers (collectively "the CSO"), for the purpose of providing security 

arrangements necessa1y to protect from unauthorized disclosure any classified documents or 

information to be made available in connection with this case. The defense shall seek guidance from 

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139
the CSO with regard to the appropriate storage, handling, transmittal, and use of classified 

infonnation. 

I 0. The Court has been advised that the following Government attorneys will be working 

on this case: Deputy United States Attorney William E. Fitzpatrick, Assistant United States Attorney 

Michael A. Hammer, and U.S. Department of Justice Trial Attorney John W. Van Lonkhuyzen, 

along with various supervisory attorneys. The Court also has been advised that the Government 

attorneys have the requisite security clearances to have access to the classified information in this 

case. The Government may add additional attorneys with notice to the Court and defense counsel. 

11. Protection ofClassit1ed Documents and Information: The Court 11nds that, in order 

to protect the classified documents and infonnation involved in this case, no person except the 

attorneys for the Government, personnel ofthe originating agency and other intelligence agencies, 

appropriately-cleared Department of Justice employees, judicial personnel, members ofthe defense, 

and the Defendants (subject to paragraphs II (d) and 19(b)) shall have access to the classified 

documents and infonnation in this case. 

a. Judicial personnel, other than the Court, may obtain access to classified 

documents or information after having been granted security clearance by the CSO. 

b. No member of the defense shall have access to any classitled documents or 

infom1ation in this case unless that person shall first have: 

i. received approval for access to the particular classified documents or 

infonnation from the Government or, should the Government reject the request, from the Court in 

a separate order, which shall not occur except upon a showing of a need to know the particular 

classified information and upon consideration of any responsive pleading from the Government; 

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ii. received the necessary security clearance at the appropriate level of 

classification as determined by the Department of Justice Security Officer working in conjunction 

with the CSO; and 

iii. signed a Memorandum ofUnderstanding (a form tbrwhich is attached 

hereto), agreeing to comply with the terms of this Order. 

c. The substitution, departure or removal of counsel for the defense or anyone 

associated with the de±ense as an employee, consultant, contractor, witness or otherwise shall not 

release that person from the provisions of this Order or the Memorandum ofUndcrstanding executed 

in connection with this Order. 

d. The Defendants shall not have access to any classified documents or 

in±brmation in this case except pursuant to paragraph !9(b ). 

12. For the purpose of establishing the security clearances necessary for access to 

classified documents and infonnation that may be involved in this case, the defense, and such Court 

personnel as the Court requires tbr its assistance shall forthwith complete and submit to the CSO 

Standard Form 86 ("Security Investigation Data for Sensitive Position"), the necessary releases, and 

full fingerprints, unless such person already holds an appropriate security clearance and is approved 

for access to classitied documents and information in this case. The CSO shall take all reasonable 

steps to process all security clearance applications in a timely manner. The CSO shall not disclose 

to Government attorneys any information supplied by anyone applying for security clearance 

pursuant to this Order. 

13. T11e CSO shall arrange for and maintain an appropriately approved secure area for 

the use of the defense. The CSO shall establish procedures to ensure that the secure area is 

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accessible during nonnal business hours, and at other times on reasonable request as approved by 

the CSO, to the defense, the Defendants (if such access should be determined by the Court to be 

necessary and is authorized through a separate order, subject to paragraph 19(b) herein), and 

witnesses authorized to access classified infonnation pursuant to paragraph 19 herein (hereatler 

"authorized witnesses") who arc accompanied by defense counsel. The secure area will be outfitted 

with any secure office equipment requested by the defense that is reasonable and necessary to the 

preparation of a defense in this case. The CSO, in consultation with defense counsel, shall establish 

procedures to assure that the secure area may be maintained and operated in the most efficient 

manner consistent with the protection of classified information. No documents containing classified 

information may be removed from the secure area by anyone, including the defense, unless 

authorized by the CSO. No person, including the defense, shall copy or reproduce any classitled 

document or information in any fonn, except with the approval of the CSO or in accordance with 

the procedures established by the CSO for the operation of the secure area. 

14. If, upon the entry of a separate order of the Court as provided in paragraph 19(b), it 

becomes necessary for the Defendants to discuss classified matters, review classified documents or 

information, or otherwise meet with defense counsel regarding classi fled matters, this will only 

occur in the Secure Area and under appropriate supervision, which the CSO will coordinate with the 

U.S. Marshals Service, to ensure that the Defendants do not escape, cause physical injury to 

themselves or others, or remove, copy, alter or destroy classified documents or infommtion or obtain 

access to classified documents or information that the Defendants are not authorized to review, and 

to ensure that the Def(mdants do not use the opportunity to review the classified materials to 

circumvent any applicable security restrictions and other orders ofthis Court governing discovery 

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in this case. 

15. Filing ofPapers By the Defense: Any pleading or other document filed by the defense 

shall be filed under seal with the Court through the CSO or her designee, unless defense counsel has 

obtained permission from the CSO, speci fie to a particular pleading or document (e.g., motions for 

extensions oftimc, continuances, scheduling matters, etc.) not containing information that is or may 

be classified or under seal, to file the pleading or document not under seal. Pleadings filed under 

seal with the CSO shall be marked, "Filed In Camera and Under Seal with the Court Security Officer 

or Designee." Such pleadings need not be accompanied by a separate motion to seal, but should 

include in the introductory paragraph a statement that the item is being filed under seal pursuant to 

this Order. The time of physical submission to the CSO shall be considered the date and time of 

filing. The CSO shall promptly examine the pleading or document and, in consultation witl1 

representatives of the appropriate agencies, determine whether the pleading or document contains 

classified information. If the CSO determines that the pleading or document contains classified 

infom1ation, she shall ensure that the portion of the document that contains classified information, 

and only that portion, is marked with the appropriate classification marking(s) and remains under 

seaL All portions of all papers filed by the defense that do not contain classitled information shall 

be immediately unsealed by the CSO and placed in the public record, unless otherwise ordered by 

the Court. The CSO shall immediately deliver under seal any pleading or document filed by the 

defense that contains classified information to the Court and, except for ex parte pleadings and 

documents, to attomeys for the Government. The Court shall then direct the Clerk of Court to enter 

on the docket sheet the title ofthe pleading or document, the date it was filed, and the fact that it has 

been filed under seal with the CSO. 

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16. Filing of Papers by the Government: Any pleading or document filed by attorneys 

for the Government that contains classified information shall be filed under seal with the Court 

through the CSO or her designee. Such pleadings and documents shall be marked, "Filed In Camera 

and Under Seal with the Court Security Officer or Designee." Such pleadings need not be 

accompanied by a separate motion to seal, but should include in the introductory paragraph a 

statement that the item is being tiled under seat pursuant to this Order. The time of physical 

submission to the CSO shall be considered the date and time of filing. The CSO sha11 immediately 

deliver any pleading or document filed by the Government that contains classified information, 

under seal to the Court and, except for ex parte pleadings and documents, to the defense, provided 

that the defense has proper clearance to receive the pleading or document. The Court shall then 

direct the Clerk of Court to enter on the docket sheet the title of the pleading or document, the date 

it was filed, and the fact that it has been tlled under seal with the CSO. 

17. Sealing of Records: The CSO shall maintain a separate sealed record for those 

pleadings or documents containing classified materials. The CSO shall be responsible for 

maintaining the secured records for purposes of later proceedings or appeal. 

18. Access to Classified Information: The defense, the Defendants (if such access should 

be detern1ined by the Court to be necessary and is authorized through a separate order, subject to 

paragraph 19(b) herein), and authorized witnesses when accompanied by defense counsel shall have 

access to classified documents or infom1ation only as follows: 

a. All classified documents or information produced by the Government to the 

defense, in discovery or otherwise, and all classi fled documents or infonnation possessed, created, 

or maintained by the defense, shall be stored, maintained, and used only in the secure area 

-It144
established by the CSO or in another area authorized by the CSO. 

b. The defense and authorized witnesses when accompanied by defense counsel 

shall have free access in the secure area to the classified documents or information made available 

to them in accordance with this Order, and shall be allowed to take notes and prepare documents 

with respect to those materials. 

c. All documents prepared by the defense, the Defendants or authorized 

witnesses (i11cluding pleadings or other documents intended for filing with the Court) that contain 

or deal in any way with classified information shall be transcribed, recorded, typed, duplicated, 

copied, and otherwise prepared only by persons who have received an appropriate approval for 

access to classified information, and only in the secure area on approved word processing and data 

handling equipment, and in accordance with the procedures approved by the CSO. All such 

documents and any associated materialfi (such as notes, drafts, copies, typewriter ribbons, magnetic 

recordings, and exhibits) containing classified infom1ation shall be maintained in the secure area 

unless and until the CSO detennines that those documents or associated materials are unclassified 

in their entirety. None of these materials shall be disclosed to counsel for the Government. 

d. The defense, the Defendants (if access to classified information is determined 

by the Court to be necessary and is authorized through a separate order, subject to paragraph 19(b) 

herein), and authorized witnesses shall discuss classitled documents or intbrmation only within the 

secure area or in another area authorized by the CSO, and shall not discuss or attempt to discuss 

classified information over any standard commercial telecommunications system or office 

communication system, including, but not limited to, by facsimile and over the internet. 

e. The CSO shall not reveal to the Government the content of any conversation 

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she may hear among the defense, reveal the nature of the documents being reviewed by them, or the 

work generated by them. In addition, the presence of the CSO shall not operate as a waiver of, limit, 

or otherwise render inapplicable, the attorney-client or work product privilege. 

19. Disclosure of Classified Information: The defense, the Defendants (if access to 

classified infom1ation is detem1ined by the Court to be necessary and is authorized through a 

separate order, subject to paragraph 19(b) herein), and authorized witnesses shall not disclose, 

without prior approval of the Court, any classified document or infom1ation to any person not 

authorized pursuant to this Order, e11cent for the Court or those Court personnel, personnel of the 

originating agency and other intelligence agencies, appropriately-cleared Department of Justice 

employees, or attorneys for the Government who have been identified by the CSO as having the 

appropriate clearances and the need-to-know and in accordance with the procedures of CIP A and 

the procedures established by the CSO. Counsel for the Government shall be given an opportunity 

to be heard in response to any defense request for disclosure to a person not named in this Order. 

Any person approved by the Court for disclosure under this paragraph shall be required to obtain 

the appropriate security clearance, to sign and submit to the Court a Memorandum ofUnderstanding 

in the fonn attached to this Order, and to comply with all terms and conditions of this Order. If 

preparation of the defense requires that classified documents or inforn1ation be disclosed to a person 

not named in this Order, the CSO shall promptly seek to obtain a security clearance for such person 

at the request of defense counsel. 

a. No person shall discuss clas.sified documents or information in the presence 

of any person who has not been granted access by the Court to such classified documents or 

information. 

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' ' 

b. No person shall disclose classified documents or information to any of the 

Defendants without prior concurrence of counsel for the Government (in consultation with the 

originating agency) or, absent such concurrence, an order of the Court, which shall not occur except 

upon a showing of a need to know the particular classified document or information. Counsel for 

the Government shall be given an opportunity to be heard in response to any defense request for 

disclosure to the Defendants of any classified document or information. 

c. Procedures for the use or the public disclosure of classified information shall 

be those provided in Sections 5, 6 and 8 of CTPA. These provisions, and this Order, require that: 

1. Any and all items which are classified that the defense seeks to use 

or publicly disclose shall be listed in the Defendants' Section 5 notices. 

ii. To facilitate the tlling of notices required under Section 5 ofCIPA, 

the CSO shall make arrangements with the appropriate agencies for a detennination of the 

classification level, if any, of materials or information either within the possession of the defense 

or the Defendants or about which the defense or the Defendants have knowledge and which the 

defense intends to use in any way at any pretrial proceeding, deposition, trial or post-trial or other 

proceeding. Nothing submitted by the defense to the CSO pursuant to this paragraph shall be made 

available to counsel for the Government unless so ordered by the Court or so designated by the 

defense. 

20. Notwithstanding any other provision ofthis or any other Protective Order that may 

be entered by the Court relating to the disclosure of classified information, the Foreign Intelligence 

Surveillance Act (FISA) shall govern the disclosure or discovery ofmatcrials in connection with any 

FISA-relatcd litigation, including but not limited to any FTSA applications, orders or related 

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materials. 

21. Any unauthmized use or disclosure of classified information may constitute a 

violation of United States criminal law. In addition, any violation of the terms of this Order shall 

be inuncdiatcly brought to the attention of the Court and may result in a charge of contempt of the 

Court and possible referral tor criminal prosecution. Any breach of this Order may also result in the 

termination of the person's access to classified documents and information. Persons subject to this 

Order are advised that direct or indirect unauthorized use, disclosure, retention or negligent handling 

of classified documents or information could cause serious damage, and in some cases exceptionally 

grave damage, to the national security of the United States and may be used to the advantage of a 

foreign power against the interests ofthc United States. 

22. All classified documents and information to which the defense, the Defendants or 

authorized witnesses have access in this case are now and forever remain the property of the 

Government. Any member ofthe defense, here inc I uding the Defendants and authorized witnesses, 

who receives classified documents or infom:tation shall return all such documents and information 

in their possession or for which they are responsible, upon demand of the CSO. Any notes, 

summaries, or other documents prepared by the defense, the Defendants, or authorized witnesses 

that contain classified infom1ation shall remain at all times in the custody of the CSO tor the 

duration of this case. All such notes, summaries, and other documents shall be destroyed by the 

CSO in the presence of defense counsel, should they choose to be present, (a) one year after the 

judgment in this case is final or (b) atthe conclusion of litigation of any motion filed pursuant to 28 

U.S.C. § 2255, if said motion was filed within one year after the judgment became final, whichever 

event is later. 

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~ ' I \. 

23. A copy of this Order shall be issued forthwith to the attorneys for the Government, 

the CSO, the Defendants and counsel of record for the Defendants. Counsel for the defense shall 

be responsible for advising the Defendants, authorized witnesses and any other member of the 

defense who should be made aware of the contents of this Order. The Defendants, counsel for the 

Defendants and any other individuals who will be provided access to classified documents or 

information pursuant to this Order shall execute the Memorandum of Understanding in the form 

attached hereto. Counsel tor the Defendants shall file executed originals of such documents with 

the Court, and serve copies of executed originals of such documents upon the CSO and the 

Govemment. The execution and filing of the Memorandum of Understanding is a condition 

precedent for the Defendants, any member of the defense or any other individual to have access to 

classified information. 

24. The Court may amend this Protective Order and/or issue additional Protective Orders 

as needed. 

J 

SO ORDERED this J,2_ day of May, 2008. 

HON. ROBERT B. KUGLER 

UNITED STATES DISTRICT JUDGE 

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United States v. Holy Land Foundation

(N.D. Tex. 3:04-cr-240)

Protective Order (Judge Fish) ........................................................................ 151

Protective Order (Judge Solis) ........................................................................ 170

150
Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 1 of 19 PageID 499 • • U.S. DISTRICT COURT 

_ ]SORTHERN DISTRICT OF TEXAS · 

IN THE UNITED STATES DISTRICT c URT FILED 

FOR THE NORTHERN DISTRICT OFT XAS 

DALLAS DIVISION 

UNITED STATES OF AMERICA 

v. 

HOLY LAND FOUNDATION FOR 

RELIEF AND DEVELOPMENT (1) 

also known as the "HLF" 

SHUKRI ABU BAKER (2) 

MOHAMMAD EL-MEZAIN (3) 

GHASSAN ELASHI ( 4) 

HAITHAM MAGHA WRI (5) 

AKRAMMISHAL (6) 

MUFID ABDULQADER (7) 

ABDULRAHMAN ODEH (8) 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

3:04-CR- 240- G 

PROTECTIVE ORDER 

APR -5 200'J 

CLERK, U.S. DISTRICT CQ~RT 

By ~ IJ~put;o 

This matter comes before the Court upon the Government's Motion for Protective 

Order to prevent the unauthorized use, disclosure or dissemination of classified national 

security information and documents which will be reviewed by or made available to, or 

are otherwise in the possession of, defense counsel in this case. 

Pursuant to the authority granted under Section 3 of the Classified Information 

Procedures Act, 18 U.S.C. App. 3 (1994) (CIPA); the Security Procedures Established 

pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the 

Protection of Classified Information (reprinted following CIP A Section 9); Rules 16( d) 

and 57 ofthe Federal Rules of Criminal Procedure; the general supervisory authority of 

the Court; and in order to protect the national security, 

PROTECTIVE ORDER (CIP A) - Page 1 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 2 of 19 PageID 500 • • 

IT IS HEREBY ORDERED: 

1. The Court finds that this case will involve classified national security 

information, the storage, handling and control of which, by law or regulation, requires 

special security precautions, and access to which requires a security clearance and a 

"need-to-know." 

2. The purpose of this Order is to establish the procedures that must be 

followed by all defense counsel of record, their designated employees, all other counsel 

involved in this case, translators for the defense, any Court personnel, and all other 

individuals who receive access to classified information or documents in connection with 

this case. 

3. The procedures set forth in this Protective Order, CIPA, and the Foreign 

Intelligence Surveillance Act of 1978 (FISA) shall apply to all pre-trial, trial, post-trial, 

and appellate aspects concerning this case, and may be modified from time to time by 

further order ofthe Court acting under Fed. R. Crim. P. 16(d), Sections 3 and 9 ofCIPA 

and FISA, and its inherent supervisory authority to ensure a fair and expeditious trial. 

Definitions 

4. As used herein, the terms "classified national security information and 

documents," "classified information" and "classified documents" refer to: 

a. Any classified document or information which has been classified by 

any Executive Branch agency in the interests of national security or pursuant to Executive 

PROTECTIVE ORDER (CIP A) - Page 2 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 3 of 19 PageID 501 • 

Order 12958 or its predecessor Orders as "CONFIDENTIAL," "SECRET," OR "TOP 

SECRET," or additionally controlled as "SENSITIVE COMPARTMENTED 

INFORMATION (SCI)," or any information contained in such documents; 

b. Any document or information, regardless of its physical form or 

characteristics, now or formerly in the possession of a private party, which has been 

derived from United States government information that was classified, regardless 

whether such document or information has subsequently been classified by the 

govef!lment pursuant to Executive Order 12958 or its predecessor Orders as 

"CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally controlled as 

"SENSITIVE COMPARTMENTED INFORMATION (SCI)"; 

c. Verbal classified information known to the defense counsel; 

d. Any document and information, including verbal information, as to 

which the defense counsel have been notified orally or in writing that such documents or 

information contain classified information; or, 

e. Any information, regardless of place or origin and including "foreign 

government information," as that term is defined in Executive Order 12958, that could 

reasonably be believed to contain classified information, or that refers or relates to 

national security or intelligence matters; and, 

f. Any information including, but not limited to any subject obtained 

from the Central Intelligence Agency, the National Security Agency, the Defense 

PROTECTIVE ORDER (CIP A)- Page 3 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 4 of 19 PageID 502 • 

Intelligence Agency, the Department of State, National Security Counsel, the Federal 

Bureau of Investigation, or similar entity, with the exception of items seized by the 

Federal Bureau of Investigation during the execution of a duly authorized Rule 41 search 

warrant, shall be presumed to fall within the meaning of classified information unless and 

until the Court Security Officer or an attorney for the government advises otherwise in 

writing. 

5. The words "documents" or "information" shall include, but are not limited 

to, all written or printed matter of any kind, formal or informal, including originals, 

conforming copies and non-conforming copies (whether different from the original by 

reason of notation made on such copies or otherwise), and further include, but are not 

limited to: 

a. Papers, correspondence, memoranda, notes, letters, reports, 

summaries, photographs, maps, charts and graphs, interoffice and intra-office 

communications, notations of any sort concerning conversations, meetings, or other 

communications, bulletins, teletypes, telegrams, and telefacsimiles, invoices, worksheets, 

and drafts, alterations, modifications, changes and amendments of any kind to the 

foregoing; 

b. Graphic or oral records or representations of any kind, including, but 

not limited to, photographs, charts, graphs, microfiche, microfilm, videotapes, sound 

recordings of any kind, and motion pictures; 

PROTECTIVE ORDER (CIPA) -Page 4 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 5 of 19 PageID 503 • • 

c. Electronic, mechanical or electric records of any kind, including, but 

not limited to, tapes, cassettes, disks, recordings, films, typewriter ribbons, word 

processing or other computer tapes or disks, and all manner of electronic data processing 

storage; and, 

d. Information acquired orally or verbally. 

6. All classified documents, and information contained therein, shall remain 

classified unless the documents bear a clear indication that they have been declassified by 

the agency or department that is the originating agency of the document or the 

information contained therein (hereinafter, the "originating agency"). 

7. Information in the public domain is ordinarily not classified. However, 

such information may be considered as classified, and therefore subject to the provisions 

of CIP A, if it is confirmed by any person who has, or has had, access to the classified 

information, and that confirmation corroborated the information in question. Any attempt 

by the defendant(s) or defense counsel to have such information confirmed or denied at 

trial, or in connection with any pretrial or other proceeding in this case, shall be governed 

by CIPA and all provisions of this Order. 

8. "Access to classified information" means having access to, reviewing, 

reading, learning, or otherwise coming to know in any manner any classified information. 

9. "Secure area" shall mean a physical facility accredited for the storage, 

handling, and control of classified information. 

PROTECTIVE ORDER (CIP A) -Page 5 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 6 of 19 PageID 504 • • 

10. Court Security Officer - In accordance with the provisions of CIP A and the 

Security Procedures, the Court designates John Molinard Security Specialist as Court 

Security Officer for this case, and Jennifer Campbell, Mary M. Cradlin, Christine E. 

Gunning, Barbara J. Russell, Daniel 0. Hartenstine, James P. Londergan, and Michael P. 

Macisso as Alternate Court Security Officers, for the purpose of providing security 

arrangements necessary to protect from unauthorized disclosure any classified documents 

or information to be made available in connection with this case. Defense counsel shall 

seek guidance from the Court Security Officer with regard to appropriate storage, 

handling, transmittal, and use of classified documents and information. 

11. Government Attorneys - The Court has been advised that the following 

government attorneys working on this case, Assistant U.S. Attorneys Jim Jacks and 

Nathan Garrett and U.S. Department of Justice Trial Attorneys Barry Jonas and Elizabeth 

Shapiro, and their respective supervisors, have the requisite security clearances to have 

access to the classified documents and information that relates to this case. All references 

to government attorneys, or attorneys for the government, as used in this Order, refer only 

to the attorneys listed in this paragraph and their respective supervisors. 

12. Protection of Classified Information- The Court finds that, in order to 

protect the classified information involved in this case, no person, including the 

defendants and any witness for the defense, except government attorneys, appropriately 

cleared Department of Justice employees, personnel of the originating agency, defense 

PROTECTIVE ORDER (CIP A) -Page 6 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 7 of 19 PageID 505 • • 

counsel, employees of defense counsel or translators employed by defense counsel, shall 

have access to the classified information in this case. No defense counsel, employee of 

defense counsel or translator shall have access to any classified information in this case 

unless that person shall first have: 

a. Signed the Memorandum of Understanding in the form attached 

hereto, agreeing to comply with the terms of this Order. The signed Memorandum of 

Understanding shall be filed with the Court. The substitution, departure, or removal for 

any reason from this case of counsel for the defendant, or anyone associated with the 

defense as an employee or otherwise, shall not release that person from the provisions of 

this Order or the Memorandum of Understanding executed in connection with this Order. 

b. Persons other than government attorneys, appropriately cleared 

Department of Justice employees, and personnel of the originating agency, can only 

obtain access to classified documents and information after having been granted a 

security clearance by the Court Security Officer, and with permission of the Court, either 

through this Order, (for those named in paragraph 13 below), or by a separate Order upon 

showing of a need to know. Before any person other than government attorneys, 

appropriately cleared Department of Justice employees, and personnel of the originating 

agency, is permitted by the Court to inspect and review classified information, he or she 

must also sign the Memorandum of Understanding. 

PROTECTIVE ORDER (CIPA) -Page 7 

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13. Defense Counsel- Subject to the provisions of paragraph 12, the following 

attorneys for the defense, their approved employees and translator (collectively referred to 

herein as "the defense"), shall be given access to classified documents and information as 

required by the government's discovery obligations and otherwise as necessary to prepare 

for proceedings in this case: John Boyd for the Holy Land Foundation for Relief & 

Development; Nancy Hollander for Shukri Abu Baker; Joshua Dratel for Mohammad ElMezain; Tim Evans for Ghassan Elashi; Marlo P. Cadeddu for Mufid Abdelqader; and 

Greg Westfall for Abdulrahman Odeh . 

Any additional person whose assistance the defense reasonably requires may only 

have access to classified information in this case after obtaining from the Court -- with 

prior notice to the government -- an approval for access to the appropriate level of 

classification on a need-to-know basis, and after satisfYing the other requirements 

described in this Order for access to classified information. The substitution, departure, 

or removal for any reason from this case of defense counsel or anyone associated with the 

defense as an employee or witness or otherwise, shall not release that person from the 

provisions of this Order or the Memorandum of Understanding executed in connection 

with this Order. 

14. Unless already holding an appropriate security clearance, and approved for 

access to classified information in this case, for the purpose of establishing security 

clearances necessary for access to classified information that may be involved in this 

PROTECTIVE ORDER (CIP A) -Page 8 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 9 of 19 PageID 507 • • 

case, standard Form 86 ("Security Investigation Data for Sensitive Position"), attached 

releases, and "major case" fingerprints shall be completed and submitted to the Court 

Security Officer forthwith by the defense counsel, all persons whose assistance the 

defense reasonably requires, and by such Court personnel as the Court requires for its 

assistance. The Court Security Officer shall take all reasonable steps to process all 

security clearance applications. 

15. Area ofReview- The Court Security Officer shall arrange for an 

appropriately approved secure area for the use by the defense. The Court Security Officer 

shall establish procedures to assure that the secure area is accessible to the defense during 

normal business hours and at other times on reasonable request as approved by the Court 

Security Officer. The secure area shall contain a separate working area for the defense, 

and will be outfitted with any secure office equipment requested by the defense that is 

reasonable and necessary to the preparation of the defendants' defense in this case. The 

Court Security Officer, in consultation with defense counsel, shall establish procedures to 

assure that the secure area may be maintained and operated in the most efficient manner 

consistent with the protection of classified information. No documents containing 

classified information may be removed from this secure area unless authorized by the 

Court Security Officer. The Court Security Officer shall not reveal to the government the 

content of any conversations she or he may hear among the defense, nor reveal the nature 

of documents being reviewed by them, or the work generated by them. In addition, the 

PROTECTIVE ORDER (CIPA)- Page 9 

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Case 3:04-cr-00240-P Document 146 Filed 04/05/05 Page 10 of 19 PageID 508 • • 

presence of the Court Security Officer shall not operate as a waiver of, limit, or otherwise 

render inapplicable, the attorney-client privilege. 

16. If, upon the entry of a separate order of the Court, it becomes necessary for 

defendant( s) to review or discuss classified matters, or otherwise meet with defense 

counsel, in the Secure Area, this will only occur under appropriate supervision to ensure 

that the defendant(s) does not escape, attempt to escape, cause physical injury to himself 

or others, or remove, copy, alter, or destroy classified information, or obtain access to 

classified information the defendant(s) is not entitled to review, and to ensure that the 

defendant( s) does not use the opportunity to review the classified materials to circumvent 

any applicable security restrictions, including any Special Administrative Measures 

imposed by the Bureau of Prisons, other prison regulations, and the other orders of this 

Court governing discovery in this case. 

17. Filings with the Court- Until further order of this Court, any pleading or 

other document filed by the defense, which defense counsel knows, or has reason to 

know, contains classified information in whole or in part, believes may be classified in 

whole or in part, or is unsure of the proper classification of the document or pleading, 

shall be filed under seal with the Court through the Court Security Officer. The time of 

physical submission to the Court Security Officer shall be considered the date and time of 

filing. The Court Security Officer shall promptly examine the pleading or documents 

and, in consultation with representatives of the appropriate agencies, determine whether 

PROTECTIVE ORDER (CIP A) -Page 10 

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the pleading or document contains classified information. If the Court Security Officer 

determines that the pleading or document contains classified information, she or he shall 

ensure that that portion of the document, and only that portion, is marked with the 

appropriate classification marking and that the document remains under seal. All portions 

of any document filed by the defense that does not contain classified information shall 

immediately be unsealed by the Court Security Officer and placed in the public record. 

The Court Security Officer shall immediately deliver under seal to the Court and counsel 

for the government any pleadings or document to be filed by the defense that contains 

classified information; the Court shall then direct the clerk to enter on the docket sheet the 

title of the pleading or document, the date it was filed, and the fact that it has been filed 

under seal with the Court Security Officer. 

18. Any pleading or other document filed by the government containing 

classified information shall be filed under seal with the Court through the Court Security 

Officer. The date and time of physical submission to the Court Security Officer shall be 

considered the date and time of the filing. 

19. Access to Classified Information - Defense counsel, their designated 

employees and translators, shall have access to classified information only as follows: 

a. All classified information produced by the government to the 

defense, in discovery or otherwise, and all classified information possessed, created, or 

PROTECTIVE ORDER (CIPA)- Page 11 

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maintained by the defense, shall be stored, maintained, and used only in the secure area 

established by the Court Security Officer; 

b. The defense shall have free access to the classified information made 

available to them in the secure area, and shall be allowed to take notes and prepare 

documents with respect to those materials. However, the defense shall not, except under 

separate Court order, disclose the classified information, either directly, indirectly or in 

any manner which would disclose the existence of such, to pursue leads or in the defense 

of the defendants; 

c. No person, including the defense, shall copy or reproduce any 

classified information in any form, except with the approval of the Court Security Officer 

or in accordance with the procedures established by the Court Security Officer for the 

operation of the secure area; 

d. All documents prepared by the defense (including without limitation, 

pleadings or other documents intended for filing with the Court) that do or may contain 

classified information, shall be transcribed, recorded, typed, duplicated, copied, or 

otherwise prepared only by persons who have received an appropriate approval for access 

to classified information, and in the secure area on approved word processing equipment 

and in accordance with the procedures approved by the Court Security Officer. All such 

documents and any associated materials (such as notes, drafts, copies, typewriter ribbons, 

magnetic recordings, exhibits) containing classified information shall be maintained in 

PROTECTIVE ORDER (CIP A) -Page 12 

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the secure area unless and until the Court Security Officer determines that those 

documents or associated materials are unclassified in their entirety. None of these 

materials shall be disclosed to counsel for the government; 

e. The defense shall discuss classified information only within the 

secure area or in another area authorized by the Court Security Officer, and shall not 

discuss or attempt to discuss classified information over any standard commercial 

telephone instrument or office intercommunication system; 

f. The defense shall not disclose, without prior approval of the Court, 

the contents of any classified documents or information to any person not authorized 

pursuant to this Order, including the defendants and defense witnesses, except the Court, 

Court personnel, and the attorneys for the government, who have been identified by the 

Court Security Officer as having the appropriate clearances and the need to know that 

information. Counsel for the government shall be given an opportunity to be heard in 

response to any defense request for disclosure to a person not named in this Order. Any 

person approved by the Court for disclosure under this paragraph shall be required to 

obtain the appropriate security clearance, to sign and submit to the Court the 

Memorandum of Understanding appended to this Order, and to comply with all tenns and 

conditions of this Order. If preparation of the defense requires that Classified information 

be disclosed to persons not named in this Order, then, upon approval by the Court and 

PROTECTIVE ORDER (CIP A) -Page 13 

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upon notice to the government , the Court Security Officer shall promptly seek to obtain 

security clearances for them at the request of defense counsel. 

20. Foreign Intelligence Surveillance Act (FISA)- The defendants have rights 

under the United States Constitution, federal statutes and the Federal Rules of Criminal 

Procedure to pre-trial discovery. The Government recognizes its obligation to provide 

such discovery materials to defense counsel in the most expeditious manner possible, 

consistent with public safety and the confidentiality of sensitive ongoing investigations. 

Therefore, to the extent that FISA-obtained or derived information is provided to the 

defense counsel: 

a. the parties agree that both the defense and the government shall have 

access to such FISA information regardless of prior minimization efforts undertaken by 

the government upon initial review of the materials; 

b. any draft transcripts or summaries of translated electronic and paper 

materials, shall not be used in any proceeding for any purpose, including crossexamination of any witness except pursuant to CIP A. 

c. the parties agree that the disclosure and discovery of materials that 

may be provided to the court pursuant to FISA for legal determinations shall be governed 

by the provisions ofFISA notwithstanding any other provisions of this order. 

PROTECTIVE ORDER (CIP A) -Page 14 

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21. Procedures for the use or the public disclosure of classified information by 

the defense shall be those provided in Sections 5 and 6 of CIPA. No classified 

information may be used or disclosed by the defense except: 

a. To the Court, Court personnel, and government attorneys and their 

agents and employees identified by the Court Security Officer as holding proper 

approvals for access to classified information; 

b. To representatives of the agency or department originating the 

classified information who have been identified by the Court Security Officer as holding 

proper security clearances and having the need to know the classified information; 

c. In accordance with the procedures of CIP A and the procedures 

established by the Court Security Officer; and, 

d. To persons who have been authorized to have access to classified 

information pursuant to this Order or to CIP A. 

To facilitate the defense filing of notices required under Section 5 of CIP A, the 

Court Security Officer shall make arrangements with the appropriate agencies for a 

determination of the classification level, if any, of materials or information either within 

the possession of the defense or about which the defense has knowledge and which the 

defense intends to use in any way at any pretrial proceeding, deposition or at trial. 

Nothing submitted by the defense to the Court Security Officer pursuant to this paragraph 

shall be made available to counsel for the government unless so ordered by the Court, or 

PROTECTIVE ORDER (CIP A) -Page 15 

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so designated by the defense. Any and all items which are classified shall be listed in the 

defendant's Section 5 notice. 

22. Violations of this Order- Any unauthorized use or disclosure of classified 

information may constitute violations ofUnited States criminal laws. In addition, any 

violation of the terms of this Order shall be immediately brought to the attention of the 

Court and may result in a charge of contempt of the Court and possible referral for 

criminal prosecution. Any breach of this Order will also result in the termination of a 

person's access to classified information. Persons subject to this Order are advised that 

direct or indirect unauthorized use, disclosure, retention, or negligent handling of 

classified documents or information could cause serious damage, and in some cases 

exceptionally grave damage, to the national security of the United States or may be used 

to the advantage of a foreign nation against the interests of the United States. This Order 

is to ensure that those authorized by the Order to receive classified information will never 

divulge the classified information disclosed to them to anyone who is not now authorized 

to receive it, or otherwise use the classified infonnation, without prior written 

authorization from the originating agency and in conformity with this Order. 

23. All classified information to which the defense counsel, defense counsel 

employees and translators has access in this case is now and will remain the property of 

the government. The defense counsel, defense counsel employee(s) and translators who 

receive classified information shall return all such classified information in their 

PROTECTIVE ORDER (CIP A)- Page 16 

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possession obtained through discovery from the government in this case, or for which 

they are responsible because of access to classified information, upon demand of the 

Court Security Officer. The notes, summaries, and other documents prepared by the 

defense that do or may contain classified information shall remain at all times in the 

custody of the Court Security Officer for the duration of this case. At the conclusion of 

this case, all such notes, summaries, and other documents are to be destroyed by the Court 

Security Officer in the presence of defense counsel. 

24. Declassified Material- Pursuant to Rule 16(d) of the Federal Rules of 

Criminal Procedure, any and all audio and video tapes (hereinafter called "tapes"), 

facsimiles, e-mails and any summaries or transcripts thereof, which may be declassified 

and provided by the government to defense as part of discovery in this case, shall also be 

governed by the following provisions: 

a. Defense counsel shall not disclose any of the tapes and facsimiles, or 

summaries thereof, to any person other than the defendant(s), witnesses which they may 

be interviewing or preparing for trial, and attorneys, law clerks, secretaries, translators, 

technical and other experts, and investigators involved in the representation of their 

client; 

b. The tapes, facsimiles, or any copies thereof are now and will forever 

remain the property of the United States Government. Defense counsel will return the 

tapes, facsimiles, and all copies to the government at the conclusion of the case; 

PROTECTIVE ORDER (CIPA)- Page 17 

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c. Defense counsel will store the tapes and facsimiles in a secure place 

consistent with their security classification, if any, and will use reasonable care to ensure 

that they are not disclosed to third persons, including the media, in violation of this 

agreement; 

d. If defense counsel makes any further copies of any of the tapes and 

facsimiles, defense counsel will inscribe on each tape the following notation: "U.S. 

Government Property; May Not Be Used Without U.S. Government Permission .. "; 

e. If defense counsel release custody of any of the tapes, facsimiles, or 

their copies, or summaries or transcripts thereof, to any person described in paragraph (a), 

defense counsel shall provide such recipients with copies of this protective order and 

advise them that the tapes and facsimiles are the property of the United States 

Government and that any unauthorized use may constitute a violation oflaw and/or 

contempt of court; 

f. Nothing herein constitutes a waiver of any right of the defendant, nor 

does anything herein restrict in any way the right of the defense to use the tapes and 

facsimiles in connection with any pleading or proceeding in this case; 

g. This Order in no way modifies or alters the obligation of all counsel 

to handle such tapes, facsimiles, and summaries thereof, to the extent such material is 

classified, in a manner consistent with the CIP A and such protective orders as may be 

entered by the Court in this case. 

PROTECTIVE ORDER (CIP A)- Page 18 

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25. Nothing in this Order shall preclude the Government from seeking a further 

protective order pursuant to Rule 16( d) as to particular items of discovery material. 

26. A copy of this Order shall be issued forthwith to counsel for the defendants, 

who shall be responsible for advising the defendants and defense counsel employees, of 

the contents of this Order. The defense counsel and defense counsel employees to be 

provided access to classified information shall execute the Memorandum of 

Understanding appended to this Order, and defense counsel shall file executed originals 

with the Court and the Court Security Officer and serve executed originals of such 

document upon the government. The execution and filing of the Memorandum of 

Understanding is a condition precedent for the defense counsel, defense counsel 

employees, and defense witnesses to have access to classified information. 

ORDERED this _Q_ day of w,:J 2005 at Dallas, Texas. 

