Documents
Motion for Protective Order – Reality Winner
July 21, 2017
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
UNITED STATES OF AMERICA
v.
REALITY LEIGH WINNER,
Defendant.
*
CR 117-34
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*******
MOTION FOR PROTECTIVE ORDER
PURSUANT TO SECTION 3 OF THE CLASSIFIED INFORMATION PROCEDURES
ACT
The United States respectfully moves this Court, pursuant to the authority granted under
Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. III (CIPA); the Security
Procedures established pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the
United States for the Protection of Classified Information (reprinted following CIPA § 9)
(hereinafter the “Security Procedures”); the Federal Rules of Criminal Procedure 16(d) and 57;
the general supervisory authority of the Court; and to protect the national security, to enter the
attached proposed Protective Order regarding the disclosure and dissemination of classified
national security information that will be made available to the defense by the government.
On June 19, 2017, the government filed a Motion for Pretrial Conference Pursuant to
Classified Information Procedures Act and Supporting Memorandum of Law Regarding
Statutory Procedures for Handling of Classified Information (“CIPA Section 2 Motion”). Also
on June 19, 2017, the government sent to defense counsel a proposed Protective Order pursuant
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
UNITED STATES OF AMERICA
v.
REALITY LEIGH WINNER,
Defendant.
*
CR 117-34
*
*
*
*
*
*
*
*
*
*******
MOTION FOR PROTECTIVE ORDER
PURSUANT TO SECTION 3 OF THE CLASSIFIED INFORMATION PROCEDURES
ACT
The United States respectfully moves this Court, pursuant to the authority granted under
Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. III (CIPA); the Security
Procedures established pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the
United States for the Protection of Classified Information (reprinted following CIPA § 9)
(hereinafter the “Security Procedures”); the Federal Rules of Criminal Procedure 16(d) and 57;
the general supervisory authority of the Court; and to protect the national security, to enter the
attached proposed Protective Order regarding the disclosure and dissemination of classified
national security information that will be made available to the defense by the government.
On June 19, 2017, the government filed a Motion for Pretrial Conference Pursuant to
Classified Information Procedures Act and Supporting Memorandum of Law Regarding
Statutory Procedures for Handling of Classified Information (“CIPA Section 2 Motion”). Also
on June 19, 2017, the government sent to defense counsel a proposed Protective Order pursuant
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 2 of 7
to Section 3 of CIPA, to prevent the unauthorized use, disclosure, or dissemination of classified
information that the government will provide to the defense in this case.
On June 27, 2017, the Court held a planning conference. At that conference, defense
counsel indicated that it was amenable to the proposed Protective Order, but requested the
following addition to the Order: “Information drawn from unclassified sources does not become
classified information because similar information also happens to appear in classified
documents.” The government understood that the defense, through this language, sought to
ensure that the defense would not be in violation of the Order, or held criminally liable, for
repeating information that they had learned through public sources without ever knowing that the
information was classified. 1 Although the government was open to adding language to clarify
what would constitute a violation of the Protective Order, the government explained that it could
not agree to the defense’s proposed language—which would essentially redefine or render
ambiguous what constitutes classified information—for the reasons set forth below.
1
In an email sent the evening of Saturday, July 8, 2017, counsel raised a second issue, relating to
the process of obtaining security clearances for possible defense expert witnesses. There is not
sufficient time for the parties to resolve this new issue before the Court’s filing deadline for this
motion. Accordingly, the government respectfully requests that the Court enter the proposed
Protective Order so the government can provide classified discovery as soon as defense counsel
applies for and obtains the necessary clearances. After the Court issues a Section 3 protective
order, the parties can continue to discuss the new issue the defense has raised and attempt to
present a joint recommendation to the Court.
Based on defense counsel’s comments before the Court and to the government, aside from the
issue set forth in their July 8 email and their initial concern at the June 27 hearing resulting in
their specific request for the language set forth in the text above, counsel consents to the
proposed Protective Order in general. This motion therefore focuses exclusively on the issue
defense counsel raised before the Court on June 27 (and which they have continued to discuss
with the government). If counsel or the Court have additional questions or concerns, the
government respectfully requests the opportunity to respond in writing before any Order issues.
