MILITARY COMMISSIONS TRIAL JUDICIARY

UNITED STATES OF AMERICA

v.
KHALID SHAIKH MOHAMMAD,
WALID MUHAMMAD SALIH
MUBARAK BIN ATTASH,
RAMZI BINALSHIBH,
ALI ABDUL AZIZ ALI,
MUSTAFA AHMED ADAM AL
HAWSAWI
AE018U
ORDER
Privileged Written Communications
6 November 2013
1. The Accused in United States v. Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak
Bin 'Attash, Ramzi Bina!Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi were
arraigned on 5 May 2012. As such, this Order only applies to these cases.
2. Definitions
a. Accused: Khalid Shaikh Mohammad, Walid Muhammad Salih Bin Attash, Ramzi
Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.
b. Defense Counsel: Only those attorneys designated by the Accused, on the record, as
counsel.
c. Defense Personnel: Includes co-counsel, interpreters, translators, paralegals,
investigators, experts, consultants, and all other personnel or support staff authorized and
engaged in, or employed to assist in the defense of the Accused, pursuant to the authority found
in the Manual for Military Commissions and the Regulation for Trial by Military Commission.
d. United States Government (USG) personnel: Refers to any person employed by or
affiliated with the United States other than counsel of record for the Accused or their
representatives. The term includes, but is not limited to, persons acting at the direction of or with
the knowledge of any agency of the United States and Joint Task Force Guantanamo.
1
Appellttte Exhibitl2Jf2U oJ.)
Page_\_ of _Qlo
e. Military Commission Privilege Review Team (Privilege Team):
(1) A team consisting of one or more Department of Defense (DoD) attorneys and
one or more intelligence or law enforcement personnel who have not taken part in, and, in the
future, shall not take part in, a military commission, a Combatant Status Review Tribunal,
Administrative Review Board, Periodic Review Board, or habeas corpus proceedings involving
the Accused (other than acting as a Privilege Team member for the habeas corpus or other
proceedings).
(2) All members of the Privilege Team will be bound by a non-disclosure
agreement to preserve the lawyer-client and other related legally-recognized privileges to the
fullest extent possible in a manner consistent with this Order.
(3) If required, the Military Commission Privilege Team may include interpreters
and translators, provided that such personnel meet these same criteria.
f. Lawyer-Client Privileged Communications:
(1) Communications that are privileged within the meaning ofM.C.R.E. 502,
which may include original handwritten or typewritten correspondence between the Accused and
his Defense Counsel bearing the signature of the Defense Counsel (or a representative of the
Defense Counsel encompassed by M.C.R.E. 502).
(2) Attorney Work Product is encompassed within Lawyer-Client Privileged
Communications.
g. Other Case-Related Material:
(1) Communications between a Defense Counsel and the Accused that relate to the
Accused's military commission but are not privileged within the meaning ofM.C.R.E. 502. This
includes discovery and related material that is releasable to the Accused, and records of
commission proceedings, including court filings when releasable to the Accused.
2
Appellate Exhibit 0\C()U ((ltM eto.\.}
a g e ~ of '40-
(2) Documents initially identified as Other Case-Related Material that are
subsequently incorporated by Defense Counsel or the Accused into work product or lawyer-
client communications or that are aggregated to support a particular communication or reflect the
lawyer's mental impressions or strategy, may become Lawyer-Client Privileged Communications
under M.C.R.E. 502. If such material is already in the possession ofthe Accused, JTF-GTMO
personnel are not responsible for retrieving documents previously submitted as "Other Case-
Related Material," or re-marking them in conformity with paragraph 5.b. below
h. Military Commissions Non-Legal Mail and Material: All correspondence, documents,
media in any form, or similar material that do not fall within paragraphs l.f or l.g, above.
i. Contraband:
(1) Any physical item or prohibited information the Commander, JTF-GTMO, or
his designee, has deemed to be impermissible or inappropriate for an Accused Detainee to
possess, be informed of (orally or in writing) or view, subject to the exception in paragraph
l.i.( 4), below, or any physical item which is prohibited from transmission to the Accused without
prior authorization by Commander, JTF-GTMO, or his designee. This includes material that, if
introduced into the detention facility, reasonably could be expected to result in immediate and
substantial harm to the national security, imminent acts of violence, future events that threaten
national security, or present a threat to the operation of the detention facilities or to U.S.
Government personnel. This material may exist in any form, including correspondence,
documents, electronic media, or similar material.
