IN THE UNITED STATES DISTRICT COURT

                                             FOR THE DISTRICT OF COLUMBIA

 

 

JOHN VINCENT,                                           )

)

 Plaintiff,                                   )

)

v.                                                       )           Civil Action No. 03-0226 (GK)

)

FEDERAL BUREAU OF                                )           Next Scheduled Event: None   

INVESTIGATION, et al.,                               )                      

) 

Defendants.                              )          

____________________________________)

 

 

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS-MOTION

FOR SUMMARY JUDGMENT

 

Plaintiff, John Vincent, by counsel, respectfully submits this Opposition to Defendants’ Motion for Summary Judgment and hereby cross-moves for summary judgment.  As grounds therefor, Plaintiff states as follows:

                                                      MEMORANDUM OF LAW

I.          Introduction.


This case is about the denial of the First Amendment rights of a former special agent of the Federal Bureau of Investigation (“FBI”) and a prepublication review process that is broken, if not unconstitutional.  More than 18 months after the FBI summarily denied Plaintiff permission to provide answers to 21 questions asked of him by New York Times journalist Judith Miller, and more than 10 months after initiating this action, Defendants reversed their original, blanket denial without explanation and granted Plaintiff permission to publish 15 answers in full and 2 answers in part.  Several months later, Defendants granted Plaintiff permission to publish in full an answer they previously authorized him to publish only in part.  Again, Defendants provided no explanation for the change.  Of course, the unexplained delay Plaintiff was forced to endure in the intervening time period severely burdened, if not violated, his First Amendment rights.  Defendants continue to violate Plaintiff’s rights by denying him permission to publish his remaining 4 answers in full (Nos. 1, 7, 10, and 20) and 1 answers in part (No. 17).

As will be shown below, Defendants had no valid, legal basis for denying Plaintiff permission to answer Ms. Miller’s questions in the first instance and unlawfully failed to provide any information about the alleged basis for the denial at that time, which would have enabled Plaintiff to try to revise his answers and address Defendants’ purported concerns.  In addition, Defendants have no basis for continuing to deny Plaintiff permission to publish his remaining answers.  The Court should deny Defendants’ motion for summary judgment and grant Plaintiff’s cross-motion.  It also should enter an injunction requiring Defendants to comply with the law and their own prepublication review procedures in all respects, in order to make certain that neither Plaintiff nor any other special agent has to suffer such a violation of his or her constitutional rights in the future.

II.        Statement of Facts.


In March of 2002, New York Times reporter Judith Miller learned that an FBI special agent assigned to a counter-terrorism squad in the Chicago Field Office, Robert G. Wright,[1] was publicly charging the FBI with mishandling a closed, counter-terrorism investigation known as “Vulgar Betrayal,” of which SA Wright had been the lead investigator.[2]  SA Wright also was publicly charging the FBI with mistreating him because of his disclosures.[3]  Ms. Miller contacted the FBI about SA Wright’s charges, and the FBI agreed to allow Ms. Miller to interview several FBI officials, including SA Wright’s supervisor in the Chicago Field Office, Supervisory Special Agent Timothy F. Gossfeld, to address the substance of SA Wright’s charges.[4]  The interview took place on March 20, 2002 at FBI Headquarters (“FBI HQ”) in Washington, DC.[5]

At some point, Ms. Miller also learned that Plaintiff had been assigned to the counter-terrorism squad of the Chicago Field Office and had worked on the Vulgar Betrayal investigation.[6]  After interviewing FBI officials at FBI HQ, Ms. Miller sought to interview Plaintiff about the Vulgar Betrayal investigation.[7]  Plaintiff wished to be interviewed by Ms. Miller.[8]


Upon joining the FBI, Plaintiff had signed an agreement requiring him to seek prepublication review from the Office of Public and Congressional Affairs (“OPCA”) before disclosing certain categories of information publicly.[9]  To this end, on March 31, 2002, Plaintiff sought prepublication review from OPCA of written answers he had prepared to 21 questions posed to him by Ms. Miller.[10]

