Case 1:05-cv-01971-RMC Document 282 Filed 08/23/12 Page 1 of 16

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
MOHAMMED AL-QAHTANI,
Petitioner,
v.

Civil Action No. 05-1971 (RMC)

BARACK H. OBAMA,
President of the United States, et al.,
Respondents.
PETITIONERS REPLY IN SUPPORT OF
MOTION FOR LIMITED MODIFICATION OF PROTECTIVE ORDERS
The Respondents opposition fundamentally misunderstands the nature of the relief
sought by this motion. Petitioners application, if granted, would not itself authorize Petitioners
counsel to file a classified declaration in the Freedom of Information Act (FOIA) action pending
in United States District Court for the Southern District of New York or otherwise to disclose
classified information. Rather, it is, of course, up to the Court in that case to determine whether
she can or will consider a classified or sealed filing from Petitioners counsel. What Petitioner
asks of this Court, then, is only a limited modification of the protective orders governing this
action so that when Petitioners counsel approaches the FOIA court seeking to submit a
classified declaration or otherwise to provide the information that would be set forth therein, this
Courts protective order will no t stand as an obstacle to that Courts ability to determine whether
it may consider such a declaration or to craft some alternative mechanism by which to fully
consider the facts of this case in addressing the FOIA issues before it.

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The Governments arguments that plaintiffs in FOIA cases ought not be permitted to file
classified submissions are therefore misdirected and premature.1 It is for the FOIA judge, not
this Court, to decide what shall be considered in that case. Similarly, this Court need not address
the Governments assertion that it has plenary authority, unreviewable by any court, to determine
whether, how, and when a non- governmental party may use classified information.

That

argument far outstrips the authorities that the government cites in support of it but, in any case, is
likewise best adjudicated by the FOIA judge, in the specific factual and legal context presented
by that case.
The modification to the protective order that Petitioner seeks is, then, a very limited one.
It would simply enable his counsel to seek leave from the FOIA Court to submit specifically
identified materials received in this case. It would not permit Petitioners counsel to disclose
materials to any other party or court in any other context. This court should grant the motion and
thereby allow the Southern District of New York to determine whether it will permit Petitioners
counsel to submit the sealed declaration that they propose to file.2
I.

THIS COURT UNQUESTIONABLY HAS THE AUTHORITY TO AMEND

ITS OWN PROTECTIVE ORDERS.

The government argues that this Court lacks authority to modify the Protective Order or
otherwise authorize disclosure of classified materials received during discovery in the instant

The Government has acknowledged that there will be litigation before the FOIA judge as to
whether Petitioners counsel can submit a sealed declaration. See Govt Opp. at 4 n.2. This
acknowledgment effectively concedes the point: the merits of that FOIA issue should be decided
not by this Court, see id. III, but by the FOIA Court.
2
The Proposed Order submitted with Petitioners motion might be misread to grant Petitioners
counsel permission to file a classified declaration in the FOIA Court without first seeking that
courts permission. That is not what Petitioner seeks. To be clear, Petitioner seeks only the
modification described in the text above: an order permitting Petitioners counsel to file a
classified declaration in the pending FOIA litigation if and only if specifically authorized to do
so by order of the Southern District of New York.
2