(2) Contraband includes Physical Contraband, as that term is defined in paragraph
l.j ., below.
3
Appellate Exhibit ( ef t.t\ ':')
of 20 --
(3) Examples of prohibited information include:
(a) Information relating to any ongoing or completed military, intelligence,
security or law enforcement operations, investigations or arrests or the results of such activities
by any nation or agency;
(b) Current political or military events in any country, historical
perspectives or discussions on jihadist activities, including information generated or distributed
by or on behalf of foreign terrorist organizations, individuals or groups engaged in terrorist
activities.
(c) Information about security procedures or changes to security procedures
at JTF-GTMO or the U.S. Naval Station at Guantanamo Bay or information about the physical
layout of the detention facilities;
(d) Information about the operation of or changes to the detention facility;
(e) Information about present and former detention personnel or other U.S.
Government personnel (including their names, locations or assignment history); and,
(f) Information regarding the status of other Detainees (including former
Detainees) at Guantanamo and information regarding any detention of Detainees; and classified,
Controlled Unclassified Information or Sensitive but Unclassified Information that has not been
approved by the Government for release to the Accused.
(4) Notwithstanding sub-paragraphs l(i)(l)- (3), above, no information shall be
considered Contraband if defense counsel reasonably believes it is directly related to the
Military Commission proceeding involvoing the Accused.
j. Physical Contraband: Consists of paper fasteners (including staples, paper clips, and
binder clips), money, stamps, cigarettes, weapons, chemicals, drugs, writing instruments, items
of value and material that may be used in an escape attempt, or that present a threat to the
4 APppeWte
age ofZO
operation of the detention facilities or to U.S. Government personnel. "Physical Contraband"
does not include written communications.
3. Defense Counsel Handling and Marking of Communications with the Accused
a. Because of the potential for harm posed by the introduction of contraband into the
detention facility, Defense Counsel shall not include contraband in Non-Legal Mail and Material
or in Lawyer-Client Privileged Communications or Other Case-Related Material, subject to
paragraph l.i.(4), above.
(1) If Defense Counsel believes contraband must be presented to the Accused that
may or does constitute prohibited information, where such material is directly related to the
Mi.litary Commission involving that Accused, and if necessary to the preparation of the defense,
Defense Counsel may submit such matters ex parte to the Military Judge together with an
explanation of why the material must be provided to the Accused.
(2) If the Military Judge approves the Defense Counsel's request, the Military
Judge shall notify the JTF-GTMO Commander of the Commission's ruling so that special
handling procedures can be instituted as appropriate. The Defense must then also provide notice
to the JTF-GTMO Commander, or his designee, of what material it seeks to provide to the
Accused, though it need not disclose its explanation to the JTF-GTMO Commander of why that
material must be provided to the Accused.
b. When sending material to the Accused or bringing such material to a meeting with the
Accused, Defense Counsel shall separate Lawyer-Client Privileged Communications, Other Case
Related Material, and Non-Legal Mail and Material.
c. Defense Counsel shall ensure all communications with the Accused are marked with
appropriate classification markings, including banner and portion markings. Unclassified
communications shall be banner marked but do not require portion marking.
5 Appellate .e..,-to..\":)
!'age.__ of "20
d. Lawyer-Client Privileged Communications
(1) Each page of incoming material shall include Defense Counsel's initials or
signature on the top right comer, as well as the name and Internment Serial Number of the
accused. The top and bottom of each page shall also be marked as "LAWYER-CLIENT
PRIVILEGED COMMUNICATION UNDER M.C.R.E. 502."
(2) Defense Counsel shall include an identically marked cover sheet indicating the
number of attached pages and a signed attestation by the Defense Counsel the attached
communication is privileged from disclosure under M.C.R.E. 502 and, to the best ofhis
knowledge and belief, the attached communication does not contain Contraband, Classified,
Controlled Unclassified Information, or Sensitive but Unclassified Information the intended
recipient of the communication is not authorized to receive under M.C.R.E. 505, the Military
Commissions Act, and the laws, orders, directives and regulations governing classified,
Controlled Unclassified Information, or Sensitive but Unclassified Information, including any
protective orders in the case.
e. Other Case,. Related Material
(1) Each page of incoming material shall include Defense Counsel's initials or
signature on the top right comer, as well as the name and Internment Serial Number of the
Accused. The top and bottom of each page shall also be marked as "OTHER CASE-RELATED
MATERIAL."