2
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 2 of 7
to Section 3 of CIPA, to prevent the unauthorized use, disclosure, or dissemination of classified
information that the government will provide to the defense in this case.
On June 27, 2017, the Court held a planning conference. At that conference, defense
counsel indicated that it was amenable to the proposed Protective Order, but requested the
following addition to the Order: “Information drawn from unclassified sources does not become
classified information because similar information also happens to appear in classified
documents.” The government understood that the defense, through this language, sought to
ensure that the defense would not be in violation of the Order, or held criminally liable, for
repeating information that they had learned through public sources without ever knowing that the
information was classified. 1 Although the government was open to adding language to clarify
what would constitute a violation of the Protective Order, the government explained that it could
not agree to the defense’s proposed language—which would essentially redefine or render
ambiguous what constitutes classified information—for the reasons set forth below.
1
In an email sent the evening of Saturday, July 8, 2017, counsel raised a second issue, relating to
the process of obtaining security clearances for possible defense expert witnesses. There is not
sufficient time for the parties to resolve this new issue before the Court’s filing deadline for this
motion. Accordingly, the government respectfully requests that the Court enter the proposed
Protective Order so the government can provide classified discovery as soon as defense counsel
applies for and obtains the necessary clearances. After the Court issues a Section 3 protective
order, the parties can continue to discuss the new issue the defense has raised and attempt to
present a joint recommendation to the Court.
Based on defense counsel’s comments before the Court and to the government, aside from the
issue set forth in their July 8 email and their initial concern at the June 27 hearing resulting in
their specific request for the language set forth in the text above, counsel consents to the
proposed Protective Order in general. This motion therefore focuses exclusively on the issue
defense counsel raised before the Court on June 27 (and which they have continued to discuss
with the government). If counsel or the Court have additional questions or concerns, the
government respectfully requests the opportunity to respond in writing before any Order issues.
2
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 3 of 7
The Court directed the parties to agree upon a modification of the proposed Protective
Order within two weeks, or, if no agreement was reached, to file a motion. On June 29, 2017,
the government sent an email to the defense, proposing a modification to the proposed Protective
Order to address counsel’s concern, and then followed up with the defense multiple times. On
July 7, 2017, the defense rejected the government’s proposed modification and reiterated its
desire to include in the Protective Order the language set forth above. Accordingly, the parties
have not reached an agreement, and the government respectfully requests that the Court enter the
proposed Protective Order attached hereto. The government respectfully submits that the
proposed Order accurately defines classified information and clearly conveys the scope of the
Order.
The defense’s proposed language would exclude from the definition of “classified
information” information that appears in the news media, which the defense refers to as
“unclassified sources.” The definition of classified information is established by Executive
Order and statute, see CIPA § 1(a) (defining classified information as “any information or
material that has been determined by the United States Government pursuant to an Executive
order, statute, or regulation, to require protection against unauthorized disclosure for reasons of
national security”); Exec. Order 13526 § 1.1(a) (defining classification standards), and the
government unilaterally determines what constitutes classified information. See United States v.
Smith, 750 F.2d 1215, 1217 (4th Cir. 1984) (“It is apparent, therefore, that the government
pursuant to the authority mentioned in section 1 may determine what information is classified.
A defendant cannot challenge this classification. A court cannot question it.”).
3
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The Court directed the parties to agree upon a modification of the proposed Protective
Order within two weeks, or, if no agreement was reached, to file a motion. On June 29, 2017,
the government sent an email to the defense, proposing a modification to the proposed Protective
Order to address counsel’s concern, and then followed up with the defense multiple times. On
July 7, 2017, the defense rejected the government’s proposed modification and reiterated its
desire to include in the Protective Order the language set forth above. Accordingly, the parties
have not reached an agreement, and the government respectfully requests that the Court enter the
proposed Protective Order attached hereto. The government respectfully submits that the
proposed Order accurately defines classified information and clearly conveys the scope of the
Order.
The defense’s proposed language would exclude from the definition of “classified
information” information that appears in the news media, which the defense refers to as
“unclassified sources.” The definition of classified information is established by Executive
Order and statute, see CIPA § 1(a) (defining classified information as “any information or
material that has been determined by the United States Government pursuant to an Executive
order, statute, or regulation, to require protection against unauthorized disclosure for reasons of
national security”); Exec. Order 13526 § 1.1(a) (defining classification standards), and the
government unilaterally determines what constitutes classified information. See United States v.
