STUART F. DELERY MELINDA L. HAAG DIANE KELLEHER · DEFENDANTS’ TRIAL BRIEF Ibrahim v. DHS, et...

DEFENDANTS’ TRIAL BRIEF Ibrahim v. DHS, et al., 3:06-cv-00545 (WHA)

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STUART F. DELERY Assistant Attorney General

MELINDA L. HAAG United States Attorney

DIANE KELLEHER Assistant Branch Director

PAUL G. FREEBORNE Senior Trial Counsel KAREN S. BLOOM LILY S. FAREL JOHN K. THEIS Trial Attorneys Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8460 E-mail: [email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

RAHINAH IBRAHIM,

Plaintiff,

v.

DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

No. 3:06-cv-0545 (WHA)

DEFENDANTS’ TRIAL BRIEF

REDACTED

Case3:06-cv-00545-WHA Document602 Filed11/12/13 Page1 of 11


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I. This Matter Cannot Proceed to Trial Because the Information Excluded by the

Court’s Order on the States Secrets Privilege is Necessary for the Defense and is at the Core of the Case.

In the Court’s April 19, 2013 Order on Classified Information, the Court upheld

Defendants’ assertion of the state secrets privilege as to classified information. But the Court

never reached the third prong and “ultimate question” of the state secrets privilege analysis:

“how the matter should proceed in light of the successful privilege claim.” April 2, 2013 Order

at 2:1-2 (citing Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010) (en

banc)); id. at 4:3-4 (declining to reach the third step of Jeppensen); see generally April 19, 2013

Order on Classified Information. After the close of discovery, Defendants moved for summary

judgment, arguing that the April 19, 2013 Order excluding the classified information deprived

them of a valid defense and deprived both parties of the evidence concerning facts that are at the

core of the case. Under the mandate of the Ninth Circuit in Jeppesen and Kasza v. Browner, 133

F.3d 1159, 1166 (9th Cir. 1998), judgment must be entered for Defendants under these

circumstances.

In declining to grant summary judgment on this basis, the Court held that a trial on

Plaintiff’s claims is necessary to resolve two central questions: (1)

, see Nov. 1, 2013 Order at 9:8-10; 9:22-24; 11:2-15; 12:15-16; and (2) the

basis for Plaintiff’s visa revocation and denial, id. at 8:6-9; 12:14-18. At the same time, the

Court reiterated that the answers to these precise questions have been excluded from the case,

and cannot be used by either party. Id. at 12:11-13 (“The factual basis for

and the denial of her visa have been withheld from plaintiff and her

counsel under the state secrets privilege.”). Thus, even though the facts that form the core of

these two issues have been excluded, the Court ultimately declined to rule whether Plaintiff’s

claims may proceed: “At this juncture, it is not clear to the undersigned judge whether plaintiff’s

claims can be resolved without recourse to information protected by the state secrets privilege.

The government’s contentions on this point are highly conclusory.” Id. at 13:4-6.

Because the Court found the Defendants’ argument on this point “conclusory,”

Defendants explain in this trial brief exactly why each of Plaintiff’s claims cannot proceed to



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Court—the alleged inability to travel internationally, including to the United States—cannot

fully be adjudicated without the information subject to the state secrets privilege. Plaintiff

cannot travel to the United States because she lacks a visa. The classified information

underlying State’s determination on Plaintiff’s visa application is excluded from the case;

therefore, Defendants cannot use it to defend against Plaintiff’s claim. Similarly, a trial on the

sufficiency of the redress that Plaintiff received in 2005-2006 cannot be fully adjudicated

because the redress file contains information that is excluded from the case. Addressing the

sufficiency of the redress process as it applies to Plaintiff will devolve into the propriety of the

results of the process—that is, . That

question cannot be resolved without resorting to the excluded classified information.

