Case4:08-cv-04373-JSW Document297 Filed10/24/14 Page1 of 7 1 2 3 4 5 6 7 8 9 10 11 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060) ANDREW CROCKER (SBN 291596) DAVID GREENE (SBN 160107) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Fax: (415) 436-9993 RACHAEL E. MENY (SBN 178514) rmeny@kvn.com BENJAMIN W. BERKOWITZ (SBN 244441) MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574) JUSTINA K. SESSIONS (SBN 270914) PHILIP J. TASSIN (SBN 287787) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, CA 94111 Telephone: 415/391-5400; Fax: 415/397-7188 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Fax: (415) 433-6382 THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: 650/813-9700; Fax: 650/813-9777 12 13 14 Counsel for Plaintiffs 15 UNITED STATES DISTRICT COURT 16 FOR THE NORTHERN DISTRICT OF CALIFORNIA 17 OAKLAND DIVISION 18 19 20 21 CAROLYN JEWEL, TASH HEPTING, YOUNG BOON HICKS, as executrix of the estate of GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalf of themselves and all others similarly situated, Plaintiffs, 22 23 24 25 26 27 ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 v. NATIONAL SECURITY AGENCY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 4:08-cv-4373-JSW PLAINTIFFS CAROLYN JEWEL, ERIK KNUTZEN, AND JOICE WALTON’S ADMINISTRATIVE MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPPLEMENTAL BRIEF Date: December 19, 2014 Time: 9:00 a.m. Courtroom 5, Second Floor The Honorable Jeffrey S. White 28 Case No. 08-cv-4373-JSW PLAINTIFFS’ ADMIN. MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPP. BRIEF Case4:08-cv-04373-JSW Document297 Filed10/24/14 Page2 of 7 1 I. Introduction Plaintiffs Carolyn Jewel, Erik Knutzen and Joice Walton (“plaintiffs”) hereby move to strike 2 3 the ex parte, in camera, supplement to the government’s opposition and cross-motion for partial 4 summary judgment, which the government filed with the Court without first seeking leave. The 5 filing of an ex parte, in camera memorandum of points and authorities is improper. The government 6 has submitted the classified declaration of “Miriam P.”, and there is no legitimate reason for the 7 government to supplement that secret evidence with the aid of a secret brief that it has privately 8 provided to the Court. The government has repeatedly argued its assertion of the state secrets 9 privilege in public briefing throughout the history of this case. Moreover, to the extent the secret 10 brief argues the merits of plaintiffs’ Fourth Amendment claims, it has no possible justification at all. 11 The government has not attempted to demonstrate that any possible good cause exists that could 12 justify the extraordinary violation of due process created by its submission of private, secret legal 13 argument—let alone that such good cause exists here.1 14 II. 15 16 17 18 19 20 21 22 23 24 The Government Improperly Filed An Ex Parte, In Camera Legal Brief Without First Seeking Leave of Court. The Federal Rules of Civil Procedure and this District’s Local Rules require that a party serve on the other parties any paper that it submits to the Court. Fed. R. Civ. Pro. 6(c)(1); Local Rule 7-2 (“Except as otherwise ordered or permitted by the assigned Judge or these Local Rules, and except for motions made during the course of a trial or hearing, all motions must be filed, served and noticed in writing on the motion calendar of the assigned Judge . . . .”). Even if a secret submission had some legitimate basis, the government was required to make an administrative motion pursuant to Local Rule 7-11 seeking leave to file a secret ex parte, in camera brief before it filed any such brief. On such a motion, the government would have had the burden of demonstrating both legal authority and good cause to support its secret filing. Instead, the government nonchalantly filed its 1 25 26 27 28 The Jewel plaintiffs filed a similar motion to strike before the Ninth Circuit during the previous appeal in this case. That motion was directed at the government’s secret brief that apparently sought to bolster the government’s argument regarding the state secrets privilege. The motion to strike was denied, but the secret brief had no effect on the result; the Ninth Circuit deferred ruling on the state secrets privilege and remanded the case to this Court for the resolution of the issue. Jewel v. National Security Agency, 673 F.3d 902, 913-14 (9th Cir. 2011). Case No. 08-cv-4373-JSW 1 PLAINTIFFS’ ADMIN. MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPP. BRIEF Case4:08-cv-04373-JSW Document297 Filed10/24/14 Page3 of 7 1 secret ex parte, in camera brief here as if it were a matter of right, depriving plaintiffs of any 2 opportunity to oppose the motion. Plaintiffs would have opposed any such motion. Because the 3 government’s conduct prevented plaintiffs from objecting prior to the filing of the government’s 4 secret brief, plaintiffs now move to strike it after the fact. Plaintiffs are aware of no statute, rule, or other authority permitting the government to file 5 6 legal argument to which plaintiffs do not have access and to which plaintiffs cannot reasonably 7 respond, as it has done here, nor is there any good cause for filing a secret, ex parte, in camera brief 8 here. Although there is authority allowing the filing of an ex parte, in camera official factual 9 certification in support of a claim of state secrets privilege, that authority does not permit the 10 government’s secret legal briefing here. And in fact, there is good cause to reject the government’s 11 filing: the government’s filing of a secret brief is contrary to the state secrets privilege doctrine and 12 to fundamental notions of due process, as explained below. 