Smith, 750 F.2d 1215, 1217 (4th Cir. 1984) (“It is apparent, therefore, that the government
pursuant to the authority mentioned in section 1 may determine what information is classified.
A defendant cannot challenge this classification. A court cannot question it.”).
3
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Further, as described to the Court and counsel at the June 27, 2017 conference, classified
information that is reported in the news media remains classified unless and until it is
declassified by the appropriate Executive Branch authority. See, e.g., Exec. Order 13526
§ 1.1(c) (“Classified information shall not be declassified automatically as a result of any
unauthorized disclosure of identical or similar information.”); Shaffer v. Defense Intelligence
Agency, 102 F. Supp. 3d 1, 9 & n.7 (D.D.C. 2015); United States v. Kim, 808 F. Supp. 2d 44, 54
(D.D.C. 2011); Protective Order Regarding Classified Information, United States v. Sterling, No.
1:10-cr-485, para. 3 (E.D. Va. Feb. 11, 2011) (hereinafter “Sterling Protective Order”). Indeed,
“if classified information is reported in the press or other form of media or otherwise enters the
public domain, the information does not lose its classified status merely because it is in the
public domain.” Sterling Protective Order para. 3; see also, e.g., Protective Order, United States
v. Karmilowicz, No. 1:08-cr-463, para. 3 (E.D. Pa. Feb. 27, 2009). Accordingly, the Court
should not countenance any request to treat information as unclassified because it has appeared
in the news media.
To address defense counsel’s concern that it could unknowingly violate the Protective
Order by repeating information counsel learned exclusively from news reporting, the government
proposes to add the following paragraph, which is contained in the proposed Protective Order
attached hereto:
It shall not violate this Order for an individual subject to this Order to disclose
information that the individual did not know, and reasonably should not have
known based on information provided by the government in this case, is
classified. Any individual subject to this Order who intends to disclose
4
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 4 of 7
Further, as described to the Court and counsel at the June 27, 2017 conference, classified
information that is reported in the news media remains classified unless and until it is
declassified by the appropriate Executive Branch authority. See, e.g., Exec. Order 13526
§ 1.1(c) (“Classified information shall not be declassified automatically as a result of any
unauthorized disclosure of identical or similar information.”); Shaffer v. Defense Intelligence
Agency, 102 F. Supp. 3d 1, 9 & n.7 (D.D.C. 2015); United States v. Kim, 808 F. Supp. 2d 44, 54
(D.D.C. 2011); Protective Order Regarding Classified Information, United States v. Sterling, No.
1:10-cr-485, para. 3 (E.D. Va. Feb. 11, 2011) (hereinafter “Sterling Protective Order”). Indeed,
“if classified information is reported in the press or other form of media or otherwise enters the
public domain, the information does not lose its classified status merely because it is in the
public domain.” Sterling Protective Order para. 3; see also, e.g., Protective Order, United States
v. Karmilowicz, No. 1:08-cr-463, para. 3 (E.D. Pa. Feb. 27, 2009). Accordingly, the Court
should not countenance any request to treat information as unclassified because it has appeared
in the news media.
To address defense counsel’s concern that it could unknowingly violate the Protective
Order by repeating information counsel learned exclusively from news reporting, the government
proposes to add the following paragraph, which is contained in the proposed Protective Order
attached hereto:
It shall not violate this Order for an individual subject to this Order to disclose
information that the individual did not know, and reasonably should not have
known based on information provided by the government in this case, is
classified. Any individual subject to this Order who intends to disclose
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Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 5 of 7
information and is not certain whether that information is classified should
consult with the CISO. 2
The addition of this paragraph clearly explains the scope of the Protective Order, and is also
consistent with relevant statutes and laws concerning the definition of classified information.
To the extent that defense counsel’s concern relates to an uncertainty with respect to identifying
whether specific information within a classified document is classified, the government notes
that information within documents should be portion-marked, and again reiterates that the
Classified Information Security Officer (CISO) could be consulted with such a question.