Substantive Due Process: Plaintiff’s substantive due process claim is predicated on

whether serves any governmental interest. See Joint Proposed

Pretrial Order (basing the claim on whether “defendants’

constitutes a substantive due process violation); Nov. 1, 2013 Order. To adjudicate

that claim, the Court would need to consider whether the basis for

serves that interest. But again, the basis for has been excluded from

the case, making full and fair adjudication not possible.

Administrative Procedure Act (“APA”): Plaintiff has not raised an independent APA

claim. The Ninth Circuit and this Court have made clear on multiple occasions that any APA

claim that Plaintiff may have “ultimately depends on the viability of her First and Fifth

Amendment Claims.” Nov. 1, 2013 Order 13:13-14 (citing Ibrahim v. DHS, 669 F.3d 983, 994

n.21 (9th Cir. 2012)). Nevertheless, Plaintiff states in the Joint Proposed Pretrial Order that this

“claim” requires an adjudication of whether “

constituted an APA violation. Plaintiff cannot present evidence, and Defendants

cannot present a defense, on this issue, and therefore the claim cannot be tried.

Exhibit A should thus resolve any doubt that the excluded information is necessary for

the resolution of Plaintiff’s claims. In addition, the classified declarations and supporting

information that were submitted in support the assertion of the state secrets privilege further



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demonstrate why the claims and defenses at issue here cannot be litigated without the classified

information that has been excluded from the case. To be sure the record on this issue is clear,

Defendants have submitted for the Court’s ex parte, in camera review a memorandum

summarizing the specific classified information that is directly implicated by Plaintiff’s claims,

yet excluded by this Court’s order on the state secrets privilege.2 This memorandum describes

the information that was submitted to and reviewed by the Court as part of Defendants’ assertion

of the state secrets privilege. The memorandum demonstrates, in plain terms, why the excluded

information is necessary for any trial on Plaintiff’s claims.

To be clear, by submitting the chart and accompanying memorandum to the Court,

Defendants are not “relying on” the excluded information to prevail in this case on the merits.

Rather, Defendants are providing detailed information to address the Court’s concern that a

“conclusory” summary of why the classified information is at the core of the case will not suffice

under Jeppesen. The two attached exhibits merely crystallize and memorialize for the Court the

specific ways in which the excluded information is at issue on the matters to be tried, as well as

the consequences of the exclusion.3 2 Ninth Circuit precedent clearly permits the Government to submit, and the Court to consider, ex parte submissions in support of why it is impossible to proceed with the litigation in the absence of the classified information subject to the state secrets privilege. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1086-1087 (9th Cir. 2010); Kasza v. Browner, 133 F.3d 1159, 1169-1170 (9th Cir. 1998). Reviewing the classified declarations and other information in support of the privilege would not constitute an evaluation of the merits of the Government’s defense. Rather, the excluded information shows why the adjudication of Plaintiff’s claims is impossible without the information covered by the state secrets privilege. That ex parte review is squarely in line with Ninth Circuit precedent regarding the implications of invocation of the privilege. In order to fulfill its obligation under the “ultimate question” prong of the state secrets analysis, Jeppesen and Kasza require that the Court undertake ex parte review of the information excluded under the state secrets doctrine and determine whether the parties and the Court need the excluded information to adjudicate the case. 3 This is in contrast to the ex parte and in camera consideration employed by the court in Al Haramain Islamic Found. v. Dep’t of Treasury, 686 F.3d 965 (9th Cir. 2012), in which the district and appellate courts reviewed the classified (and unclassified) information in the record to determine whether the designation by the Office of Foreign Assets Control (“OFAC”) was consistent with International Emergency Economic Powers Act and Executive Order 13224. In reviewing all of the information related to that designation, the Ninth Circuit concluded that:

In summary, the evidence in the unclassified record supports OFAC’s contentions that AHIF–Oregon is a branch office of an international network of entities that, together, form the global AHIF organization and that AHIF–Oregon has ties to other branches, including at least one designated entity. As did the District of Columbia Circuit, “[w]e acknowledge that the unclassified record evidence is not overwhelming, but we reiterate that our review—in an area at the intersection of



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II. Proceeding to Trial Would Risk Disclosure of the Classified Information Subject to

the States Secrets Privilege.