A. Joe sh 

Chief United States District Judge 

PROTECTIVE ORDER (CIP A) - Page 19 

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SUBSTITUTE PROTECTIVE ORDER (CIPA) - Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

V. § 

§ 

HOLY LAND FOUNDATION FOR § 3:04-CR- 240- P

RELIEF AND DEVELOPMENT (1) § 

also known as the “HLF” §

SHUKRI ABU BAKER (2) §

MOHAMMAD EL-MEZAIN (3) §

GHASSAN ELASHI (4) § ECF

HAITHAM MAGHAWRI (5) §

AKRAM MISHAL (6) § 

MUFID ABDULQADER (7) §

ABDULRAHMAN ODEH (8) § 

SUBSTITUTE PROTECTIVE ORDER

This matter comes before the Court upon the Government’s Motion for Substitute

Protective Order to prevent the unauthorized use, disclosure or dissemination of classified

national security information and documents which will be reviewed by or made available

to, or are otherwise in the possession of, defense counsel in this case.

Pursuant to the authority granted under Section 3 of the Classified Information

Procedures Act, 18 U.S.C. App. 3 (1994) (CIPA); the Security Procedures Established

pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the

Protection of Classified Information (reprinted following CIPA Section 9); Rules 16(d)

and 57 of the Federal Rules of Criminal Procedure; the general supervisory authority of

the Court; and in order to protect the national security,

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IT IS HEREBY ORDERED:

1. The Court finds that this case will involve classified national security

information, the storage, handling and control of which, by law or regulation, requires

special security precautions, and access to which requires a security clearance and a

"need-to-know."

2. The purpose of this Order is to establish the procedures that must be

followed by all defense counsel of record, their designated employees, all other counsel

involved in this case, translators for the defense, any Court personnel, and all other

individuals who receive access to classified information or documents in connection with

this case.

3. The procedures set forth in this Protective Order, CIPA, and the Foreign

Intelligence Surveillance Act of 1978 (FISA) shall apply to all pre-trial, trial, post-trial,

and appellate aspects concerning this case, and may be modified from time to time by

further order of the Court acting under Fed. R. Crim. P. 16(d), Sections 3 and 9 of CIPA

and FISA, and its inherent supervisory authority to ensure a fair and expeditious trial.

Definitions

4. As used herein, the terms "classified national security information and

documents," "classified information" and "classified documents" refer to:

a. Any classified document or information which has been classified by

any Executive Branch agency in the interests of national security or pursuant to Executive

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Order 12958 or its predecessor Orders as "CONFIDENTIAL," "SECRET," OR "TOP

SECRET," or additionally controlled as "SENSITIVE COMPARTMENTED

INFORMATION (SCI)," or any information contained in such documents;

b. Any document or information, regardless of its physical form or

characteristics, now or formerly in the possession of a private party, which has been

derived from United States government information that was classified, regardless

whether such document or information has subsequently been classified by the

government pursuant to Executive Order 12958 or its predecessor Orders as

"CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally controlled as

"SENSITIVE COMPARTMENTED INFORMATION (SCI)";

c. Verbal classified information known to the defense counsel;

d. Any document and information, including verbal information, as to

which the defense counsel have been notified orally or in writing that such documents or

information contain classified information; or,

e. Any information, regardless of place or origin and including "foreign

government information," as that term is defined in Executive Order 12958, that could

reasonably be believed to contain classified information, or that refers or relates to

national security or intelligence matters; and,

f. Any information including, but not limited to any subject obtained

from the Central Intelligence Agency, the National Security Agency, the Defense

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Intelligence Agency, the Department of State, National Security Counsel, the Federal

Bureau of Investigation, or similar entity, with the exception of items seized by the

Federal Bureau of Investigation during the execution of a duly authorized Rule 41 search

warrant, shall be presumed to fall within the meaning of classified information unless and

until the Court Security Officer or an attorney for the government advises otherwise in

writing.

5. The words "documents" or "information" shall include, but are not limited

to, all written or printed matter of any kind, formal or informal, including originals,

conforming copies and non-conforming copies (whether different from the original by

reason of notation made on such copies or otherwise), and further include, but are not

limited to:

a. Papers, correspondence, memoranda, notes, letters, reports,

summaries, photographs, maps, charts and graphs, interoffice and intra-office

communications, notations of any sort concerning conversations, meetings, or other

communications, bulletins, teletypes, telegrams, and telefacsimiles, invoices, worksheets,

and drafts, alterations, modifications, changes and amendments of any kind to the

foregoing;

b. Graphic or oral records or representations of any kind, including, but

not limited to, photographs, charts, graphs, microfiche, microfilm, videotapes, sound

recordings of any kind, and motion pictures;

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c. Electronic, mechanical or electric records of any kind, including, but

not limited to, tapes, cassettes, disks, recordings, films, typewriter ribbons, word

processing or other computer tapes or disks, and all manner of electronic data processing

storage; and,

d. Information acquired orally or verbally.

6. All classified documents, and information contained therein, shall remain

classified unless the documents bear a clear indication that they have been declassified by

the agency or department that is the originating agency of the document or the

information contained therein (hereinafter, the "originating agency").

7. Information in the public domain is ordinarily not classified. However,

such information may be considered as classified, and therefore subject to the provisions

of CIPA, if it is confirmed by any person who has, or has had, access to the classified

information, and that confirmation corroborated the information in question. Any attempt

by the defendant(s) or defense counsel to have such information confirmed or denied at

trial, or in connection with any pretrial or other proceeding in this case, shall be governed

by CIPA and all provisions of this Order.

8. "Access to classified information" means having access to, reviewing,

reading, learning, or otherwise coming to know in any manner any classified information.

9. "Secure area" shall mean a physical facility accredited for the storage,

handling, and control of classified information.

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10. Court Security Officer - In accordance with the provisions of CIPA and the

Security Procedures, the Court designates Erin Hogarty Security Specialist as Court

Security Officer for this case, and Jennifer H. Campbell, Charline DaSilva, Miguel Ferrer,

Christine E. Gunning, Daniel O. Hartenstine, Nathaniel Johnson, James P. Londergan,

Joan B. Kennedy, Michael P. Macisso, and Barbara J. Russell, as Alternate Court Security

Officers, for the purpose of providing security arrangements necessary to protect from

unauthorized disclosure any classified documents or information to be made available in

connection with this case. Defense counsel shall seek guidance from the Court Security

Officer with regard to appropriate storage, handling, transmittal, and use of classified

documents and information.

11. Government Attorneys - The Court has been advised that the following

government attorneys working on this case, Assistant U.S. Attorneys Jim Jacks, and U.S.

Department of Justice Trial Attorneys Barry Jonas and Elizabeth Shapiro, and their

respective supervisors, have the requisite security clearances to have access to the

classified documents and information that relates to this case. All references to

government attorneys, or attorneys for the government, as used in this Order, refer only to

the attorneys listed in this paragraph and their respective supervisors.

12. Protection of Classified Information – The Court finds that, in order to

protect the classified information involved in this case, no person, including the

defendants and any witness for the defense, except government attorneys, appropriately

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cleared Department of Justice employees, personnel of the originating agency, defense

counsel, employees of defense counsel or translators employed by defense counsel, shall

have access to the classified information in this case. No defense counsel, employee of

defense counsel or translator shall have access to any classified information in this case

unless that person shall first have:

a. Signed the Memorandum of Understanding in the form attached

hereto, agreeing to comply with the terms of this Order. The signed Memorandum of

Understanding shall be filed with the Court. The substitution, departure, or removal for

any reason from this case of counsel for the defendant, or anyone associated with the

defense as an employee or otherwise, shall not release that person from the provisions of

this Order or the Memorandum of Understanding executed in connection with this Order.

b. Persons other than government attorneys, appropriately cleared

Department of Justice employees, and personnel of the originating agency, can only

obtain access to classified documents and information after having been granted a

security clearance by the Court Security Officer, and with permission of the Court, either

through this Order, (for those named in paragraph 13 below), or by a separate Order upon

showing of a need to know. Before any person other than government attorneys,

appropriately cleared Department of Justice employees, and personnel of the originating

agency, is permitted by the Court to inspect and review classified information, he or she

must also sign the Memorandum of Understanding.

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13. Defense Counsel - Subject to the provisions of paragraph 12, the following

attorneys for the defense, their approved employees and translator (collectively referred to

herein as "the defense"), shall be given access to classified documents and information as

required by the government’s discovery obligations and otherwise as necessary to prepare

for proceedings in this case: Nancy Hollander, Theresa M. Duncan and John W. Boyd for

Shukri Abu Baker; Joshua L. Dratel and Aaron J. Mysliwiec for Mohammad El-Mezain;

Linda Moreno and John D. Cline for Ghassan Elashi; Marlo P. Cadeddu for Mufid

Abdulqader; and Greg Westfall for Abdulrahman Odeh.

Any additional person whose assistance the defense reasonably requires may only

have access to classified information in this case after obtaining from the Court -- with

prior notice to the government -- an approval for access to the appropriate level of

classification on a need-to-know basis, and after satisfying the other requirements

described in this Order for access to classified information. The substitution, departure,

or removal for any reason from this case of defense counsel or anyone associated with the

defense as an employee or witness or otherwise, shall not release that person from the

provisions of this Order or the Memorandum of Understanding executed in connection

with this Order.

14. Unless already holding an appropriate security clearance, and approved for

access to classified information in this case, for the purpose of establishing security

clearances necessary for access to classified information that may be involved in this

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case, standard Form 86 ("Security Investigation Data for Sensitive Position"), attached

releases, and "major case" fingerprints shall be completed and submitted to the Court

Security Officer forthwith by the defense counsel, all persons whose assistance the

defense reasonably requires, and by such Court personnel as the Court requires for its

assistance. The Court Security Officer shall take all reasonable steps to process all

security clearance applications.

15. Area of Review - The Court Security Officer shall arrange for an

appropriately approved secure area for the use by the defense. The Court Security Officer

shall establish procedures to assure that the secure area is accessible to the defense during

normal business hours and at other times on reasonable request as approved by the Court

Security Officer. The secure area shall contain a separate working area for the defense,

and will be outfitted with any secure office equipment requested by the defense that is

reasonable and necessary to the preparation of the defendants’ defense in this case. The

Court Security Officer, in consultation with defense counsel, shall establish procedures to

assure that the secure area may be maintained and operated in the most efficient manner

consistent with the protection of classified information. No documents containing

classified information may be removed from this secure area unless authorized by the

Court Security Officer. The Court Security Officer shall not reveal to the government the

content of any conversations she or he may hear among the defense, nor reveal the nature

of documents being reviewed by them, or the work generated by them. In addition, the

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presence of the Court Security Officer shall not operate as a waiver of, limit, or otherwise

render inapplicable, the attorney-client privilege.

16. If, upon the entry of a separate order of the Court, it becomes necessary for 

defendant(s) to review or discuss classified matters, or otherwise meet with defense

counsel, in the Secure Area, this will only occur under appropriate supervision to ensure

that the defendant(s) does not escape, attempt to escape, cause physical injury to himself

or others, or remove, copy, alter, or destroy classified information, or obtain access to

classified information the defendant(s) is not entitled to review, and to ensure that the

defendant(s) does not use the opportunity to review the classified materials to circumvent

any applicable security restrictions, including any Special Administrative Measures

imposed by the Bureau of Prisons, other prison regulations, and the other orders of this

Court governing discovery in this case.

17. Filings with the Court - Until further order of this Court, any pleading or

other document filed by the defense, which defense counsel knows, or has reason to

know, contains classified information in whole or in part, believes may be classified in

whole or in part, or is unsure of the proper classification of the document or pleading,

shall be filed under seal with the Court through the Court Security Officer, or his or her

designee. The time of physical submission to the Court Security Officer shall be

considered the date and time of filing. The Court Security Officer shall promptly

examine the pleading or documents and, in consultation with representatives of the

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appropriate agencies, determine whether the pleading or document contains classified

information. If the Court Security Officer determines that the pleading or document

contains classified information, she or he shall ensure that that portion of the document,

and only that portion, is marked with the appropriate classification marking and that the

document remains under seal. All portions of any document filed by the defense that does

not contain classified information shall immediately be unsealed by the Court Security

Officer and placed in the public record. The Court Security Officer shall immediately

deliver under seal to the Court and counsel for the government any pleadings or document

to be filed by the defense that contains classified information; the Court shall then direct

the clerk to enter on the docket sheet the title of the pleading or document, the date it was

filed, and the fact that it has been filed under seal with the Court Security Officer.

Any pleading or other document filed by the defendant shall be filed under seal

with the Court through the Court Security Officer or his or her designee, unless defense

counsel has obtained from the Court Security Officer, permission, specific to a particular,

non-substantive pleading or document (e.g., motions for extensions of time, continuances,

scheduling matters, etc.) not containing information that is or may be classified or under

seal, to file the pleading or document not under seal.

18. Any pleading or other document filed by the government containing

classified information shall be filed under seal with the Court through the Court Security

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Officer or his or her designee. The date and time of physical submission to the Court

Security Officer shall be considered the date and time of the filing.

19. Access to Classified Information – Defense counsel, their designated

employees and translators, shall have access to classified information only as follows:

a. All classified information produced by the government to the

defense, in discovery or otherwise, and all classified information possessed, created, or

maintained by the defense, shall be stored, maintained, and used only in the secure area

established by the Court Security Officer;

b. The defense shall have free access to the classified information made

available to them in the secure area, and shall be allowed to take notes and prepare

documents with respect to those materials. However, the defense shall not, except under

separate Court order, disclose the classified information, either directly, indirectly or in

any manner which would disclose the existence of such, to pursue leads or in the defense

of the defendants;

c. No person, including the defense, shall copy or reproduce any

classified information in any form, except with the approval of the Court Security Officer

or in accordance with the procedures established by the Court Security Officer for the

operation of the secure area;

d. All documents prepared by the defense (including without limitation,

pleadings or other documents intended for filing with the Court) that do or may contain

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classified information, shall be transcribed, recorded, typed, duplicated, copied, or

otherwise prepared only by persons who have received an appropriate approval for access

to classified information, and in the secure area on approved word processing equipment

and in accordance with the procedures approved by the Court Security Officer. All such

documents and any associated materials (such as notes, drafts, copies, typewriter ribbons,

magnetic recordings, exhibits) containing classified information shall be maintained in

the secure area unless and until the Court Security Officer determines that those

documents or associated materials are unclassified in their entirety. None of these

materials shall be disclosed to counsel for the government;

e. The defense shall discuss classified information only within the

secure area or in another area authorized by the Court Security Officer, and shall not

discuss or attempt to discuss classified information over any standard commercial

telephone instrument or office intercommunication system;

f. The defense shall not disclose, without prior approval of the Court,

the contents of any classified documents or information to any person not authorized

pursuant to this Order, including the defendants and defense witnesses, except the Court,

Court personnel, and the attorneys for the government, who have been identified by the

Court Security Officer as having the appropriate clearances and the need to know that

information. Counsel for the government shall be given an opportunity to be heard in

response to any defense request for disclosure to a person not named in this Order. Any

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person approved by the Court for disclosure under this paragraph shall be required to

obtain the appropriate security clearance, to sign and submit to the Court the

Memorandum of Understanding appended to this Order, and to comply with all terms and

conditions of this Order. If preparation of the defense requires that Classified information

be disclosed to persons not named in this Order, then, upon approval by the Court and

upon notice to the government , the Court Security Officer shall promptly seek to obtain

security clearances for them at the request of defense counsel.

20. Foreign Intelligence Surveillance Act (FISA) - The defendants have rights

under the United States Constitution, federal statutes and the Federal Rules of Criminal

Procedure to pre-trial discovery. The Government recognizes its obligation to provide

such discovery materials to defense counsel in the most expeditious manner possible,

consistent with public safety and the confidentiality of sensitive ongoing investigations. 

Therefore, to the extent that FISA-obtained or derived information is provided to the

defense counsel:

a. the parties agree that both the defense and the government shall have

access to such FISA information regardless of prior minimization efforts undertaken by

the government upon initial review of the materials;

b. any draft transcripts or summaries of translated electronic and paper

materials, shall not be used in any proceeding for any purpose, including crossexamination of any witness except pursuant to CIPA.

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c. the parties agree that the disclosure and discovery of materials that

may be provided to the court pursuant to FISA for legal determinations shall be governed

by the provisions of FISA notwithstanding any other provisions of this order.

21. Procedures for the use or the public disclosure of classified information by

the defense shall be those provided in Sections 5 and 6 of CIPA. No classified

information may be used or disclosed by the defense except:

a. To the Court, Court personnel, and government attorneys and their

agents and employees identified by the Court Security Officer as holding proper

approvals for access to classified information;

b. To representatives of the agency or department originating the

classified information who have been identified by the Court Security Officer as holding

proper security clearances and having the need to know the classified information;

c. In accordance with the procedures of CIPA and the procedures

established by the Court Security Officer; and,

d. To persons who have been authorized to have access to classified

information pursuant to this Order or to CIPA.

To facilitate the defense filing of notices required under Section 5 of CIPA, the

Court Security Officer shall make arrangements with the appropriate agencies for a

determination of the classification level, if any, of materials or information either within

the possession of the defense or about which the defense has knowledge and which the

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SUBSTITUTE PROTECTIVE ORDER (CIPA) - Page 16

defense intends to use in any way at any pretrial proceeding, deposition or at trial. 

Nothing submitted by the defense to the Court Security Officer pursuant to this paragraph

shall be made available to counsel for the government unless so ordered by the Court, or

so designated by the defense. Any and all items which are classified shall be listed in the

defendant’s Section 5 notice.

22. Violations of this Order - Any unauthorized use or disclosure of classified

information may constitute violations of United States criminal laws. In addition, any

violation of the terms of this Order shall be immediately brought to the attention of the

Court and may result in a charge of contempt of the Court and possible referral for

criminal prosecution. Any breach of this Order will also result in the termination of a

person’s access to classified information. Persons subject to this Order are advised that

direct or indirect unauthorized use, disclosure, retention, or negligent handling of

classified documents or information could cause serious damage, and in some cases

exceptionally grave damage, to the national security of the United States or may be used

to the advantage of a foreign nation against the interests of the United States. This Order

is to ensure that those authorized by the Order to receive classified information will never

divulge the classified information disclosed to them to anyone who is not now authorized

to receive it, or otherwise use the classified information, without prior written

authorization from the originating agency and in conformity with this Order.

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SUBSTITUTE PROTECTIVE ORDER (CIPA) - Page 17

23. All classified information to which the defense counsel, defense counsel

employees and translators has access in this case is now and will remain the property of

the government. The defense counsel, defense counsel employee(s) and translators who

receive classified information shall return all such classified information in their

possession obtained through discovery from the government in this case, or for which

they are responsible because of access to classified information, upon demand of the

Court Security Officer. The notes, summaries, and other documents prepared by the

defense that do or may contain classified information shall remain at all times in the

custody of the Court Security Officer for the duration of this case. At the conclusion of

this case, all such notes, summaries, and other documents are to be destroyed by the Court

Security Officer in the presence of defense counsel.

24. Declassified Material - Pursuant to Rule 16(d) of the Federal Rules of

Criminal Procedure, any and all audio and video tapes (hereinafter called "tapes"),

facsimiles, e-mails and any summaries or transcripts thereof, which may be declassified

and provided by the government to defense as part of discovery in this case, shall also be

governed by the following provisions:

a. Defense counsel shall not disclose any of the tapes and facsimiles, or

summaries thereof, to any person other than the defendant(s), witnesses which they may

be interviewing or preparing for trial, and attorneys, law clerks, secretaries, translators,

Case 3:04-cr-00240-P Document 1013 Filed 05/07/08 Page 17 of 20 PageID 14102

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SUBSTITUTE PROTECTIVE ORDER (CIPA) - Page 18

technical and other experts, and investigators involved in the representation of their

client;

b. The tapes, facsimiles, or any copies thereof are now and will forever

remain the property of the United States Government. Defense counsel will return the

tapes, facsimiles, and all copies to the government at the conclusion of the case;

c. Defense counsel will store the tapes and facsimiles in a secure place

consistent with their security classification, if any, and will use reasonable care to ensure

that they are not disclosed to third persons, including the media, in violation of this

agreement;

d. If defense counsel makes any further copies of any of the tapes and

facsimiles, defense counsel will inscribe on each tape the following notation: "U.S.

Government Property; May Not Be Used Without U.S. Government Permission . .";

e. If defense counsel release custody of any of the tapes, facsimiles, or

their copies, or summaries or transcripts thereof, to any person described in paragraph (a),

defense counsel shall provide such recipients with copies of this protective order and

advise them that the tapes and facsimiles are the property of the United States

Government and that any unauthorized use may constitute a violation of law and/or

contempt of court;

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SUBSTITUTE PROTECTIVE ORDER (CIPA) - Page 19

f. Nothing herein constitutes a waiver of any right of the defendant, nor

does anything herein restrict in any way the right of the defense to use the tapes and

facsimiles in connection with any pleading or proceeding in this case;

g. This Order in no way modifies or alters the obligation of all counsel

to handle such tapes, facsimiles, and summaries thereof, to the extent such material is

classified, in a manner consistent with the CIPA and such protective orders as may be

entered by the Court in this case.

h. If a pleading filed by a defendant contains exhibits which are

covered by Paragraph 24, those exhibits will be filed under seal. If a pleading filed by a

defendant quotes from or summarizes any content of materials covered by Paragraph 24,

that pleading will be filed under seal. Excepted from these terms are declassified

materials which have been admitted into evidence at trial.

25. Nothing in this Order shall preclude the Government from seeking a further

protective order pursuant to Rule 16(d) as to particular items of discovery material.

26. A copy of this Order shall be issued forthwith to counsel for the defendants,

who shall be responsible for advising the defendants and defense counsel employees, of

the contents of this Order. The defense counsel and defense counsel employees to be

provided access to classified information shall execute the Memorandum of

Understanding appended to this Order, and defense counsel shall file executed originals

with the Court and the Court Security Officer and serve executed originals of such

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SUBSTITUTE PROTECTIVE ORDER (CIPA) - Page 20

document upon the government. The execution and filing of the Memorandum of

Understanding is a condition precedent for the defense counsel, defense counsel

employees, and defense witnesses to have access to classified information.

SO ORDERED this 7 day of May 2008. th

_________________________________

JORGE A. SOLIS

UNITED STATES DISTRICT JUDGE

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189
PROTECTIVE ORDER/MEMORANDUM OF UNDERSTANDING - Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

V. § 

§ 

HOLY LAND FOUNDATION FOR § 3:04-CR-240-P

RELIEF AND DEVELOPMENT (1) § 

also known as the “HLF” §

SHUKRI ABU BAKER (2) §

MOHAMMAD EL-MEZAIN (3) §

GHASSAN ELASHI (4) §

HAITHAM MAGHAWRI (5) §

AKRAM MISHAL (6) § 

MUFID ABDULQADER (7) §

ABDULRAHMAN ODEH (8) § 

MEMORANDUM OF UNDERSTANDING

I, , acknowledge that I have received, read,

and understand the Protective Order entered by the Court on ,

2008, in this case, and I agree to comply with its provisions and to provide the

information requested below. I understand that I may be the recipient of certain classified

information or documents that concern the present and future security of the United

States. I understand that direct or indirect unauthorized disclosure, retention, or negligent

handling of classified documents or information could cause serious damage, and in some

cases exceptionally grave damage, to the national security of the United States, or could

be used to the advantage of a foreign nation against the interests of the United States. 

Case 3:04-cr-00240-P Document 1013-2 Filed 05/07/08 Page 1 of 2 PageID 14106

190
PROTECTIVE ORDER/MEMORANDUM OF UNDERSTANDING - Page 2

I agree that I shall never divulge, publish, or reveal either by word, conduct, or any

other means, such classified documents or information unless specifically authorized in

writing to do so by an authorized representative of the United States Government; or as

authorized by the Court pursuant to the Classified Information Procedures Act and the

Protective Order entered in this case.

I agree that this Memorandum and any other nondisclosure agreement signed by

me in connection with this case will remain forever binding upon me.

Name: 

Social Security Number: 

Date and Place of Birth: 

________________________________

(signature)

Date: _________________________

Case 3:04-cr-00240-P Document 1013-2 Filed 05/07/08 Page 2 of 2 PageID 14107

191
United States v. Ahmed

(N.D. Ga. 1:06-cr-147)

Protective Order: Unclassified ........................................................................ 193

Protective Order: Classified ............................................................................ 201

192
FILED IN CHAMBERS U.S~. Atlanta 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

orof2 0 2006 

JAM~HATTEN, Clerk Br. . Oeptjyaerk 

UNITED STATES OF AMERICA 

v. 

SYED HARIS AHMED and 

EHSANUL ISLAM SADEQUEE 

CRIMINAL ACTION 

NO. 1:06-CR-147-CC 

(SUPERSEDING) 

PROTECTIVE ORDER FOR UNCLASSIFIED DISCOVERY MATERIAL 

This matter is before the Court upon the Government's motion 

for a protective order for unclassified discovery information (Doc 

66) and the Government's request to reconsider (Doc 112) the 

Court's initial denial of the motion (Doc 106). After considering 

the pleadings regarding this matter and the oral argument at a 

hearing on December 15, 2006, pursuant to the authority granted 

under Rule 16(d) of the Federal Rules of Criminal Procedure and the 

general supervisory authority of the Court, and for the reasons 

stated by the Court at the conclusion of the hearing, the Court 

hereby FINDS AND ORDERS THAT: 

1. The Government shall segregate the unclassified discovery 

materials it produces to the Defendants and their counsel into two 

categories: "general discovery materials" and "sensitive discovery 

materials." The category to which particular discovery materials 

belong shall be clearly identified by the Government. 

General discovery materials 

2. General discovery materials shall not be further 

193
disseminated1 by the Defendants or their counsel to any 

individuals, organizations or other entities, other than: (a) 

members of the defense team (the Defendant, co-counsel, paralegals, 

investigators, translators, and secretarial staff) and (b) experts 

and consultants retained to assist in the preparation of the 

defense. Notice of proposed dissemination to defense experts and 

consultants shall be provided directly to the Court ex parte and 

under seal. Each individual to whom such disclosure is made 

pursuant to this Order shall be provided a copy of this Order and 

shall be advised that he or she may not further disseminate the 

materials except by the express direction of defense counsel. 

3. Defense counsel, any co-counsel, paralegals and any 

defense investigators may disseminate (but not provide copies of) 

any general discovery materials to witnesses or potential 

witnesses, if it is determined that it is necessary to do so for 

the purpose of preparing the defense of the case. 

Sensitive discovery materials 

4. Sensitive discovery materials 2 shall not be further 

1 "Disseminate" here means to provide, show, or describe to 

another either a particular piece of discovery or quotations, 

excerpts, or summaries derived therefrom. 

2 The category of sensitive discovery materials includes all 

declassified recorded communications (and any summaries or 

transcripts thereof) and any other declassified information or 

materials which were a product of FISA-authorized searches or 

electronic surveillance that are reviewed by or made available to 

the Defendants or defense team in this case. Such declassified 

materials shall be collectively referred to as "FISA Information." 

2 

194
------------------------------- ----

disseminated by the Defendants or their counsel to any individuals, 

organizations or other entities, other than: (a) members of the 

defense team (the Defendant, co-counsel, paralegals, investigators, 

translators, and secretarial staff) and (b) experts and consultants 

retained to assist in the preparation of the defense. Notice of 

proposed dissemination to defense experts and consultants shall be 

provided directly to the Court ex parte and under seal. Each 

individual to whom disclosure is made pursuant to this Order shall 

be provided a copy of this Order and shall be advised that he or 

she may not further disseminate the materials except by the express 

direction of counsel of record. 

5. Neither defense counsel nor other members of the defense 

team (the Defendant, co-counsel, paralegals, investigators, 

translators, and secretarial staff) nor any experts or consultants 

retained by the defense may disseminate sensitive discovery 

materials to witnesses or potential witnesses. The Defendants may 

seek relief from this restriction as to a particular item or items 

of discovery by providing notice to the Court of intent to show 

particular identified item(s) to a witness and the purpose in doing 

so. The Notice shall be under seal. No disclosure of the item(s) 

to the witness(es) shall be made until the Court so permits. The 

Court, at its discretion and after so notifying the Defendants, may 

consult with the Government regarding any dissemination requests 

pursuant to this paragraph. 

3 

195
6. All FISA Information that is provided as part of the 

sensitive discovery materials in this case is now and will forever 

remain the property of the United States Government. Defense 

counsel will return the FISA Information, and all copies thereof, 

to the Government at the conclusion of the case. 

7. Defense counsel in receipt of FISA Information may only 

make copies of the FISA Information in accordance with approved 

procedures, after consultation with the Court Security Officer or 

her designee. Defense counsel will permanently inscribe on any 

such copies the following notation: "U.S. Government Property; May 

Not Be Used Without U.S. Government Permission." 

Storage of unclassified discovery 

8. Defense counsel shall store all unclassified discovery, 

to include FISA Information and any copies thereof, in a secure 

place. 

Sharing permitted among defense teams in this case only 

9. Notwithstanding other provisions of this Order, the 

defense team for one Defendant shall be free to disseminate 

unclassified discovery of any form (including providing copies) to 

the defense team for the other Defendant, without prior Court 

approval. However, this exchange privilege does not extend to 

defense counsel or other persons or parties not associated with 

this case. 

4 

196
Prohibition on dissemination to public 

10. No party or agent thereof shall disseminate to the media 

or the public any of the discovery materials in this case. 

Sealing or redaction of certain filings 

Defense filings 

11. No later than the filing deadline established by 

applicable rule or other court order, the defendant shall provide 

to the Government a copy of any defense filing that quotes, 

attaches, or refers to sensitive discovery material and shall 

advise the Court's clerk that this has been done so that the Court 

is aware that the filing deadline will be extended as provided 

below. Within three business days after receiving the document, 

the Government shall notify the defendant in writing or by email 

whether it intends to file a motion to seal the document in whole 

or in part. If the Government does not provide timely notice or 

advises the defendant that the Government does not intend to file 

a motion to seal, then the defendant shall file the document in 

unsealed form by the next business day. 

12. If the Government notifies the defendant that it does 

intend to file a motion to seal, then the Government shall have 

five business days for a defense filing of less than 10 pages, and 

10 business days for a defense filing of more than 10 pages, to 

file a motion to seal the document in whole or in part, detailing 

what portions of the document the Government argues should be 

5 

197
sealed and the specific reasons therefor. Once the Government's 

motion to seal is on file with the Court, the defendant shall 

promptly file the document under seal. The Court will then rule 

upon the motion to seal, and portions of or the whole filing will 

be unsealed and placed in the public record based upon the Court's 

ruling. 

Government filings 

13. Government filings that quote, attach, or refer to 

sensitive discovery material shall provisionally be filed under 

seal, accompanied by a motion to seal that explains, in more than 

perfunctory or boilerplate terms, the basis for the proposed 

sealing and requests leave to file a more detailed motion to seal 

within the period described below. Unless such leave is denied, 

the Government shall have three business days for a filing of less 

than 10 pages, and five business days for a filing of more than 10 

pages, to file a supplemental motion to seal the document in whole 

or in part, detailing what portions of the document the Government 

argues should remain sealed and the specific reasons therefor. If 

no such supplemental motion is filed within the requisite time 

period, the underlying filing will immediately be unsealed and 

placed in the public record. If a supplemental motion to seal is 

filed, then the Court will rule upon it, and portions of or the 

whole document will be unsealed and placed in the public record 

based upon the Court's ruling. 

6 

198
------ --------

Exceptions 

14. The Court may authorize exceptions to this procedure with 

respect to particular filings, for good cause shown. The Court may 

also modify this procedure with respect to the filing of documents 

that contain or may contain classified information in addition to 

sensitive discovery material, in accordance with any protective 

order for classified material that is entered in this case. This 

protective order applies to court filings and does not control 

court proceedings such as hearings and trials. 

Miscellaneous provisions 

15. Nothing in this Order shall preclude the Government from 

seeking a further protective order pursuant to Rule 16(d} as to 

particular items of discovery material. Similarly, nothing in this 

Order constitutes a waiver of any right of the Defendants to use 

discovery material in connection with any pleading or proceeding in 

this case, provided that such use is consistent with the provisions 

of this Order or any further Order, as well as any applicable law. 

16. Notwithstanding any other provision of this or any other 

Protective Order that may be entered by the Court, the disclosure 

or discovery of materials that may be submitted to the Court 1n 

connection with any FISA-related litigation, including but not 

7 

199
limited to any FISA applications, orders, or related materials, 

shall be governed by FISA. 

SO ORDERED this ~()~day of December, 2006. 

Presented by 

/s/David E. Nahmias, USA 

8 

200
UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

UNITED STATES OF AMERICA 

CRIMINAL ACTION 

v. 

SYED HARIS AHMED and 

EHSANUL ISLAM SADEQUEE 

NO. 1:06-CR-147-CC 

PROTECTIVE ORDER FOR CLASSIFIED MATERIALS 

This matter is before the Court upon the Government's several 

motions for a protective order to prevent the unauthorized 

disclosure of classified national security information in this case 

(Docs 33, 65, 99) ; the Defendants' , Intervenors', and Amici 'cs 

objections (Docs 79, 82, 105); and the Government's responses 

thereto (Docs 99, 100) . 

On January 25, 2007, this Court held a hearing on the 

Government's proposed protective order, at which all sides were 

given an opportunity to present their views. ( Docs 15 5 , 15 7 ) . 

Having considered the pleadings and the oral arguments made at the 

hearing, the Court OVERRULES the Defendants', Intervenors', and 

Amici's objections to the Government's motions and FINDS: 

Section 3 of the Classified Information Procedures Act, 18 

U.S. C. App. III ( "CIPA") , requires entry of a protective order upon 

motion by the Government. The Government has properly moved for 

such an order, so one shall be entered, as detailed below. 

The Government has demonstrated the need to safeguard national 

security information at all phases of this criminal proceeding, 

201
including any appellate proceedings. While the following order in 

no way binds the appellate courts, it does control and govern the 

conduct of all individuals granted access to classified information 

during this case at all times unless and until it is superseded by 

a protective order issued by an appellate court. 

The Government's participation in any decision that the Court 1 

may be asked to make concerning defense requests to share 

classified information with either a Defendant or a third party is 

necessary and appropriate. First, Government participation is 

structurally proper, given that it is the Executive Branch that 

ultimately controls the disclosure of classified information. 

Second, the Government is uniquely situated to advise the Court on 

the risks involved in disseminating classified information, whether 

because of the nature or source of the information or because of 

the individual with whom it is to be shared. 

The Court acknowledges its role in ensuring that the public's 

First Amendment right of access to court filings is not improperly 

compromised. To that end, the Court will exercise its discretion 

to compare redacted filings with their companion classified filings 

to verify that only classified information and materials are kept 

under seal. While the Court is not now setting any formal deadline 

for the Government to supply redacted versions of its classified 

filings, the Court may revisit the issue should there be excessive 

1 "Court" refers to both the District Court and the Magistrate 

Court insofar as this Order delegates authority (see ~ 4, below). 

2 

202
delays between the filing of classified documents and the public 

release of redacted versions thereof. 

THEREFORE, pursuant to the authority granted under Section 3 

of CIPA; the Security Procedures Established Pursuant To Pub. L. 

96-456, 94 Stat. 2025, By The Chief Justice Of The United States 

For The Protection Of Classified Information (reprinted following 

Section 9 of CIPA) ("Security Procedures"); Rules 16(d) and 57 of 

the Federal Rules of Criminal Procedure; the general supervisory 

authority of the Court; and in order to protect the national 

security, 

THE COURT HEREBY FURTHER FINDS AND ORDERS: 

1. This case will involve classified national security 

information, the storage, handling and control of which, by law or 

regulation, requires special security precautions, and access to 

which requires a security clearance and an actual need to know. 

2. The purpose of this Order is to establish the procedures 

that must be followed by the Defendants, defense counsel, other 

counsel involved in this case, persons assisting defense counsel, 

other Court personnel, and all other individuals who are granted 

access to classified information or documents in connection with 

this case. It is a further purpose of this Order to ensure that 

those authorized by the Order to receive classified information do 

not divulge the classified information disclosed to them to anyone 

who is not authorized to receive it, or otherwise use the 

classified information, except in conformity with this Order or 

3 

203
with prior written authorization from the originating agency. 

3. The procedures set forth in this Protective Order and in 

CIPA will apply to all pretrial, trial, post-trial and appellate 

aspects concerning classified information in this case, and may be 

modified from time to time by further order of the Court acting 

pursuant to Fed. R. Crim. P. 16(d), CIPA, and the Court's inherent 

supervisory authority to ensure a fair trial. 

4. The Court may refer pretrial matters involving classified 

information to the Magistrate Judge for review and consideration 

consistent with this and any other applicable orders that may be 

issued by the Court pursuant to CIPA or any other applicable law. 

In the event of a referral, this Protective Order, and any other 

applicable orders, shall remain in effect and binding upon each of 

the parties and shall govern all proceedings that are held before 

the Magistrate Judge until such further order of this Court. The 

Magistrate Judge shall have the full authority to hear and 

determine any referred pretrial matter that is granted pursuant to 

28 U.S.C. § 636 or any other applicable law. Because of the 

possibility of referrals, all references below to "the Court" shall 

include the Magistrate Court. 

5. Definitions. The following definitions shall apply to 

this Order: 

a. The terms "classified national security information 

and documents," "classified documents and information," "classified 

information," and "classified documents" refer to: 

4 

204
i. Any document that has been classified by any 

Executive Branch agency in the interests of national security or 

pursuant to Executive Order 12,958, as amended, as "CONFIDENTIAL,u 

"SECRET,u or "TOP SECRET,u or additionally controlled as "SENSITIVE 

COMPARTMENTED INFORMATIONu (SCI), and any information contained in 

such documents; 

ii. Any document or information that the Defendants 

or the defense know, or should reasonably know, has been derived 

from United States Government information that was classified, 

regardless whether such document or information has subsequently 

been classified by the Government pursuant to Executive Order 

12,958 as amended; 

iii. Verbal classified information that has been 

disclosed by attorneys for the Government or by a witness in a 

court proceeding to the Defendants or the defense; or 

iv. Any document or information, including verbal 

information and "foreign government information" (as that term is 

defined in Executive Order 12,958, as amended), that the Defendants 

or the defense have been notified is classified, unless already 

possessed by or known to the Defendants or the defense, provided 

that such knowledge is not derived from materials described in 

subparagraph 5(a) (i), (ii), or (iii) above. 

b. The words "document" and "information" shall 

include, but are not limited to, all written or printed matter of 

any kind, formal or informal, including originals, conforming 

5 

205
copies and non-conforming copies (whether different from the 

original by reason of notation made on such copies or otherwise), 

and further include, but are not limited to: 

letters; 

i. 

reports, 

Papers; correspondence; 

summaries; interoffice 

memoranda; notes; 

and intra-office 

communications; notations of any sort concerning conversations, 

meetings or other communications; bulletins; telexes; cables; 

teletypes; telegrams; facsimiles; invoices; worksheets; and drafts, 

alterations, modifications, changes and amendments of any kind to 

the foregoing; 

ii. Graphic or oral records or representations of 

any kind, including, but not limited to, photographs, maps, charts, 

graphs, microfiche, microfilm, videotapes, sound recordings of any 

kind and motion pictures; 

iii. Electronic, mechanical, magnetic, optical or 

electric records of any kind, including, but not limited to, data 

stored on tapes, cassettes, CD-ROMS, disks, recordings, films, 

typewriter ribbons, word processing or other computer tapes or 

disks, and all manner of electronic data processing storage; and 

iv. Information acquired aurally. 

c. "Access to classified information" means having 

access to, reviewing, reading, learning, or otherwise coming to 

know in any manner any classified information. 

d. "Secure Area" shall mean a physical facility 

accredited for the storage, handling, and control of classified 

6 

206
information. 

e. "The defense" means any person assisting the 

Defendants with the preparation of their defense in this case 

including (but not limited to) counsel for the Defendants and 

employees of, consultants to or contractors for defense counsel. 

f. "Attorneys for the Government," ''Government 

counsel," and "counsel for the Government" means the attorneys 

listed in paragraph 10 herein and their respective supervisors. 

g. "Originating agency" means the government agency, 

department or entity from which the classified document or the 

information contained therein originated. 