(2) Discovery Material. In addition to the markings described in paragraph 3.d,
above, before being provided to the Accused by a Defense Counsel, material provided by the
Prosecution in discovery must be marked by the Prosecution in a manner that makes clear the
material has been approved for release to the Accused. The specific language for these markings
shall be determined by the Prosecution and placed on each page of the document as part of the
6
Appellate Exhibit () COU (161V\ :t A J
Page _lD._ of 2.0--
discovery process. The Prosecution shall provide a list of the approved markings to Defense
Counsel, the Military Judge, the Privilege Team, and JTF-GTMO personnel. If requested to do
so by the Defense Counsel or ordered to do so by the Military Judge, the Prosecution will
provide a duplicate copy of paper discovery materials releasable to the Accused directly to the
Privilege Team for delivery to the Accused.
(3) Records Relating to Military Commission Proceedings. In addition to the
markings described in paragraph 3.d., above, before being provided to the Accused by a Defense
Counsel, filings and other materials from Military Commission proceedings must be marked by
the Prosecution as appropriate for public release or release to the Accused. The specific
language for these markings shall be determined by the Prosecution and placed on each page of
the document when these documents are processed. The Prosecution shall provide a list of the
approved markings to Defense Counsel, the Military Judge, the Privilege Team, and JTF-GTMO
personnel.
(4) Other Material. If the Other Case-Related Material was not discovery provided
by the Prosecution or a record from a Military Commission proceeding, Defense Counsel shall
include an identically marked cover sheet indicating the number of attached pages and an
attestation signed by Defense Counsel stating the attached communication is related to the case
and, to the best of his knowledge and belief, the material does not contain Contraband,
Classified. Controlled Unclassified Information, or Sensitive but Unclassified Information, the
intended recipient of the communication is not authorized to receive under M.C.R.E. 505, the
Military Commissions Act, and the laws, orders, directives and regulations governing Classified,
Controlled Unclassified Information, or Sensitive but Unclassified Information, including any
protective orders in the case.
7
Appellate (I(SM .et ell";)
Page::]_
f. Military Commissions Non-Legal Mail and Material
(1) Each page of incoming material shall include Defense Counsel's initials or
signature on the top right comer, as well as the name and Internment Serial Number of the
Accused. The top and bottom of each page shall also be marked as "MILITARY COMMISSION
NON-LEGAL MAIL AND MATERIAL."
(2) Defense counsel shall send Non-Legal Mail and Material to the Accused
through the United States Postal Service. It shall be reviewed by government personnel at JTF-
GTMO under the Standard Operating Procedures for Detainee Non-Legal Mail. However, in
extraordinary circumstances, if a Defense Counsel requires delivery of such material to the
Accused in an expedited manner, Defense Counsel can submit a request for expedited processing
to JTF-GTMO via the Privilege Team. In the request, Defense Counsel shall state the requested
delivery date for the material and an explanation for why expedited processing is required. The
Privilege Team shall deliver Defense Counsel's request and the Non-Legal Mail and Material to
personnel at JTF-GTMO. If the request is granted, this material shall, to the maximum extent
possible, be given expedited priority by JTF-GTMO.
(3) During some meetings with the Accused, a Defense Counsel may receive Non-
Legal Mail or Material from the Accused which requires expedited processing for reasons related
to the military commission proceedings. For example, the Accused may provide the Defense
Counsel with a letter of introduction for the Defense Counsel to use when meeting with a
witness. In such instances, the Defense Counsel can submit a request for expedited processing to
JTFGTMO via the Privilege Team. In the request, Defense Counsel shall state the date by which
processing is required and an explanation for why expedited processing is required. The
Privilege Team shall deliver the Defense Counsel's request and the Non-Legal Mail and Material
8
Appellate x h i b i t ~ (kSN'\d (),\)
Page _e of ::zo
to personnel at JTF-GTMO. If the request is granted, this material shall, to the maximum extent
possible, be given expedited priority by JTF-GTMO.