Additionally, proceeding to trial on the issues identified in the Court’s Order and by

Plaintiff in today’s submission would present an unacceptable risk that the classified information

subject to the state secrets privilege would be disclosed. As the Court acknowledged in its

summary judgment order, “even if the claims and defenses might theoretically be established

without relying on privileged evidence, it may be impossible to proceed with the litigation

because—privileged evidence being inseparable from nonprivileged information that will be

necessary to the claims or defenses—litigating the case to a judgment on the merits would

present an unacceptable risk of disclosing state secrets.” Nov. 1, 2013 Order at 12:27-13:2

(citing Jeppesen, 614 F.3d at 1083).

The entire point of the state secrets doctrine is to preclude the litigation of matters that

would pose an unacceptable risk of disclosure of information that would gravely harm national

security. Litigating this case first by having a trial, and only after having a trial retroactively

deciding whether the disputed matters implicate state secrets, would create the very risks that the

state secrets doctrine is designed to preclude. Any inadvertent disclosures of sensitive

information will have irrevocably occurred and, once disclosed, it will be too late to preclude the

damage. As courts have recognized, even the diligent efforts of litigants to protect information

protected by the state secrets does not suffice to protect the privilege. “It is not to slight judges,

national security, foreign policy, and administrative law—is extremely deferential.” Id. Additionally, we have reviewed the classified record. In light of all the evidence in the record, we conclude confidently that substantial evidence supports OFAC’s conclusion that AHIF–Oregon supported designated persons as a branch office of AHIF–Saudi Arabia. See EO 13,224 § 1(d)(i) (permitting designation of an entity that provides “financial, material, or technological support for, or financial or other services to or in support of,” designated persons). Because substantial evidence supports two of OFAC’s three reasons for redesignating AHIF–Oregon under EO 13,224, we affirm the district court's grant of summary judgment to OFAC on AHIF–Oregon's substantive claims.

686 F.3d at 979-80. In that case, the ex parte information was used to demonstrate the correctness of OFAC’s designation and the substantial basis to conclude Al-Haramain had engaged in improper conduct. Here, by contrast, the ex parte information is not being used to demonstrate anything about Plaintiff specifically, or that the Government’s conclusions about her were well-founded or appropriate, but rather to demonstrate that the excluded information is at the core of the triable issues identified by the Court and could not be used by Defendants to defend themselves. It is thus the exclusion of this information that Defendants are relying on, rather than the information itself.



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lawyers, or anyone else to suggest that any such disclosure carries with it serious risk that highly

sensitive information may be compromised.” Halkin v. Helms, 598 F.2d 1, 7 (D.C. Cir. 1978);

see also United States v. Reynolds, 345 U.S. 1, 10 (1953).

Here, the case for precluding a trial on matters implicating state secrets is even stronger

because Plaintiff has not respected the boundaries between the privileged and non-privileged

information in this case. During discovery, plaintiff’s counsel, in the face of the government’s

repeated objections and this Court’s explicit orders not to inquire into privileged information,

asked hundreds of questions that “attempted . . . to elicit information that is covered by the

government’s assertions of privilege.” See Order on Discovery Disputes, Dkt. 532, at 8:15-16.

Counsel has indicated their intention to continue on this path at trial. In a letter from October 1,

2013, Plaintiff’s counsel indicated that they intend to solicit privileged information, via

testimony, that the Court has already excluded from the case. See October 1, 2013 Ltr. from E.