13 III. 14 Allowing an Ex Parte, In Camera Brief is Inconsistent with Section 1806(f) and Violates the Principles Enunciated in the Ninth Circuit’s En Banc Decision of Mohamed v. Jeppesen Dataplan, Inc. 15 The Government’s secret legal brief is inconsistent with section 1806(f) of title 50 U.S.C. 16 and violates the principles enunciated in Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th 17 Cir. 2010) (en banc). It raises the danger of creating a set of secret precedents which are known 18 only to the government and to this Court. A private, secret brief also violates plaintiffs’ rights to due 19 process because it deprives plaintiffs of their right to respond to the government’s legal arguments. 20 First, the Court has already ruled that 50 U.S.C. § 1806(f) displaces the state secrets privilege 21 as to plaintiffs’ statutory claims, and the government has conceded that “the reasoning by which the 22 Court concluded that section 1806(f) preempts application of the privilege to Plaintiffs’ statutory 23 claims would apply equally to Plaintiffs’ constitutional claims.” 7/23/13 Order (ECF No. 153) at 24 12-13; ECF No. 167 at 2, 6-7. Thus, the Court’s prior ruling precludes the government from 25 asserting the state secrets privilege here to defeat plaintiffs’ claims, and there is certainly no need for 26 secret briefing on the issue. 27 28 Also, the Ninth Circuit reaffirmed in Mohamed that the government’s assertion of the state secrets privilege can only be sustained under “exceptional” and “rare” circumstances. This Case No. 08-cv-4373-JSW 2 PLAINTIFFS’ ADMIN. MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPP. BRIEF Case4:08-cv-04373-JSW Document297 Filed10/24/14 Page4 of 7 1 restriction is necessary because the privilege, when legitimately invoked, can overcome 2 “fundamental principles of our liberty, including justice, transparency [and] accountability.” 614 3 F.3d at 1073. Because the government may invoke the privilege only in the most exceptional of 4 5 circumstances, the exceptional quality of the circumstances must be self-evident from the official’s 6 certification formally invoking the privilege. In the seminal state secrets privilege case, U.S. v. 7 Reynolds, 345 U.S. 1, 9 (1953), the Supreme Court emphasized that courts should determine 8 whether the privilege has been properly asserted by looking to “all the evidence and circumstances” 9 set forth in the official’s formal claim of privilege itself. See also id. at 8 (“The court itself must 10 determine whether the circumstances are appropriate for the claim of privilege . . . .”). There is no 11 mention in Reynolds of permitting classified briefing that secretly argues the merits of that claim of 12 privilege; indeed the thrust of the Reynolds formulation is that the certification alone should be the 13 basis for the Court’s decision. Relying on Reynolds, the Mohamed court set a very high bar for the official’s certification: 14 15 “[T]he decision to invoke the privilege must ‘be a serious, considered judgment, not simply an 16 administrative formality.’ . . . The formal claim must reflect the certifying official’s personal 17 judgment; responsibility for this task may not be delegated to lesser-ranked officials. The claim also 18 must be presented in sufficient detail for the court to make an independent determination of the 19 validity of the claim of privilege and the scope of the evidence subject to the privilege.” 614 F.3d at 20 1080 (first emphasis in original; second emphasis added; citation omitted).2 The Mohamed approach cannot encompass secret, ex parte legal briefing because allowing 21 22 23 24 25 26 27 28 the government to submit secret, one-sided legal argument would undermine at least the perception 2 In Mohamed, the assertion of the privilege was self-evident from the official certification invoking the privilege. As the Mohamed Court noted: “[E]very judge who has reviewed the government’s formal, classified claim of privilege in this case agrees that in this sense the claim of privilege is proper, although we have different views as to the scope of the privilege and its impact of plaintiffs’ case.” 614 F.3d at 1086; see also Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1203-04 (9th Cir. 2007) (concluding that “the government has sustained its burden as to the state secrets privilege” and that “the basis for the privilege [is] exceptionally well documented” by “spen[ding] considerable time examining the government’s declarations”). Case No. 08-cv-4373-JSW 3 PLAINTIFFS’ ADMIN. MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPP. BRIEF Case4:08-cv-04373-JSW Document297 Filed10/24/14 Page5 of 7 1 (and likely the fact) of judicial independence that is crucial to the Court’s evaluation of any claim of 2 privilege. The state secrets doctrine “‘does not represent a surrender of judicial control over access 3 to the courts.’” Mohamed, 614 F.3d at 1082 (citation omitted). Rather, “‘to ensure that the state 4 secrets privilege is asserted no more frequently and sweepingly than necessary, it is essential that the 5 courts continue critically to examine instances of its invocation.’” Id. (citation omitted). As the 6 Mohamed Court explained, “‘[w]e take very seriously our obligation to review the [government’s 7 claims] with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s 8 claim or justification of privilege.’” Id. (bracketed material original) (quoting Al-Haramain, 507 9 F.3d at 1203). 