6. Any document or information provided by attorneys for the 

Government to the Defendants or the defense referencing, 

mentioning, originating from, or concerning any agency, or part of 

an agency, that is a member of the United States "intelligence 

community" (as defined in Section 3.4 of the National Security Act 

of 1947, codified at 50 U.S.C. § 401a(4)), other than the FBI, or 

information in possession of such agency, or part thereof, other 

than the FBI, shall be presumed to fall within the meaning of 

classified information unless and until the Court Security Officer 

or an attorney for the Government advises otherwise in writing. 

7. All classified documents and information shall remain 

classified unless such document or information bears a clear 

indication that it has been declassified by the originating agency. 

7 

207
8. Information in the public domain is ordinarily not 

classified. However, such information may be considered 

classified, and therefore subject to the provisions of CIPA, if it 

is confirmed by any person who has had access to the classified 

information, and that confirmation corroborated the information in 

question. Any attempt by the Defendants or the defense to have 

such information confirmed or denied at trial, or in connection 

with any pretrial, post-trial or other proceeding in this case, 

shall be governed by CIPA and the provisions of this Order. 

9. In accordance with the provisions of CIPA and the 

Security Procedures, the Court designates Jennifer H. Campbell as 

Court Security Officer for this case and Mary M. Cradlin, Christine 

E. Gunning, Michael P. Macisso, Daniel 0. Hartenstine, Erin E. 

Hogarty, James P. Londergan, John P. Molinard, Barbara J. Russell, 

and Joan B. Kennedy as Alternate Court Security Officers 

(collectively "the cson), for the purpose of providing security 

arrangements necessary to protect from unauthorized disclosure any 

classified documents or information to be made available in 

connection with this case. The defense shall seek guidance from 

the CSO with regard to the appropriate storage, handling, 

transmittal, and use of classified information. 

10. The Court has been advised that the following Government 

attorneys will be working on this case: United States Attorney 

David E. Nahmias, Assistant United States Attorneys Katherine B. 

Monahan and Robert C. McBurney, and U.S. Department of Justice 

8 

208
Trial Attorney Alexis L. Collins and Attorney Advisor Shennie 

Patel, along with various supervisory attorneys. The Court has 

also been advised that the Government attorneys have the requisite 

security clearances to have access to the classified information in 

this case. The Government may add additional attorneys with notice 

to the Court and defense counsel. 

11. Protection of Classified Documents and Information: The 

Court finds that, in order to protect the classified documents and 

information involved in this case, no person except the attorneys 

for the Government, personnel of the originating agency and other 

intelligence agencies, appropriately-cleared Department of Justice 

employees, judicial personnel, members of the defense, and the 

Defendants (subject to paragraphs 11 (d) and 19 (b)) shall have 

access to the classified documents and information in this case. 

a. Judicial personnel, other than the Court, may obtain 

access to classified documents or information after having been 

granted security clearance by the CSO. 

b. No member of the defense shall have access to any 

classified documents or information in this case unless that person 

shall first have: 

l. received approval for access to the particular 

classified documents or information from the Government or, should 

the Government reject the request, from the Court in a separate 

order, which shall not occur except upon a showing of a need to 

know the particular classified information and upon consideration 

9 

209
of any responsive pleading from the Government; 

ii. received the necessary security clearance at 

the appropriate level of classification as determined by the 

Department of Justice Security Officer working in conjunction with 

the CSO; and 

iii. signed a Memorandum of Understanding (a form 

for which is attached hereto), agreeing to comply with the terms of 

this Order. 

c. The substitution, departure or removal of counsel 

for the defense or anyone associated with the defense as an 

employee, consultant, contractor, witness or otherwise shall not 

release that person from the provisions of this Order or the 

Memorandum of Understanding executed in connection with this Order. 

d. The Defendants shall not have access to any 

classified documents or information in this case except pursuant to 

paragraph 19(b). 

12. For the purpose of establishing the security clearances 

necessary for access to classified documents and information that 

may be involved in this case, the defense, and such Court personnel 

as the Court requires for its assistance shall forthwith complete 

and submit to the CSO Standard Form 86 ("Security Investigation 

Data for Sensitive Position"), the necessary releases, and full 

fingerprints, unless such person already holds an appropriate 

security clearance and is approved for access to classified 

documents and information in this case. The CSO shall take all 

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reasonable steps to process all security clearance applications in 

a timely manner. The CSO shall not disclose to Government 

attorneys any information supplied by anyone applying for security 

clearance pursuant to this Order. 

13. The CSO shall arrange for and maintain an appropriately 

approved secure area for the use of the defense. The CSO shall 

establish procedures to ensure that the secure area is accessible 

during normal business hours, and at other times on reasonable 

request as approved by the CSO, to the defense, the Defendants (if 

such access should be determined by the Court to be necessary and 

is authorized through a separate order, subject to paragraph 19(b) 

herein), and witnesses authorized to access classified information 

pursuant to paragraph 19 herein (hereafter "authorized witnesses") 

who are accompanied by defense counsel. The secure area will be 

outfitted with any secure office equipment requested by the defense 

that is reasonable and necessary to the preparation of a defense in 

this case. The CSO, in consultation with defense counsel, shall 

establish procedures to assure that the secure area may be 

maintained and operated in the most efficient manner consistent 

with the protection of classified information. No documents 

containing classified information may be removed from the secure 

area by anyone, including the defense, unless authorized by the 

CSO. No person, including the defense, shall copy or reproduce any 

classified document or information in any form, except with the 

approval of the CSO or in accordance with the procedures 

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established by the CSO for the operation of the secure area. 

14. If, upon the entry of a separate order of the Court as 

provided in paragraph 19(b), it becomes necessary for the 

Defendants to discuss classified matters, review classified 

documents or information, or otherwise meet with defense counsel 

regarding classified matters, this will only occur in the Secure 

Area and under appropriate supervision, which the CSO will 

coordinate with the U.S. Marshals Service, to ensure that the 

Defendants do not escape, cause physical injury to themselves or 

others, or remove, copy, alter or destroy classified documents or 

information or obtain access to classified documents or information 

that the Defendants are not authorized to review, and to ensure 

that the Defendants do not use the opportunity to review the 

classified materials to circumvent any applicable security 

restrictions and other orders of this Court governing discovery in 

this case. 

15. Filing of Papers By the Defense: Any pleading or other 

document filed by the defense shall be filed under seal with the 

Court through the CSO or her designee, unless defense counsel has 

obtained permission from the CSO, specific to a particular pleading 

or document (e.g., motions for extensions of time, continuances, 

scheduling matters, etc.) not containing information that is or may 

be classified or under seal, to file the pleading or document not 

under seal. Pleadings filed under seal with the CSO shall be 

marked, "Filed In Camera and Under Seal with the Court Security 

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212
Officer or Designee." Such pleadings need not be accompanied by a 

separate motion to seal, but should include in the introductory 

paragraph a statement that the item is being filed under seal 

pursuant to this Order. The time of physical submission to the CSO 

shall be considered the date and time of filing. The CSO shall 

promptly examine the pleading or document and, in consultation with 

representatives of the appropriate agencies, determine whether the 

pleading or document contains classified information. If the CSO 

determines that the pleading or document contains classified 

information, she shall ensure that the portion of the document that 

contains classified information, and only that portion, is marked 

with the appropriate classification marking(s) and remains under 

seal. All portions of all papers filed by the defense that do not 

contain classified information shall be immediately unsealed by the 

CSO and placed in the public record. The CSO shall immediately 

deliver under seal to the Court and attorneys for the Government 

any pleading or document filed by the defense that contains 

classified information. The Court shall then direct the Clerk of 

Court to enter on the docket sheet the title of the pleading or 

document, the date it was filed, and the fact that it has been 

filed under seal with the CSO. 

16. Filing of Papers by the Government: Any pleading or 

document filed by attorneys for the Government that contains 

classified information shall be filed under seal with the Court 

through the CSO or her designee. Such pleadings and documents 

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213
shall be marked, "Filed In Camera and Under Seal with the Court 

Security Officer or Designee." Such pleadings need not be 

accompanied by a separate motion to seal, but should include in the 

introductory paragraph a statement that the item is being filed 

under seal pursuant to this Order. The time of physical submission 

to the CSO shall be considered the date and time of filing. The 

CSO shall immediately deliver under seal to the Court and the 

defense any pleading or document filed by the Government that 

contains classified information, provided that the defense has 

proper clearance to receive the pleading or document. The Court 

shall then direct the Clerk of Court to enter on the docket sheet 

the title of the pleading or document, the date it was filed, and 

the fact that it has been filed under seal with the CSO. Unless 

otherwise granted leave by the Court, the Government shall file 

with the Clerk of Court a redacted, unclassified version of any 

filing that was sealed because it contained classified information 

as soon as practicable or as ordered by the Court. 

17. Sealing of Records: The CSO shall maintain a separate 

sealed record for those pleadings or documents containing 

classified materials. The CSO shall be responsible for maintaining 

the secured records for purposes of later proceedings or appeal. 

18. Access to Classified Information: The defense, the 

Defendants (if such access should be determined by the Court to be 

necessary and is authorized through a separate order, subject to 

paragraph 19(b) herein}, and authorized witnesses when accompanied 

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by defense counsel shall have access to classified documents or 

information only as follows: 

a. All classified documents or information produced by 

the Government to the defense, in discovery or otherwise, and all 

classified documents or information possessed, created, or 

maintained by the defense, shall be stored, maintained, and used 

only in the secure area established by the CSO or in another area 

authorized by the CSO. 

b. The defense and authorized witnesses when 

accompanied by defense counsel shall have free access in the secure 

area to the classified documents or information made available to 

them in accordance with this Order, and shall be allowed to take 

notes and prepare documents with respect to those materials. 

c. All documents prepared by the defense, the 

Defendants or authorized witnesses (including pleadings or other 

documents intended for filing with the Court) that contain or deal 

in any way with classified information shall be transcribed, 

recorded, typed, duplicated, copied, and otherwise prepared only by 

persons who have received an appropriate approval for access to 

classified information, and only in the secure area on approved 

word processing and data handling equipment, and in accordance with 

the procedures approved by the CSO. All such documents and any 

associated materials (such as notes, drafts, copies, typewriter 

ribbons, magnetic recordings, and exhibits) containing classified 

information shall be maintained in the secure area unless and until 

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the CSO determines that those documents or associated materials are 

unclassified in their entirety. None of these materials shall be 

disclosed to counsel for the Government. 

d. The defense, the Defendants (if access to classified 

information is determined by the Court to be necessary and is 

authorized through a separate order, subject to paragraph 19(b) 

herein), and authorized witnesses shall discuss classified 

documents or information only within the secure area or in another 

area authorized by the CSO, and shall not discuss or attempt to 

discuss classified 

telecommunications 

information 

system or 

over any standard commercial 

office communication system, 

including, but not limited to, by facsimile and over the internet. 

e. The CSO shall not reveal to the Government the 

content of any conversation she may hear among the defense, reveal 

the nature of the documents being reviewed by them, or the work 

generated by them. In addition, the presence of the CSO shall not 

operate as a waiver of, limit, or otherwise render inapplicable, 

the attorney-client or work product privilege. 

19. Disclosure of Classified Information: The defense, the 

Defendants (if access to classified information is determined by 

the Court to be necessary and is authorized through a separate 

order, subject to paragraph 19(b} herein}, and authorized witnesses 

shall not disclose, without prior approval of the Court, any 

classified document or information to any person not authorized 

pursuant to this Order, except for the Court or those Court 

16 

216
personnel, personnel of the originating agency and other 

intelligence agencies, appropriately-cleared Department of Justice 

employees, or attorneys for the Government who have been identified 

by the CSO as having the appropriate clearances and the need-toknow and in accordance with the procedures of CIPA and the 

procedures established by the CSO. Counsel for the Government 

shall be given an opportunity to be heard in response to any 

defense request for disclosure to a person not named in this Order. 

Any person approved by the Court for disclosure under this 

paragraph shall be required to obtain the appropriate security 

clearance, to sign and submit to the Court a Memorandum of 

Understanding in the form attached to this Order, and to comply 

with all terms and conditions of this Order. If preparation of the 

defense requires that classified documents or information be 

disclosed to a person not named in this Order, the CSO shall 

promptly seek to obtain a security clearance for such person at the 

request of defense counsel. 

a. No person shall discuss classified documents or 

information in the presence of any person who has not been granted 

access by the Court to such classified documents or information. 

b. No person shall disclose classified documents or 

information to either of the Defendants without prior concurrence 

of counsel for the Government (in consultation with the originating 

agency) or, absent such concurrence, an order of the Court, which 

shall not occur except upon a showing of a need to know the 

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217
particular classified document or information. Counsel for the 

Government shall be given an opportunity to be heard in response to 

any defense request for disclosure to the Defendants of any 

classified document or information. 

c. Procedures for the use or the public disclosure of 

classified information shall be those provided in Sections 5, 6 and 

8 of CIPA. These provisions, and this Order, require that: 

i. Any and all i terns which are classified that the 

defense seeks to use or publicly disclose shall be listed in the 

Defendants' Section 5 notices. 

ll. To facilitate the filing of notices required 

under Section 5 of CIPA, the CSO shall make arrangements with the 

appropriate agencies for a determination of the classification 

level, if any, of materials or information either within the 

possession of the defense or the Defendants or about which the 

defense or the Defendants have knowledge and which the defense 

intends to use in any way at any pretrial proceeding, deposition, 

trial or post-trial or other proceeding. Nothing submitted by the 

defense to the CSO pursuant to this paragraph shall be made 

available to counsel for the Government unless so ordered by the 

Court or so designated by the defense. 

20. Notwithstanding any other provision of this or any other 

Protective Order that may be entered by the Court relating to the 

disclosure of classified information, the Foreign Intelligence 

Surveillance Act (FISA) shall govern the disclosure or discovery of 

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materials in connection with any FISA-rela ted litigation, including 

but not limited to any FISA applications, orders or related 

materials. 

21. Any unauthorized use or disclosure of classified 

information may constitute a violation of United States criminal 

law. In addition, any violation of the terms of this Order shall 

be immediately brought to the attention of the Court and may result 

in a charge of contempt of the Court and possible referral for 

criminal prosecution. Any breach of this Order may also result in 

the termination of the person's access to classified documents and 

information. Persons subject to this Order are advised that direct 

or indirect unauthorized use, disclosure, retention or negligent 

handling of classified documents or information could cause serious 

damage, and in some cases exceptionally grave damage, to the 

national security of the United States and may be used to the 

advantage of a foreign power against the interests of the United 

States. 

22. All classified documents and information to which the 

defense, the Defendants or authorized witnesses have access in this 

case are now and forever remain the property of the Government. 

Any member of the defense, here including the Defendants and 

authorized witnesses, who receives classified documents or 

information shall return all such documents and information in 

their possession or for which they are responsible, upon demand of 

the CSO. Any notes, summaries, or other documents prepared by the 

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219
defense, the Defendants, or authorized witnesses that contain 

classified information shall remain at all times in the custody of 

the CSO for the duration of this case. All such notes, summaries, 

and other documents shall be destroyed by the CSO in the presence 

of defense counsel, should they choose to be present, (a) one year 

after the judgment in this case is final or {b) at the conclusion 

of litigation of any motion filed pursuant to 28 U.S.C. § 2255, if 

said motion was filed within one year after the judgment became 

final, whichever event is later. 

23. A copy of this Order shall be issued forthwith to the 

attorneys for the Government, the CSO, the Defendants and counsel 

of record for the Defendants. Counsel for the defense shall be 

responsible for advising the Defendants, authorized witnesses and 

any other member of the defense who should be made aware of the 

contents of this Order. The Defendants, counsel for the Defendants 

and any other individuals who will be provided access to classified 

documents or information pursuant to this Order shall execute the 

Memorandum of Understanding in the form attached hereto. Counsel 

for the Defendants shall file executed originals of such documents 

with the Court, and serve copies of executed originals of such 

documents upon the CSO and the Government. The execution and 

filing of the Memorandum of Understanding is a condition precedent 

for the Defendants, any member of the defense or any other 

individual to have access to classified information. 

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220
24. The Court may amend this Protective Order and/or issue 

additional Protective Orders as needed. 

oW" SO ORDERED this _lL_Lday of February, 2007. 

/tl ,/j?J 

CARCEC~ 6 ~<4"Bffit L~ ( 

UNITED STATES DISTR~E 

Submit ted by 

Is/Robert C.I. McBurney, AUSA 

21 

221
United States v. Hassoun

(S.D. Fla. 0:04-cr-60001)

Protective Order ............................................................................................... 223

Filing Order ...................................................................................................... 239

222
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 04-60001-CR-COOKE/Brown (s)(s)(s)(s)(s) 

UNITED STATES OF AMERICA 

v. 

ADHAM AMIN HASSOUN, 

a/k/a "Abu Sayyaf," 

MOHAMED HESHAM YOUSSEF, 

a/k/a "Abu Turab," 

KIFAH WAEL JA YYOUSI, 

a/k/a "Abu Mohamed," 

KASSEM DAHER, 

a/k/a "Abu Zurr," and 

JOSE PADILLA, 

a/k/a "Ibrahim," 

a/k/a "Abu Abdullah the Puerto Rican," 

a/k/a "Abu Abdullah AI Mujahir," 

Defendants. 

--------------------------------~' 

AMENDED CIPA § 3 PROTECTIVE ORDER 

FILED by --rttl/ D.C. M%1 :J_ 

- t;t 2006 

CLARENCE MADDOX 

CLERK U. S. DIST. CT. 

S.D. OF FLA. • MIAMI 

This matter comes before the Court upon the Government's Motion for Protective 

Order to prevent the unauthorized use, disclosure or dissemination of classified national 

security information and documents which will be reviewed by or made available to, or are 

otherwise in the possession of, defense counsel in this case. 

Pursuant to the authority granted under Section 3 of the Classified Information 

Procedures Act, 18 U.S.C. App. 3 (1994) (CIPA); the Security Procedures Established 

pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the 

.~,~ 

~\~ I ' 

223
Protection of Classified Information (reprinted following CIPA Section 9); the general 

supervisory authority of the Court, and in order to protect the national security; 

IT IS HEREBY ORDERED: 

1. The Court finds that this case will involve classified national security 

information, the storage, handling and control of which, by law or and regulation, requires 

special security precautions, and access to which requires a security clearance and a 

"need-to-know." 

2. The purpose of this Order is to establish, consistent with applicable statutory 

law, the procedures that must be followed by all defense counsel of record, their designated 

employees, all other counsel involved in this case, translators for the defense, any Court 

personnel, and all other individuals who receive access to classified information or 

documents in connection with this case. 

3. The procedures set forth in this Amended CIPA Protective Order, and CIPA, 

shall apply to all pre-trial, trial, post-trial, and appellate aspects concerning this case, and may 

be modified from time to time by further order of the Court acting under Fed. R. Crim. P. 

16( d), Sections 3 and 9 of CIP A, and its inherent supervisory authority to ensure a fair and 

expeditious trial. 

Definitions 

4. As used herein, the terms "classified national security information and 

documents," "classified information" and "classified documents" refer to: 

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224
a. Any classified document or information which has been classified by 

any Executive Branch agency in the interests of national security or pursuant to Executive 

Order 12958 or its predecessor Orders as "CONFIDENTIAL," "SECRET," OR "TOP 

SECRET," or additionally controlled as "SENSITIVE COMPARTMENTED 

INFORMATION (SCI)," or any information contained in such documents; 

b. Any document or information, regardless of its physical form or 

characteristics, now or formerly in the possession of a private party, which has been derived 

from United States government information that was classified, regardless whether such 

document or information has subsequently been classified by the government1 pursuant to 

Executive Order 12958 or its predecessor Orders as "CONFIDENTIAL," "SECRET," or 

"TOP SECRET," or additionally controlled as "SENSITIVE COMPARTMENTED 

INFORMATION (SCI)" by the appropriately authorized authorities; 

c. Oral classified information known from a verbal disclosure to defense 

counsel; 

d. Any document and information, including verbal information, as to 

which the defense counsel have been notified orally or in writing that such documents or 

information contain classified information; or, 

1 This provision is meant to explain how classified information may or could come, 

unknowingly, into the possession of the parties. It intended merely to assist the parties in their 

continued good faith efforts to guard against the unauthorized, inadvertent disclosure of 

classified information. It is not intended to be a trap for those who unknowingly come into 

possession of classified information. 

3 

225
e. Any information, regardless of place or origin and including "foreign 

government information," as that term is defined in and Executive Order 12958, that could 

reasonably be believed to contain classified information. 

5. The words "documents" or "information" shall include, but are not limited to, 

all written or printed matter of any kind, formal or informal, including originals, conforming 

copies and non-conforming copies (whether different from the original by reason of notation 

made on such copies or otherwise), and further include, but are not limited to: 

a. Papers, correspondence, memoranda, notes, letters, reports, summaries, 

photographs, maps, charts and graphs, interoffice and intra-office communications, notations 

of any sort concerning conversations, meetings, or other communications, bulletins, teletypes, 

telegrams, and telefacsimiles, invoices, worksheets, and drafts, alterations, modifications, 

changes and amendments of any kind to the foregoing; 

b. Graphic or oral records or representations of any kind, including, but 

not limited to, photographs, charts, graphs, microfiche, microfilm, videotapes, sound 

recordings of any kind, and motion pictures; 

c. Electronic, mechanical or electric records of any kind, including, but not 

limited to, tapes, cassettes, disks, recordings, films, typewriter ribbons, word processing or 

other computer tapes or disks, and all manner of electronic data processing storage; and, 

4 

226
d. Information acquired orally or verbally that is classified or which 

defense counsel has reason to believe is classified, or which defense counsel has reason to 

believe is derivative of classified material. 

6. All classified documents, and information contained therein, shall remain 

classified unless the documents bear a clear indication that they have been declassified by 

the agency or department that is the originating agency of the document or the information 

contained therein (hereinafter, the "originating agency"), or the holder( s) have otherwise been 

notified of the declassification by an appropriate government official. 

7. Information in the public domain is ordinarily not classified. However, if 

defense counsel anticipates seeking the confirmation or denial of public domain information 

by any person who has, or has had, access to the classified information at trial, or in 

connection with any pretrial or other proceeding in this case, that shall be governed by CIP A 

and all provisions of this Order. 

8. "Access to classified information" means having access to, reviewing, reading, 

learning, or otherwise coming to know in any manner any classified information. 

9. "Secure area" shall mean a physical facility accredited for the storage, handling, 

and control of classified information. 

l 0. Court Security Officer - In accordance with the provisions of CIPA and the 

Security Procedures, the Court designates James Londergan, Security Specialist as Court 

Security Officer for this case, for the purpose of providing security arrangements necessary 

5 

227
to protect from unauthorized disclosure any classified documents or information to be made 

available in connection with this case. Defense counsel shall seek guidance from the Court 

Security Officer with regard to appropriate storage, handling, transmittal, and use of 

classified documents and information. 

11. Government Attorneys - The Court has been advised that the following 

government attorneys working on this case, Assistant U.S. Attorneys Russell R. Killinger, 

Brian K. Frazier, and Julia A. Paylor and U.S. Department of Justice Trial Attorneys 

Stephanie K. Pell and Mark Maldonado, and their respective supervisors, have the requisite 

security clearances to have access to the classified documents and information that relates 

to this case. All references to government attorneys, or attorneys for the government, as used 

in this Order, refer only to the attorneys listed in this paragraph and their respective 

supervtsors. 

12. Protection of Classified Information- The Court finds that, in order to protect 

the classified information involved in this case, no person, including the defendants and any 

witness for the defense, except government attorneys, appropriately cleared Department of 

Justice employees, personnel of the originating agency, defense counsel, employees of 

defense counsel or translators employed by defense counsel, shall have access to the 

classified information in this case. Persons other than government attorneys, appropriately 

cleared Department of Justice employees, and personnel of the originating agency, can only 

obtain access to classified documents and information after having been granted a security 

6 

228
clearance by the Court Security Officer, and with pennission of the Court, either through this 

Order, (for those named in paragraph 13 below), or by a separate Order upon showing of a 

need to know. 

13. Defense Counsel - Subject to the provisions of paragraph 12, the following 

attorneys for the defense, their approved employees and translator (collectively referred to 

herein as "the defense"), shall be given access to classified documents and infonnation as 

required by the government's discovery obligations and otherwise as necessary to prepare 

for proceedings in this case: Kenneth M. Swartz, Jeanne Baker, William W. Swor, Michael 

Caruso, Anthony J. Natale, Orlando do Campo and Andrew Patel, once each of the listed 

individuals have obtained security clearances verified by the Court Security Officer, James 

Londergan. 

Any additional person whose assistance the defense reasonably requires may only 

have access to classified infonnation in this case after obtaining from the Court-- with prior 

notice to the "'Wall"attomey for the govemment2 --an approval for access to the appropriate 

level of classification on a need-to-know basis, and after satisfying the other requirements 

described in this Order for access to classified infonnation. Counsel for the defense may 

submit applications under seal for additional persons to review classified documents and 

classified infonnation on the understanding that defense counsel will notify the "Wall" 

attorney for the government and that the Court will consult with the "Wall" attorney for the 

2 The term "Wall attorney for the government" denotes a government counsel who 

does not have contact with the government trial counsel for the purpose of this case. 

7 

229
government and the Court Security Officer about any such application. The substitution, 

departure, or removal for any reason from this case of defense counsel or anyone associated 

with the defense as an employee or witness or otherwise, shall not release that person from 

the provisions of this Order or any Non-Disclosure Agreement properly executed. 

14. Unless already holding an appropriate security clearance, and approved for 

access to classified information in this case, for the purpose of establishing security 

clearances necessary for access to classified information that may be involved in this case, 

standard Form 86 ("Security Investigation Data for Sensitive Position"), attached releases, 

SF 312 [Non-Disclosure Agreement] and "major case" fingerprints shall be completed and 

submitted to the Court Security Officer forthwith by the defense counsel, all persons whose 

assistance the defense reasonably requires, and by such Court personnel as the Court requires 

for its assistance. The Court Security Officer shall take all reasonable steps to process all 

security clearance applications. 

15. Area of Review- The Court Security Officer shall arrange for an appropriately 

approved secure area for the use by the defense. The Court Security Officer shall establish 

procedures to assure that the secure area is accessible to the defense from 7:OOam until 

11 :OOpm, 7 days per week. The secure area shall contain a separate working area for the 

defense, and will be outfitted with any secure office equipment (to include an approved 

shredder for classified material) requested by the defense that is reasonable and necessary to 

the preparation of the defendants' defense in this case. The Court Security Officer, in 

8 

230
consultation with defense counsel, shall establish procedures to assure that the secure area 

may be maintained and operated in the most efficient manner consistent with the protection 

of classified information. No documents containing classified information may be removed 

from this secure area unless authorized by the Court Security Officer. The Court Security 

Officer shall not reveal to the government the content of any conversations she or he may 

hear among the defense, nor reveal the nature of documents being reviewed by them, or the 

work generated by them. In addition, the presence of the Court Security Officer shall not 

operate as a waiver of, limit, or otherwise render inapplicable, the attorney-client privilege. 

16. If, upon the entry of a separate order of the Court, it becomes necessary for 

defendant(s) to review or discuss classified matters, or otherwise meet with defense counsel, 

in the Secure Area, the conditions under which defendant( s) shall be brought into the Secure 

Area shall be set in that future order. 

17. Filings with the Court- Until further order of this Court, any pleading or other 

document filed by the defense, which defense counsel knows, or has reason to know, 

contains classified information in whole or in part, believes may be classified in whole or in 

part, or is unsure of the proper classification of the document or pleading, shall be filed under 

seal with the Court through the Court Security Officer. 3 If defense counsel are unsure of 

either whether or not any such pleading or document contains classified information, in 

whole or in part, such pleading or document shall also be filed under seal with the Court 

3 See footnote No. I. 

9 

231
Security Officer. The time of physical submission to the Court Security Officer shall be 

considered the date and time of filing. The Court Security Officer shall promptly examine 

the pleading or documents and, in consultation with representatives of the appropriate 

agencies, determine whether the pleading or document contains classified information. If 

the Court Security Officer determines that the pleading or document contains classified 

information, she or he shall ensure that that portion of the document, and only that portion, 

is marked with the appropriate classification marking and that the document remains under 

seal. All portions of any document filed by the defense that does not contain classified 

information shall immediately be unsealed by the Court Security Officer and placed in the 

public record. The Court Security Officer shall immediately deliver under seal to the Court 

and counsel for the government any pleadings or document to be filed by the defense that 

contains classified information; the Court shall then direct the clerk to enter on the docket 

sheet the title of the pleading or document, the date it was filed, and the fact that it has been 

filed under seal with the Court Security Officer. The Court Security Officer shall maintain 

a separate sealed record for those materials which are classified. The Court Security Officer 

shall be responsible for maintaining the secured record for purposes of later proceedings or 

appeals. 

18. Any pleading or other document filed by the government containing classified 

information shall be filed under seal with the Court through the Court Security Officer. The 

10 

232
date and time of physical submission to the Court Security Officer shall be considered the 

date and time of the filing. 

19. Access to Classified Information - Defense counsel, their designated 

employees and translators, as well as defense witnesses who are permitted, shall have access 

to classified information only as follows: 

a. All classified information produced by the government to the defense, 

in discovery or otherwise, and all classified information possessed, created, or maintained 

by the defense, shall be stored, maintained, and used only in the secure area established by 

the Court Security Officer; 

b. The defense shall have free access to the classified information made 

available to them in the secure area, and shall be allowed to take notes and prepare 

documents with respect to those materials. However, the defense shall not, except under 

separate Court order, disclose the classified information, either directly, indirectly or in any 

manner which would disclose the existence of such, to pursue leads or in the defense of the 

defendants. Pleadings containing classified information which are filed by any one defendant 

on behalf of a single defendant or other defendants, can only be disclosed to other defendants 

and their counsel on authorization by the Court or Court Security Officer. 

c. No person, including the defense, shall copy or reproduce any classified 

information in any form, except with the approval of the Court Security Officer or in 

II 

233
accordance with the procedures established by the Court Security Officer for the operation 

of the secure area; 

d. All documents prepared by the defense (including without limitation, 

pleadings or other documents intended for filing with the Court) that do or may contain 

classified information, shall be transcribed, recorded, typed, duplicated, copied, or otherwise 

prepared only by persons who have received an appropriate approval for access to classified 

information, and in the secure area on approved word processing equipment and in 

accordance with the procedures approved by the Court Security Officer. All such documents 

and any associated materials (such as notes, drafts, copies, typewriter ribbons, magnetic 

recordings, exhibits) containing classified information shall be maintained in the secure area 

unless and until the Court Security Officer determines that those documents or associated 

materials are unclassified in their entirety. None of these materials shall be disclosed to 

counsel for the government; 

e. The defense shall discuss classified information only within the secure 

area or in another area authorized by the Court Security Officer, and shall not discuss or 

attempt to discuss classified infonnation over any standard commercial telephone instrument 

or office intercommunication system, such as email; 

f. The defense shall not disclose, without prior approval of the Court, the 

contents of any classified documents or information to any person not authorized pursuant 

to this Order, including the defendants and defense witnesses, except the Court, Court 

12 

234
personnel, and the attorneys for the government, who have been identified by the Court 

Security Officer as having the appropriate clearances and the need to know that information. 

The "Wall" attorney for the government shall be given an opportunity to be heard in response 

to any defense request for disclosure to a person not named in this Order. Any person 

approved by the Court for disclosure under this paragraph shall be required to obtain the 

appropriate security clearance, to sign and submit to the Court the Memorandum of 

Understanding appended to this Order, and to comply with all terms and conditions of this 

Order. If preparation of the defense requires that Classified information be disclosed to 

persons not named in this Order, then, upon approval by the Court and upon notice to the 

"Wall" attorney for the government, the Court Security Officer shall promptly seek to obtain 

security clearances for them at the request of defense counsel. 

20. Procedures for the use or the public disclosure of classified information by the 

defense shall be those provided in Sections 5 and 6 ofCIPA. No classified information may 

be used or disclosed by the defense except: 

a. To the Court, Court personnel, and government attorneys and their 

agents and employees identified by the Court Security Officer as holding proper approvals 

for access to classified information; 

b. To representatives of the agency or department originating the classified 

information who have been identified by the Court Security Officer as holding proper 

security clearances and having the need to know the classified information; 

13 

235
c. In accordance with the procedures of CIP A and the procedures 

established by the Court Security Officer; and, 

d. To persons who have been authorized to have access to classified 

information pursuant to this Order or to CIP A. 

To facilitate the defense filing of notices required under Section 5 ofCIPA, the Court 

Security Officer shall make arrangements with the appropriate agencies for a determination 

of the classification level, if any, of materials or information either within the possession of 

the defense or about which the defense has knowledge and which the defense intends to use 

in any way at any pretrial proceeding, deposition or at trial. Nothing submitted by the 

defense to the Court Security Officer pursuant to this paragraph shall be made available to 

trial counsel for the government unless so ordered by the Court, or so designated by the 

defense. Any and all items which are classified shall be listed in the defendant's Section 5 

notice. 

21. Violations of this Order - Any unauthorized use or disclosure of classified 

information may constitute violations of United States criminal laws. In addition, any 

violation of the terms of this Order shall be immediately brought to the attention of the Court 

and may result in a charge of contempt of the Court and possible referral for criminal 

prosecution. Any willful, negligent or intentional breach of this Order will also result in the 

termination of a person's access to classified information. Persons subject to this Order are 

advised that direct or indirect unauthorized use, disclosure, retention, or negligent handling 

14 

236
of classified documents or information could cause serious damage, and in some cases 

exceptionally grave damage, to the national security of the United States or may be used to 

the advantage of a foreign nation against the interests of the United States. 

22. All classified information to which defenses witness, the defense counsel, 

defense counsel employees and translators have access to in this case is now and will remain 

the property of the government. The defense counsel, defense counsel employee(s) and 

translators who receive classified information shall return all such classified information in 

their possession obtained through discovery from the government in this case, or for which 

they are responsible because of access to classified information, upon demand of the Court 

Security Officer. The notes, summaries, and other documents prepared by the defense that 

do or may contain classified information shall remain at all times in the custody of the Court 

Security Officer for the duration of this case, to include any appellate and post-conviction 

(if any) procedures. At the conclusion of this case, all such notes, summaries, and other 

documents are to be destroyed by the Court Security Officer in the presence of defense 

counsel. 

23. Nothing in this Order shall preclude the government from seeking a further 

protective order pursuant to Rule 16( d) as to particular items of discovery material or limit 

the defendant(s) right to file objections to any protective order. 

24. A copy of this Order shall be issued forthwith to all counsel for the defendants, 

who shall be responsible for advising the defendants and defense counsel employees, of the 

15 

237
contents of this Order. Any defense counsel employees, who are not counsel of record, and 

are to be provided access to classified information, shall execute the Memorandum of 

Understanding appended to this Order, and executed originals shall be filed with the Court 

and the Court Security Officer and served upon the government, or the "Wall" attorney for 

the government when appropriate. The execution and filing of the Memorandum of 

Understanding is a condition precedent for the defense counsel employees, and defense 

witnesses to have access to classified information in this matter. 

25. The provisions of this Order also apply to any document or information derived 

from information protected by this Order. 

26. Nothing contained in this Order or the procedures outlined in this Order shall be 

construed as a waiver of any right ofthe defendants. 

ORDERED this ~ 8 ~~y of April .. 2006 at Miami, Florida. 

MARCIA G. COOKE 

UNITED STATES DISTRICT JUDGE 

16 

238
UNITED STATES DISTRICT COURT 

SOU ERN DISTRICT OF FLORIDA 

UNITED STATES OF AMERICA 

vs. 

ADHAM AMIN HASSOUN, 

a/k!a "Abu Sayyaf," 

MOHAMED HESHAM YOUSSEF. 

a/k/a "Abu Turab," 

KIFAH WAEL JAYYOUSI, 

a/k!a "Abu Mohamed," 

KASSEM DAHER, 

a/k!a "Abu Zurr," and 

JOSE PADILLA, 

a/k!a "Ibrahim," 

a/k!a "Abu Abdullah the Puerto Rican," 

a/k!a "Abu Abdullah AI Mujahir," 

Defendants. 

--~--------------------------------1 

FILED by .=:r{J// D.C. 

MGC 

AUG 3 1 2006 

CLARENCE MADDOX 

CLERK U.S. DIST. CT.-

S.D. OF FLA. • MIAMI 

ORDER GRANTING GOVERNMENT'S UNOPPOSED MOTION TO ADD 

ADDENDUM TO CIPA § 3 PROTECTIVE ORDER CONCERNING THE FILING OF 

CLASSIFIED PLEADINGS 

This matter is before the Court on the govenm1ent' s unopposed Motion to Add an Addendum 

to the Amended CIP A§ 3 Protective Order (DE 315) conceming the filing of classified pleadings. 

The Court having considered the Motion and being otherwise being fully advised in the premises, 

it is hereby ORDERED and ADJUDGED as follows: 

1. The Court finds that putting these new filing procedures in writing and incorporating 

them into the CIP A § 3 Protective Order goveming this case is in the interests of all parties. 