Pipkin, attached as Exhibit C. For example, Plaintiff states that she intends to elicit testimony

regarding “Special Agent Kelley’s investigation and interview of Dr. Ibrahim, [and] his

of Dr. Ibrahim . . .” Id. Pursuant to the government’s assertions of privilege and the

Court’s orders upholding those assertions, Special Agent Kelley can neither confirm nor deny

whether or not there is or has ever been an investigation of Plaintiff or what the basis for

was. Similarly, Plaintiff has identified several “factual issues that remain

to be tried” that directly involve classified information. See Joint Proposed Pretrial Order

”); (“Whether defendants

targeted Dr. Ibrahim for investigation and watchlisting because of her” religion, ethnicity, or

nationality.); (“

”). Though all of these issues involve classified information, Plaintiff’s counsel

will nevertheless seek to ask about this information, given how she has framed the disputed

issues for trial.

Given the certainty that Plaintiff will probe into information that is classified and

excluded from the case, this is a textbook case for applying the state secrets doctrine to prevent

the risks of disclosure inherent in litigation in general, and a trial in particular. Jeppesen, 614



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F.3d at 1083. A bench trial does not adequately protect against the possibility of inadvertent

disclosure, particularly here, where Plaintiff’s counsel has every intention of vigorously

attempting to reveal during trial information whose disclosure will cause exceptionally grave

harm to national security. See Fitzgerald v. Penthouse Intl., Ltd., 776 F.2d 1236, 1243 (4th Cir.

1985) (“In examining witnesses with personal knowledge of [state] secrets, the parties would

have every incentive to probe dangerously close to the state secrets themselves.”). DATED: November 12, 2013 Respectfully submitted, STUART F. DELERY Assistant Attorney General MELINDA L. HAAG United States Attorney

DIANE KELLEHER Assistant Branch Director

/s/ Paul G. Freeborne PAUL G. FREEBORNE Senior Trial Counsel KAREN S. BLOOM LILY S. FAREL JOHN K. THEIS Trial Attorneys United States Department of Justice Civil Division Attorneys for Defendants


EXHIBIT A

Case3:06-cv-00545-WHA Document602-1 Filed11/12/13 Page1 of 3

EXHIBIT A TO DEFENDANTS’ TRIAL BRIEF

Plaintiff’s Claim Basis for Claim Matters at Issue in Adjudicating

Plaintiff’s Claims Excluded Information Implicated

by the Claim

Placement on watchlist violates First Amendment

Plaintiff’s is based on her religion

Whether Plaintiff s is based on her religion

(March 14, 2013 McCabe declaration ¶¶ 11-14; 17-18, 24-25, 31; May 13, 2013 McCabe declaration at ¶¶ 12-13)

Plaintiff s is based on her relationship with her husband

Whether Plaintiff is


Plaintiff was denied a visa and in

retaliation for attempting to testify in person

Whether Plaintiff s visa was denied in retaliation for attempting to testify in person Whether Plaintiff was in retaliation for attempting to testify in person

Classified information considered in making a determination on Plaintiff s visa application. (McCabe declaration ¶ 63; Cooper declaration ¶ 4)


Placement on watchlist violates equal protection

Plaintiff was because of her

nationality or religion

Whether Plaintiff was because of her nationality or religion


Plaintiff was interviewed because of her nationality or religion

Whether Plaintiff was interviewed because of her nationality or religion

Reason for December 2004 interview with Plaintiff. (McCabe declaration ¶¶ 11-14, 17-18)

Plaintiff was under investigation because of her nationality or religion.

If Plaintiff was investigated, whether it was because of her nationality or religion

Confirmation of any investigation, and the basis for an investigation, if applicable. (McCabe declaration ¶¶ 11-14, 17-18)


Placement on watchlist violates procedural due process

Liberty interest in international travel

Whether prevents her from travelling internationally Whether Plaintiff’s affects her eligibility for a visa.

Classified information considered in making a determination on Plaintiff’s visa application. (McCabe declaration ¶ 63; Cooper declaration ¶ 4 )


Freedom from incarceration Plaintiff has not been arrested during the pendency of the case.

Excluded information not necessary for the defense

Property interest in money spent on travel

There is no legal basis for this property interest.


