No Easy Answers

Hat tip ScotusBlog (click the link for Lyle Denniston's review and comments)

Source: http://www.scotusblog.com/movabletype/archives/US%20reply%20in%20Paracha%209-5-07.pdf OCR Job. Spell checked, but otherwise minimally reformatted.

This is the "trial" end of classified information, and this filing is a particularly clear and concise window into the tension between the Court's desire to see evidence relating to a specific detainee (in order to facilitate evaluation of the objectivity of the detention); and the government's desire to not have to produce any independent evidence -- not even to the Court.

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

                                           )
SAIFKLAH PARACHA,                          )
Petitioner,                                )
     v.                                    ) No. 06-1038
ROBERT M. GATES, Secretary of Defense,     )
Respondent.                                )
                                           )

              REPLY TO PETITIONER'S OPPOSITION TO MOTION FOR STAY
                OF ORDER REQUIRING RESPONDENT TO FILE A REVISED
                                CERTIFIED INDEX

Pursuant to Federal Rule of Appellate Procedure 27, respondent Robert M.
Gates hereby respectfully files this reply to petitioner's opposition to a stay of the
Court's order requiring respondent to file a revised certified index in this case by
September 13, 2007.

1. Respondent explained in its request for a stay that there is an extraordinary
burden in compiling the record on review, as defined in Bismullah v. Gates, No. 06-
1197 - which is a prerequisite to preparing the certified index - and that a temporary
stay of the order requiring production of the certified index is therefore warranted.
Petitioner contends that the Court should disregard that burden because the
Government did not produce any declarations to support it.

The Government, however, will be filing extensive declarations, signed by
high-level officials, including the Deputy Secretary of Defense, the Director of the

National Security Agency, and the Director of the Central Intelligence Agency, in
support of its petition for rehearing in Bismullah (to be filed on Sept. 7, 2007). Those
declarations will explain in detail and substantiate the Government's assertions
regarding the extraordinary burdens and the national security risks that would be
brought to bear if the Government were required to produce the "record" pursuant to
the Court's decision in Bismullah. At a minimum, therefore, this Court should grant
a temporary stay until the Court has an opportunity to examine those declarations and
assess for itself the likelihood of harm in requiring the Government to produce the
record and certified index by September 13.

2. Petitioner further contends that production of the Government Information
to cleared counsel cannot constitute irreparable injury, even if the Court, on rehearing
of Bismullah, were subsequently to determine that such production is not legally
required. That is incorrect.

Some of the material contained at issue involves highly classified material that,
even within the intelligence agencies, is closely held. As will be explained in the
declaration of the Central Intelligence Agency accompanying the Government's
rehearing petition in Bismullah, producing such sensitive information to the Court
and counsel in this and in many of the other more than 130 other DTA cases would
have results that would be harmful to national security. The declaration will explain

                                        2

that such disclosure to court and counsel of these materials would violate
confidences, reveal sources and methods, and could deter sources and other entities
from cooperating with our Government and from providing information in the future.

In addition, the more widely classified information is disseminated, the greater
the risk of inadvertent or intentional disclosure. That is why even within the
intelligence agencies, where the employees have extensive training in the handling
of classified material, the information is limited to a small group of individuals.

At bottom, the Government has a very real and significant interest in
safeguarding classified information by limiting its disclosure. That interest is
impaired even by disclosure to an individual with a security clearance, if it turns out
that there is no need for that individual to have access to the classified information.

3. Initially, petitioner argues that because the Government is already in the
midst of compiling the record, there is no need for a stay in this case. As the
Government explained in its motion (at 9), however, regardless of whether rehearing
of Bismullah is granted, production of the record and certified index in this case by
September 13 is simply not feasible. The Government does not have the
"Government Information" readily available, but instead must gather and index the
record materials, which is an onerous and time-consuming process involving, inter
alia, line-by-line review of classified documents by intelligence analysts to determine

                                        3

which information counsel has a "need to know." The Court's timeline for
production of the record and certified index does not provide the Government
sufficient time to carehlly and conscientiously conduct this task, to ensure that all
appropriate information is produced and that "highly sensitive information" that
counsel has no "need to know" is properly withheld, in accordance with the Court's
decision in Bismullah. See Slip Op. at 17. As we explained in our supplemental
filing, the current deadlines cannot possibly be met without compromising both the
reliability of the production and national security interests. At a minimum, therefore,
a thirty-day extension is warranted.

                                      4

CONCLUSION

For the foregoing reasons, respondent respectfully requests that its obligation
to file a revised certified index be stayed until thirty days after this Court has disposed
of the Government's rehearing petition in Bismullah. In the alternative, the
Government seeks a thirty-day extension of time.

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of September, 2007, I served the foregoing
Reply to Petitioner's Opposition to Motion for Stay of Order Requiring Respondent
to File a Revised Certified Index, by causing an original and four copies to be served
on the Court via hand delivery and one copy to be sent to the following counsel via
e-mail and first-class U.S. mail:

posted by cboldt  # 9/06/2007 08:55:00 AM