2. Because the Court Security Officer (CSO) will not always be available to accept 

classified filings from the parties in person, the following procedures are incorporated into Amended 

239
CIP A § 3 Protective Order governing this case: 

A. These filing procedures only govern documents or pleadings that are classified at the 

CONFIDENTIAL, SECRET or TOP SECRET level, and contain no SCI inforn1ation. If either party 

must file documents or pleadings that contain SCI information, the filing of such pleadings must be 

arranged directly through the CSO. The detern1ination of the level of classification of a document 

or pleading is to occur prior to the time the pleading is filed. The CSO will assist the defense and 

the Court with the determination of the level of classification appropriate for each pleading or Court 

Order. Before defense counsel file a classified pleading, the CSO must be consulted to ensure that 

the pleading is given the appropriate classification level. The CSO shall also be available to assist 

the government in the event that agency owning the information has not provided clear direction to 

the government regarding the classification of information contained in a government pleading. 

B. The CSO authorizes Tammy Mcintyre (designee), from the Chambers of the Honorable 

Marcia G. Cooke, to serve as a designee for the CSO to accept classified filings at the 

COI\'FIDENTIAL, SECRET and TOP SECRET level, that do not contain SCI information. The 

CSO may appoint additional court personnel to act as a designee for the purpose of accepting 

classified filings at the CONFIDENTIAL, SECRET and TOP SECRET level, that do not contain SCI 

infom1ation. However, the CSO must notify all parties and the Court in writing if the CSO appoints 

additional designees. 

C. Every effort should be made to notify the designee by 4:00pm that a party intends to 

make a classified filing. The designee may then give further directions to the party. 

D. An original and a courtesy copy should be delivered for filing with the Court. Any 

additional copies that a party needs for records or for opposing counsel should also be brought to the 

2 

240
designee to be file stamped. Each copy should contain the appropriate classification markings and 

cover sheet. 

E. A "half sheet" should also be affixed to the top of the original pleading and all classified 

copies. This "half sheet" should contain the caption ofthe case, as well as an UNCLASSIFIED title 

for the pleading. The designee will then stamp all "half sheets" and classified pleadings. One of the 

"half sheets" will be filed and appear on the docket. Another "half sheet" should be faxed to the 

CSO at 202-307-2066. The additional "half sheets" will be retained by the party for records, and/or 

to provide to opposing counsel. 

F. All materials transported to the designee for filing must be wrapped and sealed in 

accordance with "double wrapping" procedures established for the transportation of classified 

information. The CSO has explained these procedures to all parties. Any questions about these 

procedures should be directed to the CSO. A "half sheet" should be attached to the outside of the· 

envelope or package containing the classified filing. 

G. Once all documents are file stamped, the designee shall hand carry them to the Judge 

or Magistrate Judge, or place them in an approved security container for storage. 

H. Parties should attempt to make arrangements to serve classified pleadings (containing 

"half sheets") with opposing counsel. Such service can occur only when a party has access to a 

secure container to store the classified pleading. The CSO will assist the parties in making service 

if necessary. 

3 

241
I. Any questions on these procedures or on the handling of classified documents should 

be directed to the CSO. 

srDONE and ORDERED this 3/ day of August, 2006 at Miami, Florida. 

HONORABLE MARCIA G. COOKE 

UNITED STATES DISTRICT COURT JUDGE 

4 

242
United States v. Franklin

(E.D. Va. 1:05-cr-225)

Franklin Protective Order .............................................................................. 244

Rosen Protective Order ................................................................................... 259

Weissman Protective Order ............................................................................ 279

243
EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA CRIMINAL NO. I :05CR225 

V. 

LAWRENCE ANTHONY FRANKLIN, 

) 

) 

) 

) 

) 

) 

) 

) 

Defendant. 

PROTECTIVE ORDER 

This matter comes before the court upon the Motion of the United States for a Protective 

Order to prevent the unauthorized disclosure or dissemination of classified national security 

information and documents, which will be reviewed or made available to the defendant and his 

counsel by the government during the prosecution of this case. Pursuant to the authority granted 

under Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. 3 (2000) 

("CTP A"), the Security Procedures Established Pursuant to CIP A by the Chief Justice of the 

United States for the Protection of Classified Information (reprinted following ClP A section 9), 

Rule 16( d) of the Federal Rules of Criminal Procedure, local rule 49 and the general supervisory 

authority of the Court, and in order to protect the national security, the following Protective 

Order is entered: 

1. The Court finds that this case will involve information that has been classified in 

the interest of the national security. The storage, handling and control of this information will 

require special security precautions mandated by statute, executive order, and regulation, and 

244
access to which requires the appropriate security clearances. The purpose of this Order is to 

establish procedures that must be followed by counsel and the parties in this case. These 

procedures will apply to all pretrial, trial and post-trial matters concerning classified information 

and may be modified from time to time by further order of the Court acting under its inherent 

supervisory authority to ensure a fair and expeditious trial. 

2. Definitions. The following definitions shall apply to this Order: 

a. "Classified information" shall mean: 

i. any document or information which has been classified 

by any executive agency in the interests of national security or 

pursuant to Executive Order 13292 as "confidential," "secret," "top 

secret," or "sensitive compartmented information." 

ii. any document or information now or formerly in the 

possession of a private party which (A) has been derived from 

information from the United States government that was classified, 

and (B) has been subsequently classified by the United States 

pursuant to Executive Order 13292 as "confidential," "secret," "top 

secret," or "sensitive compartmented information," 

iii. verbal classified information known to the defendant or 

defense counsel, or 

iv. any information, regardless of place of origin and 

including "foreign government information," as that term is 

defined in Executive Order 13292, that could reasonably be 

believed to contain classified information, or that refers to national 

security or intelligence matters. 

b. "Document" shall mean any material containing information. The term "document" 

shall include, without limitation, written or printed matter of any kind, including originals, 

conforming copies, and non-conforming copies (e.g., a copy of an original with an added 

notation). The term "document" shall also include, without limitation, letters, reports, 

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t 

summaries, memoranda, notes, communications, telexes, cables, telecopies, telegrams, 

facsimiles, e-mails, microfilms, reports, photographs, charts, graphs, maps, invoices, 

accountings, worksheets, bulletins, transcripts, and messages, as well as alterations, amendments, 

modifications, and changes of any kind to the foregoing; and all recordings of information on 

magnetic, electronic, or optical media (including but not limited to those on CD-ROM), 

typewriter ribbons, films and all manner of electronic data processing storage. 

c. "Access to classified information" means having access to, reviewing, reading, 

learning, or otherwise coming to know, in any manner, classified information. 

d. "Secure area" means a sensitive compartmented information facility accredited by the 

Department of Justice Security Officer for the storage, handling, and control of classified 

information. 

3. Information in the public domain is ordinarily not classified. However, such 

information may be considered as classified and subject to the provisions of CIPA, if it is 

confirmed as being classified by any person who has, or has had, such access to classified 

information and that confirmation corroborated the information in question. Any attempt by the 

defense to have such information confirmed or denied at trial or in any public proceeding in this 

case shall be governed by CIP A and all provisions of this Order. 

4. All classified documents and information contained therein shall remain classified 

unless the documents bear a clear indication that they have been declassified by the agency or 

department that originated the document or information contained therein (hereinafter, 

"originating agency"). 

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5. In accordance with the provisions of CIPA and the Security Procedures 

promulgated by the Chief Justice of the United States pursuant to that Act, this court designates 

Christine Gunning as the Court Security Officer and Michael Macisso, Glenn Bensely, John 

Molinard, James Londergan, Daniel Hartenstine, Mary Cradlin, Barbara Russell and Jennifer 

Campbell as alternate Court Security Officers for this case for the purpose of providing security 

arrangements necessary to protect any classified information or documents that will be made 

available to the defense in connection with this case or that may be in the possession of the 

defense from unauthorized disclosure. Defense counsel shall seek guidance from the Court 

Security Officer with regard to appropriate storage, handling, transmittal, and use of classified 

information. 

6. The court has been advised that the United States Attorney, Paul J. McNulty, the 

Assistant United States Attorneys overseeing or assigned to this case, Kenneth E. Melson, Robert 

Spencer, Kevin V. Di Gregory, Neil Hammerstrom, and Department of Justice attorneys John J. 

Dion, Ronald R. Roos and Thomas Reilly, all have the requisite security clearances allowing 

them to have access to the classified documents and information that relate to this case. Any 

references to government attorneys as used in this Order refer only to the attorneys listed in this 

paragraph. 

7. The defendant's counsel, Plato Cacheris and John F. Hundley, shall be given 

access to classified national security documents and information as requireq by the government's 

discovery obligations and in accordance with the terms of this Protective Order, and any other 

orders pursuant to CIPA, and upon receipt of appropriate security clearances. Consistent with the 

defendant's prior employment and authorized access to classified information, the defendant, 

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( 

Lawrence Franklin, will also be given access to national security documents and information as 

required by government discovery obligations and in accordance with the terms of this Protective 

Order, and any other orders pursuant to CIPA. As set forth in the Government's Motion for 

Protective Order, Franklin has a continuing contractual obligation to the government not to 

disclose to any unauthorized person classified information known to him or in his possession. 

The government is entitled to enforce its agreement to maintain the confidentiality of classified 

information. Consequently, pursuant to federal common law and the ordinary principles of 

contract law, the defendant is hereby enjoined from breaching the terms of his secrecy 

agreements with the government, is prohibited from any future violations of the above referenced 

secrecy agreements, and is enjoined from disclosing any classified information to any 

unauthorized person unless authorized to do so by this Court. Any additional person whose 

assistance the defense reasonably requires may only have access to classified information in this 

case after first obtaining from this Court, with prior notice to the government, an approval for 

access to the required level of classification on a need-to-know basis, and after satisfYing the 

other requirements described in this Order for access to classified information. The substitution, 

departure, or removal from this case of defense counsel or any other cleared person associated 

with the defense as an employee or witness or otherwise, shall not release that person from the 

provisions of this Order or the Memorandum of Understanding executed in connection with this 

Order. 

8. The Court Security Officer shall arrange for and maintain an appropriately 

approved secure area for the use of defense counsel. The Court Security Officer shall establish 

procedures to assure that the secure area is accessible to defense counsel during business hours 

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and at other times upon reasonable request as approved by the Court Security Officer. The 

secure area shall contain a separate working area for defense counsel and will be outfitted \vith 

any secure office equipment requested by the defense that is reasonable and necessary to the 

preparation of the defense. The Court Security Officer, in consultation with defense counsel, 

shall establish procedures to assure that the secure area may be maintained and operated in the 

most efficient manner consistent with the protection of classified information. No classified 

documents may be removed from the secure area unless so authorized by the Court Security 

Officer with notice provided to the Court. The Court Security Officer shall not reveal to the 

government the content of any conversations he may hear among the defense, nor reveal the 

nature of the documents being reviewed or the work being generated. The presence of the Court 

Security Officer shall not operate to render inapplicable the attorney-client privilege. 

9. Filing of Papers by Defendant. Any pleading or other document filed by the 

defendant shall be filed under seal with the Court Security Officers or Designee and shall be 

marked, "Filed in Camera and Under Seal with the Court Security Officer or Designee." The 

time of physical submission to the Court Security Officers or designee shall be considered the 

date and time of filing. The Court Security Officer shall promptly examine the pleading or 

document and, in consultation with representatives of the appropriate agencies, determine 

whether the pleading or document contains classified information. If the Court Security Officer 

determines that the pleading or document contains classified information, she shall ensure that 

the portion of the document containing classified information, and only that portion, is marked 

with the appropriate classification marking and remains under seal. All portions of all papers 

filed by the defendants that do not contain classified information shall be immediately unsealed 

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249
by the Court Security Officer and placed in the public record. The Court Security Officer shall 

immediately deliver, under seal, to the Court and counsel for the United States any pleading or 

document to be filed by the defendant that contains classified information. The Court shall then 

direct the clerk to enter on the docket sheet the title of the pleading or document, the date it was 

filed, and the fact that it has been filed under seal with the Court Security Officer. 

I 0. Filing of Papers by the United States. Only the portions of pleadings or 

documents filed by the United States that contain classified information shall be filed under seal 

with the court through the Court Security Officer or Designee. Such pleadings and documents 

shall be marked, "Filed In Camera and Under Seal with the Court Security Officer." The date and 

time of physical submission to the Court Security Officer or Designee shall be considered the 

date and time of filing. 

11. Unless already holding an appropriate security clearance, and approved for access to 

classified information in this case, for the purpose of establishing security clearances necessary 

for access to classified information that may be involved in this case, Standard Form 86 

("Security Investigation Data for Sensitive Position"), attached releases, and full fingerprints 

shall be completed and submitted to the Court Security Officer forthwith by defense counsel, by 

all persons whose assistance the defense reasonably requires, and by such Court personnel as the 

Court requires for its assistance. The Court Security Officer shall take all reasonable steps to 

process all security clearance applications. 

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12. The Court Security Officer shall maintain a separate sealed record for those 

materials which are classified. The Court Security Officer shall be responsible for maintaining 

the secured records for purposes of later proceedings or appeaL 

13. Protection of Classified Information. The Court finds that in order to protect the 

classified information involved in this case, no individual other than counsel for the United 

States, appropriately cleared Department of Justice employees, personnel of the originating 

agency, the defendant, Lawrence Franklin, and Franklin's counsel, Plato Cacheris and John F. 

Hundley, shall be allowed to obtain access to classified documents and information unless and 

until that person has been granted a security clearance by the Department of Justice through the 

Court Security Officer, and has obtained permission of the Court. No person except the 

defendant and counsel for the defendant, Plato Cacheris and John F. Hundley, shall have access 

to the classified information involved in this case, unless and until that person, which includes 

any potential witness at trial, shall first have: 

a. received from the Court Security Officer the appropriate security clearance for 

the level of the classified information involved in this litigation; and 

b. signed the Memorandum of Understanding, in the form attached hereto, thereby 

agreeing to comply with the terms of this Order. 

The signed Memorandum of Understanding shall be filed with the Court. The substitution, 

departure, or removal for any reason from this case of counsel for the defense or anyone later 

cleared and associated with the defense as an employee or witness or otherwise shall not release 

that individual from the provisions of this Order or the Memorandum of Understanding executed 

in connection with this Order. Before any person other than counsel for the United States, 

~8~ 

251
appropriately cleared Department of Justice employees, and personnel of the originating agency, 

is permitted by the Court to inspect and review classified national security information, he or she 

must also sign the attached Memorandum of Understanding. 

14. Access to Classified Information. Counsel for the defendant, Plato Cacheris and 

John F. Hundley, the defendant, Lawrence Franklin, and any later cleared employees of counsel 

for the defendant or cleared witnesses accompanied by counsel for the defendant (hereinafter, 

"the defense") shall have access to classified information only as follows: 

a. All classified information produced by the government to the defense in 

discovery or otherwise, and all classified information possessed, created or 

maintained by the defense, shall be stored, maintained and used only in the secure 

area established by the Court Security Officer. No classified information shall be 

maintained by the defense in any other place other than the secure area established 

by the Court Security Officer. 

b. Counsel for the defendant shall have free access to the classified information 

made available to him in the secure area established by the Court Security Officer 

and shall be allowed to take notes and prepare documents with respect to those 

materials. 

c. No person, including counsel for the defendant, shall copy or reproduce any classified 

information in any manner or form, except with the approval of the Court Security 

Officer or in accordance with the procedures established by the Court Security Officer for 

the operation of the secure area. 

d. All documents prepared by the defense (including, without limitation, 

pleadings or other documents intended for filing with the Court) that do or may 

contain classified information must be prepared in a secure area on word 

processing equipment approved by the Court Security Officer. All such 

documents and any associated materials (such as notes, drafts, copies, typewriter 

ribbons, magnetic recordings, exhibits) containing classified information shall be 

maintained in the secure area unless and until the Court Security Officer 

determines that those documents or associated materials are unclassified in their 

entirety. None of these materials shall be disclosed to counsel for the United 

States. 

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e. The defense shall discuss classified information only with other cleared 

persons and only in the secure area or in an area authorized by the Court Security 

Officer. 

f. The defense shall not disclose, without prior approval of the Court, the contents 

of any classified documents or information to any person not named in this Order 

except the Court, Court personnel, and the attorneys for the United States 

identified by the Court Security Officer as having the appropriate clearances and 

the need to know. Counsel for the United States shall be given an opportunity to 

be heard in response to any defense request for disclosure to a person not named 

in this Order. Any person approved by the Court for disclosure under this 

paragraph shall be required to obtain the appropriate security clearance, to sign 

and submit to the Court the Memorandum of Understanding appended to the 

Order, and to comply with all the terms and conditions of the Order. If 

preparation of the defense requires that classified information be disclosed to 

persons not named in this Order, the Department of Justice shall promptly seek to 

obtain security clearances for them at the request of defense counsel. 

g. The defense, including the defendant, counsel for the defendant, and any other 

later cleared employees or defense witnesses, shall not discuss classified 

information over any standard commercial telephone instrument or office 

intercommunication systems, including but not limited to the internet, or in the 

presence of any person who has not been granted access 

by the Court to classified information. 

h. Any documents written by the defense that do or may contain classified 

information shall be transcribed, recorded, typed, duplicated, copied or otherwise 

prepared only by persons who have received an appropriate approval for access to 

classified information. 

i. If counsel for the government advises defendant's counsel that certain 

classified information or documents may not be disclosed to the defendant, then 

defense counsel shall not disclose such information or documents to the defendant 

without prior concurrence of counsel for the government or, absent such 

concurrence, approval of the Court. Counsel for the government shall be given an 

opportunity to be heard in response to any defense request for disclosure to the 

defendant of such classified information. 

15 . Classified Information in the Defendant's Possession. The court has been advised 

that the defendant and/or his counsel have been provided information during pre-indictment 

discussions in this case which may later be determined to be classified. All such information 

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shall be immediately provided to the Court Security Officer or to counsel for the United States. 

Counsel for the United States will assist defendant's counsel in identifying any such classified 

information which may have remained in the defendant's or his counsel's possession. The 

defendant and defendant's counsel are hereby enjoined from disclosing any classified 

information to any unauthorized person during the pendency of this Order. Nothing in this Order 

shall be construed as a limitation on the government in filing criminal charges against any person 

in the event of an unauthorized disclosure of classified information or instituting civil litigation 

to enforce secrecy agreements. 

16. Classified Information Procedures Act. No motion has been made by the defense 

for the disclosure of classified information. Procedures for the public disclosure of classified 

information by the defense shall be those established in sections 5 and 6 of CIP A. The court may 

issue additional Protective Orders as needed. 

17. Procedures for the public disclosure of classified information by the defense shall 

be those provided in Sections 5 and 6 of CIP A. No classified information may be disclosed by 

the defense except: 

a. to the Court, Court personnel, and government attorneys and their agents and 

employees identified by the Court Security Officer as holding prior approvals identified by the 

Court Security Officer as holding proper approvals for access to classified information; 

b. to representatives of the agency or department originating the classified information 

who have been identified by the Court Security Officer as holding appropriate security clearances 

and having the need to know the classified information; 

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254
' . 

c. in accordance with the procedures of CIP A and the procedures established by the 

Court Security Officer; and 

d. to persons who have been authorized to have access to classified information pursuant 

to this Order or to CIPA. 

To facilitate the defense filing of notices required under Section 5 of CIPA, the Court 

Security Officer shall make arrangements with the appropriate agencies for a determination of the 

classification level, if any, of materials or information either within the possession of the defense 

or about which the defense has knowledge and which the defense intends to use in any way in 

any pretrial proceeding or at trial. Nothing submitted by the defense to the Court Security 

Officer pursuant to this paragraph shall be made available to counsel for the government unless 

so ordered by the Court, or so designated by the defense. Any and all items which are classified 

shall be listed in the defendant's Section 5 notice. 

18. As the identity of government intelligence employees may be classified, and as 

certain security arrangements may be necessary to protect classified information which may be 

discussed, the parties agree that the defense may not contact any employee of any government 

intelligence agency without making prior arrangements for such contact with an attorney for the 

government, unless the defense files a motion with the Court -- which motion may be ex parte at 

the discretion of defense counsel -- to authorize such contact, gives the government notice of 

such motion without revealing the name of the employee the defense seeks to contact , and 

obtains a court order authorizing that contact. Further, the defense shall give prior notice to 

government attorneys of any contacts it intends to make with any employee of any government 

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I 

t 

intelligence agency for the purpose of declassifying any classified information relating to this 

case. 

19. Any unauthorized disclosure of classified information may constitute violations of 

United States criminal laws. In addition, any violation of the terms of this Order shall be brought 

immediately to the attention of this Court and may result in a charge of contempt of court and 

possible referral for criminal prosecution. Any breach of this Order may also result in 

termination of an individual's access to classified information. Persons subject to this Order are 

advised that direct or indirect unauthorized disclosure, retention, or negligent handling of 

classified documents or information could cause serious damage, and in some cases, 

exceptionally grave damage to the national security of the United States or may be used to the 

advantage of a foreign nation against the interests of the United States. This Protective Order is 

to ensure that those authorized to receive classified information in connection with this case will 

never divulge that information to anyone not authorized to receive it, without prior written 

authorization from the originating agency and in conformity with this Order. 

20. All classified documents and information to which the defense (including the 

defendant, counsel for the defendant, any later cleared employee of counsel for the defendant, or 

cleared defense witness) have access in this case are now and will remain the property of the 

United States. Upon demand of the Court Security Officer, these persons shall return to the 

Court Security Officer, all classified information in their possession obtained through discovery 

from the government in this case, or for which they are responsible because of access to 

classified information. The notes, summaries and other documents prepared by the defense that 

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256
( 

do or may contain classified information shall remain at all times in the custody of the Court 

Security Officer for the duration of the case. At the conclusion of this case, all such notes, 

summaries and other documents are to be destroyed by the Court Security Officer in the presence 

of defense counseL 

21. A copy of this Order shall be issued forthwith to the defendant, defense counsel 

who shall be responsible for advising the defendant, any co-counsel, employees of counsel for 

the defendants, and defense witnesses who need to know of the contents of this Order. 

Defendant, counsel for the defendant, and any other individuals who will be provided access to 

the classified information, shall execute the Memorandum of Understanding described in 

paragraph 13 of this Order, and counsel for the defendant shall file executed originals of such 

documents with the Court and the Court Security Officer and serve an executed original upon the 

United States. The execution and filing ofthe Memorandum of Understanding is a condition 

precedent for Defendant, counsel for the defendant, or any other person assisting the defense to 

have access to classified information. 

T.S. Ellis, III 

UNITED STATE 

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' { 

CERTIFICATE OF SERVICE 

I hereby certify that the a true and correct copy of the Government's Motion for 

Protective Order and to Allow Prospective Filing of Sealed Documents has been faxed to Plato 

Cacheris, counsel for the defendant, 1350 Connecticut Avenue, NW, Washington, DC 20036, fax 

number (202) 464-3319, phone number (202) 464-3303, this 161

h day of Jun ~ 2005. 

258
, I 

--------~~~-------- FILED 

IN OPEN COURT 

IN THE UNITED STATES DISTRICT COURT FOR HE 

SEP 1 9 2005 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

CLERK. U.S. DISTRICT COURT 

ALEXANDRIA, VIRGINIA 

UNITED STATES OF AMERICA ) 

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CRIMINAL NO. 1 :05CR225 

V. 

LA~NCEANTHONYFRANKLIN, Hon. T.S. Ellis, III 

STEVEN J. ROSEN and 

KEITH WEISSMAN, 

Defendants. 

PROTECTIVE ORDER 

This matter comes before the court upon the Motion of the United States for a Protective 

Order to prevent the unauthorized disclosure or dissemination of classified national security 

information and documents, which will be reviewed or made available to the defendant and his 

counsel by the government during the prosecution of this case. Pursuant to the authority granted 

under Section 3 ofthe Classified Information Procedures Act, 18 U.S.C. App. 3 (2000) 

("CIPA"), the Security Procedures Established Pursuant to CIPA by the Chief Justice of the 

United States for the Protection of Classified Information (reprinted following CIPA section 9), 

Rule 16( d) of the Federal Rules of Criminal Procedure, local rule 49 and the general supervisory 

authority ofthe Court, and in order to protect the national security, the following Protective 

Order is entered: 

1. The Court finds that this case will involve information that has been classified in 

the interest of the national security. The storage, handling and control of this information will 

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require special security precautions mandated by statute, executive order, and regulation, and 

access to which requires the appropriate security clearances. The purpose of this Order is to 

establish procedures that must be followed by counsel and the parties in this case. These 

procedures will apply to all pretrial, trial and post-trial matters concerning classified information 

and may be modified from time to time by further order of the Court acting under its inherent 

supervisory authority to ensure a fair and expeditious trial. 

2. Definitions. The following definitions shall apply to this Order: 

a. "Classified information" shall mean: 

i. any document or information which has been classified 

by any executive agency in the interests of national security or 

pursuant to Executive Order 13292 as "confidential," "secret," "top 

secret," or "sensitive compartmented information." 

ii. any document or information now or formerly in the 

possession of a private party which (A) has been derived from 

information from the United States government that was classified, 

and (B) has been subsequently classified by the United States 

pursuant to Executive Order 13292 as "confidential," "secret," "top 

secret," or "sensitive compartmented information," 

iii. verbal classified information known to the defendant or 

defense counsel, or 

iv. any information, regardless of place of origin and 

including "foreign government information," as that term is 

defined in Executive Order 13292, that could reasonably be 

believed to contain classified information, or that refers to national 

security or intelligence matters. 

b. "Document" shall mean any material containing information. The term "document" 

shall include, without limitation, written or printed matter of any kind, including originals, 

conforming copies, and non-conforming copies (e.g., a copy of an original with an added 

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notation). The term "document" shall also include, without limitation, letters, reports, 

summaries, memoranda, notes, communications, telexes, cables, telecopies, telegrams, 

facsimiles, e-mails, microfilms, reports, photographs, charts, graphs, maps, invoices, 

accountings, worksheets, bulletins, transcripts, and messages, as well as alterations, amendments, 

modifications, and changes of any kind to the foregoing; and all recordings of information on 

magnetic, electronic, or optical media (including but not limited to those on CD-ROM), 

typewriter ribbons, films and all manner of electronic data processing storage. 

c. "Access to classified information" means having access to, reviewing, reading, 

learning, or otherwise coming to know, in any manner, classified information. 

d. "Secure area" means a sensitive compartmented information facility accredited by the 

Department of Justice Security Officer for the storage, handling, and control of classified 

information. 

3. Information in the public domain is ordinarily not classified. However, such 

information may be considered as classified and subject to the provisions of CIP A, if it is 

confirmed as being classified by any person who has, or has had, such access to classified 

information and that confirmation corroborated the information in question. Any attempt by the 

defense to have such information confirmed or denied at trial or in any public proceeding in this 

case shall be governed by CIP A and all provisions of this Order. 

4. All classified documents and information contained therein shall remain classified 

unless the documents bear a clear indication that they have been declassified by the agency or 

department that originated the document or information contained therein (hereinafter, 

"originating agency"). 

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5. In accordance with the provisions ofCIPA and the Security Procedures 

promulgated by the Chief Justice of the United States pursuant to that Act, this court designates 

Christine Gunning as the Court Security Officer and Michael Macisso, Glenn Bensley, John 

Molinard, James Londergan, Daniel Hartenstine, Mary Cradlin, Barbara Russell and Jennifer 

Campbell as alternate Court Security Officers for this case for the purpose of providing security 

arrangements necessary to protect any classified information or documents that will be made 

available to the defense in connection with this case or that may be in the possession of the 

defense from unauthorized disclosure. Defense counsel shall seek guidance from the Court 

Security Officer with regard to appropriate storage, handling, transmittal, and use of classified 

information. 

6. The court has been advised that the United States Attorney, Paul J. McNulty, the 

Assistant United States Attorneys overseeing or assigned to this case, Kenneth Melson, Robert 

Spencer, Kevin V. Di Gregory, Neil Hammerstrom, and Department of Justice attorneys John 1. 

Dion, Ronald R. Roos and Thomas Reilly, all have the requisite security clearances allowing 

them to have access to the classified documents and information that relate to this case. Any 

references to government attorneys as used in this Order refer only to the attorneys listed in this 

paragraph. 

7. The defendant's counsel, Abbe David Lowell and Keith Rosen, shall be given 

access to classified national security documents and information as required by the government's 

discovery obligations and in accordance with the terms of this Protective Order, and any other 

orders pursuant to CIP A, and upon receipt of appropriate security clearances. The defendant, 

Steven 1. Rosen, will also be given access to national security documents and information as 

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required by government discovery obligations and in accordance with the terms of this Protective 

Order, and any other orders pursuant to CIP A. As set forth in the Government's Motion for 

Protective Order, Rosen has a continuing contractual obligation to the government not to disclose 

to any unauthorized person classified information known to him or in his possession. The 

government is entitled to enforce its agreement to maintain the confidentiality of classified 

information. Consequently, pursuant to federal common law and the ordinary principles of 

contract law, the defendant is hereby enjoined from breaching the terms of his secrecy 

agreements with the government, is prohibited from any future violations of the above referenced 

secrecy agreements, and is enjoined from disclosing any classified information to any 

unauthorized person unless authorized to do so by this Court. Any additional person whose 

assistance the defense reasonably requires may only have access to classified information in this 

case after first obtaining from this Court, with prior notice to the government, an approval for 

access to the required level of classification on a need-to-know basis, and after satisfying the 

other requirements described in this Order for access to classified information. The substitution, 

departure, or removal from this case of defense counsel or any other cleared person associated 

with the defense as an employee or witness or otherwise, shall not release that person from the 

provisions of this Order or the Memorandum of Understanding executed in connection with this 

Order. 

8. The Court Security Officer shall arrange for and maintain an appropriately 

approved secure area for the use of defense counsel. The Court Security Officer shall establish 

procedures to assure that the secure area is accessible to defense counsel during business hours 

and at other times upon reasonable request as approved by the Court Security Officer. The 

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secure area shall contain a separate working area for defense counsel and will be outfitted with 

any secure office equipment requested by the defense that is reasonable and necessary to the 

preparation of the defense. The Court Security Officer, in consultation with defense counsel, 

shall establish procedures to assure that the secure area may be maintained and operated in the 

most efficient manner consistent with the protection of classified information. No classified 

documents may be removed from the secure area unless so authorized by the Court Security 

Officer with notice provided to the Court. The Court Security Officer shall not reveal to the 

government the content of any conversations he may hear among the defense, nor reveal the 

nature of the documents being reviewed or the work being generated. The presence of the Court 

Security Officer shall not operate to render inapplicable the attorney-client privilege or the 

attorney work product doctrine. 

9. Filing of Papers by Defendant. Any pleading or other document filed by the 

defendant shall be filed under seal with the Court through the Court Security Officer or her 

designee, unless defense counsel has obtained from the Court Security Officer permission, 

specific to a particular, non-substantive pleading or document (e.g., motions for extensions of 

time, continuances, scheduling matters, etc.) not containing information that is or may be 

classified or under seal, to file the pleading or document not under seaL Pleadings filed under 

seal with the Court Security Officers or Designee and shall be marked, "Filed in Camera and 

Under Seal with the Court Security Officer or Designee." The time of physical submission to the 

Court Security Officers or designee shall be considered the date and time of filing. The Court 

Security Officer shall promptly examine the pleading or document and, in consultation with 

representatives of the appropriate agencies, determine whether the pleading or document contains 

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classified information. If the Court Security Officer determines that the pleading or document 

contains classified information, she shall ensure that tlie portion of the document containing 

classified information, and only that portion, is marked with the appropriate classification 

marking and remains under seaL All portions of all papers filed by the defendants that do not 

contain classified information shall be immediately unsealed by the Court Security Officer and 

placed in the public record. The Court Security Officer shall immediately deliver, under seal, to 

the Court and counsel for the United States any pleading or document to be filed by the 

defendant that contains classified infonnation. The Court shall then direct the clerk to enter on 

the docket sheet the title of the pleading or document, the date it was filed, and the fact that it has 

been filed under seal with the Court Security Officer. 

10. Filing of Papers by the United States. Only the portions of pleadings or 

documents filed by the United States that contain classified information shall be filed under seal 

with the court through the Court Security Officer or Designee. Such pleadings and documents 

shall be marked, "Filed In Camera and Under Seal with the Court Security Officer." The date and 

time of physical submission to the Court Security Officer or Designee shall be considered the 

date and time of filing. 

11. Unless already holding an appropriate security clearance, and approved for access 

to classified information in this case, for the purpose of establishing security clearances necessary 

for access to classified information that may be involved in this case, Standard Fonn 86 

("Security Investigation Data for Sensitive Position"), attached releases, and full fingerprints 

shall be completed and submitted to the Court Security Officer forthwith by defense counsel, by 

all persons whose assistance the defense reasonably requires, and by such Court personnel as the 

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Court requires for its assistance. The Court Security Officer shall take all reasonable steps to 

process all security clearance applications. 

12. The Court Security Officer shall maintain a separate sealed record for those 

materials which are classified. The Court Security Officer shall be responsible for maintaining 

the secured records for purposes of later proceedings or appeaL 

13. Protection of Classified Information. The Court finds that in order to protect the 

classified information involved in this case, no individual other than counsel for the United 

States, appropriately cleared Department of Justice employees, personnel ofthe originating 

agency, the defendant, Steven J. Rosen and Rosen's counsel, Abbe David Lowell and Keith 

Rosen, shall be allowed to obtain access to classified documents and information unless and until 

that person has been granted a security clearance by the Department of Justice through the Court 

Security Officer, and has obtained permission of the Court. No person except the defendant and 

counsel for the defendant, Abbe David Lowell and Keith Rosen, shall have access to the 

classified information involved in this case, unless and until that person, which includes any 

potential witness at trial, shall first have: 

a. received from the Court Security Officer the appropriate security clearance for 

the level of the classified information involved in this litigation; and 

b. signed the Memorandum of Understanding, in the form attached hereto, thereby 

agreeing to comply with the terms ofthis Order. 

The signed Memorandum of Understanding shall be filed with the Court. The substitution, 

departure, or removal for any reason from this case of counsel for the defense or anyone later 

cleared and associated with the defense as an employee or witness or otherwise shall not release 

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that individual from the provisions ofthis Order or the Memorandum of Understanding executed 

in connection with this Order. Before any person other than counsel for the United States, 

appropriately cleared Department of Justice employees, and personnel of the originating agency, 

is permitted by the Court to inspect and review classified national security information, he or she 

must also sign the attached Memorandum of Understanding. 

14. Access to Classified Information. Counsel for the defendant, Abbe David Lowell 

and Keith Rosen, the defendant, Steven J. Rosen, and any later cleared employees of counsel for 

the defendant or cleared witnesses accompanied by counsel for the defendant (hereinafter, "the 

defense") shall have access to classified information only as follows: 

a. All classified information produced by the government to the defense in 

discovery or otherwise, and all classified information possessed, created or 

maintained by the defense, shall be stored, maintained and used only in the secure 

area established by the Court Security Officer. No classified information shall be 

maintained by the defense in any other place other than the secure area established 

by the Court Security Officer. 

b. Counsel for the defendant shall have free access to the classified information 

made available to him in the secure area established by the Court Security Officer 

and shall be allowed to take notes and prepare documents with respect to those 

materials. 

c. No person, including counsel for the defendant, shall copy or reproduce any classified 

information in any manner or form, except with the approval of the Court Security 

Officer or in accordance with the procedures established by the Court Security Officer for 

the operation of the secure area. 

d. All documents prepared by the defense (including, without limitation, 

pleadings or other documents intended for filing with the Court) that do or may 

contain classified information must be prepared in a secure area on word 

processing equipment approved by the Court Security Officer. All such 

documents and any associated materials (such as notes, drafts, copies, typewriter 

ribbons, magnetic recordings, exhibits) containing classified information shall be 

maintained in the secure area unless and until the Court Security Officer 

determines that those documents or associated materials are unclassified in their 

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entirety. None of these materials shall be disclosed to counsel for the United 

States. 

e. The defense shall discuss classified information only with other cleared 

persons and only in the secure area or in an area authorized by the Court Security 

Officer. 

f. The defense shall not disclose, without prior approval of the Court, the contents 

of any classified documents or information to any person not named in this Order 

except the Court, Court personnel, and the attorneys for the United States 

identified by the Court Security Officer as having the appropriate clearances and 

the need to know. Counsel for the United States shall be given an opportunity to 

be heard in response to any defense request for disclosure to a person not named 

in this Order. Any person approved by the Court for disclosure under this 

paragraph shall be required to obtain the appropriate security clearance, to sign 

and submit to the Court the Memorandum of Understanding appended to the 

Order, and to comply with all the terms and conditions of the Order. If 

preparation of the defense requires that classified information be disclosed to 

persons not named in this Order, the Department of Justice shall promptly seek to 

obtain security clearances for them at the request of defense counsel. 

g. The defense, including the defendant, counsel for the defendant, and any other 

later cleared employees or defense witnesses, shall not discuss classified 

information over any standard commercial telephone instrument or office 

intercommunication systems, including but not limited to the internet, or in the 

presence of any person who has not been granted access 

by the Court to classified information. 

h. Any documents written by the defense that do or may contain classified 

information shall be transcribed, recorded, typed, duplicated, copied or otherwise 

prepared only by persons who have received an appropriate approval for access to 

classified information. 

i. If counsel for the government advises defendant's counsel that certain 

classified information or documents may not be disclosed to the defendant, then 

defense counsel shall not disclose such information or documents to the defendant 

without prior concurrence of counsel for the government or, absent such 

concurrence, approval of the Court. Counsel for the government shall be given an 

opportunity to be heard in response to any defense request for disclosure to the 

defendant of such classified information. 

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15. Classified Information in the Defendant's Possession. The court has been advised 

that the defendant and/or his counsel have been provided information during pre-indictment 

discussions in this case which may later be determined to be classified. All such information 

shall be immediately provided to the Court Security Officer or to counsel for the United States. 

Counsel for the United States will assist defendant's counsel in identifying any such classified 

information which may have remained in the defendant's or his counsel's possession. The 

defendant and defendant's counsel are hereby enjoined from disclosing any classified 

information to any unauthorized person during the pendency of this Order. Nothing in this Order 

shall be construed as a limitation on the government in filing criminal charges against any person 

in the event of an unauthorized disclosure of classified information or instituting civil litigation 

to enforce secrecy agreements. 

16. Classified Information Procedures Act. No motion has been made by the defense 

for the disclosure of classified information. Procedures for the public disclosure of classified 

information by the defense shall be those established in sections 5 and 6 of CIP A. The court may 

issue additional Protective Orders as needed. 