Freedom to associate and exercise religion

Whether Plaintiff was based on her religion


Freedom to pursue an occupation

Plaintiff has been able to freely pursue her occupation, and she has no right to return to the United States to do so. (Court’s November 4, 2013 Order on Summary Judgment at 10:8-28)


Freedom from stigma Plaintiff has not been stigmatized, and has not shown a denial of any interest or right.


Plaintiff has been erroneously deprived of her right to enter the United States.

Plaintiff availed herself of PIVF in 2006. Classified redress file

Whether currently, Plaintiff is


Watchlisting processes in general (training, quality control, redress) protect against the risk of erroneous deprivation.


Placement on watchlist violates substantive due process

Plaintiff ‘s fails to serve any

governmental interest Whether Plaintiff is



EXHIBIT B [LODGED FOR IN

CAMERA EX PARTE REVIEW]


EXHIBIT C


October 1, 2013

Via FedEx and Electronic Mail

Stuart F. Delery Melinda L. Haag Diane Kelleher Paul G. Freeborne United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6108 Washington, D.C. 20001

Via Hand-Delivery

Kevin Kelley FBI, San Francisco Division 450 Golden Gate Avenue, 13th FL San Francisco, CA 94102-9523

Re: Ibrahim v. OHS, et al., Case No. C 06-0545 WHA (Kelley Subpoena)

Dear Counsel:

Enclosed please find plaintiff's subpoena to FBI Special Agent Kevin Kelley to appear at trial in the above-referenced case. Special Agent Kelley is receiving this subpoena because the federal defendants identified him as a witness in their Initial Disclosures on May 8, 2006, and because he has demonstrated knowledge of the facts underlying plaintiff's Second Amended Complaint.

Special Agent Kelley's anticipated trial testimony will cover all aspects of his knowledge of Dr. Ibrahim and relevant FBI procedures, including topics covered at his September 12, 2013 deposition. By way of summary, those topics generally relate to

, and his involvement in the events of January 2, 2005. See 28 C.F.R. § 16.23(c); Docket No. 263 (Order Re Discovery Dispute).

If you have any questions, please call me. Thank you.

Very truly yours,

McMANIS FAULKNER

/~ :~'*",___ \/; \;ff

ELlzABETH PIPKl1N

Enclosures


AO 88 (Rev. 07il 0) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action

UNITED STATES DISTRICT COURT

RAHINAH IBRAHIM, an individual, Plaintiff

for the

Northern District of Cal ifomia

V.

) ) ) ) )

Civil Action No. C 06-0545 (WHA)

_QE:f~~IME:f\JI_ OF ljQrv1ELAt\jl:) SECU_~~TY, et a~,__ Defendant

SUBPOENA TO APPEAR AND TESTIFY AT A HEARING OR TRIAL IN A CIVIL ACTION

To: Kevin Kelley

YOU ARE COMMANDED to appear in the United States district court at the time, date, and place set forth below to testify at a hearing or trial in this civil action. When you arrive, you must remain at the court until the judge or a court officer allows you to leave.

Courtroom No.: 8 Place: United States District Court, Northern District of California, San Francisco Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102 Date and Time: 11/04/2013 8:00 am

You must also bring with you the following documents, electronically stored information, or objects (blank if not

applicable):

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Fed. R. Civ. P. 45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are attached.

Date: 10/01/2013 CLERK OF COURT

OR

Signature of Clerk or Depuzy Clerk

The name, address, e-mail, and telephone number of the attorney representing (name of parzyJ

Plaintiff ~~- , who issues or requests this subpoena, are:

Elizabeth Pipkin McManis Faulkner, 50 W. San Fernando Street, 10th Floor, San Jose, California 95113 [email protected]

RAHINAH IBRAHIM,


STUART F. DELERY MELINDA L. HAAG DIANE KELLEHER · DEFENDANTS’ TRIAL BRIEF Ibrahim v. DHS, et...

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