4. General Obligations of Military Commission Privilege Review Team (Privilege Team)
a. To the fullest extent possible and consistent with the terms of this Order, the Privilege
Team must preserve the lawyer-client and other related legally-recognized privileges. Members
of the Privilege Team shall not disclose to any person any information provided by the Accused
or Defense Counsel, except as provided in this Order.
b. All members of the Privilege Team will execute a non-disclosure agreement to preserve
the lawyer-client and other related legally-recognized privileges to the fullest extent possible in a
manner consistent with this Order. Non-disclosure agreements will be provided to the designated
Court Security Officer.
c. The Privilege Team may not consult with security and intelligence experts regarding
potential Contraband or other unauthorized information the Privilege Team becomes aware of
when executing its responsibilities under this Order without first notifying the Defense. Defense
will be given an opportunity to address the issue with the Privilege Team. If the issue is not
resolved, either the Defense or the Privilege Team may raise the issue to the Military Judge.
Only after resolution by Defense and the Privilege Team or by the Military Judge, may the
Privelege Team consult with security and intelligence experts regarding potential contraband. In
extraordinary circumstances, the Privilege Team may contact the Military Judge ex parte,
without notice to either side, to address concerns. Contact with the Military Judge will be made
through the Trial Judiciary staff.
d. The Privilege Team shall maintain a log, which contains general information about its
processing of material under this Order (such as the number of pages, date of review, etc., but
not including details about the content of the documents), as well as information about
9
Contraband or other unauthorized material that was placed into the mail or meeting process by
Defense Counsel or defense personnel. This log and information shall be kept in a secure
location, and shall not be disclosed to any person except as provided in this Order or as necessary
to address these issues with competent authorities, to include the Chief Defense Counsel.
Whenever possible, the Privilege Team shall advise the involved Defense Counsel in advance
before disclosing this information.
e. After receiving permission from the Military Judge, the Privilege Team shall report to
the JTF-GTMO Commander any information that reasonably could be expected to result in
immediate and substantial harm to national security, imminent acts ofviolence,or future events
that threaten national security or present a threat to the operation of the detention facilities or to
U.S. Government personnel. In his discretion, the Commander, JTF-GTMO, may disseminate
the relevant portions of the information to law enforcement, military, and intelligence officials,
as appropriate.
f. This Order does not authorize the Privilege Team to conduct a classification review of
any document encompassed within the provisions of this Order.
5. Material from Defense Counsel to the Accused ("Incoming Material")
a. After completing the requirements under paragraph 3, above, Defense Counsel may
either deliver Incoming Materials (including Lawyer-Client Privileged Communications, Other
Case-Related Material, and requests for expedited Non-Legal Mail and Material) addressed to
his client, to the Privilege Team at JTF-GTMO, or mail them to an address for the Privilege
Team in the Washington, D.C. area that shall be provided by the government.
b. Defense counsel shall seal the Lawyer-Client Privileged Communications, Other Case
Related Material, and Non-Legal Mail and Material in separate envelopes. Defense Counsel
10
Appellate Exhibit__b@ (t:SM t t A \ : )
Page J.Q. of 20
shall clearly mark the outside of an envelope containing the material with an appropriate
annotation depending on the category of material:
LAWYER-CLIENT PRIVILEGED COMMUNICATION UNDER M.C.R.E. 502
-FOR DELIVERY TO DETAINEE
MILITARY COMMISSION OTHER CASE RELATED MATERIAL
-FOR DELIVERY TO DETAINEE.
MILITARY COMMISSION NON-LEGAL MAIL OR MATERIAL
-FOR DELIVERY TO DETAINEE
c. Each envelope shall also include the Accused's name and Internment Serial Number
and the Defense Counsel's name and return address and the classification level of any
information contained within it. Envelopes received by the Privilege Team that are not properly
marked shall be returned to Defense Counsel unopened.
d. Incoming material shall not include Physical Contraband (including paper fasteners,
staples, paperclips, and binder clips) or other Contraband.
e. Prior to placing the material into the envelope, Defense Counsel shall ensure each page
oflncoming Material is marked in accordance with paragraphs 3.d.(l) or 3.e.(l), above.
f. The Privilege Team shall open the envelopes to inspect the contents for Physical
Contraband and to verify that each page of the material includes the markings required by
paragraph 3.d.(l) or 3.e.(l), above. Defense Counsel or his representative may be present during
this inspection. This inspection shall not include a review of the substantive content ofthe
incoming material privileged under M.C.R.E. 502.
(1) Physical Contraband shall be removed from the envelopes and shall not be
processed for delivery to the Accused.