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case in the context of litigating a separate FOIA case. Resps Oppn to Petrs Mot. for Limited
Modn of Prot. Orders at 7 (Govt Opp.). The governments argument fails. There is no
question but that this Court obviously has the authority to amend its own orders, including of
course its own protective orders. Indeed, this Courts authority to do so is among its basic
powers and is one that courts routinely exercise. See, e.g., In re "Agent Orange" Prod. Liab.
Litig., 821 F.2d 139, 145 (2d Cir. 1987) (It is undisputed that a district court retains the power
to modify or lift protective orders that it has entered.); Public Citizen v. Liggett Group, Inc., 858
F.2d 775, 782 (1st Cir. 1988) (Correlative with this power to enforce [a protective order], the
district court necessarily also retained power to modify the protective order in light of changed
circumstances. The Supreme Court established long ago that even an injunction entered by
consent of the partiesand this protective order was entered over the objections of the
plaintiffsis always modifiable.) (collecting cases), cert. denied, 488 U.S. 1030 (1989).
The fact that the protective order in this case arises in the unique context of Guantnamo
habeas litigation and covers, among other information, material classified by the executive
branch, does not strip this Court of that authority. Indeed, the protective order governing these
cases has been modified on a number of occasions by the Court, and the Courts authority to
make such modifications was never been questioned by the government. The original protective
order, filed in 2004, see In re: Guantanamo Bay Detainee Litig., 344 F. Supp. 2d 174 (D.D.C.
2004), was supplemented and amended twice before being replaced by the current protective
order, Dkt. No. 62, which has in turn been amended to clarify the procedures for disclosure of
classified information to petitioners, Dkt. No. 177. The notion that this Court is generally
powerless to amend its protective orders is, then, belied by prior proceedings in this very case.

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The government argues, however, that this Courts authority to amend its protective order
is cabined by the scope of habeas jurisdiction granted by Boumediene v. Bush, 553 U.S. 723
(2008), and also by Section 7 of the Military Commissions Act, which precludes federal courts
from entertaining any other action against the United States . . . relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement of a person who has been
determined to be properly detained as an enemy combatant. Govt Opp. at 5-7. This attempt to
narrow the courts inherent authority to alter or modify its own orders fails, for at least three
reasons.
First, there is no authority for the proposition that this Courts inherent supervisory power
to amend its orders is in any way limited by the jurisdictional basis underlying the particular case
before it. Thus, as a court may retain jurisdiction to modify protective orders even after a case is
terminated and the court has otherwise lost jurisdiction, see, e.g., Public Citizen, 858 F.2d at 78283 (We note that the courts and commentators seem unanimous in finding such an inherent
power to modify discovery-related protective orders, even after judgment, when circumstances
justify.) (collecting cases); Dushkin Pub. Group, Inc. v. Kinkos Serv. Co., 136 F.R.D. 334, 336
n.6 (D.D.C. 1991), this Court a fortiori retains broad power to modify the protective orders at
issue even if it owes its jurisdiction to the Courts narrow holding in Boumediene. Moreover,
nothing in Section 7 of the Military Commissions Act, which limits what kind of actions an
enemy combatant may file against the government, can plausibly be read to limit this courts
inherent power to modify its own orders in a case, such as this one, that is not barred by that
provision.
Second, although the government argues that this Courts authority to amend its
protective order is limited to the present case and not any other litigation filed by or on behalf of
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or relating to a Guantanamo Bay detainee, Govt Opp. at 6, Petitioner does not ask this Court to
issue an order that reaches beyond the confines of the matter before it. Rather, as previously
noted, Petitioner specifically does not ask this Court to authorize public disclosure of classified
or protected information, or even to authorize Petitioners counsel to file a classified declaration
in the FOIA action. Instead, Petitioner comes before this Court to seek nothing more than a
minor modification to the protective orders in place that would permit the FOIA judge to
consider a classified or otherwise sealed declaration, if she deems it fit and proper to do so,
without treading upon this courts protective order.
In this regard, Petitioners request is similar to that of a litigant seeking to amend the
confidentiality order in one case in order to permit discovery of those materials in another. The
appropriate course in such situations is to seek a modification from the court that issued the
confidentiality order, as the Petitioner has done here, rather than to ask the other court to order
disclosure despite its sister courts confidentiality order.