17. Procedures for the public disclosure of classified information by the defense shall 

be those provided in Sections 5 and 6 of CIPA. No classified information may be disclosed by 

the defense except: 

a. to the Court, Court personnel, and government attorneys and their agents and 

employees identified by the Court Security Officer as holding prior approvals identified by the 

Court Security Officer as holding proper approvals for access to classified information; 

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b. to representatives of the agency or department originating the classified information 

who have been identified by the Court Security Officer as holding appropriate security clearances 

and having the need to know the classified information; 

c. in accordance with the procedures of CIPA and the procedures established by the 

Court Security Officer; and 

d. to persons who have been authorized to have access to classified information pursuant 

to this Order or to CIPA. 

To facilitate the defense filing of notices required under Section 5 of CIP A, the Court 

Security Officer shall make arrangements with the appropriate agencies for a determination of the 

classification level, if any, of materials or information either within the possession of the defense 

or about which the defense has knowledge and which the defense intends to use in any way in 

any pretrial proceeding or at trial. Nothing submitted by the defense to the Court Security 

Officer pursuant to this paragraph shall be made available to counsel for the government unless 

so ordered by the Court, or so designated by the defense. Any and all items which are classified 

shall be listed in the defendant's Section 5 notice. 

18. As the identity of government intelligence employees may be classified, and as 

certain security arrangements may be necessary to protect classified information which may be 

discussed, the parties agree that the defense may not contact any employee of any government 

intelligence agency without making prior arrangements for such contact with an attorney for the 

government, unless the defense files a motion with the Court -- which motion may be ex at 

the discretion of defense counsel -- to authorize such contact, gives the government notice of 

such motion without revealing the name of the employee the defense seeks to contact , and 

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obtains a court order authorizing that contact. Further, the defense shall give prior notice to 

government attorneys of any contacts it intends to make with any employee of any government 

intelligence agency for the purpose of declassifying any classified information relating to this 

case. 

19. Any unauthorized disclosure of classified information may constitute violations of 

United States criminal laws. In addition, any violation ofthe terms of this Order shall be brought 

immediately to the attention of this Court and may result in a charge of contempt of court and 

possible referral for criminal prosecution. Any breach of this Order may also result in 

termination of an individual's access to classified information. Persons subject to this Order are 

advised that direct or indirect unauthorized disclosure, retention, or negligent handling of 

classified documents or information could cause serious damage, and in some cases, 

exceptionally grave damage to the national security of the United States or may be used to the 

advantage of a foreign nation against the interests of the United States. This Protective Order is 

to ensure that those authorized to receive classified information in connection with this case will 

never divulge that information to anyone not authorized to receive it, without prior written 

authorization from the originating agency and in conformity with this Order. 

20. All classified documents and information to which the defense (including the 

defendant, counsel for the defendant, any later cleared employee of counsel for the defendant, or 

cleared defense witness) have access in this case are now and will remain the property of the 

United States. Upon demand of the Court Security Officer, these persons shall return to the 

Court Security Officer, all classified information in their possession obtained through discovery 

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from the government in this case, or for which they are responsible because of access to 

classified information. The notes, summaries and other documents prepared by the defense that 

do or may contain classified information shall remain at all times in the custody ofthe Court 

Security Officer for the duration of the case. At the conclusion of this case, all such notes, 

summaries and other documents are to be destroyed by the Court Security Officer in the presence 

of defense counsel if they choose to be present. 

21. A copy ofthis Order shall be issued forthwith to the defendant, defense counsel 

who shall be responsible for advising the defendant, any co-counsel, employees of counsel for 

the defendants, and defense witnesses who need to know of the contents ofthis Order. 

Defendant, counsel for the defendant, and any other individuals who will be provided access to 

the classified information, shall execute the Memorandum of Understanding described in 

paragraph 13 of this Order, and counsel for the defendant shall file executed originals of such 

documents with the Court and the Court Security Officer and serve an executed original upon the 

United States. The execution and filing of the Memorandum of Understanding is a condition 

precedent for Defendant, counsel for the defendant, or any other person assisting the defense to 

have access to classified information. 

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IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA 

v. 

LA~NCEANTHONYFRANKLIN, 

STEVEN J. ROSEN and 

KEITH WEISSMAN, 

Defendants. 

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CRIMINAL NO. 1 :05CR225 

MEMORANDUM OF UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I have 

already received, and may be the future recipient of information and documents, that pertain to 

the national security of the United States, and which are the property of the United States, and 

that such documents and information, together with the methods of collecting such information, 

are classified according to security standards set by the United States government. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States government, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

of trial in United States v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman, 

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Criminal No. 1 :05CR225, and any subsequent related proceedings including the appellate 

process. 

4. I have received, read and understand the Protective Order entered by the United 

States District Court for the Eastern District of Virginia in the above-styled case, and I agree to 

comply with the provisions contained therein. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

Abbe David Lowell 

Counsel for Defendant Steven J. Rosen 

Date 

Witness Name 

Witness Signature 

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f 

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA 

v. 

LA~NCEANTHONYFRANKLIN, 

STEVEN J. ROSEN and 

KEITH WEISSMAN, 

Defendants. 

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CRIMINAL NO. I :05CR225 

MEMORANDUM OF UNDERSTANDING 

l. Having familiarized myself with the applicable laws, I understand that I have 

already received, and may be the future recipient of information and documents, that pertain to 

the national security ofthe United States, and which are the property of the United States, and 

that such documents and information, together with the methods of collecting such information, 

are classified according to security standards set by the United States government. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States government, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

of trial in United States v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman, 

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Criminal No. 1 :05CR225, and any subsequent related proceedings including the appellate 

process. 

4. I have received, read and understand the Protective Order entered by the United 

States District Court for the Eastern District of Virginia in the above-styled case, and I agree to 

comply with the provisions contained therein. 

I declare under penalty of perjury under the laws ofthe United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

Keith Rosen 

Counsel for Defendant Steven J. Rosen 

Date 

Witness Name 

Witness Signature 

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IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA 

v. 

) 

) 

) 

LAWRENCE ANTHONY FRANKLIN, ) 

) 

STEVEN J. ROSEN and ) 

) 

KEITH WEISSMAN, ) 

) 

Defendants. ) 

) 

CRIMINAL NO. 1 :05CR225 

MEMORANDUM OF UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I have 

already received, and may be the future recipient of information and documents, that pertain to 

the national security ofthe United States, and which are the property of the United States, and 

that such documents and information, together with the methods of collecting such information, 

are classified according to security standards set by the United States government. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States government, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

oftrial in United States v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman, 

277
f ( ( ~ . 

' 

Criminal No. 1 :05CR225, and any subsequent related proceedings including the appellate 

process. 

4. I have received, read and understand the Protective Order entered by the United 

States District Court for the Eastern District of Virginia in the above-styled case, and I agree to 

comply with the provisions contained therein. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

Steven J. Rosen 

Date 

Witness Name 

Witness Signature 

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FILED 

IN OPEN COURT 

IN THE UNITED STATES DISTRICT COURT FO TH SEP 1 9 2005 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

CLERK. U.S. DISTRICT COURT .. _ALEXANDRIA. VIRGINIA 

UNITED STATES OF AMERICA ) 

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CRIMINAL NO. 1 :05CR225 

v. 

LAWRENCE ANTHONY FRANKLIN, Hon. T.S. Ellis, III 

STEVEN J. ROSEN and 

KEITH WEISSMAN, 

Defendants. 

PROTECTIVE ORDER 

This matter comes before the court upon the Motion of the United States for a Protective 

Order to prevent the unauthorized disclosure or dissemination of classified national security 

information and documents, which will be reviewed or made available to the defendant and his 

counsel by the government during the prosecution of this case. Pursuant to the authority granted 

under Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. 3 (2000) 

("CIP A"), the Security Procedures Established Pursuant to CIP A by the Chief Justice of the 

United States for the Protection of Classified Information (reprinted following CIPA section 9), 

Rule 16( d) of the Federal Rules of Criminal Procedure, local rule 49 and the general supervisory 

authority of the Court, and in order to protect the national security, the following Protective 

Order is entered: 

1. The Court finds that this case will involve information that has been classified in 

the interest of the national security. The storage, handling and control of this information will 

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require special security precautions mandated by statute, executive order, and regulation, and 

access to which requires the appropriate security clearances. The purpose of this Order is to 

establish procedures that must be followed by counsel and the parties in this case. These 

procedures will apply to all pretrial, trial and post-trial matters concerning classified information 

and may be modified from time to time by further order of the Court acting under its inherent 

supervisory authority to ensure a fair and expeditious trial. 

2. Definitions. The following definitions shall apply to this Order: 

a. "Classified information" shall mean: 

i. any document or information which has been classified 

by any executive agency in the interests of national security or 

pursuant to Executive Order 13292 as "confidential," "secret," "top 

secret," or "sensitive compartmented information." 

ii. any document or information now or formerly in the 

possession of a private party which (A) has been derived from 

information from the United States government that was classified, 

and (B) has been subsequently classified by the United States 

pursuant to Executive Order 13292 as "confidential," "secret," "top 

secret," or "sensitive compartmented information," 

iii. verbal classified information known to the defendant or 

defense counsel, or 

iv. any information, regardless of place of origin and 

including "foreign government information," as that term is 

defined in Executive Order 13292, that could reasonably be 

believed to contain classified information, or that refers to national 

security or intelligence matters. 

b. "Document" shall mean any material containing information. The term "document" 

shall include, without limitation, written or printed matter of any kind, including originals, 

conforming copies, and non-conforming copies (e.g., a copy of an original with an added 

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notation). The term "document" shall also include, without limitation, letters, reports, 

summaries, memoranda, notes, communications, telexes, cables, telecopies, telegrams, 

facsimiles, e-mails, microfilms, reports, photographs, charts, graphs, maps, invoices, 

accountings, worksheets, bulletins, transcripts, and messages, as well as alterations, amendments, 

modifications, and changes of any kind to the foregoing; and all recordings of information on 

magnetic, electronic, or optical media (including but not limited to those on CD-ROM), 

typewriter ribbons, films and all manner of electronic data processing storage. 

c. "Access to classified information" means having access to, reviewing, reading, 

learning, or otherwise coming to know, in any manner, classified information. 

d. "Secure area" means a sensitive compartmented information facility accredited by the 

Department of Justice Security Officer for the storage, handling, and control of classified 

information. 

3. Information in the public domain is ordinarily not classified. However, such 

information may be considered as classified and subject to the provisions of CIPA, if it is 

confirmed as being classified by any person who has, or has had, such access to classified 

information and that confirmation corroborated the information in question. Any attempt by the 

defense to have such information confirmed or denied at trial or in any public proceeding in this 

case shall be governed by CIP A and all provisions of this Order. 

4. All classified documents and information contained therein shall remain classified 

unless the documents bear a clear indication that they have been declassified by the agency or 

department that originated the document or information contained therein (hereinafter, 

"originating agency"). 

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5. In accordance with the provisions of CIPA and the Security Procedures 

promulgated by the Chief Justice of the United States pursuant to that Act, this court designates 

Christine Gunning as the Court Security Officer and Michael Macisso, Glenn Bensley, John 

Molinard, James Londergan, Daniel Hartenstine, Mary Cradlin, Barbara Russell and Jennifer 

Campbell as alternate Court Security Officers for this case for the purpose of providing security 

arrangements necessary to protect any classified information or documents that will be made 

available to the defense in connection with this case or that may be in the possession of the 

defense from unauthorized disclosure. Defense counsel shall seek guidance from the Court 

Security Officer with regard to appropriate storage, handling, transmittal, and use of classified 

information. 

6. The court has been advised that the United States Attorney, Paul J. McNulty, the 

Assistant United States Attorneys overseeing or assigned to this case, Kenneth Melson, Robert 

Spencer, Kevin V. Di Gregory, Neil Hammerstrom, and Department of Justice attorneys John J. 

Dion, Ronald R. Roos and Thomas Reilly, all have the requisite security clearances allowing 

them to have access to the classified documents and information that relate to this case. Any 

references to government attorneys as used in this Order refer only to the attorneys listed in this 

paragraph. 

7. The defendant's counsel, John Nassikas and Laura Lester, shall be given access to 

classified national security documents and information as required by the government's 

discovery obligations and in accordance with the terms of this Protective Order, and any other 

orders pursuant to CIP A, and upon receipt of appropriate security clearances. The defendant, 

Keith Weissman, will also be given access to national security documents and information as 

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) 

required by government discovery obligations and in accordance with the terms of this Protective 

Order, and any other orders pursuant to CIPA. As set forth in the Government's Motion for 

Protective Order, Weissman has a continuing contractual obligation to the government not to 

disclose to any unauthorized person classified information known to him or in his possession. 

The government is entitled to enforce its agreement to maintain the confidentiality of classified 

information. Consequently, pursuant to federal common law and the ordinary principles of 

contract law, the defendant is hereby enjoined from breaching the terms of his secrecy 

agreements with the government, is prohibited from any future violations of the above referenced 

secrecy agreements, and is enjoined from disclosing any classified information to any 

unauthorized person unless authorized to do so by this Court. Any additional person whose 

assistance the defense reasonably requires may only have access to classified information in this 

case after first obtaining from this Court, with prior notice to the government, an approval for 

access to the required level of classification on a need-to-know basis, and after satisfying the 

other requirements described in this Order for access to classified information. The substitution, 

departure, or removal from this case of defense counsel or any other cleared person associated 

with the defense as an employee or witness or otherwise, shall not release that person from the 

provisions of this Order or the Memorandum of Understanding executed in connection with this 

Order. 

8. The Court Security Officer shall arrange for and maintain an appropriately 

. approved secure area for the use of defense counseL The Court Security Officer shall establish 

procedures to assure that the secure area is accessible to defense counsel during business hours 

and at other times upon reasonable request as approved by the Court Security Officer. The 

283
secure area shall contain a separate working area for defense counsel and will be outfitted with 

any secure office equipment requested by the defense that is reasonable and necessary to the 

preparation of the defense. The Court Security Officer, in consultation with defense counsel, 

shall establish procedures to assure that the secure area may be maintained and operated in the 

most efficient manner consistent with the protection of classified information. No classified 

documents may be removed from the secure area unless so authorized by the Court Security 

Officer with notice provided to the Court. The Court Security Officer shall not reveal to the 

government the content of any conversations he may hear among the defense, nor reveal the 

nature of the documents being reviewed or the work being generated. The presence of the Court 

Security Officer shall not operate to render inapplicable the attorney-client privilege or the 

attorney work product doctrine. 

9. Filing of Papers by Defendant. Any pleading or other document filed by the 

defendant shall be filed under seal with the Court through the Court Security Officer or her 

designee, unless defense counsel has obtained from the Court Security Officer permission, 

specific to a particular, non-substantive pleading or document (e.g., motions for extensions of 

time, continuances, scheduling matters, etc.) not containing information that is or may be 

classified or under seal, to file the pleading or document not under seal. Pleadings filed under 

seal with the Court Security Officers or Designee and shall be marked, "Filed in Camera and 

Under Seal with the Court Security Officer or Designee." The time of physical submission to the 

Court Security Officers or designee shall be considered the date and time of filing. The Court 

Security Officer shall promptly examine the pleading or document and, in consultation with 

representatives of the appropriate agencies, determine whether the pleading or document contains 

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classified information. If the Court Security Officer determines that the pleading or document 

contains classified information, she shall ensure that the portion of the document containing 

classified information, and only that portion, is marked with the appropriate classification 

marking and remains under seal. All portions of all papers filed by the defendants that do not 

contain classified information shall be immediately unsealed by the Court Security Officer and 

placed in the public record. The Court Security Officer shall immediately deliver, under seal, to 

the Court and counsel for the United States any pleading or document to be filed by the 

defendant that contains classified information. The Court shall then direct the clerk to enter on 

the docket sheet the title of the pleading or document, the date it was filed, and the fact that it has 

been filed under seal with the Court Security Officer. 

10. Filing of Papers by the United States. Only the portions of pleadings or 

documents filed by the United States that contain classified information shall be filed under seal 

with the court through the Court Security Officer or Designee. Such pleadings and documents 

shall be marked, "Filed In Camera and Under Seal with the Court Security Officer." The date and 

time of physical submission to the Court Security Officer or Designee shall be considered the 

date and time of filing. 

11. Unless already holding an appropriate security clearance, and approved for access 

to classified information in this case, for the purpose of establishing security clearances necessary 

for access to classified information that may be involved in this case, Standard Form 86 

("Security Investigation Data for Sensitive Position"), attached releases, and full fingerprints 

shall be completed and submitted to the Court Security Officer forthwith by defense counsel, by 

all persons whose assistance the defense reasonably requires, and by such Court personnel as the 

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'') ( ' 

Court requires for its assistance. The Court Security Officer shall take all reasonable steps to 

process all security clearance applications. 

12. The Court Security Officer shall maintain a separate sealed record for those 

materials which are classified. The Court Security Officer shall be responsible for maintaining 

the secured records for purposes of later proceedings or appeal. 

13. Protection of Classified Information. The Court finds that in order to protect the 

classified information involved in this case, no individual other than counsel for the United 

States, appropriately cleared Department of Justice employees, personnel of the originating 

agency, the defendant, Keith Weissman, and Weissman's counsel, John Nassikas and Laura 

Lester, shall be allowed to obtain access to classified documents and information unless and until 

that person has been granted a security clearance by the Department of Justice through the Court 

Security Officer, and has obtained permission of the Court. No person except the defendant and 

counsel for the defendant, John Nassikas and Laura Lester, shall have access to the classified 

information involved in this case, unless and until that person. which includes any potential 

witness at trial, shall first have: 

a. received from the Court Security Officer the appropriate security clearance for 

the level of the classified information involved in this litigation; and 

b. signed the Memorandum of Understanding, in the form attached hereto, thereby 

agreeing to comply with the terms of this Order. 

The signed Memorandum of Understanding shall be filed with the Court. The substitution, 

departure, or removal for any reason from this case of counsel for the defense or anyone later 

cleared and associated with the defense as an employee or witness or otherwise shall not release 

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that individual from the provisions of this Order or the Memorandum of Understanding executed 

in connection with this Order. Before any person other than counsel for the United States, 

appropriately cleared Department of Justice employees, and personnel of the originating agency, 

is permitted by the Court to inspect and review classified national security information, he or she 

must also sign the attached Memorandum of Understanding. 

14. Access to Classified Information. Counsel for the defendant, John Nassikas and 

Laura Lester, the defendant, Keith Weissman, and any later cleared employees of counsel for the 

defendant or cleared witnesses accompanied by counsel for the defendant (hereinafter, "the 

defense") shall have access to classified information only as follows: 

a. All classified information produced by the government to the defense in 

discovery or otherwise, and all classified information possessed, created or 

maintained by the defense, shall be stored, maintained and used only in the secure 

area established by the Court Security Officer. No classified information shall be 

maintained by the defense in any other place other than the secure area established 

by the Court Security Officer. 

b. Counsel for the defendant shall have free access to the classified information 

made available to him in the secure area established by the Court Security Officer 

and shall be allowed to take notes and prepare documents with respect to those 

materials. 

c. No person, including counsel for the defendant, shall copy or reproduce any classified 

information in any manner or form, except with the approval of the Court Security 

Officer or in accordance with the procedures established by the Court Security Officer for 

the operation of the secure area. 

d. All documents prepared by the defense (including, without limitation, 

pleadings or other documents intended for filing with the Court) that do or may 

contain classified information must be prepared in a secure area on word 

processing equipment approved by the Court Security Officer. All such 

documents and any associated materials (such as notes, drafts, copies, typewriter 

ribbons, magnetic recordings, exhibits) containing classified information shall be 

maintained in the secure area unless and until the Court Security Officer 

determines that those documents or associated materials are unclassified in their 

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entirety. None of these materials shall be disclosed to counsel for the United 

States. 

e. The defense shall discuss classified information only with other cleared 

persons and only in the secure area or in an area authorized by the Court Security 

Officer. 

f. The defense shall not disclose, without prior approval of the Court, the contents 

of any classified documents or information to any person not named in this Order 

except the Court, Court personnel, and the attorneys for the United States 

identified by the Court Security Officer as having the appropriate clearances and 

the need to know. Counsel for the United States shall be given an opportunity to 

be heard in response to any defense request for disclosure to a person not named 

in this Order. Any person approved by the Court for disclosure under this 

paragraph shall be required to obtain the appropriate security clearance, to sign 

and submit to the Court the Memorandum of Understanding appended to the 

Order, and to comply with all the terms and conditions of the Order. If 

preparation of the defense requires that classified information be disclosed to 

persons not named in this Order, the Department of Justice shall promptly seek to 

obtain security clearances for them at the request of defense counsel. 

g. The defense, including the defendant, counsel for the defendant, and any other 

later cleared employees or defense witnesses, shall not discuss classified 

information over any standard commercial telephone instrument or office 

intercommunication systems, including but not limited to the internet, or in the 

presence of any person who has not been granted access 

by the Court to classified information. 

h. Any documents written by the defense that do or may contain classified 

information shall be transcribed, recorded, typed, duplicated, copied or otherwise 

prepared only by persons who have received an appropriate approval for access to 

classified information. 

i. If counsel for the government advises defendant's counsel that certain 

classified information or documents may not be disclosed to the defendant, then 

defense counsel shall not disclose such information or documents to the defendant 

without prior concurrence of counsel for the government or, absent such 

concurrence, approval of the Court. Counsel for the government shall be given an 

opportunity to be heard in response to any defense request for disclosure to the 

defendant of such classified information. 

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15 . Classified Information jn the Defendant's Possession. The court has been advised 

that the defendant and/or his counsel have been provided information during pre-indictment 

discussions in this case which may later be determined to be classified. All such information 

shall be immediately provided to the Court Security Officer or to counsel for the United States. 

Counsel for the United States will assist defendant's counsel in identifying any such classified 

information which may have remained in the defendant's or his counsel's possession. The 

defendant and defendant's counsel are hereby enjoined from disclosing any classified 

information to any unauthorized person during the pendency of this Order. Nothing in this Order 

shall be construed as a limitation on the government in filing criminal charges against any person 

in the event of an unauthorized disclosure of classified information or instituting civil litigation 

to enforce secrecy agreements. 

16. Classified Information Procedures Act. No motion has been made by the defense 

for the disclosure of classified information. Procedures for the public disclosure of classified 

information by the defense shall be those established in sections 5 and 6 of CIPA The court may 

issue additional Protective Orders as needed. 

17. Procedures for the public disclosure of classified information by the defense shall 

be those provided in Sections 5 and 6 ofCIPA No classified information may be disclosed by 

the defense except: 

a. to the Court, Court personnel, and government attorneys and their agents and 

employees identified by the Court Security Officer as holding prior approvals identified by the 

Court Security Officer as holding proper approvals for access to classified information; 

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() 

b. to representatives of the agency or department originating the classified information 

who have been identified by the Court Security Officer as holding appropriate security clearances 

and having the need to know the classified information; 

c. in accordance with the procedures of CIP A and the procedures established by the 

Court Security Officer; and 

d. to persons who have been authorized to have access to classified information pursuant 

to this Order or to CIP A. 

To facilitate the defense filing of notices required under Section 5 of CIPA, the Court 

Security Officer shall make arrangements with the appropriate agencies for a determination of the 

classification level, if any, of materials or information either within the possession of the defense 

or about which the defense has knowledge and which the defense intends to use in any way in 

any pretrial proceeding or at trial. Nothing submitted by the defense to the Court Security 

Officer pursuant to this paragraph shall be made available to counsel for the government unless 

so ordered by the Court, or so designated by the defense. Any and all items which are classified 

shall be listed in the defendant's Section 5 notice. 

18. As the identity of government intelligence employees may be classified, and as 

certain security arrangements may be necessary to protect classified information which may be 

discussed, the parties agree that the defense may not contact any employee of any government 

intelligence agency without making prior arrangements for such contact with an attorney for the 

government, unless the defense files a motion with the Court -- which motion may be ex parte at 

the discretion of defense counsel -- to authorize such contact, gives the government notice of 

such motion without revealing the name of the employee the defense seeks to contact, and 

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. 

• 

obtains a court order authorizing that contact Further, the defense shall give prior notice to 

government attorneys of any contacts it intends to make with any employee of any government 

intelligence agency for the purpose of declassifYing any classified information relating to this 

case. 

19. Any unauthorized disclosure of classified information may constitute violations of 

United States criminal laws. In addition, any violation of the terms of this Order shall be brought 

immediately to the attention of this Court and may result in a charge of contempt of court and 

possible referral for criminal prosecution. Any breach of this Order may also result in 

termination of an individual's access to classified information. Persons subject to this Order are 

advised that direct or indirect unauthorized disclosure, retention, or negligent handling of 

classified documents or information could cause serious damage, and in some cases, 

exceptionally grave damage to the national security of the United States or may be used to the 

advantage of a foreign nation against the interests of the United States. This Protective Order is 

to ensure that those authorized to receive classified information in connection with this case will 

never divulge that information to anyone not authorized to receive it, without prior written 

authorization from the originating agency and in conformity with this Order. 

20. All classified documents and information to which the defense (including the 

defendant, counsel for the defendant, any later cleared employee of counsel for the defendant, or 

cleared defense witness) have access in this case are now and will remain the property of the 

United States. Upon demand ofthe Court Security Officer, these persons shall return to the 

Court Security Officer, all classified information in their possession obtained through discovery 

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(~) 

from the government in this case, or for which they are responsible because of access to 

classified information. The notes, summaries and other documents prepared by the defense that 

do or may contain classified information shall remain at all times in the custody of the Court 

Security Officer for the duration of the case. At the conclusion of this case, all such notes, 

summaries and other documents are to be destroyed by the Court Security Officer in the presence 

of defense counsel, if they choose to be present. 

21. A copy of this Order shall be issued forthwith to the defendant, defense counsel 

who shall be responsible for advising the defendant, any co-counsel, employees of counsel for 

the defendants, and defense witnesses who need to know of the contents of this Order. 

Defendant, counsel for the defendant, and any other individuals who will be provided access to 

the classified information, shall execute the Memorandum of Understanding described in 

paragraph 13 of this Order, and counsel for the defendant shall file executed originals of such 

documents with the Court and the Court Security Officer and serve an executed original upon the 

United States. The execution and filing ofthe Memorandum of Understanding is a condition 

precedent for Defendant, counsel for the defendant, or any other person assisting the defense to 

have access to classified information. 

1GIV 

SO ORDERED this L__{L_ day of September, 2005, at Alexandria, Virginia. 

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( ) 

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA CRIMINAL NO. l :05CR225 

V. 

LA~NCEANTHONYFRANKLIN, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

STEVEN J. ROSEN and 

KEITH WEISSMAN, 

Defendants. 

MEMORANDUM OF UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I have 

already received, and may be the future recipient of information and documents, that pertain to 

the national security of the United States, and which are the property ofthe United States, and 

that such documents and information, together with the methods of collecting such information, 

are classified according to security standards set by the United States government. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States government, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

of trial in United States v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman, 

293
() () 

Criminal No. 1 :05CR225, and any subsequent related proceedings including the appellate 

process. 

4. I have received, read and understand the Protective Order entered by the United 

States District Court for the Eastern District of Virginia in the above-styled case, and I agree to 

comply with the provisions contained therein. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

John Nassikas 

Counsel for Defendant Keith Weissman 

Date 

Witness Name 

Witness Signature 

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IN THE UNITED STATES DISTRJCT COURT FOR THE 

EASTERN DISTRJCT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERJCA 

v. 

LA~NCEANTHONYFRANKLIN, 

STEVEN J. ROSEN and 

KEITH WEISSMAN, 

Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CRJMINAL NO. 1 :05CR225 

MEMORANDUM OF UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I have 

already received, and may be the future recipient of information and documents, that pertain to 

the national security of the United States, and which are the property of the United States, and 

that such documents and information, together with the methods of collecting such information, 

are classified according to security standards set by the United States government. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States government, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

oftrial in United States v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman, 

295
Criminal No. 1:05CR225, and any subsequent related proceedings including the appellate 

process. 

4. I have received, read and understand the Protective Order entered by the United 

States District Court for the Eastern District of Virginia in the above-sty led case, and I agree to 

comply with the provisions contained therein. 

I declare under penalty ofpeijury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

Laura Lester 

Counsel for Defendant Keith Weissman 

Date 

Witness Name 

Witness Signature 

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. . • .. ) () 

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA ) 

) 

) 

CRIMINAL NO. I :05CR225 

v. 

LAWRENCE ANTHONY FRANKLIN, ) 

) 

STEVEN J. ROSEN and ) 

) 

KEITH WEISSMAN, ) 

) 

Defendants. ) 

) 

MEMORANDUM OF UNDERSTANDING 

1. Having familiarized myself with the applicable laws, I understand that I have 

already received, and may be the future recipient of information and documents, that pertain to 

the national security of the United States, and which are the property of the United States, and 

that such documents and information, together with the methods of collecting such information, 

are classified according to security standards set by the United States government. 

2. I agree that I shall never divulge, publish or reveal, either by word, conduct or any 

other means, such classified information and documents unless specifically authorized to do so in 

writing by an authorized representative of the United States government, or as required by the 

Classified Information Procedures Act, or as otherwise ordered by this Court. 

3. I understand that this agreement will remain binding upon me after the conclusion 

of trial in United States v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman, 

297
. 1 

Criminal No. 1:05CR225, and any subsequent related proceedings including the appellate 

process. 

4. I have received, read and understand the Protective Order entered by the United 

States District Court for the Eastern District of Virginia in the above-styled case, and I agree to 

comply with the provisions contained therein. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct to the best of my knowledge, information and belief. 

Keith Weissman 

Date 

Witness Name 

Witness Signature 

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United States v. Abu Ali

(E.D. Va. 1:05-cr-53)

Protective Order ............................................................................................... 300

299
 

 IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

UNITED STATES OF AMERICA ) 

) 

v. ) CRIMINAL ACTION NO. 05-53 (GBL) 

) 

AHMED OMAR ABU ALI, ) 

) 

Defendant. ) 

ORDER

 

THIS MATTER is before the Court on the government s Motion 

to Unseal Testimony by Saudi Government Officials and 

Government s Opposition to Defendant s Motion to Suppress, and on 

the government s Motion for Protective Order. The issues before 

the Court are (1) whether to unseal the existence and transcripts 

of testimony, taken under seal, of Saudi Government officials 

pursuant to Federal Rule of Criminal Procedure 15 and the 

government s Opposition to Defendant s Motion to Suppress; (2) 

how the aforementioned testimony will be presented during the 

upcoming suppression hearing and during trial; and (3) the manner 

in which defense counsel shall be permitted access to the video 

recordings of that testimony. The Court grants, in part, the 

government s Motion to Unseal Testimony by Saudi Government 

Officials and Government s Opposition to Defendant s Motion to 

Suppress. The Court grants, in part, the government s Motion for 

Protective Order. 

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2 

(A) Limited Unsealing of Rule 15 Deposition Transcripts and 

Unsealing of Government s Opposition to Defendant s Motion to 

Suppress

Background

By its April 19, 2005 Memorandum Order, this Court granted 

the government s Motion for Rule 15 Depositions and thereby 

authorized the parties in this case to take depositions in Saudi 

Arabia of several Saudi government officials, including Foreign 

Witnesses A and B, who are alleged to possess relevant 

information about the detention and interrogation of Defendant 

Ahmed Omar Abu Ali ( Mr. Abu Ali, Defendant ) as his primary 

interrogator and superior interrogator, respectively. Federal 

Rule of Criminal Procedure 15(a)(1) allows a party to move for 

the deposition of a prospective witness to preserve his or her 

testimony for trial, and permits the Court to grant the motion 

when exceptional circumstances arise, and when doing so is in 

the interest of justice. FED. R. CRIM. P. 15(a)(1). 

After weighing the factors articulated in United States v. 

Hajbeh, 284 F.Supp.2d 380, 382 (E.D.Va. 2003), this Court granted 

the Rule 15 motion because it found that: (1) Foreign Witnesses A 

and B are unavailable to testify at trial since they both reside 

in Saudi Arabia and the Saudi government will not allow them to 

travel to the United States to participate in judicial 

proceedings; (2) their testimony is material to the outcome of 

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3 

this proceeding; and (3) their testimony is necessary to serve 

the ends of justice. Mem. Order, Apr. 19, 2005, at 3-5. 

Pursuant to the Order of the Court, the transcript of the 

deposition testimony was filed by the government under seal. The 

government, through the instant motion, now seeks to have the 

existence and transcripts of the Rule 15 deposition testimony 

unsealed. 

Ruling

The Court grants the government s Motion to Unseal Testimony 

by Saudi Government Officials and Government s Opposition to 

Defendant s Motion to Suppress, and orders that the transcripts 

of the Rule 15 deposition testimony are unsealed with the 

following restrictions. During the suppression hearing, both the 

government and defense counsel may refer only to testimony in the 

transcripts. Neither party may refer to those portions of the 

transcript which refer to evidentiary objections. Furthermore, 

neither the government nor defense counsel may refer to arguments 

made by either party during the course of the depositions. 

Finally, neither party may release these transcripts, in whole or 

in part, to the public until so instructed by the Court.

The government s Opposition to Defendant s Motion to 

Suppress is unsealed and may be referred to during the 

suppression hearing.

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4 

(B) Presentation of Video Recordings of Rule 15 Depositions at 

Suppression Hearing and at Trial

The Court grants, in part, the government s Motion for 

Protective Order and orders that the Rule 15 deposition testimony 

 be displayed in the manner prescribed below. In the Court s 

April 19, 2005 Memorandum Order authorizing Rule 15 depositions 

to be taken, the Court specifically reserved the question of 

whether and how that deposition testimony would be presented in 

future hearings and at trial. Mem. Order, Apr. 19, 2005, at 2 

n.1. 

Suppression Hearing

The Court rules that during the suppression hearing, the 

parties will be permitted to play, in open court, those portions 

of the videotaped depositions to which evidentiary objections 

were not made. However, the Court will only permit the public to 

hear audio of the videotaped depositions and will, otherwise, 

conceal the faces of the deponents. During these depositions, at 

the government s request, the Court permitted the Foreign 

Witnesses to testify under pseudonyms and ordered the courtroom 

sealed during the deposition testimony because the government 

advanced an overriding interest that is likely to be 

prejudiced, and the closure was no broader than necessary to 

protect that interest. See Waller v. Georgia, 467 U.S. 39, 48 

(1984) (describing and affirming the standard for closing a 

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5 

hearing in Press-Enterprise Co. v. Super. Ct. Cal., 464 U.S. 501 

(1984)). The Court also considered alternatives to closing the 

proceeding. Id. (holding courts must consider reasonable 

alternatives to closing the proceeding, and... make findings 

adequate to support the closure ). 

The Court granted the government s motion to seal the 

courtroom because the government articulated overriding public 

interests: protecting the witnesses from possible violent acts, 

allowing the factfinder access to highly relevant testimony 

necessary for a fair adjudication of this case, and Saudi 

cooperation in future terrorism cases. The prosecution informed 

the Court that the Saudi Government expressly conditioned its 

willingness to make the witnesses available for deposition on the 

United States Government s assurance that the true names of the 

witnesses will not be made public. Both witnesses work for the 

Saudi domestic security service, the Mabahith, and their true 

names are classified. Other Mabahith members whose true names 

have been publicized have suffered violent retribution. Other 

courts have permitted the sealing of courtrooms and testimony 

under pseudonyms when danger to the witnesses or national 

security interests are at issue. See United States v. Moussaoui, 

382 F.3d 453, 458 (4th Cir. 2004) (allowing remote video 

depositions of witnesses not identified to the public for 

national security reasons); see also Ayala v. Speckard, 131 F.3d 

62 (2d Cir. 1997) (holding three state court trial judges 

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6 

adequately determined that courtroom closure was warranted

during the testimony of undercover officers whose testimony might 

make it impossible for them to continue their work); Smith v. 

Illinois, 390 U.S. 129, 133-34 (1968) (White and Marshall, JJ., 

concurring) (suggesting that a court may bar inquiries on crossexamination tending to endanger the personal safety of a 

witness). 

Despite the Court s granting of the government s motion to 

seal the courtroom and allow Foreign Witnesses A and B to testify 

under pseudonyms, the Court recognizes that sealed proceedings in 

a criminal case, particularly involving the credibility of key 

prosecution witnesses, are highly disfavored. See Smith, 390 

U.S. at 131 (citing Pointer v. State of Texas, 380 U.S. 400, 404 

(1965) ( Yet when the credibility of a witness is in issue, the 

very starting point in exposing falsehood and bringing out the 

truth through cross examination must necessarily be to ask the 

witness who he is and where he lives.... To forbid this most 

rudimentary inquiry at the threshold is effectively to emasculate 

the right of cross-examination itself ). Consequently, the Court 

has fashioned a procedure intended to preserve the defendant s 

rights to confrontation under the Sixth Amendment and the public 

and the press s qualified First Amendment rights to attend 

criminal trials. See Waller, 467 U.S. at 44-45 (citing Globe 

Newspaper Co. v. Super. Ct. Norfolk County, 457 U.S. 596 (1982) 

305
 

7 

(discussing the First Amendment rights of the public and press to 

attend criminal trials)). 

Trial

The Court rules that, during trial, the depositions will be 

presented in the same manner as during the suppression hearing, 

with one exception. During trial, the jury, the defendant, and 

counsel will see the full edited video testimony with the faces 

unobstructed. 

Evidentiary Objections to Transcripts

The Court directs both parties to meet on or before 

September 30, 2005 to jointly review the transcript, and seek to 

resolve, in advance of trial, any evidentiary objections to the 

transcript registered by either side and to determine which 

portions, if any, of the testimony are not necessary for 

consideration by the judge or jury (e.g. dialogue with the judge 

and counsel concerning scheduling witnesses, etc.). If 

necessary, the parties shall then prepare a list of any 

unresolved objections not including translation issues concerning 

the transcripts and submit that list to the Court no later than 5 

p.m. on Thursday, October 6, 2005. The Court will hold a hearing 

on any unresolved evidentiary objections at the end of the civil 

docket at 12:00 noon on Friday, October 14, 2005. After those 

objections have been resolved, the Court will require that the 

306
 

8 

video and audio recordings to be played at trial be edited 

accordingly. 

Translation-Related Objections to Transcript

The Court will address, in a separate Order, the manner in 

which the parties objections to the transcripts that are based 

on translation-related issues are to be resolved. 

(C) Defense Access to Video Recordings of Rule 15 Depositions

The Court grants the government s Motion for Protective 

Order and prohibits defense counsel, the government, and any 

other persons from making or receiving copies of the 

aforementioned video recordings for the reasons the Court has 

shielded the identity and names of the Saudi Arabian government 

officials discussed above. However, the government shall give 

defense counsel liberal access and opportunity to privately view 

the video recordings of the Rule 15 depositions at the United 

States Attorney s Office in Alexandria, VA. The Court notes that 

this ruling is in no way a reflection upon the integrity or 

ethics of defense counsel who continue to conduct themselves in 

accordance with their duties as officers of the court. However, 

the Court issues this protective order in order to minimize the 

likelihood that individuals other than defense counsel and the 

government will inadvertently gain access to the video 

recordings. 