11
Appen,a,te -e:t
Page_ of2.0
(2) If, in inspecting under paragraph S.f, above, the Privilege Team observes in
plain view material that is not correctly marked as required by paragraph 3, above, that material
shall not be processed for delivery to the Accused. This incorrectly marked material can include:
(a) General interest magazines, print media, or third party communications
that are marked as Lawyer-Client Privileged Communications,
(b) Classified information, Controlled Unclassified Information, ()r
Sensitive but Unclassified Information whose markings indicate it is not approved for release to
the Accused.
g. The Privilege Team shall consult with Defense Counsel regarding the material
described in paragraph S.f, above, in an effort to address the apparent problem(s).
(1) If the discussions resolve the apparent problem, the material shall be
processed for delivery to the Accused.
(2) If the discussions do not resolve the problem and if the material does not
implicate the concerns articulated above, the material shall be returned to Defense Counsel by
the Privilege Team, with a written explanation regarding why it was not processed for delivery to
the Accused.
(3) If the discussions do not resolve the apparent problem and if the material
does implicate the concerns articulated above, the material shall not be returned to Defense
Counsel by the Privilege Team, and the Privilege Team shall provide a written explanation
regarding why it was not processed for delivery to the Accused.
h. Following the inspection, the Privilege Team shall annotate each page of the material
with the Internment Serial Number of the Accused, a code indicating which Privilege Team
member conducted the inspection, and a standardized marking that indicates the Privilege Team
has processed the material in accordance with this Order.
12
Appellate Exhibit tWoU (I!SM d-t:t.l.)
Page S2. of 2.0
i. The processing by the Privilege Team shall generally be completed within five (5)
working days of the Privilege Team's receipt of this material.
j. The Privilege Team shall seal the processed material in separate envelopes, in the
presence of Defense Counsel or its representative if requested, marked as:
LAWYER-CLIENT PRIVILEGED COMMUNICATION UNDER M.C.R.E. 502
--APPROVED FOR DELIVERY TO DETAINEE
OTHER CASE RELATED MATERIAL
--APPROVED FOR DELIVERY TO DETAINEE
REQUEST FOR EXPEDITED NON-LEGAL MAIL OR MATERIAL
FOR DELIVERY TO JTF-GTMO STAFF JUDGE ADVOCATE
k. The sealed envelopes for Lawyer-Client Privileged Communications and Other Case
Related Material shall clearly indicate the identity of the Accused to who the envelopes are to be
delivered and, based on the markings found on the documents, the classification level of the
documents contained within it.
1. The sealed envelopes containing Lawyer-Client Privileged Communications, Other
Case-Related Material, and Requests for Expedited Non-Legal Mail may be returned to the
Defense Counsel or defense personnel for transmission to JTF-GTMO in a manner consistent
with the classification level of the information. If requested by Defense Counsel, the Privilege
Team shall place this material on the next mail courier run to JTF-GTMO.
m. If Defense Counsel desires confirmation that the documents were delivered to the
Accused, Defense Counsel shall provide a self-addressed envelope for that purpose. The
Accused shall be responsible for mailing any confirmation of delivery to Defense Counsel. This
method shall be the sole and exclusive means by which confirmation of delivery is provided to
Defense Counsel.
13 Appellate Exhibit0l0U(tstO -Lt
PageJ.3.
'
6. Material Sent from the Accused to Defense Counsel ("Outgoing Material")
a. Detainees shall be provided by JTF-GTMO with paper and a writing utensil to prepare
written communications to Defense Counsel. Access to such items may be limited or restricted
because of the Accused's disciplinary and/or medical status, although the Accused's disciplinary
status shall not be a basis for denying all access to such items.
b. In the presence of JTF-GTMO staff, the Accused shall seal the written communication
in an envelope that shall be annotated as "LAWYER-CLIENT MATERIAL--FOR DELIVERY
TO DEFENSE COUNSEL." Each envelope shall be dated and labeled with the name and
Internment Serial Number of the Accused and the name of Defense Counsel. It shall be marked
and secured as TS/SCI pending review by Defense Counsel or other authority for a classification
determination. The sealed envelope shall be placed in a courier bag which shall then be locked
and provided to the Privilege Team.
c. The Privilege Team shall store all Outgoing Material in a safe location in the secure
area at JTF-GTMO in a manner designed to protect any classified material and lawyer-client and
related privileges until properly transferred to an authorized courier for delivery to the Defense
Counsel.