See Dushkin, 136 F.R.D. at 336

(denying, as a matter of comity, a request to this Court for an order to produce documents
protected by a confidentiality order issued by the S.D.N.Y., and directing the party seeking
disclosure to address its request to the S.D.N.Y.); see also 8A Charles Alan Wright, Arthur R.
Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice and Procedure 2044.1 (3d ed.
2012) ([O]rdinarily the request for modification should be addressed to the court that entered
the protective order.). Here, too, this Court has authority to amend its protective order so that
the FOIA court is free to decide whether and how to permit Petitioner to use information that it
covers in that action.
Finally, the notion that the modification Petitioner seeks falls outside this Courts
jurisdiction over the habeas case is belied by the protective order itself, which specifically
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contemplates government use of protected materials outside the present litigation. See Protective
Order and Procedures for Counsel Access (Protective Order) at I.A.3, Dkt. No. 62 (Sept. 11,
2008) (Nothing in this Protective Order precludes the governments use of classified
information as otherwise authorized by law outside these matters.). Petitioner, in effect, asks
for nothing more indeed, significantly less so that his counsel may use classified information
if and only if authorized by the Southern District of New York in the pending FOIA litigation.
The modification sought by Petitioner is, then, not only appropriate but fair.
II.

THE GOVERNMENTS CONTENTION THAT COURTS MAY NOT IN

ANY CIRCUMSTANCES PERMIT NON-GOVERNMENTAL PARTIES
TO USE CLASSIFIED INFORMATION OVER THE GOVERNMENTS
OBJECTION SIGNIFICANTLY OVERSTATES THE LAW BUT, IN ANY
CASE, THIS COURT NEED NOT DECIDE THE QUESTION IN ORDER
TO GRANT THE RELIEF SOUGHT.

The government argues that this Court may not modify the protective order to permit the
FOIA court to consider a classified declaration because the Executive has exclusive and plenary
authority to determine precisely when, where and how classified information may be used in
court by non-governmental parties. Govt Opp. II. This Court need not decide this question,
because, as already discussed, Petitioner is not asking this Court to authorize disclosure of
classified information. That is, no disclosure whatsoever will occur in the FOIA case unless
the FOIA judge permits it after considering submissions on the point from all parties. Petitioner
merely asks this Court to amend the protective order so that the information may be used if and
when it is specifically authorized by that court. In the governments view, no such authorization
could ever issue without the governments consent. Petitioner disagrees. This Court need not
and should not adjudicate that dispute at this time, but should instead allow that issue to be
resolved in its specific factual and legal context by the FOIA court.

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If this Court nevertheless reaches the issue, it is plain that the governments extreme
assertion of unreviewable discretion goes well beyond the authorities cited in its support and, as
demonstrated below, is inconsistent with the manner in which this Court has always managed
this litigation.
A.

This Court has frequently exercised its authority to determine the rules
governing access to classified information and to adjudicate disputes
regarding classified information.

Contrary to the governments argument that its discretion to control classified

information is unreviewable by coordinate branches, this Court has exercised significant
independent discretion with regard to protective orders governing access to classified
information. Indeed, the very protective orders at issue in this motion were the result of this
Courts exercise of significant independent judgment. Thus, for example, the protective order
entered on September 11, 2008, did not simply so order the proposed order that was submitted
to the Court by the parties on consent; instead, the Court reworked and streamlined many of its
provisions. Compare Protective Order, Dkt. No. 62, with Consent Motion for Entry of Protective
Order, Ex. 1., In re: Guantanamo Bay Detainee Litig., No. 08-mc-442, Dkt. No. 315 (D.D.C.
Aug. 29, 2008).