On May 10, 2002, OPCA issued a blanket denial refusing to give Plaintiff permission to publish any portion of his written answers to Ms. Miller’s questions.[11]  Contrary to the FBI’s own, internal policies and procedures, OPCA failed to identify the specific reasons for the denial “by page and paragraph number,” but instead summarily wrote: 

Our review indicates that your submission contains information regarding an open investigation, matters occurring before a federal grand jury and other material prohibited from disclosure, and that the information is so inextricably linked with protected information that we are unable to authorize public disclosure of the material in its entirety at this time.[12]

 


OPCA also failed to provide any information about the reasons for the refusal that would have enabled Plaintiff to revise his answers to try to address Defendants’ purported concerns.[13]  None of the information Plaintiff sought to disclose to Ms. Miller was classified or pertained to an open investigation or matters occurring before a grand jury.[14]  After exhausting internal administrative appeals, Plaintiff initiated this action on February 12, 2003.[15]

On December 22, 2003, more than 18 months after denying Plaintiff permission to publish his answers to Ms. Miller’s questions and more than 10 months after Plaintiff initiated this action, Defendants partially reversed their earlier, blanket denial.  Without explanation, Defendants granted Plaintiff permission to publish 15 of the 21 written answers in full and 2 of the 21 written answers in part.[16]  At the same time, Defendants admonished Plaintiff that he was still prohibited from publishing the remaining portions of his written answers, but still failed to provide any detailed or meaningful justification for the prohibition.  Id.


On May 4, 2004, almost two years after denying Plaintiff permission to publish any of his answers and more than one year after Plaintiff initiated this action, Defendants granted Plaintiff permission to publish in full one of the answers it previously had granted him permission to publish only in part.[17]  Again no explanation was provided.[18]  Defendants again admonished Plaintiff that he was prohibited from publishing the remaining portions of his answers, again providing no detailed or meaningful justification for the prohibition.[19]

III.       Discussion.

A.        Summary Judgment Standard.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Fed.R.Civ.P. 56(c); see also Anderson v.  Liberty Lobby, Inc., 477 U.S. 242, 247-252 (1986) (quoting Fed.R.Civ.P. 56(c) and elucidating summary judgment standard).


B.        Because the First Amendment Precludes Prior Restraint With Respect to Unclassified or Officially Disclosed Information, Defendants Wrongfully and Unconstitutionally Withheld Permission from Plaintiff to Publish His Written Answers.

“[S]peech concerning public affairs is more than self-expression; it is the essence of self government.”  Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).  Thus, speech on public issues occupies the “highest rung of the hierarchy of First Amendment values.”  NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982).  “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”  Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).  A prior restraint has the immediate and irreversible sanction of “freezing” speech.  Id.  


As a result, “the First Amendment limits the extent to which the United States, contractually or otherwise, may impose secrecy requirements upon its employees and enforce them with a system of prior censorship.”  U.S. v. Marchetti, 466 F.2d 1309, 1313 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972); see also McGehee v. Casey, 718 F.2d 1137, 1141 (D.C. Cir. 1983) (quoting Marchetti).  Indeed, the First Amendment precludes such restraints with respect to information that is unclassified or publically disclosed.  See McGehee, 718 F.2d at 1141 (Court stated that the government may not censor unclassified information and information obtained from public sources); Marchetti, 466 F.2d at 1313 (same) and 1317 (“We would decline enforcement of the secrecy oath signed when he left the employment of the CIA to the extent that it purports to prevent disclosure of unclassified information, for, to that extent, the oath would be in contravention of his First Amendment rights.”).  “The government has no legitimate interest in censoring unclassified materials.  Moreover, when the information at issue derives from public sources, the agent’s special relationship of trust with the government is greatly diminished if not wholly vitiated.”  McGehee, 718 F.2d at 1141 (citing Snepp v. U.S., 444 U.S. 507, 513 n. 8 (1980) (per curiam)).