7. Material Brought by Defense Counsel into a Meeting with the Accused
a. Defense Counsel and defense personnel may only bring into a meeting with the
Accused material which meets the requirements for Incoming Mail in paragraph 5, above, and
that has been previously inspected and processed by the Privilege Team. This material shall be
submitted to the Privilege Team with sufficient time for such inspection to be conducted and for
the material to be sent to JTF-GTMO on the next courier run (if required), but generally not less
than five (5) working days in advance of the visit. Material not provided to the Privilege Team
14
Appellate Exhibit Ol0U -t*
Page l:L of 2.0 --
sufficiently in advance of a scheduled meeting may not be inspected and transported to JTF-
GTMO in time for Defense Counsel to bring it into the meeting.
b. Defense Counsel and defense personnel may bring writing utensils and blank paper
into a meeting with the Accused. JTF-GTMO personnel may perform a Physical Contraband
inspection of the bags and briefcases ofDefense Counsel and defense personnel. Written
materials are subject to inspection by the Privilege Team to ensure they have been marked and
processed.
c. Defense Counsel may request permission to bring into a meeting tapes or other forms of
electronic communications. This material may be either Case Related or Other Material and
shall be submitted to the Privilege Team or Staff Judge Advocate, as appropriate, at least
fourteen days (14) prior to the scheduled visit so they can be processed. The Commander, Joint
Detention Group, shall not unreasonably withhold approval of such requests, if this review
determines that sharing the communication with the Accused would not reasonably be expected
to result in immediate and substantial harm to the national security, imminent acts of violence, or
future events that threaten national security or present a threat to the operation of the detention
facilities or to U.S. Government personnel.
8. Material Brought Out of a Meeting Between the Accused and Defense Counsel
a. Material Retained by the Accused
(1) At the completion of each meeting, the Accused shall be allowed to retain any
written notes made during the meetings and any written material that was processed pursuant to
paragraph 5, above, and brought into the meeting.
(2) For the written notes made during the meeting, Defense Counsel shall mark
them pursuant to the procedures in paragraph 3, above. All material shall then be inspected by
the Privilege Team pursuant to the procedures in paragraph 5, above.
15
Appellate Exhibit D I IOU ((SM L t tl-.1
Page J5 of 2.0
(3) Under no circumstances should the Accused or Defense Counsel commingle
Lawyer-Client Privileged Communications, Other Case-Related Material, and/or Legal or Non-
Legal Material.
b. Material Retained by Defense Counsel
(1) Following a Defense Counsel's meeting with the Accused, the notes or
documents used or produced during the visits shall be sealed by the Defense Counsel in the
presence of JTF-GTMO personnel. The envelope shall be marked with the Internment Serial
Number of the Accused and name of the Defense Counsel and labeled as "Military Commissions
Meeting Documents-For Delivery to Counsel" and the classification level of any information
contained within it.
(2) Any material Defense Counsel requires for further meetings can be placed in a
separate envelope and made available to Defense Counsel at the next meeting.
(3) Upon completion of all meetings, the envelope(s) shall be sealed into a larger
envelope by JTF-GTMO personnel. The larger envelope shall be marked as "Military
Commission Meeting Documents--For Delivery to Counsel" and annotated with Defense
Counsel's name and the Accused's Internment Serial Number and the classification level of any
information contained within it.
(4) If Defense Counsel will not be couriering this material, the larger envelope
shall be placed in a courier bag, which shall then be locked and provided to the Privilege Team at
JTF-GTMO. The Privilege Team shall store this material in a safe location in the secure area at
JTF -GTMO in a manner designed to protect any classified material and lawyer-client and related
privileges until properly transferred to a government-designated courier for delivery to Defense
Counsel.
9. Material Brought Into and Out of Military Commission Hearings
16
Appellate Exhibit 0 \'2-U "-\
Page .]t of "'2..0
a. Material Brought Into Commission Hearings
(1) The Accused may bring into a Military Commission hearing any documents
and material properly possessed in accordance with this Order that are necessary and relevant to
the Accused's Military Commission proceeding. This material shall not be subject to inspection
by the Privilege Team before being brought into a hearing, but is subject to inspection by JTF--
GTMO staff for Physical Contraband.