Moreover, the Court exercised further independent judgment when it

subsequently clarified the rules governing Petitioners counsel ability to discuss with Petitioners
their own classified statements. See Mem. Opinion and Order, In re: Guantanamo Bay Detainee
Litig., No. 08-mc-442, Dkt. Nos. 1821-22 (D.D.C. July 10, 2009). Judge Hogan rejected the
governments contention that Petitioners counsel would not be permitted to share with
petitioners classified information not learned from their respective clients. Mem. Opinion, id. at
6, Dkt. No. 1821. Instead he affirmed for the third time, and over government objection, that
a petitioner may view his own classified statements, whether or not those statements were
made to his counsel.
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Not only has the Court exercised independent judgment in crafting the terms of the
protective order, but the D.C. Circuit has specifically envisioned a continuing role for this Court
in mediating disputes over the disclosure of classified information. In Al-Odah v. United States,
559 F.3d 539, 544-47 (D.C. Cir. 2009), the Court of Appeals held that a district court considering
a request for disclosure of classified information must determine whether the information is
material and necessary for meaningful review and whether alternatives to access to the classified
information would suffice. Judge Hogans decision, discussed above, regarding the disclosure to
petitioners of petitioners own statements, followed Al-Odah, holding that a district court may
order the disclosure of classified information over the governments objection, if certain
conditions are met. Mem. Opinion at 8, In re: Guantanamo Bay Detainee Litig., No. 08-mc442, Dkt. No. 1821 (D.D.C. July 10, 2009). Moreover, Judge Hogan held that if the government
failed to comply with such an order then the court may order an assortment of remedies. Id. at
9. In other words, the Court fashioned an order setting forth procedures that denied the executive
unreviewable authority to permit or forbid disclosures, instead provid ing that such disputes could
be resolved by the Court on motion. Id..
Al-Odah and this Courts subsequent practice in habeas cases therefore affirm the
common-sense and well-established proposition that Courts in fact have a role in adjudicating
disputes over when and how classified information can be used. In light of these precedents, the
governments argument on the present motion that this Court cannot, over the Executives
objection, make even a limited modification to the protective order that would merely remove an
obstacle to court-supervised use of classified information must fail.

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B.

The authorities cited by the government do not establish the governments

sweeping argument that the executive has exclusive discretion, subject to
no judicial oversight, to determine whether, where, and how classified
filings may be made .

The cases cited by the government also do not support the truly radical proposition that
there is no role for the courts (other than complete acquiescence) in adjudicating disputes over
how security-cleared counsel may use classified information to which they have lawful access.
First, the governments heavy reliance on Dept of the Navy v. Egan, 484 U.S. 518 (1988), is
misplaced.

That case concerned the executives discretion to grant and revoke security

clearances in the face of statutory civil service protections ; it does not establish the broad
proposition that all decisions about the use of classified information by security-cleared counsel
are subject to the unreviewable discretion of the execut ive Indeed, Judge Ho gans various
decisions discussed above and the D.C. Circuits decision in Al-Odah, which affirmed the courts
authority to adjudicate motions for disclosure of information to security-cleared counsel, are
directly to the contrary. Nor is this surprising. Executive discretion to grant or deny security
clearances, established in Egan, can easily coexist with a judicial role in determining how, in
pending cases, classified information may be used by individuals who hold such clearances. 3
Similarly, In re: United States, an unpublished disposition of the Federal Circuit,
answered only the narrow question of whether the Court had authority to reverse a
determination . . . regarding the number of persons to who m he shall grant access for Special
3