307
 

9 

For the preceding reasons, it is hereby

ORDERED that the government s Motion to Unseal Testimony by 

Saudi Government Officials and Government s Opposition to 

Defendant s Motion to Suppress is GRANTED IN PART. The 

transcripts of the Rule 15 deposition testimony are unsealed with 

the following restrictions. During the suppression hearing, both 

the government and defense counsel may refer only to testimony in 

the transcripts. Neither party may refer to those portions of 

the transcript to which evidentiary objections were made. 

Furthermore, neither the government nor defense counsel may refer 

to arguments made by either party during the course of the 

depositions. Finally, neither party may release these 

transcripts, in whole or in part, to the public until so 

instructed by the Court. Also, the government s Opposition to 

Defendant s Motion to Suppress is unsealed and may be referred to 

during the suppression hearing. It is further

ORDERED that the government s Motion for Protective Order is 

GRANTED IN PART. During the suppression hearing, the parties 

will be permitted to play, in open court, testimony of witnesses 

excluding those portions of the videotaped depositions to which 

evidentiary objections were made. However, the Court will only 

permit the public to hear audio of the videotaped depositions and 

will, otherwise, conceal the faces of the deponents. During 

trial, the depositions will be presented in the same manner as 

during the suppression hearing, with one exception. During 

308
 

10

trial, the jury, the defendant, and counsel will see the full 

edited video testimony with the witnesses faces unobstructed. 

It is further 

ORDERED that defense counsel, the government, and any other 

persons are prohibited from making or receiving copies of the 

aforementioned video recordings for the reasons the Court has 

shielded the identity and names of the Saudi Arabian government 

officials discussed above. However, the government shall give 

defense counsel liberal access and opportunity to privately view 

the video recordings of the Rule 15 depositions at the United 

States Attorney s Office in Alexandria, VA. It is further 

ORDERED that both parties meet on or before September 30, 

2005 to jointly review the transcript, and seek to resolve, in 

advance of trial, any evidentiary objections to the transcript 

registered by either side. If necessary, the parties shall then 

prepare a list of any unresolved issues concerning the 

transcripts and submit that list to the Court no later than 5 

p.m. on Thursday, October 6, 2005. The Court will hold a hearing 

on any unresolved evidentiary objections at 12:00 noon on Friday, 

October 14, 2005. After those objections have been resolved, the 

Court will require that the video and audio recordings to be 

played at trial be edited accordingly.

309
 

11

The Clerk is directed to forward a copy of this Order to 

counsel of record.

ENTERED this ___16th____ day of September, 2005. 

___________/s/________________

Gerald Bruce Lee

United States District Judge 

Alexandria, Virginia

9/16/05 

310
United States v. Warsame

(D. Minn. 0:04-cr-29)

Protective Order ............................................................................................... 312

311
' 

1 

2 

UNITED STATES DISTRICT COURT 

DISTRICT OF MINNESOTA 

CRIMINAL NO. 04-29(JRT/FLN) 

UNITED STATES OF AMERICA, 

3 

4 

5 

vs. 

Plaintiff, 

MOHAMMED ABDULLAH WARSAME, 

6 

Defendant. 

PROTECTIVE ORDER 

7 

8 

9 

This matter comes before the Court upon the Motion of the United States 

10 

for a Protective Order to prevent the unauthorized disclosure or dissemination of 

11 

classified national security information and documents which will be reviewed or 

made available to defense counsel in this case. 12 

13 

Pursuant to the authority granted under Section 3 of the Classified 

14 

Information Procedures Act, 18 U.S.C. App. 3 (1994) ("CIPA"), the Security 

15 

Procedures Established Pursuant to CIPA by the Chief Justice of the United States 

16 

for the Protection of Classified Information (reprinted following CIP A section 9), 

17 

Rules 16( d) and 57 of the Federal Rules of Criminal Procedure, the general 

18 supervisory authority of the Court, and in order to protect the national security, the 

following Protective Order is entered: 

19 

20 1. The Court finds that this case will involve information that has been 

classified national security information. The storage, handling and control of this 

21 

22 

information will require special security precautions mandated by statute, 

23 

executive order, and regulation, and access to which requires the appropriate 

24 security clearances and a legitimate "need to know." The purpose of this Order is 

to establish procedures that must be followed by defense counsel, any translators 

25 

26 

for the defense, investigators and all other individuals who receive access to 

classified national security information or documents in connection with this case. 

27 

Protective Order- 1 

28 WarsameCIPA ProtecOrder.wpd 

' j 

312
These procedures will apply to all pretrial, post-trial and appellate matters 

1 concerning classified information and may be modified from time to time by 

2 further order of the Court acting under its inherent supervisory authority to ensure 

3 a fair and expeditious trial. 

4 

5 a. 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 b. 

2. Definitions. The following definitions shall apply to this Order: 

"Classified information" shall mean: 

(i) any document or information which has been classified by any 

executive agency in the interests of national security or pursuant to 

Executive Order 12958 or its predecessor orders, as "confidential," "secret," 

"top secret," or additionally controlled as "SENSITIVE 

COMPARTMENTED INFORMATION" (SCI), or any information 

contained in such document. 

(ii) any document or information now or formerly in the possession of a 

private party which (A) has been derived from information from the United 

States government that was classified and (B) has subsequently been 

classified by the United States pursuant to Executive Order as 

"confidential," "secret," "top secret" or additionally controlled as "sensitive 

compartmented information." 

(iii) verbal classified information known to the Defendant or defense 

counsel, or 

(iv) any information, regardless of place of origin and including "foreign 

government information," as that term in defined in Executive Order 12958, 

that could reasonably be believed to contain classified information, or that 

refers or relates to national security or intelligence matters. 

"Document" shall mean any material containing information. The term 

25 "document" shall include, without limitation, written or printed matter of any kind 

26 including originals, conforming copies, non-conforming copies (e.g., a copy of an 

27 

Protective Order - 2 

28 WarsameCIPA ProtecOrder.wpd 

313
original with an added notation). The term "document" shall also include, 

1 without limitation, letters, reports, summaries, memoranda, notes, 

2 communications, telexes, cables, telecopies, telegrams, facsimiles, microfilms, 

3 reports, photographs, charts, graphs, maps, invoices, accountings, worksheets, 

4 bulletins, transcripts, and messages, as well as alterations, amendments, 

5 modifications and changes of any kind to the foregoing; and all recordings of 

6 information on magnetic, electronic, or optic media such as audio or video tapes, 

7 computer tapes or discs, microfiche, type-writer ribbons, films and all manner of 

8 electronic data processing storage. 

9 c. "Access to classified information" means having access to, reviewing, 

10 reading, learning or otherwise coming to know in any manner classified 

11 information. 

12 d. "Secure Area" means a sensitive compartmented information facility 

13 accredited by a Court Security Officer for the storage, handling and control of 

14 classified information. 

15 3. Information in the public domain is ordinarily not classified; 

16 however, such information may be considered as classified and therefore subject 

17 to the provisions of CIP A, if it is confirmed as being classified by any person who 

18 has, or has had, such access to classified information and that confirmation 

19 corroborated the information in question. Any attempt by the defense to have such 

20 information confirmed or denied at trial or in any public proceeding in this case 

21 shall be governed by CIP A and all provisions of this Order. 

22 4. All classified documents and information contained therein, shall 

23 remain classified unless the documents bear a clear indication that they have been 

24 declassified by the agency or department that originated the document or 

25 information contained therein (hereinafter, originating agency). 

26 

27 

Protective Order - 3 

28 WarsameCJPA ProtecOrder.wpd 

314
5. In accordance with the provisions ofCIPA and the Security 

1 Procedures promulgated by the Chief Justice of the United States pursuant to that 

2 Act, this Court designates John Mollinard as Court Security Officer and Christine 

3 Gunning, Barbara Russell, Margaret Fennell, Michael Macisso, and Charles 

4 Alliman as alternate Court Security Officers for this case, for the purpose of 

5 providing security arrangements necessary to protect from unauthorized disclosure 

6 any classified information or documents that have been made available to the 

7 Defendant Mohammed Abdullah Warsame, as a result of his prior relationship 

8 with the government, or will be made available to the defense in connection with 

9 this case. Defense counsel shall seek guidance from the Court Security Officer 

10 with regard to appropriate storage, handling, transmittal, and use of classified 

11 information. 

12 6. The Court has been advised that the Assistant United States Attorney 

13 assigned to this case, Michael W. Ward, and Thomas Hollenhorst and Department 

14 of Justice attorneys Joseph Kaster and Daniel Fromstein, have the requisite 

15 security clearances allowing them to have access to the classified documents and 

16 information that relate to this case. Any references to government attorneys as 

17 used in this Order refer only to the attorneys listed in this paragraph. 

18 7. The Defendant, his counsel, and counsels' approved employees, shall 

19 be given access to classified national security documents and information as 

20 required by the government's discovery obligations and in accordance with the 

21 terms of this Protective Order, and any other orders pursuant to CIP A, and upon 

22 receipt of appropriate security clearances. Any additional person whose assistance 

23 the defense reasonably requires may only have access to classified information in 

24 this case after obtaining from the Court, with prior notice to the government, an 

25 approval for access to the required level of classification on a need to know basis, 

26 and after satisfying the other requirements described in this Order for access to 

27 

Protective Order- 4 

28 WarsameCIPA ProtecOrder.wpd 

315
classified information. The substitution, departure, or removal from this case of 

1 defense counsel or anyone associated with the defense as an employee or witness 

2 or otherwise, shall not release that person from the provisions of this Order or the 

3 Memorandum of Understanding executed in connection with this Order. 

4 8. The Court Security Officer shall arrange for an appropriately 

5 approved secure area for the use of defense counsel and his employees. The Court 

6 Security Officer shall establish procedures to assure that the secure area is 

7 accessible during business hours to defense counsel, employees of counsel, and 

8 authorized witnesses accompanied by defense counsel, and at other times upon 

9 reasonable request as approved by the Court Security Officer. The secure area 

10 shall contain a separate working area for defense counsel and will be outfitted with 

11 any secure office equipment requested by the defense that is reasonable and 

12 necessary to the preparation of the defense. The Court Security Officer, in 

13 consultation with defense counsel, shall establish procedures to assure that the 

14 secure area may be maintained and operated in the most efficient manner 

15 consistent with the protection of classified information. No classified documents 

16 may be removed from the secure area unless so authorized by the Court Security 

17 Officer with notice provided to the Court. The Court Security Officer shall not 

18 reveal to the government the content of any conversations he may hear among the 

19 defense, nor reveal the nature of the documents being reviewed or the work being 

20 generated. The presence of the Court Security Officer shall not operate to render 

21 inapplicable the attorney-client privilege. 

22 9. Filing of Papers by Defendant. Any pleading or other document filed 

23 by Defendant shall be filed under seal with the Court Security Officer or a 

24 designee and shall be marked, "Filed in Camera and Under Seal with the Court 

25 Security Officer." The time of physical submission to the Court Security Officer 

26 or a designee shall be considered the date and time of filing. The Court Security 

27 

Protective Order- 5 

28 WammeCIPA ProtecOrder.wpd 

316
Officer shall promptly examine the pleading or document and, in consultation with 

1 representatives of the appropriate agencies, determine whether the pleading or 

2 document contains classified information. If the Court Security Officer 

3 determines that the pleading or document contains classified information, he shall 

4 ensure that that portion of the document, and only that portion, is marked with the 

5 appropriate classification marking and remains under seal. All portions of all 

6 paper filed by Defendant that do not contain classified information shall be 

7 immediately unsealed by the Court Security Officer and placed in the public 

8 record. The Court Security Officer or a designee shall immediately deliver under 

9 seal to the Court and counsel for the United States any pleading or document to be 

10 filed by defendant that contains classified information; the Court shall then direct 

11 the clerk to enter on the docket sheet the title of the pleading or document, the date 

12 it was filed, and the fact that it has been filed under seal with the Court Security 

13 Officer or a designee. 

14 10. Filing of Papers by the United States. Only the portions of pleadings 

15 or documents filed by the United States that contain classified information shall be 

16 filed under seal with the Court through the Court Security Officer. Such pleadings 

17 and documents shall be marked, "Filed In Camera and Under Seal with the Court 

18 Security Officer." The date and time of physical submission to the Court Security 

19 Officer or a designee shall be considered the date and time of filing. 

20 11. The Court Security Officer shall maintain a separate sealed record for 

21 those materials which are classified. The Court Security Officer shall be 

22 responsible for the maintaining of the secured records for purposes of later 

23 proceedings or appeal. 

24 12. Protection of Classified Information. The Court finds that in order to 

25 protect the classified information involved in this case, individuals other than 

26 counsel for the United States, appropriately cleared Department of Justice 

27 

Protective Order - 6 

28 WarsameCIPA ProtecOrder.wpd 

317
employees, and personnel of the originating agency, can obtain access to classified 

1 documents and information only after having been granted a security clearance by 

2 the Department of Justice through the Court Security Officer, and with permission 

3 of the Court. No person except counsel for Defendant, employees of counsel for 

4 the Defendant or defense witnesses, upon receipt of appropriate security 

5 clearances, shall have access to the classified information involved in this case. 

6 Moreover, no counsel for the Defendant, employee of counsel for the Defendant 

7 or defense witnesses shall have access to any classified information in this case 

8 unless that person shall first have: 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

(a) received from the Court Security Officer the appropriate security 

clearance for the level of the classified information involved in this 

litigation; and 

(b) signed the Memorandum of Understanding in the form attached hereto 

agreeing to comply with the terms of this Order. The signed Memorandum 

of Understanding shall be filed with the Court. The substitution, departure 

or removal for any reason from this case of counsel for the defense or 

anyone associated with the defense as an employee or witness or otherwise 

shall not release that individual from the provisions ofthis Order or the 

Memorandum of Understanding executed in connection with this Order. 

19 Before any person other than counsel for the United States, appropriately cleared 

20 Department of Justice employees, and personnel of the originating agency, is 

21 permitted by the Court to inspect and review classified national security 

22 information, he or she must also sign the attached Memorandum of Understanding. 

23 13. Access to Classified Information. In the interest of the national 

24 security, the defendant may be excluded from access to certain classified 

25 information. Counsel for the Defendant, employees of counsel for the Defendant 

26 

27 

Protective Order- 7 

28 WarsameCJPA ProtecOrder.wpd 

318
' 

and witnesses accompanied by counsel for the Defendant shall have access to 

1 classified information only as follows: 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

a. All classified information produced by the government to defense 

counsel in discovery or otherwise, and all classified information possessed, 

created or maintained by the defense, shall be stored, maintained and used 

only in the secure area established by the Court Security Officer. 

b. Counsel for the defendant and employees of counsel for the 

Defendant shall have free access to the classified information made 

available to them in the secure area established by the Court Security 

Officer and shall be allowed to take notes and prepare documents with 

respect to those materials. 

c. No person, including counsel for the defendants, any employee of 

counsel for the defendant or defense witnesses, shall copy or reproduce any 

classified information in any manner or form, except with the approval of 

the Court Security Officer or in accordance with the procedures established 

by the Court Security Officer for the operation of the secure area. 

d. All documents prepared by the defense (including, without limitation, 

pleadings or other documents intended for filing with the Court) that do or 

may contain classified information must be prepared in a secure area on 

word processing equipment approved by the Court Security Officer. All 

such documents and any associated materials (such as notes, drafts, copies, 

typewriter ribbons, magnetic recordings, exhibits) containing classified 

information shall be maintained in the secure area unless and until the Court 

Security Officer determines that those documents or associated materials are 

unclassified in their entirety. None of these materials shall be disclosed to 

counsel for the United States. 

Protective Order- 8 

28 WarsameCIPA ProtecOrder.wpd 

319
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

e. Counsel for the Defendant and employees of counsel for the 

Defendant shall discuss classified information only within the secure area or 

in an area authorized by the Court Security Officer. 

f. The defense shall not disclose, without prior approval of the Court, 

the contents of any classified documents or information to any person not 

named in this Order except the Court, Court personnel and the attorneys for 

the United States identified by the Court Security Officer as having the 

appropriate clearances and the need to know. Counsel for the United States 

shall be given an opportunity to be heard in response to any defense request 

for disclosure to a person not named in this Order. Any person approved by 

the Court for disclosure under this paragraph shall be required to obtain the 

appropriate security clearance, to sign and submit to the Court the 

Memorandum of Understanding appended to the Order, and to comply with 

all the terms and conditions of the Order. If preparation of the defense 

requires that classified information be disclosed to persons not named in 

this Order, the Department of Justice shall promptly seek to obtain security 

clearances for them at the request of defense counsel. 

g. The Defendant, counsel for the Defendant, employees of counsel for 

the Defendant and defense witnesses shall not discuss classified information 

over any standard commercial telephone instrument or office 

intercommunication systems, including but not limited to the internet, or in 

the presence of any person who has not been granted access by the Court to 

classified information. 

h. Any documents written by the defense that do or may contain 

classified information shall be transcribed, recorded, typed, duplicated, 

copied or otherwise prepared only by persons who have received an 

appropriate approval for access to classified information. 

Protective Order - 9 

28 WarsameCIPA ProtecOrder.wpd 

320
1 

2 

3 

4 

5 

6 

7 

8 

1. If counsel for the government advise defense counsel that certain 

classified information or documents may not be disclosed to the Defendant, 

then defense counsel, employees of defense counsel, and defense witnesses 

shall not disclose such information or documents to the Defendant without 

prior concurrence of counsel for the government or, absent such 

concurrence, approval of the Court. Counsel for the government shall be 

given an opportunity to be heard in response to any defense request for 

disclosure to the defendant of such classified information. 

14. Defense counsel, employees of defense counsel, and defense 

9 witnesses shall not disclose such information or documents to the defendant 

10 without prior concurrence of counsel for the government, or, absent such 

11 concurrence, prior approval of the Court. Counsel for the government shall be 

12 given an opportunity to be heard in response to any defense request for disclosure 

13 to the defendant of such classified information. 

14 15. Classified Information Procedures Act. Procedures for the public 

15 disclosure of classified information by the defense shall be those established in 

16 sections 5 and 6 ofCIPA. No classified information may be disclosed by any 

17 defense except: 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

a. to the Court, court personnel and government attorneys and their 

agents and employees identified by the Court Security Officer or a designee 

as holding proper approval for access to classified information; 

b. to representatives of the agency or department originating the 

classified information who have been identified by the Court Security 

Officer as holding proper security clearances and having the need to know 

the classified information; 

c. in accordance with the procedures of CIP A and the procedures 

established by the Court Security Officer; or 

Protective Order - 10 

28 WarsameCIPA ProtecOrder.wpd 

321
d. to persons who have been authorized to have access to classified 

1 information pursuant to this Order or to CIP A. 

2 To facilitate the defense in its filing of notices as required under Section 5 of 

3 CIP A, the Court Security Officer shall make arrangements with the appropriate 

4 Agencies for a determination of the classification level, if any, of materials or 

5 information either within the possession of the defense or about which the defense 

6 has knowledge and which the defense intends to use in any way at any pretrial 

7 proceeding or at trial. Nothing submitted by the defense to the Court Security 

8 Officer or a designee pursuant to this paragraph shall be made available to counsel 

9 for the United States unless so ordered by the Court, or so designated by the 

10 defense. Any and all of these items which are classified shall be listed in 

11 defendant's Section 5 notice. 

12 16. The defense may not contact any employee of any government 

13 intelligence agency without making prior arrangements with a government 

14 attorney, unless the defense files a motion with the Court (which may be ex parte 

15 at the discretion of defense counsel), to authorize such contact, provides the 

16 government notice of such motion, and obtains a court order authorizing that 

17 contact. This is required since the identities of the government intelligence 

18 employees may be classified, and formal arrangements may be required to protect 

19 the classified information which may be the subject of discussion by the parties. 

20 17. Any unauthorized disclosure of classified information may constitute 

21 violations of United States criminal laws. In addition, any violation of the terms 

22 of this Order shall be brought immediately to the attention of the Court and may 

23 result in a charge of contempt of Court and possible referral for criminal 

24 prosecution. Any breach of this Order may also result in termination of an 

25 individual's access to classified information. Persons subject to this Order are 

26 advised that direct or indirect unauthorized disclosure, retention or negligent 

27 

Protective Order - 11 

28 WarsameCIPA ProtecOrder.wpd 

322
handling of classified documents or information could cause serious damage, and 

1 in some cases exceptionally grave damage to the national security of the United 

2 States or may be used to the advantage of a foreign nation against the interests of 

3 the United States. This Protective Order is to ensure that those authorized to 

4 receive classified information in connection with this case will never divulge that 

5 information to anyone not authorized to receive it, without prior written 

6 authorization from the originating agency and in conformity with this Order. 

7 18. All classified documents and information which counsel for the 

8 Defendant, employees of counsel for the Defendant or defense witnesses have 

9 access to in this case are now and will remain the property of the United States. 

10 Upon demand of the Court Security Officer, these persons shall return to the Court 

11 Security Officer, all classified information in their possession obtained through 

12 discovery from the government in this case, or for which they are responsible 

13 because of access to classified information. The notes, summaries and other 

14 documents prepared by the defense that do or may contain classified information 

15 shall remain at all times in the custody of the Court Security Officer for the 

16 duration of the case. At the conclusion of this case, all such notes, summaries and 

17 other documents are to be destroyed by the Court Security Officer in the presence 

18 of defense counsel. 

19 19. A copy of this Order shall be issued forthwith to defense counsel who 

20 shall be responsible for advising the Defendant, employees of counsel for the 

21 defendant, and defense witnesses of the contents of this Order. Counsel for the 

22 defendant, each employee of counsel for the Defendant and defense witnesses who 

23 will be provided access to the classified information, shall execute the 

24 Memorandum of Understanding described in paragraph 12 of this Order, and 

25 counsel for the defendant shall file executed originals of such documents with the 

26 Court and the Court Security Officer and serve an executed original upon the 

27 

Protective Order- 12 

28 WarsameCIPA ProrecOrder.wpd 

323
United States. The execution and filing of the Memorandum of Understanding is a 

1 condition precedent for counsel for the defendants, any employee of counsel for 

2 the Defendant, and any defense witness to have access to classified information. 

3 ORDERED this i> -t1- day of March, 2005. 

4 

5 

6 

7 WE ASK FOR THIS: 

8 THOMAS B. HEFFELFINGER 

9 United States Attorney 

10 h_/0Ud 11 Michael W. Ward 

12 Assistant United States Attorney 

Attorney ID Number 190755 

13 

14 

1

5 SEEN AND AGREED TO: 

16 ~~c:, v_~ 

17 David Thomas 

Counsel for Defendant 

18 Mohammed Abdullah Warsame 

19 

20 

21 

22 

23 

24 

25 

26 

27 

Protective Order- 13 

28 WarsameCIPA ProtecOrder.wpd 

~ k .(f::.k ~·WL- JOHN R. TUNHEIM 

United States District Court Judge 

• 

324
United States v. Lindh

(E.D. Va. 1:02-cr-37)

Protective Order ............................................................................................... 326

325
• ' 

• I · 1 -, -, : .,..J !. ~~ r:~.~ ~- .~ .. " l i , r-~-. i§ -~ .. IN THE UNITED STATES DISTRICT COURT ~OR 'Tli.E I 

• ,i .._·,·_:_ ,.. ____ E ___ (l}e ___ 2 ___ 1.. 2002 

1

; __ , EASTERN DISTRICT OF VIRGINIA! 

' 

Alexandria Division '- c~~~~x'-:~_~-..r:;;s~=I£~~ _ UNITED STATES OF AMERICA ) 

) 

v. ) CRIMINAL NO. 02-37-A 

) (J- ELLIS) 

JOHN PHILLIP WALKER LINDH ) 

PROTECTIVE ORDER 

This matter comes before the Court upon the Government's 

Motion for Protective Order to prevent the unauthorized 

disclosure or dissemination of classified national security 

information and documents which will be reviewed by or made 

available to the defense in this case. 

Pursuant to the authority granted under Section 3 of the 

Classified Information Procedures Act, 18 U.S. C. App. 3 (CIPA); 

the Security Procedures Established Pursuant to Pub. L. 96-456, 

94 Stat. 2025, by the Chief Justice of the United States for the 

Protection of Classified Information (reprinted following CIPA 

Section 9); Rules 16(d) and 57 of the Federal Rules of Criminal 

Procedure; the ordinary principles of contract law; the general 

supervisory authority of the Court; and in order to protect the 

national security, 

IT IS HEREBY ORDERED THAT: 

1. The Court finds that this case will involve information 

that has been classified in the interest of national security. 

1 

31 

326
The storage, handling, control, and use of this information will 

require special security precautions mandated by statute, 

executive order, and regulation. 

2. The procedures set forth in this Protective Order are 

intended to govern the time period throughout all post-indictment 

proceedings, including trial and post-trial (including appellate) 

matters in this case, and may be modified from time to time by 

further order of the Court acting under its inherent supervisory 

authority. 

3. As used herein, the terms "classified national security 

information and documents," "classified information" and 

"classified documents" refer to: 

A. any document which has been classified by any 

Executive Branch agency in the interest of national security or 

pursuant to Executive Order 12958 as "CONFIDENTIAL," "SECRET," 

"TOP SECRET," or "SENSITIVE COMPARTMENTED INFORMATION," or 

information contained in such document; 

B. any document or information, regardless of its 

physical form or characteristics, now or formerly in the 

possession of a private party or a foreign government which (1) 

has been derived from information from the United States 

government that was classified, and (2) that has subsequently 

been classified by the government pursuant to Executive Order 

12958 as "CONFIDENTIAL," "SECRET," "TOP SECRET" or "SENSITIVE 

2 

327
COMPARTMENTED INFORMATION (SCI)"; 

C. verbal classified information known to the 

defendant or defense counsel; or 

D. any information regardless of origin and including 

foreign classified documents, that could reasonably be believed 

to contain classified information, or that refers or relates to 

national security or intelligence matters, unless and until the 

Court Security Officer or counsel for the United States advises 

otherwise in writing, or the material in question is produced to 

the defense by the Government as unclassified material. 

4. The words "documents" or "information" shall include, 

but are not limited to, all written or printed matter of any 

kind, formal or informal, including originals, conforming copies 

and non-conforming copies (whether different from the original by 

reason of notation made on such copies or otherwise), and further 

include, but are not limited to, 

A. papers, correspondence; memoranda; notes; letters; 

reports; summaries; photographs; maps; charts and graphics; 

inter-office and intra-office communications; notations of any 

sort concerning conversations, meetings, or other communications; 

bulletins; teletypes, telegrams, and telefacsimiles; invoices; 

worksheets; and drafts, alterations, modifications, changes and 

amendments of any kind to the foregoing; 

B. graphic or oral records or representations of any 

3 

328
kind, including, but not limited to, photographs, charts, graphs, 

microfiche, microfilm, videotapes, sound recordings of any kind, 

and motion pictures; 

C. electronic, mechanical or electric records of any 

kind, including, but not limited to, tapes, cassettes, disks, 

recordings, films, typewriter ribbons, word processing or other 

computer tapes or disks, and all manner of electronic data 

processing storage; and 

D. information acquired orally. 

5. All classified documents and information contained 

therein shall remain classified until the documents bear a clear 

indication that they have been declassified by an authorized 

agency or department of the United States. 

6. Information in the public domain is ordinarily not 

classified. However, such information may be considered as 

classified, and therefore subject to the provisions of CIPA, if 

it is confirmed by any person who has, or has had, access to the 

classified information, and that confirmation corroborated the 

information in question. Any attempt by the defendant or defense 

counsel to have such information confirmed or denied at trial, or 

in connection with any proceeding in this case, shall be governed 

by CIPA and all provisions of this Order. 

7. "Access to classified information" means having access 

to, reviewing, reading, learning, or otherwise coming to know in 

4 

329
· .. 

any manner any classified information. 

8. "Secure area" shall mean a physical facility accredited 

for the storage, handling, and control of classified information. 

9. In accordance with the provisions of CIPA and the 

Security Procedures, the Court designates Christine Gunning as 

Court Security Officer for this case, and Michael P. Macisso, 

Charles L. Alliman, Earl D. Hicks, James P. Londergan, and 

Barbara J. Russell as Alternate Court Security Officers, for the 

purpose of providing security arrangements necessary to protect 

from unauthorized disclosure any classified documents or 

information to be made available in connection with this case. 

Defense counsel shall seek guidance from the Court Security 

Officer with regard to appropriate storage, handling, 

transmittal, and use of classified information. 

10. The Court Security Officer shall arrange for an 

appropriately approved secure area for the use of counsel for the 

defense and their employees. The Court Security Officer shall 

establish procedures to assure that the secure area is accessible 

to defense counsel, employees of defense counsel, and authorized 

witnesses accompanied by defense counsel during normal business 

hours and at other times upon reasonable request, as approved by 

the Court Security Officer and in consultation with the United 

States Marshal Service. The secure area shall contain a separate 

working area for defense counsel, and will be outfitted with any 

5 

330
secure office equipment requested by defense counsel that is 

reasonable and necessary to the preparation of the defense. The 

Court Security officer, in consultation with defense counsel, 

shall establish procedures to assure that the secure area may be 

maintained and operated in the most efficient manner consistent 

with the protection of classified information. The Court 

Security Officer shall not reveal to the government the content 

of any conversations she/he may hear between defense counsel and 

their employees, nor reveal the nature of documents being 

reviewed by them, or the work generated by them, except as 

authorized by defense counsel. In addition, the presence of the 

Court Security Officer shall not operate as a waiver of, limit, 

to otherwise render inapplicable, the attorney-client privilege. 

11. Filing of Papers by Defendant. Any pleadings or other 

document filed by the defendant shall be filed under seal with 

the Court through the Court Security Officer and shall be marked: 

"Filed in Camera and Under Seal with the Court Security Officer." 

The time of physical submission to the Court Security Officer 

shall be considered the date and time of filing. The Court 

Security Officer shall promptly examine the pleading or documents 

and, in consultation with representatives of the appropriate 

agencies, determine whether the pleading or document contains 

classified information. If the Court Security Officer determines 

that the pleading or document contains classified information, 

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331
she/he shall ensure that the portion of the document, and only 

that portion, is marked with the appropriate classification 

marking and that the document remains under seal, unless the 

Court directs that a redacted version of the document be placed 

on the public record. Any document filed by the defendant that 

does not contain classified information shall immediately be 

unsealed by the Court Security Officer and placed in the public 

record. The Court Security Officer shall immediately deliver 

under seal to the Court and counsel for the government any 

pleading or document to be filed by the defendant that contains 

classified information; the Court shall then direct the clerk to 

enter on the docket sheet the title of the pleading or document, 

the date it is filed, and the fact that it has been filed under 

seal with the Court Security Officer. 

12. Filing of Papers by the Government. Pleadings or 

documents filed by the government containing classified 

information shall be filed under seal with the Court through the 

Court Security Officer. Such pleadings and documents shall be 

marked: "Filed in Camera and Under Seal with the Court Security 

Officer." The date and time of physical submission to the Court 

Security Officer shall be considered the date and time of the 

filing. 

13. Protection of Classified Information. The Court finds 

that, in order to protect the classified information involved in 

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332
this case, no person except counsel for the defendant shall have 

access to the classified information in this case unless the 

Court grants permission. "Counsel for the defendant" is defined 

as the following individuals, assuming they receive the 

appropriate security clearances and execute the Memorandum of 

Understanding referenced in this order: James J. Brosnahan, 

George c. Harris, Tony West, Raj Chatterjee, William Cummings and 

David T. Williams. No defense counsel shall have access to any 

classified information in this case unless that person shall 

first have: 

A. received an approval for access to the appropriate 

level of classification from the Court on a need to know basis; 

B. received from the Court Security Officer the 

appropriate security clearance for the level of classified 

information involved in this litigation (For the purpose of 

establishing security clearances necessary for access to 

classified information that may be involved in this case, 

Standard Form 86 ("Security Investigation Data for Sensitive 

Position"), attached releases, and full fingerprints shall be 

completed and submitted to the Court Security Officer forthwith 

by defense counsel and all persons whose assistance the defense 

counsel requires.); and 

C. signed the Memorandum of Understanding in the form 

attached hereto, agreeing to comply with the terms of this Order. 

8 

333
) 

An executed original of each signed Memorandum of Understanding 

shall be filed with the Court. The substitution, departure, or 

removal for any reason from this case of counsel, for the 

defendant, or anyone associated with the defense as an employee 

or witness or otherwise, shall not release that person from the 

provisions of this Order or the Memorandum of Understanding 

executed in connection with this order. 

Persons other than counsel for the government, appropriately 

cleared Department of Justice employees, and appropriately 

cleared personnel of the originating agency, can only obtain 

access to classified documents and information after having been 

granted a security clearance by the Court Security Officer, and 

with permission of the Court. Before any person other than 

counsel for the government, appropriately cleared Department of 

Justice employees, and personnel of the originating agency, is 

permitted by the Court to inspect and review classified 

information, he or she must also sign the Memorandum of 

Understanding. 

14. Access to Classified Information. In the interest of 

National Security, the defendant shall not have any access to 

classified information except as provided for by the procedures 

in Section 14 (F) and (G) . Defense counsel shall have access to 

classified information only as follows: 

A. All classified information produced by the 

9 

334
government to counsel for the defendant, in discovery or 

otherwise, and all classified information possessed, created, or 

maintained by the defense, shall be stored, maintained, and used 

only in the secure area established by the Court Security 

Officer. 

B. Defense counsel shall have free access to the 

classified information made available to them in the secure area, 

and shall be allowed to take notes and prepare documents with 

respect to those material. 

C. No person, including defense counsel, shall copy or 

reproduce any classified information in any form, except with the 

approval of the Court Security Officer or in accordance with the 

procedures established by the Court Security Officer for the 

operation of the secure area. 

D. All documents prepared by counsel for the defense 

(including without limitation, pleadings or other documents 

intended for filing with the Court) that do or may contain 

classified information, must be prepared in the secure area with 

approved word processing equipment and in accordance with the 

procedures approved by the Court Security Officer. All such 

documents and any associated material (such as notes, drafts, 

copies, typewriter ribbons, magnetic recordings, exhibits) 

containing classified information shall be maintained in the 

secure area unless and until the Court Security Officer 

10 

335
r 

i 

I 

I 

determines that those documents or associated material are 

unclassified in their entirety. None of these materials shall be 

disclosed to counsel for the government. 

E. Defense counsel shall discuss classified 

information only within the secure area or in an area authorized 

by the Court Security Officer. 

F. Defense counsel shall not disclose without prior 

approval of the Court the contents of any classified documents or 

information to any person not authorized pursuant to this Order, 

including the defendant, except the Court, Court personnel, and 

the attorneys for the government, who have been identified by the 

Court Security Officer as having the appropriate clearances and 

the need to know that information. Counsel for the government 

shall be given an opportunity to be heard in response to any 

defense request for disclosure to any person not named in this 

Order. Any person approved by the Court for disclosure under 

this paragraph shall be required to obtain the appropriate 

security clearance, to sign and submit to the Court the 

Memorandum of Understanding appended to this Order, and to comply 

with each and every term and condition of this Order. If 

preparation of the defense requires that classified information 

be disclosed to persons not named in this Order, the Court 

Security Officer shall promptly seek to obtain security 

clearances for them at the request of defense counsel. 

11 

336
G. Defense counsel shall not disclose to the 

defendant, without prior concurrence of counsel for the 

government, or, absent such concurrence, prior approval of the 

Court, the contents of any classified documents or information 

provided to the defense in connection with the litigation of this 

matter. The Government shall review and respond to any such 

request promptly. ~ounsel for the government shall be given an 

opportunity to be heard in response to any defense request for 

disclosure to the defendant of classified information. This 

Court will consider a defense request to disclose classified 

information to the defendant where the government refuses to 

concur. 

H. The defendant, defense counsel, employees of 

defense counsel, and defense witnesses shall not discuss 

classified information over any standard commercial telephone 

instrument or office intercommunication system. 

I. Any documents written by the defense that do or may 

contain classified information shall be transcribed, recorded, 

typed, duplicated, copied, or otherwise prepared only by persons 

who have received an appropriate approval for access to 

classified information. 

15. Classified Information Disclosed to Defendant. Should 

classified information be disclosed to the defendant in the 

course of this litigation, the defendant is enjoined from 

12 

337
' . ' . I i 

disclosing such classified information to any unauthorized person 

at any time. Nothing in this order shall be construed as a 

limitation on the government in filing additional criminal 

charges against the defendant in the event of an unauthorized 

disclosure of classified information, or instituting civil 

litigation to further enforce these agreements. 

16. Classified Information Procedures Act. Procedures for 

the public disclosure of classified information by the defense 

shall be those provided in Sections 5 and 6 of CIPA. No 

classified information may be disclosed by the defense except: 

A. to the Court, court personnel, and government 

attorneys and their agents and employees identified by the Court 

Security Officer as holding proper approvals for access to 

classified information; 

B. to representatives of the agency or department 

originating the classified information who have been identified 

by the Court Security Officer as holding proper security 

clearances and having the need to know the classified 

information; 

C. in accordance with the procedures of CIPA and the 

procedures established by the Court Security Officer; and 

D. to persons who have been authorized to have access 

to classified information pursuant to this Order or to CIPA. 

17. Any unauthorized disclosure of classified information 

13 

338
. - . . ( 

may constitute violations of United States criminal laws. In 

addition, any violation of the terms of this Order shall be 

immediately brought to the attention of the Court and may result 

in a charge of contempt of Court and possible referral for 

criminal prosecution. Any breach of this Order will also result 

in the termination of a person's access to classified 

information. Persons subject to this Order are advised that 

direct or indirect unauthorized disclosure, retention, or 

negligent handling of classified documents or information could 

cause serious damage, and in some cases exceptionally grave 

damage, to the national security of the United States or may be 

used to the advantage of a foreign nation against the interests 

of the United States. This Order is to ensure that those 

authorized by the Order to receive classified information will 

never divulge the classified information disclosed to them to 

anyone who is not now authorized to receive it, without prior 

written authorization from the originating agency and in 

conformity with this Order. 