(2) Defense Counsel may bring into a Military Commission hearing any
documents and material necessary and relevant to represent the Accused. This material shall not
be subject to inspection by the Privilege Team before being brought into a hearing, but is subject
to inspection by JTF-GTMO staffforPhysical Contraband. Defense Counsel are required to
protect Classified material, Controlled Unclassified Information, and Sensitive but Unclassified
Information from unauthorized disclosure, including during commission hearings.
b. Material Brought Out of Commission Hearings
(1) The Accused may not return to the detention facility with material brought out
of a Military Commission hearing unless the material is inspected by the Privilege Team in
accordance with the same criteria and procedures outlined in paragraph 5, above.
(2) Defense Counsel may retain material brought out of a Military Commission
hearing without an inspection by the Privilege Team. As in all situations, if Defense Counsel
knows, reasonably should know, or is uncertain whether material brought out of a Military
Commission hearing with the Accused contains classified information, Defense Counsel must
take appropriate measures to protect such material.
(3) Defense Counsel qualified as couriers at the appropriate level shall seal,
handle, transport, and secure such material in accordance with DoD regulations. Defense
Counsel who are not qualified as couriers at the appropriate level shall give the classified or
17
Appellate Exhibit Ol<c't.A( II"I'M ...,.1- ,.
1
)
Page J1. of '-0 ------- ,,"t -. ,
believed to be classified notes, documents, or material used or produced during the hearing to a
qualified courier to be stored, handled, and transported as classified material at the appropriate
level of classification
10. Storage of and Access to Legal Material. The Accused's storage of and access to Lawyer-
Client Privileged Communications and Other Case-Related Material shall be in accordance with
the JTF-GTMO Standard Operating Procedures.
11. Inspection of Legal Bins
a. Each Accused possess one or more containers known as "legal bins," in which they
store materials protected by the attorney-client privilege, as defined in Military Commission
Rule of Evidence (M.C.R.E.) 502(a)(l). These materials are identified by various markings,
including stamps of various forms placed from time to time by USG personnel and banners or
markings placed by counsel for the Accused or their representatives. The content of materials
bearing any of these various markings, notwithstanding inconsistencies in their form, may not be
read or otherwise observed for content by USG personnel other than to identify that the materials
are, in fact, marked.
b. USG personnel may inspect legal bins of an Accused only in the presence of a trained
Non-Commissioned Officer or higher as designated by the Joint Detention Group Commander
and only for contraband. Contraband is defined in paragraph 2.i., above.
c. Materials other than physical contraband observed in the legal bins of the Accused, if
any, which do not bear the markings referred to in paragraph 3 shall be segregated in a sealed
container, labeled with the date, time and identification of the USG personnel by whom it was
observed, and retained by the Non-Commissioned Officer supervising the inspection. In such an
event, an attorney representative of the SJA will be immediately notified. Seizure of such
material may occur only upon the prior authorization of an attorney representative of the SJA,
18
Apppelllf: Exhibit et"ed.)
age
made upon personal inspection. If the materials are determined to be properly marked, they will
be returned to the Accused. If the materials are not properly marked, they will be retained by the
attorney representative of the SJA and counsel for the Accused shall be immediately notified. If
the materials originated with Defense Counsel, they shall be promptly returned to counsel. The
materials shall not be duplicated, photographed, or otherwise copied by any process prior to
being shown to Defense Counsel.
d. Material, marked as indicated in paragraph ll.a, above, that is found in locations other
than the legal bin of an Accused, shall be segregated in a sealed container, labeled with the date
and time and identification of the USG personnel by whom it was observed, and retained by the
Non-Commissioned Officer supervising the inspection.
(1) In such an event, an attorney representative of the SJA will be immediately
notified. Seizure of such material may occur only upon the prior authorization of an attorney
representative of the SJA, made upon personal inspection. If the materials are determined to be
properly marked, they will be returned to the Accused.
(2) If the materials are not properly marked, they will be retained by the attorney
representative of the SJA, and Defense counsel for the Accused shall be immediately notified. If
the materials originated with counsel, they shall be promptly returned to Defense Counsel. The
materials shall not be duplicated, photographed, or otherwise copied by any process prior to
being shown to counsel.
12. Storage of and Access to Non-Legal Material. The Accused's storage of and access to
Non-Legal Mail and Material shall be in accordance with the JTF-GTMO Standard Operating
Procedures.
19
Appellate Exhibit I) 19U lleSM .t+A 1.)
Page jg_ of .z..o
So ORDERED this 6th day ofNovember 2013
JAMES L. POHL
COL,JA, USA
Military Judge
20 Appellate Exhibit Olf?>U (/CS'('(J .t + a..l.)
Page .(;jo of .Qo -
--