The government cites a number of other security-clearance cases, which are all inapposite for
the same reasons. See Rattigan v. Holder, __ F.3d __, 2012 WL 276347 (D.C. Cir. 2012)
(limiting the scope of Title VII actions to avoid interfering with governments security-clearance
determinations, but nevertheless permitting certain security clearance decisions to be subjected to
judicial review); id. at *9 (Kavanaugh, J., dissenting) (The majority opinion continues to insist
that some agency security clearance decisions are judicially reviewable.); Guilot v. Garrett, 970
F.2d 1320 (4th Cir. 1992) (affirming grant of summary judgment against ind ividual challenging
denial of security clearance); Dorfmont v. Brown, 913 F.3d 1399 (9th Cir. 1990) (affirming
dismissal of claim for denial of due process in revocation of security clearance).
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Access Programs, a species of classified information more tightly controlled than Top Secret.
In re United States, Misc. No. 370, 1993 WL 262656, at *3 (Fed. Cir. Apr. 19, 1993). That
decision is not on point, not just because the information at issue in the present motion is
classified at a much lower level but, more fundamentally, because Petitioners counsel do not
seek any additional access to classified information. Petitioners counsel already have been
granted sufficient access. The only question is whether the protective order will preclude a sister
federal court, in this case in the Southern District of New York, from determining whether to
accept a classified or sealed submission reflecting the knowledge which they have, indisputably,
appropriately gained. 4
Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007), and Stillman v.
CIA, 319 F.3d 546 (D.C. Cir. 2003), are also unhelpful to the government. In Al-Haramain, the
courts decision turned on the governments successful assertion of the state secrets privilege,
which has not been invoked here.5 Moreover, the non-governmental party in that case acquired
access to the putatively privileged material by inadvertent disclosure. The Court ruled, based on
principles governing evidentiary privileges, that the documents had to be returned to the
government and could not be relied upon by the plaintiffs to establish their standing to sue.
Here, in stark contrast, Petitioners counsel has been granted lawful access to the information in
4

Colby v. Halperin, 656 F.2d 70 (4th Cir. 1981), is irrelevant for similar reasons: it concerned a
motion to modify a protective order to affirmatively grant additional individuals access to
classified information. Notably, however, the Colby decision left open the possibility that such
disclosure could be ordered upon a finding of substantial need, contrary to the governments
assertion that disclosure can never be ordered over government objection. Id. at 73.
5
The government must satisfy a number of key procedural requirements before the state secrets
privilege may be invoked, not least that [t]here must be a formal claim of privilege, lodged by
the head of the department which has control over the matter, after actual personal consideration
by that officer. United States v. Reynolds, 345 U.S. 1, 7-8 (1953). Moreover, successful
assertion of the privilege keeps documents out of the hands of non-governmental partys counsel
altogether. In this case, of course, Petitioners counsel already has lawful access to the classified
information in question.
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question by the government and is already permitted to use it in this action. Moreover, this
Court, unlike the Al-Haramain court, need not decide whether to permit a classified or otherwise
sealed filing to be made. That question is for the FOIA court, to be decided under the law and
facts there at issue.
In Stillman v. Dept of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002), revd, 319 F.3d 546
(D.C. Cir. 2003), the district court ordered disclosure of a putatively classified manuscript to a
security-cleared attorney representing the manuscripts author in a dispute over the governments
prepublication review.

The court reasoned that, as a matter of First Amendment law, the

attorney was entitled to access to the disputed manuscript in order to assist the court in resolving
the dispute over classification. This disposition was reversed on appeal not because the district
court lacked jurisdiction to order disclosure to the attorney, nor even because no First
Amendment right of counsel access existed, but because, as a prudential matter, the district court
should have attempted to avoid the constitutional question by first trying to resolve the
substantive issues in the case without input from plaintiffs counsel. Stillman, 319 F.3d at 548.
The courts narrow disposition in that case carefully avoid ed endorsing anything like the
sweeping proposition here advanced by the government. To the contrary, it conspicuously
leaves open the possibility that courts might permit counsel to gain access to classified
information in appropriate circumstances. Moreover, the case is irrelevant to the present motion,
where counsel already has access to the classified information at issue and is not asking this
Court to decide whether a classified or sealed filing is appropriate in the FOIA case, but only to
amend the protective orders to permit the United States District Court for the Southern District of
New York to make that determination, and decide whether it will have access to that information
as well.
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Finally, while the government cites El-Badrawi v. DHS, 596 F. Supp. 2d 389 (D. Conn.
2009), in support of the proposition that a federal district court may not order the Executive to
grant opposing counsel or any other person access to or use of classified information, Govt
Opp. at 8-9, the decision in fact cuts against the governments position. In that case, securitycleared counsel for a FOIA plaintiff sought access to classified materials that had been filed ex
parte by the government in support of its withholding of information. While the court ultimately
denied the request, it did not simply defer to the whim of the executive, as the government
argues this court must. Rather, the court rather made its own determination, after its own careful
in camera review of the classified information at issue, that FOIA counsel had no need to
know and would therefore be denied access. In this motion, Petitioner asks this Court to do no
more than clear the way for Judge Buchwald, in the Southern District of New York, to make a
similar independent determination here, whether she has a need to know in order to decide the
FOIA case before her.
III.