It is undisputed that Plaintiff submitted all of the information he seeks to publish to OPCA for prepublication review, as required by the agreement he executed when he joined the FBI.[20]  Thus, it is evident that Plaintiff fulfilled his fiduciary obligations under the agreement.  It also is undisputed that the information Plaintiff submitted for prepublication review is not classified.[21]  Thus, because the First Amendment precludes prior restraints with respect to information that is not classified (see Marchetti, 466 F.2d at 1313, 1317-1318), Defendants wrongfully and unconstitutionally withheld permission from Plaintiff to publish any of his written answers prior to December 22, 2003.  Its continuing refusal to grant him permission to publish the remaining portions of his answers, in full or in part, also is both wrongful and unconstitutional.


            Even if the information contained in Plaintiff’s written answers were classified -- which it clearly is not -- Defendants still wrongfully and unconstitutionally withheld permission from Plaintiff to his answers because he was merely commenting on information the FBI had already disclosed to Ms. Miller of The New York Times.  Specifically, it is undisputed that on March 20, 2002, Ms. Miller interviewed FBI officials at FBI HQ about the Vulgar Betrayal investigation, the very same investigation that was the subject of Ms. Miller’s questions to Plaintiff and Plaintiff’s answers.[22]  In that interview, the FBI provided Ms. Miller with substantial information about Vulgar Betrayal.  Ms. Miller then asked Plaintiff to confirm or comment on the information provided to her by the FBI.  Indeed, the manner in which the questions were posed clearly indicates that FBI officials had provided Ms. Miller with the information that formed the basis for the questions she sought to have Plaintiff answer, and, thus, that the FBI had already released the information at issue into the public domain.


For example, Ms. Miller prefaced her very first question to Plaintiff by stating, “The Bureau says that . . .” and “They [the Bureau] also say . . . .”[23]  Nearly every question posed by Ms. Miller to Plaintiff thereafter begins with “That . . . ,” indicating that what followed was information provided to her by the FBI.[24]  As a result, it is obvious that in Question 1 and in her subsequent questions, Ms. Miller was only asking Plaintiff to comment on information she had already obtained from FBI officials.[25]  While Defendants also claim that Plaintiff’s answer to Question 1 “mentions a specific person who was the subject of prosecutorial attention during the investigation” (Defendants’ Memorandum in Support of Motion for Summary Judgment (“Defs Mem.”)), the question itself identifies an individual, Mr. Salah, by name, as do the other questions, yet again demonstrating that the FBI had already made public the information at issue.[26]

In Question 7, Ms. Miller asked Plaintiff, “That [Assistant United States Attorney] Flessner finally procured the pen register without FBI knowledge or approval?  When?”[27]   It is evident from the question itself that Ms. Miller was informed by FBI officials that AUSA Flessner procured the pen register at issue without FBI knowledge or approval and, again, only sought confirmation from Plaintiff.

In Question 10, Ms. Miller asks Plaintiff whether the U.S. Attorney declined to prosecute Mr. Salah because the evidence “did not meet the threshold.”[28]  Defendants admit they discussed this very same issue with Ms. Miller and told her the reason the U.S. Attorney did not prosecute was because they lacked any “specified unlawful activity.”[29]


In Question 17, Ms. Miller asked Plaintiff, “That [the Vulgar Betrayal investigation] was never the ‘Global’ Hamas case, but a historical case of money laundering activity involving basically money that came into the accounts of four people?”[30]  Again, it is obvious from the way the question is phrased that Ms. Miller was told the Vulgar Betrayal investigation was “never the ‘Global’ Hamas case,” but instead was  “a historical case of money laundering.”  Ms. Miller only sought confirmation from Plaintiff.  Further, Defendants admit they discussed this very same issue with Ms. Miller and told her “the VULGAR BETRAYAL investigation was specifically focused on money laundering activity which was used to fund Hamas after the Intifada of the late 1980s, and that it was not an investigation focused on all terrorist activity involving Hamas.”[31]