18. All classified information to which the defendant, 

defense counsel, defense counsel employees, or any defense 

witnesses has access in this case will remain the property of the 

government. The defendant, defense counsel, defense counsel 

employees, and defense witnesses shall return all classified 

information in their possession obtained through discovery from 

14 

339
} 

the government in this case, or for which they are responsible 

because of access to classified information, upon demand of the 

Court Security Officer. The notes, summaries, and other 

documents prepared by the defense that do or may contain 

classified information shall remain at all times in the 

designated and approved secure area or in the custody of the 

Court Security Officer for the duration of this case. At the 

conclusion of this case, all such notes, summaries, and other 

documents are to be destroyed by the Court Security Officer in 

the presence of defense counsel. 

19. A copy of this Order shall be issued forthwith to 

counsel for the defendant, who shall be responsible for advising 

the defendant of the contents of this Order. Counsel for the 

defendant who are to be provided access to classified information 

shall execute the Memorandum of Understanding appended to this 

Order, and defense counsel shall file an executed original with 

the Court and the Court Security Officer and serve executed 

original of such document upon the government. The execution and 

filing of the Memorandum of Understanding is a condition 

precedent for defense counsel being granted access to classified 

information in this case. 

Date Judge 

15 

340
J j 

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA 

) 

v. CRIMINAL NO. 02-37-A 

(J. ELLIS) 

JOHN PHILLIP WALKER LINDH 

MEMORANDUM OF UNDERSTANDING REGARDING 

RECEIPT OF CLASSIFIED INFORMATION 

Having familiarized myself with the applicable espionage 

laws, I understand that I may be recipient of information and 

documents that concern the present and future security of the 

United States and belong to the United States, and that such 

information and documents, together with the sources and methods 

of collecting ti, are classified according to security standards 

set by the United States government. In consideration for the 

disclosure to me of classified information and documents, as 

necessary in connection with this case: 

l. I agree that I shall never divulge, publish, or reveal, 

either by word, conduct, or any other means, such classified 

information and documents unless specifically authorized in 

writing to do so by an authorized representative of the United 

States Government, or as authorized by the Court pursuant to the 

341
... j 

Classified Information Procedures Act, or as provided for in the 

Protective Order entered in the case of United States v. John 

Phillip Walker Lindh now pending in the Eastern District of 

Virginia. 

2. I agree that this agreement and any other nondisclosure 

agreement will remain binding upon me after the conclusion of the 

proceedings in the above-captioned case. 

I have received and read a copy of the Protective Order 

entered in this case by the United States District Court for the 

Eastern District of Virginia on ----------' 2002, relating 

to classified information. I understand this Protective Order, 

and I agree to comply with the provisions of it. 

I declare under penalty of perjury under the law of the 

United States that the foregoing is true and correct to the best 

of my knowledge, information, and belief. 

Signature 

Date 

Witness 

342
United States v. Moussaoui

(E.D. Va. 1:01-cr-455)

Protective Order ............................................................................................... 344

343
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA 

V. Crim. No. 01-455-A 

ZACARIAS MOUSSAOUI 

PROTECTIVE ORDER 

~222002 

CLER~U.S. DISTRICT CO 

Alt,r.ANDRIA VIRGINIA 

This matter comes before the Court upon the Government's 

Motion for Protective Order to prevent the unauthorized 

disclosure or dissemination of classified national security 

information and documents which will be reviewed by or made 

available to, or are otherwise in the possession of, the 

defendant and/or defense counsel in this case. 

Pursuant to the authority granted under Section 3 of the 

Classified Information Procedures Act, 18 U.S.C. App. 111 (1994) 

(CIPA); the Security Procedures Established Pursuant to Pub. L. 

96-456, 94 Stat. 2025, by the Chief Justice of the United States 

for the Protection of Classified Information (reprinted following 

CIPA Section 9); Rules 16(d) and 57 of the Federal Rules of 

Criminal Procedure; the general supervisory authority of the 

Court; and in order to protect the national security, 

IT IS ORDERED: 

1. The Court finds that this case will involve classified 

national security information, the storage, handling and control 

344
of which requires special security precautions, and access to 

which requires a security clearance and a "need to know." 

2. The purpose of this Order is to establish the 

procedures that must be followed by all defense counsel of 

record, their respective defendant(s), all other counsel involved 

in this case, translators for the defense, any Court personnel, 

and all other individuals who receive access to classified 

national security information or documents in connection with 

this case. 

3. The procedures set forth in this Protective Order and 

the Classified Information Procedures Act will apply to all pretrial, trial, post-trial, and appellate aspects concerning this 

case, and may be modified from time to time by further order of 

the Court acting under Fed. R. Crim. P. 16(d), Sections 3 and 9 

of CIPA, and its inherent supervisory authority to ensure a fair 

and expeditious trial. 

4. As used herein, the terms "classified national security 

information and documents," "classified information" and 

"classified documents" refer to: 

a. any classified document or information which has 

been classified by any Executive Branch agency in the interests 

of national security or pursuant to Executive Order 12958 or its 

predecessor Orders as "CONFIDENTIAL," "SECRET," or "TOP SECRET," 

or additionally controlled as "SENSITIVE COMPARTMENTED 

2 

345
INFORMATION (SCI)", or any information contained in such 

documenti 

b. any document or information, regardless of its 

physical form or characteristics, now or formerly in the 

possession of a private party, which has been derived from United 

States government information that was classified, regardless 

whether such document or information has subsequently been 

classified by the government pursuant to Executive Order 12958 or 

its predecessor Orders as "CONFIDENTIAL", "SECRET", or "TOP 

SECRET" or additionally controlled as "SENSITIVE COMPARTMENTED 

INFORMATION (SCI)"i 

c. verbal classified information known to the 

defendant or defense counseli or 

d. any document and information as to which the 

defendant or defense counsel have been notified orally or in 

writing that such documents or information contains classified 

information. 

5. The words "documents" or "information" shall include, 

but are not limited to, all written or printed matter of any 

kind, formal or informal, including originals, conforming copies 

and non-conforming copies (whether different from the original by 

reason of notation made on such copies or otherwise) , and further 

include, but are not limited to, 

3 

346
a. papers; correspondence; memoranda; notes; letters; 

reports; summaries; photographs; maps; charts and graphs; 

interoffice and intra-office communications; notations of any 

sort concerning conversations, meetings, or other communications; 

bulletins; teletypes, telegrams, and telefacsimiles; invoices; 

worksheets; and drafts, alterations, modifications, changes and 

amendments of any kind to the foregoing; 

b. graphic or oral records or representations of any 

kind, including, but not limited to, photographs, charts, graphs, 

microfiche, microfilm, videotapes, sound recordings of any kind, 

and motion pictures; 

c. electronic, mechanical or electric records of any 

kind, including, but not limited to, tapes, cassettes, disks, 

recordings, films, typewriter ribbons, word processing or other 

computer tapes or disks, and all manner of electronic data 

processing storage; and 

d. information acquired orally. 

6. All classified documents, and information contained 

therein, shall remain classified unless the documents bear a 

clear indication that they have been declassified by the agency 

or department that is the originating agency of the document or 

the information contained therein (hereinafter, the "originating 

agency"). 

4 

347
7. "Access to classified information" means having access 

to, reviewing, reading, learning, or otherwise coming to know in 

any manner any classified information. 

8. "Secure area" shall mean a physical facility accredited 

for the storage, handling, and control of classified information. 

9. In accordance with the provisions of CIPA and the 

Security Procedures, the Court designates Christine E. Gunning as 

Court Security Officer for this case, and Michael P. Macisso, 

Charles L. Alliman, Earl D. Hicks, James P. Londergan, and 

Barbara J. Russell as Alternate Court Security Officers, for the 

purpose of providing security arrangements necessary to protect 

from unauthorized disclosure any classified documents or 

information to be made available in connection with this case. 

Defense counsel shall seek guidance from the Court Security 

Officer with regard to appropriate storage, handling, 

transmittal, and use of classified documents and information. 

10. The Court has been advised that the following 

government attorneys working on this case, Paul J. McNulty, 

Robert A. Spencer, Kenneth M. Karas, David J. Novak, John W. Van 

Lonkhuyzen, and Margaret Griffey, have the requisite Security 

clearances to have access to the classified documents and 

information that relate to this case. All references to 

government attorneys, or attorneys for the government, as used in 

this Order, refer only to the attorneys listed in this paragraph. 

5 

348
11. No defendant, counsel for a defendant, employee of 

counsel for a defendant, or defense witness shall have access to 

any classified information involved in this case unless that 

person shall first have: 

a. received the necessary security clearance as 

determined by the Department of Justice Security Officer working 

in conjunction with the CSO, or approval from the Court (as set 

forth below in paragraph 8), or the Government for access to the 

particular classified information in questioni approval by the 

Court shall not occur but upon a showing to the Court's 

satisfaction of a "need to know" the particular classified 

informationi and 

b. signed the Memorandum of Understanding ("MOU") in 

the form attached hereto agreeing to comply with the terms of 

this Order. 

12. The following attorneys for the defense and their 

approved employees (collectively referred to herein as "the 

defense"), shall be given access to classified documents and 

information as required by the government's discovery obligations 

and otherwise as necessary to prepare for proceedings in this 

case: Frank W. Dunham, Jr.i Gerald T. Zerkini Edward B. MacMahon, 

Jr., Michael Nachmanoff, Ken Troccoli, Linda McGrew, and Pam 

Bishop. Any additional person whose assistance the defense 

reasonably requires may only have access to classified 

6 

349
information in this case after obtaining from the Court -- with 

prior notice to the government -- an approval for access to the 

appropriate level of classification on a need to know basis, and 

after satisfying the other requirements described in this order 

for access to classified information. The substitution, 

departure, or removal for any reason from this case of defense 

counsel or anyone associated with the defense as an employee or 

witness or otherwise, shall not release that person from the 

provisions of this order or the Memorandum of Understanding 

executed 1n connection with this Order. 

13. Unless already holding an appropriate security 

clearance, and approved for access to classified information in 

this case, for the purpose of establishing security clearances 

necessary for access to classified information that may be 

involved in this case, Standard Form 86 ("Security Investigation 

Data for Sensitive Position"), attached releases, and full 

fingerprints shall be completed and submitted to the Court 

Security Officer forthwith by defense counsel, all persons whose 

assistance the defense reasonably requires, and by such Court 

personnel as the Court requires for its assistance. The Court 

Security Officer shall take all reasonable steps to process all 

security clearance applications. 

14. The Court Security Officer shall arrange for an 

appropriately approved secure area for the use of the defense. 

7 

350
The Court Security Officer shall establish procedures to assure 

that the secure area is accessible to the defense, and the 

defendant (if such access should be determined by the Court to be 

necessary) and authorized witnesses accompanied by defense 

counsel, during normal business hours and at other times on 

reasonable request as approved by the Court Security Officer. 

The secure area shall contain a separate working area for the 

defense, and will be outfitted with any secure office equipment 

requested by the defense that is reasonable and necessary to the 

preparation of the defendant's defense in this case. The Court 

Security officer, in consultation with defense counsel, shall 

establish procedures to assure that the secure area may be 

maintained and operated in the most efficient manner consistent 

with the protection of classified information. No documents 

containing classified information may be removed from this secure 

area unless authorized by the Court Security Officer. 

The Court Security Officer shall not reveal to the 

government the content of any conversations she or he may hear 

among the defense, nor reveal the nature of documents being 

reviewed by them, or the work generated by them. In addition, 

the presence of the Court Security Officer shall not operate as a 

waiver of, limit, or otherwise render inapplicable, the attorneyclient privilege. 

8 

351
15. If it is necessary for a defendant to review or discuss 

classified matters, or otherwise meet with defense counsel, in 

the Secure Area, this will only occur under appropriate 

supervision to ensure that the defendant does not escape, attempt 

to escape, cause physical injury to himself or others, or remove, 

copy, alter, or destroy classified information, or obtain access 

to classified information the defendant is not entitled to 

review, and to ensure that the defendant does not use the 

opportunity to review the classified materials to circumvent any 

applicable security restrictions, including the Special 

Administrative Measures imposed by the Bureau of Prisons, other 

prison regulations, and the other orders of this Court governing 

discovery in this case. 

16. Until further order of this Court, any pleading or 

other document filed by the defense shall be filed under seal 

with the Court through the Court Security Officer. The time of 

physical submission to the Court Security Officer shall be 

considered the date and time of filing. The Court Security 

Officer shall promptly examine the pleading or documents and, in 

consultation with representatives of the appropriate agencies, 

determine whether the pleading or document contains classified 

information. If the Court Security Officer determines that the 

pleading or document contains classified information, she or he 

shall ensure that that portion of the document, and only that 

9 

352
portion, is marked with the appropriate classification marking 

and that the document remains under seal. Any document filed by 

the defense that does not contain classified information shall 

immediately be unsealed by the Court Security Officer and placed 

in the public record. The Court Security Officer shall 

immediately deliver under seal to the Court and counsel for the 

government any pleading or document to be filed by the defense 

that contains classified information; the Court shall then direct 

the clerk to enter on the docket sheet the title of the pleading 

or document, the date it was filed, and the fact that it has been 

filed under seal with the Court Security Officer. 

17. Any pleading or other document filed by the government 

containing classified information shall be filed under seal with 

the Court through the Court Security Officer. The date and time 

of physical submission to the Court Security Officer shall be 

considered the date and time of the filing. 

18. Access to Classified Information. Defense counsel and 

their employees, and the defendant (if such access should be 

determined by the Court to be necessary) and defense witnesses 

when accompanied by defense counsel, shall have access to 

classified information only as follows: 

a. All classified information produced by the 

government to the defense, in discovery or otherwise, and all 

classified information possessed, created, or maintained by the 

10 

353
defense, shall be stored, maintained, and used only in the secure 

area established by the Court Security Officer. 

b. The defense shall have free access to the 

classified information made available to them in the secure area, 

and shall be allowed to take notes and prepare documents with 

respect to those materials. 

c. No person, including the defense, shall copy or 

reproduce any classified information in any form, except with the 

approval of the Court Security Officer or in accordance with the 

procedures established by the Court Security Officer for the 

operation of the secure area. 

d. All documents prepared by the defense (including 

without limitation, pleadings or other documents intended for 

filing with the Court) that do or may contain classified 

information, shall be transcribed, recorded, typed, duplicated, 

copied, or otherwise prepared only by persons who have received 

an appropriate approval for access to classified information, and 

in the secure area on approved word processing equipment and in 

accordance with the procedures approved by the Court Security 

Officer. All such documents and any associated materials (such 

as notes, drafts, copies, typewriter ribbons, magnetic 

recordings, exhibits) containing classified information shall be 

maintained in the secure area unless and until the Court Security 

Officer determines that those documents or associated materials 

11 

354
are unclassified in their entirety. None of these materials shall 

be disclosed to counsel for the government. 

e. The defense shall discuss classified information 

only within the secure area or in an other area authorized by the 

Court Security Officer, and shall not discuss classified 

information over any standard commercial telephone instrument or 

office intercommunication system. 

f. The defense shall not disclose, without prior 

approval of the Court, the contents of any classified documents 

or information to any person not authorized pursuant to this 

Order, except the Court, Court personnel, and the attorneys for 

the government, who have been identified by the Court Security 

Officer as having the appropriate clearances and the need to know 

that information. Counsel for the government shall be given an 

opportunity to be heard in response to any defense request for 

disclosure to a person not named in this Order. Any person 

approved by the Court for disclosure under this paragraph shall 

be required to obtain the appropriate security clearance, to sign 

and submit to the Court the Memorandum of Understanding appended 

to this Order, and to comply with all terms and conditions of 

this Order. If preparation of the defense requires that. 

Classified information be disclosed to persons not named in this 

Order, the Court Security Officer shall promptly seek to obtain 

security clearances for them at the request of defense counsel. 

12 

355
g. If counsel for the government advise defense 

counsel that certain classified information or documents may not 

be disclosed to the defendant/ then defense counsel/ employees of 

defense counsel 1 and defense witnesses shall not disclose such 

information or documents to the defendant without prior 

concurrence of counsel for the government/ or 1 absent such 

concurrence/ prior approval of the Court. Counsel for the 

government shall be given an opportunity to be heard in response 

to any defense request for disclosure to the defendant of such 

classified information. 

19. Procedures for the public disclosure of classified 

information by the defense shall be those provided in Sections 5 

and 6 of CIPA. No classified information may be disclosed by 

the defense except: 

a. to the Court/ court personnel/ and government 

attorneys and their agents and employees identified by the Court 

Security Officer as holding proper approvals for access to 

classified information; 

b. to representatives of the agency or department 

originating the classified information who have been identified 

by the Court Security Officer as holding proper security 

clearances and having the need to know the classified 

information; 

13 

356
c. in accordance with the procedures of CIPA and the 

procedures established by the Court Security Officer; and 

d. to persons who have been authorized to have access 

to classified information pursuant to this Order or to CIPA. 

To facilitate the defense filing of notices required under 

Section 5 of CIPA, the Court Security Officer shall make 

arrangements with the appropriate agencies for a determination of 

the classification level, if any, of materials or information 

either within the possession of the defense or about which the 

defense has knowledge and which the defense intends to use in any 

way at any pretrial proceeding or at trial. Nothing submitted by 

the defense to the Court Security Officer pursuant to this 

paragraph shall be made available to counsel for the government 

unless so ordered by the Court, or so designated by the defense. 

Any and all items which are classified shall be listed in the 

defendant's Section 5 notice. 

20. Any unauthorized disclosure of classified information 

may constitute violations of United States criminal laws. In 

addition, any violation of the terms of this Order shall be 

immediately brought to the attention of the Court and may result 

in a charge of contempt of Court and possible referral for 

criminal prosecution. Any breach of this Order will also result 

in the termination of a person's access to classified 

information. Persons subject to this order are advised that 

14 

357
direct or indirect unauthorized disclosure/ retention/ or 

negligent handling of classified documents or information could 

cause serious damage/ and in some cases exceptionally grave 

damage/ to the national security of the United States or may be 

used to the advantage of a foreign nation against the interests 

of the United States. This Order is to ensure that those 

authorized by the Order to receive classified information will 

never divulge the classified information disclosed to them to 

anyone who is not now authorized to receive it 1 without prior 

written authorization from the originating agency and in 

conformity with this Order. 

21. Unless otherwise ordered by the Court/ with due notice 

to the government/ all classified information to which the 

defendant/ defense counsel/ defense counsel employees/ or any 

defense witness has access in this case is now and will remain 

the property of the government. The defendant 1 defense counsel/ 

defense counsel employees/ and defense witnesses shall return all 

classified information in their possession obtained through 

discovery from the government in this case 1 or for which they are 

responsible because of access to classified information/ upon 

demand of the Court Security Officer. The notes/ summaries 1 and 

other documents prepared by the defense that do or may contain 

classified information shall remain at all times in the custody 

of the Court Security Officer for the duration of this case. At 

15 

358
the conclusion of this case, all such notes, summaries, and other 

documents are to be destroyed by the Court Security Officer in 

the presence of defense counsel. 

22. A copy of this Order shall be issued forthwith to 

counsel for the defendant, who shall be responsible for advising 

the defendant, defense counsel employees, and defense witnesses 

of the contents of this Order. The defendant, defense counsel, 

defense counsel employees, and defense witnesses to be provided 

access to classified information shall execute the Memorandum of 

Understanding appended to this Order, and defense counsel shall 

file executed originals with the Court and the Court Security 

Officer and serve executed original of such document upon the 

government. The execution and filing of the Memorandum of 

Understanding is a condition precedent for the defendant, 

16 

359
c ( 

defense counsel, defense counsel employees, and defense witnesses 

to have access to classified information. 

fltJD 

ORDERED this ~ day of January 2002, at Alexandria, 

Virginia. 

/S/ 

Leonie M. Brinkema 

United States District Judge 

WE ASK FOR THIS: 

Paul J. McNulty 

United States Attor..---.r 

Robert A. Spencer 

Kenneth M. Karas 

David J. Novak 

-

Assistant United States Attorneys 

17 

/ 

360
United States v. Regan

(E.D. Va. 1:01-cr-944)

Protective Order ............................................................................................... 362

361
FOR THE EASTERN DISTRICT OF VIRGIN 

Alexandria Division 

--m ,r-;}; 

I . I 

i 

' ! 

UNITED STATES OF AMERICA 

V. 

BRIAN PATRICK REGAN 

PROTECTIVE ORDER 

This matter comes before the Court upon the Government's 

Motion for Protective Order to prevent the unauthorized 

disclosure or dissemination of classified national security 

information and documents, which will be reviewed by or made 

available to, or is otherwise in the possession of, the defendant 

and/or his counsel in this case. 

Pursuant to the authority granted under Section 3 of the 

Classified Information Procedures Act, 18 U.S.C. App. III (1994) 

("CIPA"); the Security Procedures Established Pursuant to Pub. L. 

96-456, 94 Stat. 2025, by the Chief Justice of the United States 

for the Protection of Classified Information (the "Security 

Procedures"); Rules 16(d) and 57 of the Federal Rules of Criminal 

Procedure; the general supervisory authority of the Court; and in 

order to protect the national security, 

362
IT IS ORDERED: 

1. The procedures set forth in this Protective Order are 

intended to govern the time period preceding indictment in this 

case, as well as throughout all post-indictment proceedings. 

Accordingly, these procedures shall apply to all pre-indictment, 

pretrial, trial, and post-trial (including appellate) matters in 

this case, and may be modified from time to time by further order 

of the Court acting under its inherent supervisory authority to 

ensure the proceedings in this case are fair and expeditious. 

2. As used in this Order, the terms ''classified national 

security information and documents," "classified information" and 

"classified documents" refer to: 

a. any classified document or information which has 

been classified by any Executive Branch agency in the interests 

of national security or pursuant to Executive Order 12958 or its 

predecessor Orders as "CONFIDENTIAL," "SECRET," or "TOP SECRET," 

or additionally controlled as "SENSITIVE COMPARTMENTED 

INFORMATION" ("SCI •) , or any information contained in such 

document; 

b. any document or information, regardless of its 

physical form or characteristics, now or formerly in the 

possession of a private party, which has been derived from United 

States government information that was classified, regardless 

whether such document or information has subsequently been 

2 

363
classified by the government pursuant to Executive Order 12958 or 

its predecessor Orders as "CONFIDENTIAL", "SECRET", or "TOP 

SECRET", or additionally controlled as "SENSITIVE COMPARTMENTED 

INFORMATION" ("SCI") ; 

c. verbal classified information known to the 

defendant or defense counsel; 

d. any information, regardless of place or origin and 

including "foreign government information" as that term is 

defined in Executive Order 12958, that could reasonably be 

believed to contain classified information, or that refers or 

relates to national security or intelligence matters; 

e. any document or information as to which the 

defendant or defense counsel have been notified orally or in 

writing that such document or information contains classified 

information. 

3. The words "documents" or "information" as used in this 

Order include, but are not limited to, all written or printed 

matter of any kind, formal or informal, including originals, 

conforming copies and non-conforming copies (whether different 

from the original by reason of notation made on such copies or 

otherwise), and further include, but are not limited to, 

a. papers; correspondence; memoranda; notes; letters; 

telegrams; reports; summaries; inter-office and intra-office 

communications; notations of any sort concerning conversations, 

3 

364
information that relate to this case. All references to 

gov~rnment attorneys, or attorneys for the government, as used in 

this Order, refer only to the attorneys listed in this paragraph. 

10. The defendant and his counsel, Nina J. Ginsberg, and 

her approved employees (collectively referred to herein as "the 

defense") shall be given access to classified national security 

documents and information as required by the government's 

discovery obligations and as necessary to prepare for proceedings 

in this case, in accordance with the terms of this Protective 

Order, and any other orders pursuant to CIPA, and upon receipt of 

the appropriate security clearances. Any additional person whose 

assistance the defense reasonably requires may only have access 

to classified information in this case after obtaining from the 

Court -- with prior notice to the government -- an approval for 

access to the appropriate level of classification on a need to 

know basis, and after satisfying the other requirements described 

in this Order for access to classified information. The 

substitution, departure, or removal for any reason from this case 

of defense counsel or anyone associated with the defense as an 

employee or witness or otherwise, shall not release that person 

from the provisions of this Order or the Memorandum of 

Understanding executed in connection with this Order. 

6 

365
I i 

11. Unless already holding an appropriate security 

clearance, and approved for access to classified information in 

this case, for the purpose of establishing security clearances 

necessary for access to classified information that may be 

involved in this case, Standard Form 86 ("Security Investigation 

Data for Sensitive Position"), attached releases, and full 

fingerprints shall be completed and submitted to the Court 

Security Officer forthwith by defense counsel, by all persons 

whose assistance the defense reasonably requires, and by such 

Court personnel as the Court requires for its assistance. The 

Court Security Officer shall take all reasonable steps to process 

all security clearance applications. 

12. Before any person, including the defendant and his 

counsel -- but not including government counsel and appropriately 

cleared Court personnel, Department of Justice employees, and 

personnel of the originating agencies -- may have access to 

classified national security information that may be involved in 

this case, he or she must also sign and swear to the Memorandum 

of Understanding ("MOU") appended to this Protective Order. Each 

person executing the MOU must file an executed original with the 

Court and in addition must provide an executed original to the 

Court Security Officer. 

7 

366
13. The Court Security Officer shall arrange for an 

appropriately approved secure area for the use of the defense. 

The Court Security Officer shall establish procedures to assure 

that the secure area is accessible to the defense, and the 

defendant and authorized witnesses accompanied by defense 

counsel, during normal business hours and at other times on 

reasonable request as approved by the Court Security Officer. 

The secure area shall contain a separate working area for the 

defense, and will be outfitted with any secure office equipment 

requested by the defense that is reasonable and necessary to the 

preparation of the defendant's defense in this case. The Court 

Security Officer, in consultation with defense counsel, shall 

establish procedures to assure that the secure area may be 

maintained and operated in the most efficient manner consistent 

with the protection of classified information. No documents 

containing classified information may be removed from this secure 

area unless authorized by the Court Security Officer with notice 

to the Court. 

The Court Security Officer shall not reveal to the 

government the content of any conversations she or he may hear 

among the defense, nor reveal the nature of documents being 

reviewed by them, or the work generated by them. In addition, 

the presence of the Court Security Officer shall not operate as a 

8 

367
waiver of, limit, or otherwise render inapplicable, the attorneyclient privilege. 

14. Until further order of this Court, any pleading or 

other document filed by the defense shall be filed under seal 

with the Court through the Court Security Officer. The time of 

physical submission to the Court Security Officer shall be 

considered the time of filing. The Court Security Officer shall 

promptly examine such document and determine, in consultation 

with representatives of the appropriate agencies, whether the 

document contains classified information. If the Court Security 

Officer determines that the document contains classified 

information, she or he shall ensure that that portion of the 

document -- and only that portion -- is marked with the 

appropriate classification marking and that the document remains 

under seal. The Court Security Officer shall immediately deliver 

under seal to the Court and counsel for the government any such 

pleading or other document; the Court shall then direct the clerk 

to enter on the docket sheet the title of the pleading or 

document, the date it was filed, and the fact that it has been 

filed under seal with the Court Security Officer. 

Any document filed by the defense that the Court Security 

Officer determines does not contain classified information shall 

immediately be unsealed by the Court Security Officer and placed 

in the public record, unless otherwise sealed by the Court. 

9 

368
13. The Court Security Officer shall arrange for an 

appropriately approved secure area for the use of the defense. 

The· Court Security Officer shall establish procedures to assure 

that the secure area is accessible to the defense, and the 

defendant and authorized witnesses accompanied by defense 

counsel, during normal business hours and at other times on 

reasonable request as approved by the Court Security Officer. 

The secure area shall contain a separate working area for the 

defense, and will be outfitted with any secure office equipment 

requested by the defense that is reasonable and necessary to the 

preparation of the defendant's defense in this case. The Court 

Security Officer, in consultation with defense counsel, shall 

establish procedures to assure that the secure area may be 

maintained and operated in the most efficient manner consistent 

with the protection of classified information. No documents 

containing classified information may be removed from this secure 

area unless authorized by the Court Security Officer with notice 

to the Court. 

The Court Security Officer shall not reveal to the 

government the content of any conversations she or he may hear 

among the defense, nor reveal the nature of documents being 

reviewed by them, or the work generated by them. In addition, 

the presence of the Court Security Officer shall not operate as a 

8 

369
waiver of, limit, or otherwise render inapplicable, the attorneyclient privilege. 

14. Until further order of this Court, any pleading or 

other document filed by the defense shall be filed under seal 

with the Court through the Court Security Officer. The time of 

physical submission to the Court Security Officer shall be 

considered the time of filing. The Court Security Officer shall 

promptly examine such document and determine, in consultation 

with representatives of the appropriate agencies, whether the 

document contains classified information. If the Court Security 

Officer determines that the document contains classified 

information, she or he shall ensure that that portion of the 

document -- and only that portion -- is marked with the 

appropriate classification marking and that the document remains 

under seal. The Court Security Officer shall immediately deliver 

under seal to the Court and counsel for the government any such 

pleading or other document; the Court shall then direct the clerk 

to enter on the docket sheet the title of the pleading or 

document, the date it was filed, and the fact that it has been 

filed under seal with the Court Security Officer. 

Any document filed by the defense that the Court Security 

Officer determines does not contain classified information shall 

immediately be unsealed by the Court Security Officer and placed 

in the public record, unless otherwise sealed by the Court. 

9 

370
15. Any pleading or other document filed by the government 

containing classified information shall be filed under seal with 

the Court through the Court Security Officer. The date and time 

of physical submission to the Court Security Officer shall be 

considered the date and time of the filing. 

16. Access to Classified Information. Defense counsel and 

their employees, and the defendant and defense witnesses, shall 

have access to classified information only as follows: 

a. All classified information produced by the 

government to the defense, in discovery or otherwise, and all 

classified information possessed, created, or maintained by the 

defense, shall be stored, maintained, and used only in the secure 

area established by the Court Security Officer. 

b. The defense shall have free access to the 

classified information made available to them in the secure area, 

and shall be allowed to take notes and prepare documents with 

respect to those materials. 

c. No person, including the defense, shall copy or 

reproduce any classified information in any manner or form, 

except with the approval of the Court Security Officer or in 

accordance with the procedures established by the Court Security 

Officer for the operation of the secure area. 

d. All documents prepared by the defense (including, 

without limitation, pleadings or other documents intended for 

10 

371
) 

filing with the Court) that do or may contain classified 

information, shall be transcribed, recorded, typed, duplicated, 

copied, or otherwise prepared only by persons who have received 

an appropriate approval for access to classified information, and 

in the secure area on approved word processing equipment and in 

accordance with the procedures approved by the Court Security 

Officer. All such documents and any associated materials (such 

as notes, drafts, copies, typewriter ribbons 1 magnetic 

recordings, and exhibits) containing classified information shall 

be maintained in the secure area unless and until the Court 

Security Officer determines that those documents or associated 

materials are unclassified in their entirety. None of these 

materials shall be disclosed to counsel for the government. 

e. The defense shall discuss classified information 

only within the secure area or in another area authorized by the 

Court Security Officer; the defense shall not discuss classified 

information over any standard commercial telephone instruments or 

office intercommunication systems, including, but not limited to, 

the internet, or in the presence of any person who has not been 

granted access to classified information in this case by the 

Court. 

f. The defense shall not disclose, without prior 

approval of the Court, classified information to any person not 

authorized pursuant to this Order, except the Court, Court 

11 

372
personnel, and the attorneys for the government, who have been 

identified by the Court Security Officers as having the 

appropriate security clearances and the need to know that 

information. Counsel for the government shall be given an 

opportunity to be heard in response to any defense request for 

disclosure to a person not named in this Order. Any person 

approved by the Court for disclosure under this paragraph shall 

be required to obtain the appropriate security clearance, to sign 

and submit to the Court the Memorandum of Understanding appended 

to this Order, and to comply with all terms and conditions of 

this Order. If preparation of the defense requires that 

classified information be disclosed to persons not named in this 

Order, the Court Security Officer shall promptly seek to obtain 

security clearances for them at the request of defense counsel. 

g. If counsel for the government advise defense 

counsel that certain classified information or documents may not 

be disclosed to the defendant, then defense counsel, employees of 

defense counsel, and defense witnesses shall not disclose such 

information or documents to the defendant without prior 

concurrence of counsel for the government or, absent such 

concurrence, prior approval of the Court. Counsel for the 

government shall be given an opportunity to be heard in response 

to any defense request for disclosure to the defendant of such 

classified information. 

12 

373
17. Classified Information in the Possession of the 

Defendant Prior to the Institution of this Case. The Court has 

been advised by the government that as a result of his previous 

employment by the United States government and by a contractor to 

the United States government, the defendant possesses classified 

information. Furthermore, set forth in the government's Motion 

for Protective Order, it is clear that the defendant has a 

continuing contractual obligation to the government not to 

disclose to any unauthorized person classified information that 

he possesses as a result of such previous employment. The 

government is entitled to enforce its agreements to maintain the 

confidentiality of classified information. Consequently, 

pursuant to federal common law and the ordinary principles of 

contract law, the defendant is hereby enjoined from breaching the 

terms of the secrecy agreements to which he has subscribed 

throughout his government employment, an exemplar of which is 

appended hereto and expressly incorporated herein. Specifically, 

the defendant is prohibited from any future violations of the 

above-referenced secrecy agreements, and in particular is 

enjoined from disclosing any classified information to any 

unauthorized person during the pendency of this Order. Nothing 

in this Order shall be construed as a limitation on the 

government in filing additional criminal charges against the 

defendant in the event of an unauthorized disclosure of 

13 

374
) 

classified information, or instituting civil litigation to 

further enforce these agreements. 

18. Procedures for the public disclosure of classified 

information by the defense shall be those provided in Sections 5 

and 6 of CIPA. No classified information may be disclosed by the 

defense except: 

a. to the Court, Court personnel, and government 

attorneys and their agents and employees identified by the Court 

Security Officer as holding prior approvals identified by the 

Court Security Officer as holding proper approvals for access to 

classified information; 

b. to representatives of the agency or department 

originating the classified information who have been identified 

by the Court Security Officer as holding appropriate security 

clearances and having the need to know the classified 

information; 

c. in accordance with the procedures of CIPA and the 

procedures established by the Court Security Officer; and 

d. to persons who have been authorized to have access 

to classified information pursuant to this Order or to CIPA. 

To facilitate the defense filing of notices required under 

Section 5 of CIPA, the Court Security Officer shall make 

arrangements with the appropriate agencies for a determination of 

the classification level, if any, of materials or information 

14 

375
either within the possession of the defense or about which the 

defense has knowledge and which the defense intends to use in any 

way in any pretrial proceeding or at trial. Nothing submitted by 

the defense to the Court Security Officer pursuant to this 

paragraph shall be made available to counsel for the government 

unless so ordered by the Court, or so designated by the defense. 

Any and all items which are classified shall be listed in the 

defendant's Section 5 notice. 

19. As the identity of government intelligence employees 

may be classified, and as certain security arrangements may be 

necessary to protect classified information which may be 

discussed, the parties agree that the defense may not contact any 

employee of any government intelligence agency without making 

prior arrangements for such contact with an attorney for the 

government, unless the defense files a motion with the Court 

which motion may be ex parte at the discretion of defense counsel 

-- to authorize such contact, gives the government notice of such 

motion, and obtains a court order authorizing that contact. 

Further, the defense shall give prior notice to government 

attorneys of any contacts it intends to make with any employee of 

any government intelligence agency for the purpose of 

declassifying any classified information relating to this case. 

15 

376
20. Any unauthorized disclosure of classified information 

may constitute violations of United States criminal laws. In 

addition, any violation of the terms of this Order shall be 

immediately brought to the attention of the Court and may result 

in a charge of contempt of Court and possible referral for 

criminal prosecution. Any breach of this Order will also result 

in the termination of a person's access to classified 

information. Persons subject to this Order are advised that 

direct or in direct unauthorized disclosure, retention, or 

negligent handling of classified documents or information could 

cause serious damage, and, in some cases, exceptionally grave 

damage to the national security of the United States, or may be 

used to the advantage of a foreign nation against the interests 

of the United States. This Protective Order is to ensure that 

authorized to receive classified information in connection with 

this case will never divulge the classified information disclosed 

to them to anyone who is not authorized to receive it, without 

prior written authorization from the originating agency and in 

conformity with this Order. 

21. Unless otherwise ordered by the Court, with due notice 

to the government, all classified information to which the 

defendant, defense counsel, defense counsel employees, or any 

defense witness has access in this case is now and will remain 

the property of the United States government. The defendant, 

16 

377
{ J 

defense counsel, defense counsel employees, and defense witnesses 

shall return all classified information in their possession 

obtained through discovery from the government in this case, or 

for which they are responsible because of access to classified 

information, upon demand of the Court Security Officer. The 

notes, summaries, and other documents prepared by the defense 

that do or may contain classified information shall remain at all 

times in the custody of the Court Security Officer for the 

duration of this case. At the conclusion of this case, all such 

notes, summaries, and other documents are to be destroyed by the 

Court Security Officer in the presence of defense counsel. 

22. A copy of this Order shall issue forthwith to defense 

counsel named herein, who shall be responsible for advising the 

defendant, defense counsel employees, and defense witnesses of 

the contents of this Order. The defendant, defense counsel, 

defense counsel employees, and defense witnesses to be provided 

access to classified information shall execute the Memorandum of 

Understanding appended to this Order, and defense counsel shall 

file executed originals with the Court and the Court Security 

Officer, and serve executed originals upon the government. The 

execution and filing of the Memorandum of Understanding are 

conditions precedent for the defendant, defense counsel, defense 

17 

378
t J 

counsel employees, and defense witnesses to have access to 

classified information in this case. 

ORDERED this , I fJ-> ~"f-. _,_,__:..--_ day of ~t, 2001, at Alexandria, 

Virginia. 

WE ASK FOR THIS: 

KENNETH E. MELSON 

UNITED TATES ATTORNEY 

A. Spencer 

Patricia M. Haynes 

CPa~...at~-~. The Honorable Claude M. Hilton 

United States District Judge 

Assistant United States Attorneys 

Attorney 

Internal Security Section 

United States Department of Justice 

SEEN AND AGREED TO: 

Counsel 

18 

379
MV-..:>.C..! oC..t;Jt:JJ.. .1..1:..1"'-..-'MII 

I~U.Ol_O 1 • ..:::::1 

SENSITIVE COMPARTMENTED INFORMATION NONDISCLOSURE AGREEMENT 

An Aarecmen t Between _ _:R:::e::;g,.an="'....::B::r::i::an"7:'-;-P:...:.. -:;-,-,--;---;;;---;;------

(Name- Printed or Typed) 

and the United States 

1. Intending to be legally bound, I hereby accept the obligations contained Ln this Agreement in consideration of my bc:ine i'ran[-

ed access to information or material protected within Special Access Programs, hereinafter referred to in this Agrocxnent as Sensitive 

Compartmented Information (SCI). I have been advised that SCI involves or derives from intelligence sources or methods and is classified or is in the process of a classification determination undec the standards of Executive Order 12356 or other Executive order or 

statute. I understand and accept that by being granted access to SCI, special confidence and trust shall be placed in me by the United 

States Government. 