IT IS UP TO THE FOIA JUDGE, NOT THIS COURT, TO DETERMINE

WHETHER AND HOW TO PERMIT A SEALED FILING IN THAT
CASE.

The government argues that there is no provision whereby Petitioner will be able to make
a classified filing in the FOIA case and that the protective order should therefore not be
amended. But this Court should not decide this question, which is best answered by the FOIA
court both for because it would permit her to manage her litigation as she sees fit and because
she, uniquely, will be able consider the request in its specific factual and legal context.
Moreover, because the proposed modification of the protective order would not permit disclosure
of any classified or protected information absent a subsequent order from the FOIA court, the

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governments concerns about safeguarding classified information may also safely be left for the
FOIA court to address.
The government argues that a classified declaration from Petitioners counsel or,
presumably, an unclassified but sealed declaration or other alternative submission will be
irrelevant to the FOIA Courts disposition of the issues before it. Govt Opp. at 17. That
determination is emphatically for the FOIA Court to decide. The government has, in the FOIA
case, submitted both public and ex parte Vaughn declarations attempting to justify its
withholding of various record. It is up to the FOIA judge to determine whether a classified
declaration from Petitioners counsel, or some alternative submission, would be appropriate to
assist her consideration of the specific arguments presented to her by the government in these
submissions. This Court, of course, is not in a position to review the government's Vaughn
declaration and, in any case, should not make such a case- and fact-specific determination for
Judge Buchwald.
The government attempts to paint FOIA litigation as an enterprise in which only the
government may make substantive submissions on the propriety of withholdings, and where the
plaintiffs play effectively no role. Govt Opp. at 17-19 ([T]he only real question before a FOIA
court is whether the Governments declarations adequately demonstrate the applicability of the
claimed exemptions. . . . The views of Petitioners counsel, therefore, are irrelevant to the FOIA
courts analysis.). But FOIA courts routinely consider fully adversarial arguments from the
parties when adjudicating withholdings, even where the government invokes Exemption 1
(governing classified information) or other national security exemptions; for example, such
courts consider arguments from plaintiffs that dispute the propriety of classification and harms of
disclosure, introduce new substantive evidence or otherwise go outside the materials presented
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by the government. See, e.g., Opinion at 12-13, ACLU v. Dept of Defense, No 09-cv-8071
(S.D.N.Y. Mar. 20, 2012) (Dkt. No. 106) ([T]he Court finds it necessary to consider the
classified portions of the [government declaration] and of the sealed portions of Plaintiffs
opposition papers, which address [whether the withheld document had been officially
disclosed].) (emphasis added); Larson v. Dept of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(holding that summary judgment can be awarded on the basis of an agencys affidavits only if
they are not controverted by either contrary evidence in the record introduced by the FOIA
plaintiff, nor by evidence of agency bad faith) (internal citation omitted); Halpern v. FBI, 181
F.3d 279, 291-92 (2d Cir. 1999) (recognizing a FOIA plaintiffs ability to challenge the
governments assertions [with] contrary evidence or a showing of agency bad faith and noting
that Congress specifically amended FOIA, by a supermajority vote over a presidential veto, to
extend de novo judicial review over adversarial proceedings specifically to Exemption 1 claims).
Moreover, many of the cases cited by the government undermine its position because, although
the courts in question ultimately permitted the government to continue withholding records, they
did so only after considering the merits of plaintiffs substantive arguments about the propriety
of withholding.