Finally, in Question 20, Ms. Miller asked Plaintiff, “That you guys even looked at ‘murder for hire’ as a way of getting them, and couldn’t make the case.”  Again, it is obvious from the way the question is phrased that Ms. Miller was told the FBI “looked at murder for hire, but couldn’t make the case” and only sought confirmation from Plaintiff.[32]  Even so, Defendants again admit they discussed this very same issue with Ms. Miller and told her the reason the U.S. Attorney declined to prosecute was because they lacked any “specified unlawful activity.”[33]

Thus, because the information Plaintiff seeks to publish had already been disclosed by Defendants to Ms. Miller, Defendants cannot prevent Plaintiff from confirming or otherwise commenting on these same, already public matters.  See Marchetti, 466 F.2d at 1313.

C.   None of the Information Submitted by Plaintiff for Prepublication Review Pertains to an Open Investigation.                           

Defendants argue that they rightfully denied Plaintiff permission to answer Ms. Miller’s questions because his answers allegedly pertain to an open investigation.  See Defs Mem. at 13-20.  Defendants’ argument  has no merit, both factually and legally.


First, Defendants may only prohibit Plaintiff from publishing classified information, which they admit Plaintiff’s information is not.  See Section III B, supra.  Second, Defendants cannot prohibit Plaintiff from publishing information that is already in the public domain.  Id.  As discussed above, Defendants injected the information Plaintiff desires to publish into the public domain by disclosing it to Ms. Miller in the first instance.  Id.

Third, Plaintiff’s answers to Ms. Miller’s questions do not concern an open investigation, but instead concerned an investigation -- Vulgar Betrayal -- that had been shut down in October 1999  and officially closed in August 2000, nearly two years before Plaintiff sought prepublication review.[34]  Defendants themselves admitted in discovery that the FBI and the United States Attorney’s Office in Chicago, Illinois agreed to close the investigation in October 1999: 

Ms. Miller asked SSA Gossfeld why the VULGAR BETRAYAL case was closed when hundreds of people were dying in the Middle East.  SSA Gossfeld explained that the VULGAR BETRAYAL investigation was specifically focused on money laundering activity which was used to fund Hamas after the Intifada of the late 1980s, and that it was not an investigation focused on all terrorist activity among Hamas.  The case was closed by the FBI after the FBI and the United States Attorney’s Office for the Northern District of Illinois mutually agreed during October 1999 that the RICO criminal conspiracy prosecution theory which was being pursued lacked any specified unlawful activity, which could serve as a predicate offense for the conspiracy charge.  The Assistant United States Attorneys handling the case needed a specified  unlawful activity within five years of charging in order to use that predicate offense to support a RICO criminal conspiracy charge.[35]


Moreover, although Defendants claim generally throughout their brief and in their declarations that the information submitted by Plaintiff is prohibited from disclosure because it pertains to an open investigation, Defendants use the past tense when referring to the Vulgar Betrayal investigation.  See Defs Mem. at 13 (“The questions from Ms. Miller seek information concerning a criminal investigation conducted by the United States Attorney’s Office for the Northern District of Illinois.”) and 15 (The principal subject of Miller’s questions -- the “Vulgar Betrayal” investigation -- involved grand jury proceedings and related criminal and intelligence investigations.”) (emphasis added).  Thus, Defendants’ own brief further confirms that the Vulgar Betrayal investigation was closed.  Because the investigation at issue was closed in October 1999, more than two and a half years before Plaintiff sought prepublication review, none of Defendants’ concerns about preventing harm to an ongoing criminal investigation or prosecution are valid.  At a minimum, Defendants’ own admissions create a genuine dispute of material fact about whether the investigation was open or closed, precluding entry of summary judgment in Defendants’ favor.  