2. I hereby acknowledge that I have received a security indoctrination coneerninc the nature and protection of SCI, ineludinll the 

procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this information or material have 

been apPrOVed for access to it, and I understand these procedures. I understand that I may he required to sign subsequent a11reements 

upon being g:ranted access to different categories of SCI. I further uoderstand that aU mY obligations under this Agreement continue 

to exist whether or not I am required to sign such subsequent a~:reements. 

3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of SCI by me could cause 

irreparable injury to the United Stares or be ll'ed to advantage by a foreign nation. I hereby agree that I will never divulge anything 

marked as SCI or that l know to be SCI to anyone who is not authorized to receive it without prior written authorization from the 

Uuited States Government department or aaency (hercinafter Department or Agency) that last authorized my access to SCI. I understand that it is my responsibility to consult with appropriate management authorities in the Department or Agency that last authorildi 

my ac:coss to SCI, whether or not I am still employed by or associated with that Department or Agency or a contractor thereof, in order 

to ensure that I know whether informatioo or material within my knowledge or control that I have reason to believe mig-ht be SCI, or 

related to or derived from SCI, is considered by such Department or Agency to be SCI. I further understand that I arn also obligated 

by La\)/ and regulation not to disclose any classified information or material in an unauthorized fashion. 

4- In consideration of being ~anted access to SCI and of being assigned or retained in a position of special confidence and trust 

requiring access to SCI, I hereby agree to submit for security re't'iew by the Department or Agency that Last autb.orized. my access to 

such information or rnaterial, any writing or other preparation in any form, including a work of fiction, that contains or purports to 

con rain any SCI or description of activities that produce or relate to SCI or that I have ~eason to believe are derived from SCI, that [ 

contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure. I understand 

and agree that my oblicatio·n to submit such preparations for review applies during the course of my access to SCI and thereafter, and 

[ agree to make any required submissions prior to discussing the preparation with, or showinl:' it to, anyone who is not authorized to 

have access to SCI. I further agree that I will not disclose the contents of such preparation to any person not authorized to have access 

to SCI until I have recei"fcd written authorization from the Department or Agency that last authorized my access to SCI that such 

disclosure is permhted. 

5. I understand that the purp>sc of the review described in para~:raph 4 is to eive the United States a reasonable opportunity to 

determine whether the preparation submitted pursuant to paracraph 4 sets forth any SCI. I further understand that the Department or 

Agency to which I have made a submission will act Uf!ln it, coordinatina within the Intelligence Community when a?propriatc:, and 

make a response to me within a reasonable time, n<:~t to exceed 30 working days from date of receipt. 

6. I have been advised that any breach of this Agreement may result in the terminaiion of my access to SCI and remoual·from a 

p:JSition of special confidence and trust requiring such access. as well as the termination of roy employment or other relationships with 

any Department or A~jteucy that provides me with access to SCI. In addition, I have been advised that an)' unauthorized disclosure of 

SCI byrne may toMtitutc violations of United States criminal laws. including the provisions of Sections 793, 794, 798, and 952, Title 

18, United States Code, and of Section 783(b), Title 50, United States Code. Nothin~ in this Agreement constitutes a waiver by the 

United States of the right to prosecute me for any statutory violation. 

7. l understand that the United States Government maY see~ any remedy available to it to enforce this Agreement includin~. but 

not limited to, application for a court order prohibiting disclosure of information in breach of this AgreemenL I have been advised that 

the actiQn can be brought a~:ainst me in any of the several appropriate United States District Courts where the United States Govern~ 

ment may elect to file the action. Court costs and reasonable attorneys fees incurred by the Unlted States Government may be assessed 

against me if I lose such action. 

8. 1 understand that all information to which I may obtain access by signing this AQ:reement is now and will remain the property 

of the United States Government unless and until otherwise determined by an appropriate official or final ruling of a court of la.,.,. Subject to such detcrmln~uion, 1 do not now, nor will I ever, possess any right, interest, title, or claim whatsoever to such information. I 

a~ee that 1 shall retum all materials that may have come intQ my possession or for which [ am responsible because of such access. 

upon demand by an authorized representative of the: United States GCJ11etnment or upon the conclusion of my employment or other re~ 

lationship with the United States Government entity providing me a.._ccess to such ftl.Olterials. Ir I do not rcr.urn such materials upon request. I understand this may be a violation of Section 793, Title 18, United States Code. 

9. Unl~s and until I am released in writing by an authorized representative of the Department or Agency that last provided roe 

with access to SCI, I understand that all conditionS and obligations imposed upon me by this Agreement apply during the time I am 

granted access to SCI, and at all times thereafter. 

10. Each provision of this Agreemc:nc is Severable. If a eourt should find any provi:>.ion of this Agreement to be U!'lenforceable, all 

other provisions of this Agreement shall remain in full force and effect. This A~reement concerns SCI and does not get forth such other 

conditions and obligations not related to SCI as may now or hereafter pertain to roy employment by or assiafl.ment or reLationship with 

the Department or A:ec.cy _ 

11. I have read this A-greement carefully and my questions, if any, have been answered to my satisfaction. I acknowledge that the 

bricfuls officer has made available Sections 793. 794, 798. and 952 of Title 18, United States Code, and Section 783(b) of Title SO. f"i United States Code, and Executive Order 12356, as amcn.ded, so that l may read them at this time. if I so choose . .. 

,,, 

. do 

- ~OQ./o<o ll<,...b:•• Mof!ll oi.J.S.l 44 14 ..... d. 11 .,O..,k.l~ _.. 380 ...JI ..al boo y~) 
12. I hereby assi.a:n to the United States Government all rights, title and interest, and all royalties, remunerations, and 

emoluments that have resulted, Will result, or may result from any disclosure, publication, or revelation not consistent with the terms of 

this Agreement. 

13. These restrictions are consistent with and do not supersede conflict with or otherwise alter the employee obligations rights or 

liabilities created by E"ecutive Order 12356; section 7211 of title 5, United States Code (governing disclosures to Congress); section 

1034 of title !0, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by 

members of the Military); section 2J02(bXS) of tide 5, United States Code, as amended by the Whistleblower Protection Act 

(governing disclosures of i!legality, Wa6te, fraud, abuse or publie health or safety threats); the intelligence Identities Protection Act of 

1982 (50 USC 421 et seq.) (governinJ disclosures that could expose contidentiol Government agents), and tbe statutes which protect 

against disclosure that may compromise tbe national secunry, including section 641, 793, 794, 798, and 952 of title 18, United States 

Code, and section 4(b) of the Subversive Activiti"' Act of 1950 (50 U.S.C. section 783(b)). The definitions, requirements, obligations, 

rights. sanctions and liabilities created by said Executive Order and listed statutes are incorporated into this Agreement and arc 

controlling. 

14. This Agreemei'It shall be interpreted under and in conformance with the law of the United States. 

15. I make this Agreement ~ithout any mental reservation or pu so of evasion. 

3/ Ju~ ;6 Dar~ 

The execution of this Agreement was witnessed by the undersiined who accepted it oo behalf of th~ United States Government as 11 

prior condition of access to Sensitive Compartmented Information. 

WITNESS and ACCEPTANCE: 

Dare 

SECURITY BRIEFING / DEBRIEFING ACKNOWLEDGMENT 

SI TK BYE 

!Special Access Programs by Initials Only} 

119-60-4321 Reaan Brian P. SIGINT/SI-4 

SSN (See Notice Below) Printed of Typed Name Organization 

BRIEF DATE 3J Ji, ly f S DEBRIEF 

I hereby acknowledge that I was briefed on the above 

SCI Special Access Programs(s): 

Having been reminded of my continuing C'.lbligation to 

Comply with the terms of this Agreement, I h8reby 

acknowledge that I was debriefed on the above 

SC~pbssPro7~ 

Signature of lndividuJJI Debrlalsd 

by me on the abo"e date was in accordance with relevant SCI procedures. 

SSN {See Notice Below) 

/.!.! ¥-()Ill S..SG 

Organization {Name and Address) 

NOTICE: The Privacy Act, 5 U.S.C. 5Z2a. requires that federal agencies inform individuals. at Ihe time information is solicited from them, 

whether the disclo~re is rnandatory or voluntary, by what authority such information is solicited, and what uses will be rnade of the information. You are hereby advised that authoriw for soliciting yoor Social Security Account Number (SSN) is ExecutiV'e Order 9397. Your SSN 

will be used to identifY you preci~el~ w~en it is necessary to 1) certify that you have acces~ to the information indicated above, 2) determine 

that your access to the •nformatron rndtcated has termmated. or 3) certify that you have w•tnessed a briefing Or debnefing. Although drs clo- sure of your SSN Is not mandetory. yoiJ( failure to do so may irnoede such certiflcatior1s or determinations. 

381
!.-. CLASSIFIE( .. 

, A}! AGREE!vlENT BETWEEN 

NFORMATION NONDISCLOSUJl~GREEMENT 4iiil.iill 

R I :>J :p F- AND THE UNITED STATES./. 

1 1. Intending to be legally bound. I hereby accept the obligations contained in this Agreement in consideration of my being 

granted access to classified information. As used in this Agreement. classified information is marked or unmarked classified 

information. including oral communications. that is classified under the-standards of Executive Order 12356. or under any other 

Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and 

unclassified information that meers the standards for classification and is in the process of a classification determination as 

provided in Sections 1.1 and 1.2(e) of Executive Order 12356, or under any other Executive order or statute that requires 

protection for such information in the imerest of national security. I understand and accept that by being granted access to 

classified information, special confidence and trust shall be placed in me by the United States Government. 

2. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of classified 

information. including the procedures to be followed in ascenaining whether other persons to whom I contemplate disclosing this 

information have been approved for access to it. and that I understand these procedures. 

3. I have been advised that the unauthorized disclosure. unauthorized retention. or negligent handling of classified information 

by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby 

agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been 

properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization 

from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the 

classification of the information or last granting me a security clearance that such disclosure is permitted. I understand that if 

I am uncertain about the classification status of information, I am required to confirm from an authorized official that the 

information is unclassified before I may disclose it. except to a person as provided in (a) or (b), above. I further understand that 

I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information. 

4. I have been advised that any breach of this Agreement may result in the termination of any security clearances I hold; 

removal from any position of special confidence and trust requiring such clearances; or the termination of my employment or 

other relationships with the Depanments or Agencies that granted my security clearance or-clearances. In addition. I have been 

advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United 

States criminal laws, including the provisions of Sections 641, 793, 794, 798, and •952, Title 18, United States Code, 

•the provisions of Section 783(b), Title 50. United States Code, and the provisions of the Intelligence Identities Protecuon Act 

of 19 8 2. I recognize t.fj.9t !J.C?thing in ·this Agreement constitutes a waiver by the United States of the right to prosecute me for any 

statutory violation. · - · ' 

5. I hereby assign to the United St3.tes GoVernment -all royalties. remunerations. and emoluments that have resulted, will result 

or may result from any disclosure; publication:,~ or revelation of classified information not consistent with the terms of this 

Agreement. 

6. I understand that the United States Government may seek any remedy available to it to enforce this Agreement including. 

but not limited to. application for a coun order prohibiting disclosure of information in breach of this Agreement. 

7. I understand that all classified information to which I have access or may obtain access by signing this Agreement is now and 

will remain the property of. or under the control of the United States Government unless and until otherwise determined by an 

authorized official or final ruling of a court of law. I agree that I shall return all classified materials which have, or may come into 

my possession or for which I am responsible because of such access: (a) upon demand by an authorized representative of the 

United States Government; (b) upon the conclusion of my employment or other relationship with the Department or Agency 

that last granted me a security clearance or that provided me access to classified information; or (c) upon the conclusion of my 

employment or other relationship that requires access to classified information. If I do not rerum such materials upon request. 

I understand that this may be a violation of Section 793, Title 18, United States Code, a United States criminal law. 

8. Unless and until I am released in writing by an authorized representative of the United States Government, I understand 

that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified 

information, and at all times thereafter. 

9. Each provision of this Agreement is severable. If a court should find any provision of this Agreement to be unenforceable, 

all other previsions of this Agreement shall remain in full force and effect. 

10. These resuictions are consistent with and do not supersede, conflict with or otherwise alter the employee obligations, rights 

or liabilities created by Executive Order 12356; Section 7211 of Title 5, United States Code (governing disclosures to Congress); 

Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure 

to Congress by members of the military); Section 2302 (b) (8) of Title 5, United States Code, as amended ~by the Whistleblower 

Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence 

Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government 

agents), and the statutes which protect against disclosure that may compromise the national security. including Sections 64 t. 

793, 794, 798, and 952 of Title 18, United States Code, and Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 

Section 783(b)). The definitions, requirements, obligations, rights, sanctions and liabilities created by said Executive Order and 

listed statutes are incorporated into this Agreement and are controlling. 

NSN 1$~0-01-2!0-5499 

Previo1u edition not U1ablc. 

( Continue on reverse.) 

J 11-102 STANDARD FORM 312 (REV. 1-91) Prescnbed by GSAIISOO 

ll CFR 2001. E.O. 12356 

382
J 

- h"a~'e~~mem"caretu~VV>a'in'Y'QU~!!l3i'l'S:'Trn~e~l'i am';"l 

rt.a.de available to _me the Execu~ Prder and statutes referenced in this A 

l CFRjiectior\ 2003.20) so that I may' read them at this time. if I so choose. 

~~~1~d&'t1Pttnu cue ~rr~rhtt.9IINM ent and ilS implemenung regulan 

,IGNATll'RE DATE SOCIAL SECURITY .... V"MBER 

(See :-.:otice below) 

ORGANIZAnOr-< (If CO~TRACTOR, LlCE!'ISEE. GRA.'•HEE Oft' AGENT. PJtOVlOE; NAME, ADORESS, ANO. IF 1\PPUCABLE. FEDERAL SUPPLY CODE :-nJMBER) 

(Type or ptint) 

AFISNINA 

Director of A 

Wash; ssessments 

ngton, OC 203Jo 

WITNESS 

THE EXECUTION OF THIS AGREEMENT WAS WITNESSED 

BY THE UNDERSIGNED. 

SIGNATURE DATE 

ACCEPTANCE 

. . 

().9MJbi~TRATIVE OFFICER 

Director of Assessments . 

Washington, DC 20330 

SECURITY DEBRIEFING ACKNOWLEDGEMENT 

reaffirm that the provtstons o( the espionage laws, other federal t:rlminal laws and executive orders applicable 10 the safeguarding of cliJ.:.SifieO 

infonnation have been made available to me; that I have returned all classified information in my custody; that 1 will not communicate or transmit 

classified information to any unauthorized person or organization; that I will promptly report to lhe Federal Bweau of Investigation any attempt by an 

unauthorized person to solicit classified information, and that I (have) (have not) (strike out inappropriate word or words) received a security 

debriding. 

SIGNAfl."llE OF EMPLOYEE DATE 

NAME OF WTINESS (Type or print) SIGNA lURE OF WITNESS 

~; The Privacy Act, j U. S.C. SSla, n:quiru. that h:denlacenclcs inform individuab, at the time information Ia solicited from them, whether the disclosure is mandl1of)-

or votunury, by what authority such information is solicited, and what uses will be made o( the information. You arc hereby adviaed thu authority lor aolicitin& your Socu 

Security Account N11mbu (SSN) Is Executin Order 9191. Your SSN will be utcd to identify you precisely when h is aeceuary to 1) certify th.at you hue acccu to the 

infonnuion indicated above or l) determine that your acccu to the Information indicated bas terminated. Altbouch disclosure of your SSN is not mtnd.-tory, your h.ilure to de 

so m•y impede the proceuin& of such certifications or detcrminationl, or pouibly ruult in the denial of your be inc cnated •cccu to cl•uilicd information. 

NOT APPLICABLE TO NON-GOVERNMENT PERSONNEL SIGNING THIS AGREEMENT. 

STANDARD F(JR,q 312 BA("" (Rl\ :-91 

383
United States v. El Hage

(S.D.N.Y. 1:98-cr-1023)

Protective Order ............................................................................................... 385

384
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

UNITED STATES OF AMERICA 

- v -

USAMA BIN LADEN, et al. 

Defendants. 

- -x 

- - - - - - - - - - - - - - - - - -x 

PROTECTIVE ORDER 

98 Cr. 1023 (LBS) 

WHEREAS this matter comes before the Court upon the motion 

of the United States for a Protective Order to prevent the 

unauthorized disclosure or dissemination of classified national 

security information and documents belonging to the United States 

Government which may be reviewed by, made available to, or may 

ot rwise come to be in the possession of the defendants and 

WHEREAS the Government personnel in this case, including 

Assistant United States Attorneys Patrick J. Fitzgerald, Kenneth 

M. Karas, Michael J. Garcia and Paul W. Butler, who have had, and 

will have, access to national security information and documents 

relating to this case have "Top Secret" security clearances, and 

WHEREAS the Government maintains and has access to storage 

ilities necessary for the storage, maintenance and handling of 

"Top Secret" and "Secret" national security information and 

documents, and 

WHEREAS the national security information in this case may 

be classified at the "Secret" and "Top Secret" levels, and 

385
WHEREAS having consldered the motion of the Government, :ne 

defendants' opposition, all other related submissions and 

proceedings, and having heard oral argument, 

IT IS HEREBY ORDERED AND ADJUDGED that pursuant to Fed. R. 

Crim. P. 16(d), Sections 3 and 9 of the Classified Information 

and Procedure Act, Title 18, United States Code, App. III, 

("CIPA"), and the Court's inherent authority, the following 

Protective Order is entered. 

1. The Court finds that this case will involve classified 

national security information, the storage, handling and control 

of which requires special security precautions, and access to 

which requires a security clearance and a "need to know." 

2. The purpose of this Order is to establish the 

procedures that must be followed by all defense counsel of 

record, their respective defendants, all other counsel involved 

in this case, translators for the defense, any Court personnel, 

and all other individuals who receive access to classified 

national security information or documents in connection with 

this case. 

3. The procedures set forth in this Protective Order and 

the Classified Information Procedures Act will apply to all pretrial,, trial, post-trial, and appellate aspects concerning this 

case, and may be modified from time to time by further order of 

the Court acting under Fed. R .. Crim. P. 16(d), Sections 3 and 9 

2 

386
of CIPA, and its inherent superv1sory author1ty to ensure a ~air 

and expeditious trial. 

4. In accordance with the provisions of CIPA and the 

Security procedures promulgated by the Chief Justice of the 

United States pursuant to that Act, this Court appoints James 

Londergan as the Court Security Officer (hereinafter 

"Administrative CSO") who will provide security arrangements 

necessary to protect from unauthorized disclosure any classified 

information or document made available to the defense or the 

Court in connection with this case. The Court also appoints 

Charles L. Alliman, Christine E. Gunning, Earl D. Hicks, Michael 

P. Macisso, and Barbara J. Russell as alternate Administrative 

CSO's. Defense counsel and Court personnel shall seek guidance 

from the Administrative CSO's with regard to appropriate storage, 

handling, transmittal, and use of classified information. 

Furthermore, the Court appoints James P. Walker as the "Security 

Clearance CSO" whose sole responsibility will be to process the 

security clearances for defense counsel, their staff, and any 

designated Court personnel who will have access to classified 

information in this case. The Court may appoint alternate or 

additional Administrative and/or Security Clearance CSO's for 

either purpose at a later date. 

5. No defendant, counsel for a defendant, employee of 

counsel for a defendant, defense witness, or Courtroom personnel 

3 

387
required by the Court for its assistance, shall have access t0 

any classified information involved in this case unless that 

person shall first have: 

(a) received the necessary security clearance as determined 

by the Department of Justice Security Officer working in 

conjunction with the Security Clearance CSO, or approval from the 

Court (as set forth below in paragraph 8), or the Government for 

access to the particular classified information in question; 

approval by the Court shall not occur but upon a showing. to the 

Court's satisfaction of a "need to know'' the particular 

classified information; and 

(b) signed the Memorandum of Understanding in the form 

attached hereto agreeing to comply with the terms of this Order. 

6. Standard Form 86, "Questionnaire for National Security 

Positions," attached releases, and full fingerprints shall be 

completed and submitted to the Security Clearance CSO forthwith 

by all defense counsel, persons whose assistance the defense 

reasonably requires and by such courtroom personnel as the Court 

requires for its assistance. The Security Clearance CSO shall 

undertake all reasonable steps to process all security clearance 

applications in accordance with applicable regulations. 

7. Prior security clearance and a "need to know" as 

determined by any government entity or the Court as applying to 

one person does not give that person the authority to disclose 

4 

388
any classified national security documents or informat1on co any 

tner individual. By way of example, bu~ not limitation, defense 

counsel with appropriate clearances and a "need to know," as 

determined by the Court or the government, are not authorized to 

discuss such classified information with an uncleared defendant 

absent written permission of either the Court or the government. 

8. The Court will be the final arbiter of all classified 

information questions. In the event that the Department Security 

Officer working in conjunction with the Security Clearance CSO 

determines, after exhausting all administrative processes of 

review (including meeting with counsel applying for the 

clearance), that any counsel is not to be granted a security 

clearance, the Security Clearance CSO shall advise the Court 

promptly of the fact that such a clearance is not forthcoming but 

not the underlying reasons. In that event, the Court will 

conduct an ex parte hearing to determine that person's 

eligibility to see classified materials. In the first instance, 

the Court will schedule a conference with such counsel (in the 

absence of the Government or other counsel) at which time defense 

counsel will advise whether counsel wishes the Court to undertake 

a review of the security clearance determination in order to make 

an access decision. If the Court reviews such a determination, 

only the Court, counsel seeking the clearance and the Security 

Clearance CSO shall participate in that process, absent further 

5 

389
order of the Court. If counsel seeks a revis1on of th1s 

Protective Order in any manner, the Government shall be notified 

of the proposed amendments and provided an opportunity to be 

heard on the proposed amendments. 

9. The substitution, departure, or removal for any reason 

from this case of any defense counsel, defendant, or anyone 

associated with the defense as a witness or otherwise shall not 

release that individual from the provisions of this Order or any 

form or document executed in connection with this Order. Because 

classified information remains the property of the United States 

Government, the persons covered in this order are bound by any 

subsequent conditions imposed on the classified information or 

documents, even if more restrictive. 

10. As used herein, the term "classified national security 

information or document" refers to: 

A. any classified information or material, regardless 

of its physical form or characteristics, that is owned by, 

produced by or for, or is under the control of the United States 

government, its agencies, employees and contractors including 

research and development; 

B. any document, including notes and regardless of 

form or characteristic, or information contained therein, which 

contains classified information; 

C. verbal classified information known to the 

6 

390
fendant or defense counsel; 

D. classified documents (Or 1nformation contained 

therein} or information disclosed to the fendant, defense 

counsel or others governed by this Order as part of the 

proceedings in this case; 

E. classified documents and information which have 

otherwise been made known to defendant, defense counsel or others 

governed by this Order and which documents have been marked or 

designated: "CONFIDENTIAL", "SECRET", "TOP SECRET", or "SENSITIVE 

COMPARTMENTED INFORMATION", or concerning which the defendant or 

defense counsel or others governed by this Order have been orally 

advised of the classified nature of the document or in rmation; 

F. information and documents covered by Presidential 

Executive Order 12356; and 

G. any in rmation or document, regardless of place 

of origin and including foreign classified documents, that could 

reasonably be believed to contain classified information, or that 

refers or relates to national security or intelligence matters. 

Any document or information including but not limited to any 

subject referring to the Central Intelligence Agency, National 

Security Agency, Defense Intelligence Agency, Department of 

State,. National Security Council, Federal Bureau of 

Investigation, or intelligence agencies of any foreign 

government, or similar entity, or information in the possession 

7 

391
of such agency, shall be presumed to fall w1thin the mean1 of 

"classified national security in rmat1on or document" unless and 

until the Administrative CSO or counsel for 

advises otherwise in writing. 

government 

H. This provision shall not apply to documents or 

information which the de se obtains from other than classified 

materials, or to public court documents or to documents which are 

provided by the Government with a marking to indicate that the 

document has been "declassified." While information in the 

public domain is ordinarily not classified, however, such 

in rmation may be considered as classified, and therefore 

subject to the provisions of CIPA and this Order, if it is 

confirmed or denied by any person who has, or has had, access to 

classified in rmation and that confirmation or denial 

corroborates or tends to refute the information in question. Any 

attempt by the defense to have such information confirmed or 

denied at trial or in any public proceeding in this case shall be 

governed by CIPA and all provisions of this Order. 

11. All classi ed documents and information contained 

therein shall remain classified unless and until anyone covered 

by this Order has been notified in writing by the appropriate 

attorney for the government or the Court Security Officer that 

the document or information has been declassified and marked 

declassified by the appropriate classifying authority; or the 

8 

392
documents bear a clear indication that they have been 

declassified by the agency or department of government ~hat 

originated the document or the information contained thereln. 

12. "Documentsu or "associated materialsu or "informationu 

include, but are not limited to, all written or printed matter of 

any kind, formal or informal, including the originals, all 

identical copies, and all non-identical copies, whether different 

from the original by reason of any notation made on such copies 

or otherwise, including without limitation pleadings, papers, 

correspondence, memoranda, notes, letters, telegrams, reports, 

summarles, inter-office and intra-office communications, 

notations of any sort concerning conversations, meetings or other 

communication, teletypes, telefaxes, invoices, worksheets, and 

all drafts, alterations, modifications, changes, and amendments 

of any kind of the foregoing; graphic or aural records or 

representations of any kind, including without limitation, 

photographs, charts, graphs, microfiches, microfilm, video tapes, 

sound recording of any kind, motion pictures, any electronic 

mechanical or electric records or representations of any kind, 

including without limitation, tapes, cassettes, computers, discs, 

CD-ROMs, recordings, films, typewriter ribbons, correcting 

ribbons, and word processor discs, tapes and ribbons; and 

information acquired orally. 

13. The Administrative CSO shall arrange for the creation, 

9 

393
construccion, maintenance and operation of a ''secure room" 

hereinafter referred to as an "SR", for the storage, handling, 

and control of classified documents and information to which the 

defense counsel, defendants, and other persons assisting in the 

preparation of the defense case are cleared for access. The 

Administrative CSO shall establish procedures to assure that the 

SR is accessible to defendants (if such access should be 

determined by the Court to be necessary), counsel for defendants, 

employees of counsel for defendants and authorized witnesses 

accompanied by counsel for defendants. The Court Security 

Officer, in consultation with counsel for defendants, shall 

establish procedures to assure that the SR is maintained and 

operated in the most efficient manner consistent with the 

protection of classified information. The government may also 

construct a separate SR for the storage, handling, and control of 

classified documents and information in accordance with the 

security procedures required by the Administrative CSO. For the 

convenience of the Court, the defense counsel, and the 

Government, the Government may provide classified materials to 

the defense pursuant to Fed. R. Crim. P. 16, CIPA, Brady v. 

Maryland, Giglio v. United States, and the Jencks Act by 

providing it to the Administrative CSO and making it available at 

the SR without requiring the Court to pass upon the identified 

recipient's "need to know." If it is necessary for a defendant 

10 

394
to review or discuss classified matters, or otherwise meet with 

defense counsel, in the SR, this will only occur under 

appropriate supervision to ensure that the defendant does not 

escape, attempt to escape, cause physical injury to himself or 

others, or remove, copy, alter, o~ destroy classified 

information, or obtain access to classified information the 

defendant is not entitled to review, and to ensure that the 

defendant does not use the opportunity to review the classified 

materials to circumvent any applicable security restrictions, 

including the cial Administrative Measures imposed by the 

Bureau of Prisons, other prison regulations, and the other orders 

of this Court governing discovery in this case. 

14. Classified national security documents and information 

or information believed to be classified shall only be kept, 

discussed, or reviewed, in a SR. 

15. Defendants, defense attorneys, and those persons whose 

assistance the defense reasonably requires shall not disclose or 

discuss assified national security documents or information, or 

information believed to be classified, with other defendants or 

with counsel r other defendants without prior consent of the 

Government with notification to the Administrative CSO, or the 

prior approval of the Court. That authorization will not be 

unreasonably withheld but, when granted, will be subject to all 

the provisions of this Order. Moreover, the Government shall 

1 I 

395
attach a cover page to each installment of classified materials 

indicat1ng the names of other counsel who have received the same 

materials. Counsel may discuss the contents of any such 

installment he or she receives if counsel (i) verifies that other 

counsel are also on the list df addressees r that particular 

installment of classified information and (ii) conducts the 

conversation in an appropriate place and manner (e.g. in the SR 

but not on an unclassified telephone) . If counsel are not 

certain as to which counsel have received particular materials, 

they should ask either an attorney r Government or the 

Administrative CSO for clarification of whether particular 

classified information has been shared with any other counsel. 

16. No one shall discuss any classified national security 

information or document over any standard commercial telephone 

trument or office intercommunication s tern. Nor shall any 

person covered by this Order discuss or disclose such information 

in the presence of any person who does not have a clearance 

certified by the Administrative CSO as applicable to this case, 

and ei a "need to know" as determined by the Court or written 

approval from counsel for the government. 

17. Written materials presumed to contain classified 

nationctl security information which are prepared for this case by 

a defendant or defense counsel shall be transcribed, recorded, 

typed, duplicated, copied or otherwise prepared only by persons 

12 

396
who have received access to classified 1nformat1on pursuant tc 

~his r, and in accordance with condit1ons prescribed by the 

Administrative CSO. 

18. Machines of any kind used in the p ration or 

transmission of classified inform~tion in this case may be used 

only with the approval of the Administrative CSO and in 

accordance with instructions he shall issue, including 

instructions as to where such machines must be operated and 

stored. 

19. To facilitate the defendants' filings of notices as 

required Section 5 of CIPA, the Administrative CSO shall 

make arrangements with the respective agencies for a 

determination of the classification level, if any, of materials 

or information either within the possession of the de 

about which the defense has knowledge and which the de 

e or 

e 

intends to use in any way at trial. Nothing thus submitt by 

the defense to the Administrative CSO pursuant to this paragraph 

shall be made available to the prosecutors unless so orde by 

the Court, or so designated by the defense. Any and all of these 

items which are classified shall be listed in the defendant's 

Section 5 notice. 

20. All written pleadings, filings, attachments, or 

documents involving classified information, or those which 

reasonably might cause the disclosure of classified information, 

13 

397
or which concern or relate to natlonal security or lntelllgence 

matters (as defined in paragraph 10 above1 shall not be publlcly 

filed, but shall be filed under seal to the Administrative CSO 

and shall be marked: "Filed in Camera and Under Seal th the 

Court Security Officer," with separate service of copies upon 

counsel 

of an ex 

r the Government and co-defendants (except in 

application), provided that the materials be 

event 

transported by, and delivered to, persons known to have the 

approp ate security clearance. Service upon other de se 

counsel with security clearances shall be effected by depositing 

such counsel's copy (in an envelope marked on the outside to 

indicate the addressee and the fact that the document enclosed 

contains classified information) in the drawer of the safe in the 

SR which will be designated as a drawer to be shared in common by 

cleared counsel (the "common drawer"). Notice shall be sent to 

all cleared counsel by hand or by facsimile which shall simply 

state that a document which may contain classified information 

has been filed with the Administrative CSO and served upon the 

Government and is available in the safe in the SR. Service shall 

be ef ted upon the Government by personal delivery by cleared 

counsel to one of the following persons: Assistant United States 

Attorneys Patrick J. Fitzgerald, Kenneth M. Karas, Michael J. 

Garcia, or Paul W. Butler, or Paralegal Specialists Gerard 

Francisco or Lillie Grant, or Intelligence Officer Harry Brady, 

14 

398
all of whom have Top Secret clearance and who will thereafter be 

respons1ble r the document's secure storage within the United 

States Attorney's Office. If for any reason, none of the seven 

named Government personnel are available at the time of attempt 

service, then defense counsel shall maintain the Government's 

copy in the common drawer in the SR (in an envelope marked on the 

outside to indicate the copy is for delivery to the Government 

and the fact that the document enclosed contains classified 

information) and send a notice to the Government by hand or by 

facsimile indicating that the delivery of a filing which may 

contain classified needs to be arranged. Thereafter, the 

Government may obtain the document from any cleared defense 

counsel (or the Administrative CSO) with access to the common 

drawer, and the Government personnel obtaining such documents 

shall sign a receipt indicating the date and time of receipt and 

the cleared person from whom it was received. The Government 

shall not have direct access to the common drawer of the SR but 

shall only be provided such documents by cleared defense counsel 

or the Administrative CSO." The date and time of physical 

submission to the Administrative CSO, which shall be noted on the 

document, shall be considered the date and time of filing. Upon 

receiving a pleading from a defense counsel, the Administrative 

CSO shall notify by the end of the next business day the Court of 

the fact that a pleading has been filed. Thereafter, any defense 

I5 

399
counsel with the approprlate security clearance and who has been 

grant access to the part1cular classifi in rmation in 

question by the government or the Court pursuant to paragraph 

S(a) of this order will be permitted to review such pleadings in 

the SR under the same conditions as they would review other 

classified information. The Administrative CSO shall promptly 

review such pleading and shall determine, with the assistance of 

and in consultation with personnel from the appropriate agencies, 

whether any of the submitted material is classified, and the 

level of any classified information. If the Administrative CSO, 

working in conjunction with appropriate Intelligence Community 

member agencies, determines that the pleading or document 

contains classified information, the Administrative CSO shall 

insure that the portion of the document, and only that portion, 

is marked with the appropriate classification marking and remains 

sealed. All reasonable ef rts to declassify such materials will 

be undertaken by the agencies conducting the review. Portions of 

the pleading or documents that do not contain classified 

information shall be unsealed by the Administrative CSO and 

placed in the public record. 

21. The Administrative CSO shall maintain a separate sealed 

record for those materials which are classified. The 

Administrative CSO shall be responsible for the maintaining of 

the secured record for purposes of later proceedings or appeals. 

16 

400
22. Pleadings containing classified 1nformat1on wn1cn a~e 

filed by any one defendant on behalf of a single defendar.t ~ 

other defendants, can only be disclosed to other defense counsel 

whom counsel knows is authorized pursuant to paragraph 15 to 

discuss all the classified information contained in the document 

therein. 

23. Persons subject to this Order are advised that all 

information to which they obtain access by this Order is now and 

will forever remain the property of the United States Government. 

They shall return all materials that may have come into their 

possession or for which they are responsible because of such 

access upon demand by the counsel for the government or the Court 

Security Officer. 

24. Persons subject to this Order are further admonished 

that they are obligated by law and regulation not to disclose any 

national security classified information in an unauthorized 

fashion and that any breach of this Order may result in the 

termination of their access to classified information. In 

addition, they are admonished that any unauthorized disclosure of 

classified information may constitute violations of the United 

States criminal laws, including without limitation, the 

provisions of 18 U.S.C. Sections 371, 641, 1001, 793, 794, 798, 

952, and 1503; 50 U.S.C. Sections 421 (the Intelligence 

Identities Protection Act) and.783; and that a violation of this 

17 

401
Order or any portion hereof may be chargeable as a contempt 

Court. 

25. Nothing contained in this Order shall be construed as a 

waiver of any right of any defendant. 

26. A copy of this Order shall be issued forthwith to 

counsel for all defendants who shall be responsible for advising 

defendants, employees of counsel for defendants, and defense 

witnesses of the contents of this Order. Each defendant, counsel 

for defendant, employee of counsel for defendant, defense 

witness, or any other person associated with the defense to be 

provided access to classified information shall execute the 

Memorandum of Understanding described in paragraph 4 of this 

Order, and counsel for defendants shall file executed originals 

with the Court and the Administrative CSO and serve an executed 

original of such document upon the government. The execution and 

filing of the Memorandum of Understanding is a condition 

precedent to receiving access to classified information. 

Dated: New York, New York 

July l.i, 1999 

18 

District Judge 

Southern District of New York 

402
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

UNITED STATES OF AMERICA 

- v -

USAMA BIN LADEN, et al. 

Defendants. 

-x 

- - - - - - - - - - - - - - - - - -x 

98 Cr. 1023 (LBS) 

MEMORANDUM OF UNDERSTANDING REGARDING RECEIPT OF 

CLASSIFIED INFORMATION 

Having familiarized myself with the applicable statutes, 

regulations, and orders, related to, but not limited to, Title 18 

United States Code, including unauthorized disclosure of classified 

information, espionage and related offenses; The Intelligence 

Agents Identities Protection Act, Title 50 U.S.C. Section 421;; 

Title 18 U.S.C. Section 641; Title 50 U.S.C. Section 783; 28 C.F.R. 

17 ~.,.and Executive Order 12356; I understand that I may be 

the recipient of information and documents that concern the present 

and future security of the United States and belong to the United 

States, and that such documents and information together with the 

methods and sources of collecting it are classified by the United 

States Government. In consideration for the disclosure of 

classified information and documents: 

( 1) I agree that I shall never divulge, publish, or 

reveal either by word, conduct or any other means, such 

classified documents and information unless specifically 

authorized in writing to do so by an authorized representative of 

403
the United States Government; or as expressly authorized by the 

. Court pursuant to the Classified Informatlon Procedures Act and 

the Protective Order entered in the case of United States v. 

Usama Bin Laden, et al., 98 Cr. 1023 (LBSJ, Southern District of 

New York. 

( 2) I agree that this Memorandum and any other nondisclosure agreement signed by me wiil remain forever binding on 

me. 

( 3) I have received, read, and understand the 

Protective Order entered by the United States District Court for 

the Southern District of New York on July 29, 1999, in the case 

of United States v. Usama Bin Laden et al., 98 Cr. 1023 (LBS), 

2 

404
relating to classified informat:on, and I agree ro comply th 

the provisions thereof. 

Court Security Officer 

David Bruck, Esq. 

Counsel for Defendant al-'Owhali 

Carl J. Herman, Esq. 

Counsel for Defendant Odeh 

Leonard F. Joy, Esq. 

Counsel for Defendant al-'Owhali 

Paul J. McAllister, Esq. 

Counsel for Defendant Salim 

James Roth, Esq. 

Counsel for Defendant Mohamed 

Samuel Schmidt, Esq. 

Counsel for Defendant El-Hage 

Robert Tucker, Esq. 

Counsel for Defendant al-'Owhali 

Michael Young, Esq. 

Couns for Defendant Odeh 

3 

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Date 

Date 

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405