See Gardels v. CIA, 689 F.2d 1100, 1105-06 & n.5 (D.C. Cir. 1982)

(considering plaintiffs submissions, including the affidavit of an former CIA employee, before
adjudicating the propriety of classification); Halperin v. Natl Sec. Council, 452 F. Supp. 47, 51
(D.D.C. 1978), affd 612 F.2d 586 (D.C. Cir. 1980) (considering and rejecting plaintiffs
arguments before passing on propriety of classification); Diamond v. FBI, 707 F.2d 75, 79 & n.6
(2d Cir. 1983) (considering plaintiffs views on necessity for classification, although finding that
they were insufficient to overcome the governments arguments). See also CIA v. Sims, 471 U.S.

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159, 174, 180 (1985) (considering the merits of Plaintiffs arguments about the propriety of
withholding certain national security information under FOIA.
Moreover, there can be no serious argument but that the Southern District of New York
or Judge Buchwald can be trusted to make appropriate determinations with regard to classified or
otherwise sensitive national security information, given its extensive experience in FOIA
litigation, cases involving the Classified Information Procedures Act (CIPA), 18 U.S.C. App.,
and other national security matters. See, e.g., United States v. Haji Juma Khan, No. 08-cr-621,
2010 U.S. Dist. LEXIS 6498 (S.D.N.Y. Jan. 20, 2010) (Buchwald, J.) (adjudicating motion under
CIPA); United States v. Ghailani, 751 F. Supp. 2d 498 (S.D.N.Y. 2010) (criminal trial, involving
many classified filings, of individual charged with conspiring to bomb U.S. embassies in East
Africa); United States v. Bin Laden, 58 F. Supp. 2d 113 (S.D.N.Y. 1999) (adjudicating motion
for protective order to protect classified information); Kronisch v. United States, No. 83-cv-2458,
1994 U.S. Dist LEXIS 13591 (S.D.N.Y. Sept. 27, 1994) (Buchwald, J.) (adjudicating
government claims of privilege under the state secrets doctrine and national security statutes).
The government therefore misstates the law regarding the role of plaintiffs in FOIA
litigation.

It is for the FOIA Court to decide whether she wishes to accept a classified

declaration in aid of her statutory obligation to conduct de novo review of withholdings. The
limited modification that Petitioner seeks an amendment making clear that Petitioners counsel
may use classified or protected information where specifically authorized by court order would
do no more than allow the FOIA court to decide whether to permit submissions by Petitioners
counsel that might otherwise conflict with this courts protective order.

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CONCLUSION
For these reasons, Petitioner respectfully requests that the Court enter an order modifying
the protective order to permit use of classified or protected information if authorized to do so by
the court in the FOIA action pending in the Southern District of New York.
Respectfully Submitted,
/s/Lawrence S. Lus tberg
Lawrence S. Lustberg (pursuant to LCvR 83.2(g))
GIBBONS P.C.
One Gateway Center
Newark, New Jersey 07102-5310
LLustberg@gibbonslaw.com
Tel: (973) 596-4731
Fax: (973) 639-6285
Sandra Babcock (Pursuant to LCvR 83.2(g))
Center for International Human Rights
Northwestern University School of Law
357 East Chicago Avenue
Chicago, Illinois 60611
s-babcock@law.northwestern.edu
Tel: (312) 503-0114
Fax: (312) 503-2798
Shayana Kadidal (D.C. Bar No. 454248)
J. Wells Dixon (pursuant to LCvR 83.2(g))
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
kadidal@ccrjustice.org
Tel: (212) 614-6438
Fax: (212) 614-6499
Ramzi Kassem (pursuant to LCvR 83.2(g))
Attorney at Law
New York, NY
Dated: Newark, NJ
August 23, 2012

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