The government emphasizes, however, that a security clearance and access to classified
information come with an important, lifelong obligation to protect classified information from
unauthorized access or disclosure. Putting aside any protective order entered in this case, the
breach of such obligation can lead to sanctions including termination of security clearances and
access to classified information. The CISO assigned to this case has discussed with counsel,
and is available to further discuss, the obligations attending security clearances and accesses.
As the government stated on and off the record at the June 27, 2017 conference, and as provided
in the proposed Protective Order attached hereto, counsel should consult the CISO if they have
any question regarding whether information is classified and how it should be handled.
WHEREFORE, the Government respectfully requests that the Court issue the attached
Protective Order.
2
The government provided this same language, with the exception of the phrase “based on
information provided by the government in this case,” to the defense in the government’s June
29, 2017 email, and provided this exact wording to counsel by telephone and email on July 7,
2017.
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Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 5 of 7
information and is not certain whether that information is classified should
consult with the CISO. 2
The addition of this paragraph clearly explains the scope of the Protective Order, and is also
consistent with relevant statutes and laws concerning the definition of classified information.
To the extent that defense counsel’s concern relates to an uncertainty with respect to identifying
whether specific information within a classified document is classified, the government notes
that information within documents should be portion-marked, and again reiterates that the
Classified Information Security Officer (CISO) could be consulted with such a question.
The government emphasizes, however, that a security clearance and access to classified
information come with an important, lifelong obligation to protect classified information from
unauthorized access or disclosure. Putting aside any protective order entered in this case, the
breach of such obligation can lead to sanctions including termination of security clearances and
access to classified information. The CISO assigned to this case has discussed with counsel,
and is available to further discuss, the obligations attending security clearances and accesses.
As the government stated on and off the record at the June 27, 2017 conference, and as provided
in the proposed Protective Order attached hereto, counsel should consult the CISO if they have
any question regarding whether information is classified and how it should be handled.
WHEREFORE, the Government respectfully requests that the Court issue the attached
Protective Order.
2
The government provided this same language, with the exception of the phrase “based on
information provided by the government in this case,” to the defense in the government’s June
29, 2017 email, and provided this exact wording to counsel by telephone and email on July 7,
2017.
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Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 6 of 7
Respectfully submitted,
JAMES D. DURHAM
ACTING UNITED STATES ATTORNEY
By:
/s/ Jennifer G. Solari
Jennifer G. Solari
Assistant United States Attorney
Southern District of Georgia
/s/ Julie A. Edelstein
Julie A. Edelstein
Trial Attorney
U.S. Department of Justice
National Security Division
/s/ David C. Aaron
David C. Aaron
Trial Attorney
U.S. Department of Justice
National Security Division
6
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 6 of 7
Respectfully submitted,
JAMES D. DURHAM
ACTING UNITED STATES ATTORNEY
By:
/s/ Jennifer G. Solari
Jennifer G. Solari
Assistant United States Attorney
Southern District of Georgia
/s/ Julie A. Edelstein
Julie A. Edelstein
Trial Attorney
U.S. Department of Justice
National Security Division
/s/ David C. Aaron
David C. Aaron
Trial Attorney
U.S. Department of Justice
National Security Division
6
Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 7 of 7
CERTIFICATE OF SERVICE
This is to certify that I have on this day served all the parties in this case in accordance
with the notice of electronic filing (“NEF”) which was generated as a result of electronic filing in
this Court.
This 11th day of July, 2017.
JAMES D. DURHAM
ACTING UNITED STATES ATTORNEY
/s/ Jennifer G. Solari
Jennifer G. Solari
Assistant United States Attorney
Post Office Box 8970
Savannah, Georgia 31401
Telephone No: 912-652-4422
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Case 1:17-cr-00034-JRH-BKE Document 42 Filed 07/11/17 Page 7 of 7
CERTIFICATE OF SERVICE
This is to certify that I have on this day served all the parties in this case in accordance
with the notice of electronic filing (“NEF”) which was generated as a result of electronic filing in
this Court.
This 11th day of July, 2017.
JAMES D. DURHAM
ACTING UNITED STATES ATTORNEY
/s/ Jennifer G. Solari
Jennifer G. Solari
Assistant United States Attorney
Post Office Box 8970
Savannah, Georgia 31401
Telephone No: 912-652-4422
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