10 Asserting the state secrets privilege via a classified certification allows the government to 11 make a secret presentation of the foundational facts for the privilege. That should suffice. Even 12 secret evidence alone severely infringes plaintiffs’ due process rights. Brock v. Roadway Express, 13 Inc., 481 U.S. 252, 264 (1987) (meaningful notice requires both “notice of the . . . allegations” and 14 “notice of the substance of the relevant supporting evidence”); Cleveland Board of Education v. 15 Loudermill, 470 U.S. 532, 546 (1985) (due process requires “an explanation of the . . . evidence”). 16 There is no place for secret argument as well. 17 IV. 18 Allowing the Government to Oppose the Merits of Plaintiffs’ Fourth Amendment Claims with Secret Briefing Would Violate Plaintiffs’ Due Process Rights, and No Authority Permits It. 19 If the government’s secret briefing argues the merits of plaintiffs’ Fourth Amendment claim, 20 the attempt at secrecy is even more egregious. No authority permits the government to make its 21 substantive legal case in secret. Indeed, the programs at issue here affect the Internet 22 communications of millions of Americans, and questions about whether such programs violate the 23 fundamental constitutional rights of U.S. citizens should not be litigated in secret. Transparency— 24 and the benefit of the adversarial process—is necessary for a decision of such magnitude to be given 25 any credence by the public, and to satisfy plaintiffs’ rights of due process. 26 Section 1806(f), which governs here, does not authorize secret briefing on the merits of the 27 legality of the surveillance. Rather, it permits the government to submit relevant evidence, not 28 argument, ex parte and in camera. 50 U.S.C. § 1806(f) (in camera and ex parte review limited to Case No. 08-cv-4373-JSW 4 PLAINTIFFS’ ADMIN. MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPP. BRIEF Case4:08-cv-04373-JSW Document297 Filed10/24/14 Page6 of 7 1 “the application, order, and such other materials relating to the surveillance as may be necessary to 2 determine whether the surveillance of the aggrieved person was lawfully authorized and 3 conducted”). The government also has not complied with section 1806(f)’s procedures in 4 submitting the Miriam P. declaration or any other evidence. The government’s ex parte supplemental brief for in camera consideration should also be 5 6 stricken because it is antithetical to basic notions of due process. The due process guarantee of an 7 opportunity to be heard becomes entirely meaningless if the government can present not just secret 8 evidence, but secret argument as well: “The right to a hearing embraces not only the right to present 9 evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet 10 them. The right to submit argument implies that opportunity; otherwise the right may be but a 11 barren one.” Morgan v. United States, 304 U.S. 1, 18 (1938). The independence and skepticism central to the Court’s judicial role is fundamentally 12 13 inconsistent with allowing the government to secretly whisper legal arguments into the Court’s ear 14 on the legal merits of plaintiffs’ claims. Both plaintiffs and the government have had an equivalent, 15 public opportunity to advocate their respective positions through their public legal briefs to the 16 Court. The only reason for the government to submit a secret supplemental brief appears to be to 17 foreclose plaintiffs from rebutting the government’s secret legal arguments, and to let the 18 government put its own legal gloss on the underlying facts (including its secret evidence) in a way 19 that the plaintiffs cannot meet or rebut, or even know. This infringement of plaintiffs’ due process 20 rights should not be countenanced. Finally, the submission of an ex parte, in camera legal brief should be rejected because it 21 22 creates the danger of creating secret precedent and secret law. “‘[S]ecret law is an abomination.’” 23 Cox v. United States Department of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978) (quoting K. Davis, 24 Administrative Law, p. 137 (Supp.1970)), and this Court should not allow the government to create 25 and use secret law. 26 V. 27 28 CONCLUSION For the reasons set forth above, plaintiffs respectfully request that the Court strike the government’s classified, ex parte, in camera brief. Case No. 08-cv-4373-JSW 5 PLAINTIFFS’ ADMIN. MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPP. BRIEF Case4:08-cv-04373-JSW Document297 Filed10/24/14 Page7 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Dated: October 24, 2014 Respectfully submitted, /s/ Thomas E. Moore III THOMAS E. MOORE III ROYSE LAW FIRM CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ANDREW CROCKER DAVID GREENE ELECTRONIC FRONTIER FOUNDATION RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE RACHAEL E. MENY BENJAMIN W. BERKOWITZ MICHAEL S. KWUN AUDREY WALTON-HADLOCK JUSTINA K. SESSIONS PHILIP J. TASSIN KEKER & VAN NEST LLP ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN Counsel for Plaintiffs 19 20 21 22 23 24 25 26 27 28 Case No. 08-cv-4373-JSW 6 PLAINTIFFS’ ADMIN. MOTION TO STRIKE THE GOVERNMENT’S SECRET SUPP. BRIEF