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


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.


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


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.

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.


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 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 (“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.; Gerald T. Zerkin; Edward B. MacMahon,
Jxr., Michael Nachmanoff, Ken Troccoli, Linda McGrew, and Pam
Bishop. Any additional person whose assistance the defense

reasonably requires may only have access to classified


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


IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

T CO
GINSA

RK, US, DISTRIC
Raritan VIR

Alexandria Division
UNITED STATES OF AMERICA

Vv. Crim. No. 01-455-A

ZACARIAS MOUSSAOUIL
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 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


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


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.

Cc. 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


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 attorney-

client privilege.


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”).


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.

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, 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

15


defense counsel, defense counsel employees, and defense witnesses
to have access to classified information.

5, M2
ORDERED this Zo. day of January 2002, at Alexandria,

Virginia.

/S/

Leonie M. Brinkema
United States District Judge

WE ASK FOR THIS:

Paul J. McNulty
United States Attoricy

Pare —

Robert A. Spencer

Kenneth M. Karas

David J. Novak

Assistant United States Attorneys

17


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
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; 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,


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 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 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


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.

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


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