It is equally important, if not more important, that Defendants fail to cite any authority allowing them to prohibit Plaintiff from publishing non-classified information pertaining to an investigation, whether open or closed.  The only authorities cited by Defendants concern Freedom of Information Act (“FOIA”) exemptions and evidentiary privileges asserted in response to discovery requests served in civil actions.  See Defs. Mem. at 14-15.  It is one thing for the government to refuse to disclose information regarding an ongoing criminal investigation in response to a FOIA request or in discovery in a civil action.  It is something entirely different, however, for the government to prohibit an employee from speaking freely about a long-closed investigation.  Defendants have failed to show that this prior restraint on Plaintiff’s free speech rights was justified by any overriding “substantial government interest unrelated to the suppression of free speech” or “narrowly drawn” to restrict Plaintiff’s speech “no more than is necessary to protect the substantial government interest.”  McGehee, 718 F.3d at 1142-43.  Defendants’ subsequent partial reversals, without explanation, of their May 10, 2002 blanket denial belies any claim to the contrary.  Likewise, Defendants have failed to show that their continuing refusal to grant Plaintiff permission to publish all of his answers in their entirety is justified by any overriding “substantial government interest unrelated to the suppression of free speech” or is “narrowly drawn” to restrict Plaintiff’s speech “no more than is necessary to protect the substantial government interest.”  Id.

D.   None of the Information Submitted by Plaintiff for Prepublication Review Pertains to Matters Occurring Before a Grand Jury. 

 

Defendants also argue that they rightfully denied Plaintiff permission to answer Ms. Miller’s questions because his answers allegedly pertain to matters occurring before a grand jury.  See Defs Mem. at 13-20.  This argument, like Defendants’ argument regarding the allegedly open investigation,  has no factual or legal merit.

First, as a factual matter none of the information Plaintiff seeks to publish pertains to matters occurring before a grand jury.  While Fed.R.Crim.P. 6(e) prohibits disclosure of “a matter occurring before [a] grand jury,” the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has held that this rule does not “draw a veil of secrecy over all matters occurring in the world that happen to be investigated by a grand jury.”  Senate of the Commonwealth of Puerto Rico v. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987) (citations and quotation marks omitted).  Indeed, there “is no per se rule against disclosure of any and all information which has reached the grand jury chambers.”  Id. 


“[T]he touchstone is whether disclosures would tend to reveal some secret aspect of the grand jury’s investigation[,] such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.  The disclosure of information coincidentally before the grand jury which can be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury is not prohibited.”  Id. (citations and quotation marks omitted).

In addition, “[t]he disclosure of information obtained from a source independent of the grand jury proceedings, such as a prior government investigation, does not violate Rule 6(e).”  In re: Sealed Case, 192 F.3d 995, 1002 (D.C. Cir. 1999) (quoting In re Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir. 1980)); see also Penguin Books USA Inc. v. Walsh, 756 F. Supp. 770, 780 (S.D.N.Y. 1991) (“The requirement that information revealing the strategy or direction of the investigation be kept secret refers to the investigation by the grand jury,” not the prosecution.), decision vacated and appeal dismissed as moot, 929 F.2d 69 (2d Cir. 1991).  Moreover:

A discussion of actions taken by government attorneys or officials -- e.g., a recommendation by the Justice Department attorneys to department officials that an indictment be sought against an individual does not reveal any information about matters occurring before the grand jury.  Nor does a statement of opinion as to an individual’s potential criminal liability violate the dictates of Rule 6(e).  This is so even though the opinion might be based on knowledge of the grand jury proceedings, provided, of course, the statement does not reveal the grand jury information on which it is based.

 

Id. at 1003.  “[W]here reported deliberations do not reveal that an indictment has been sought or will be sought, ordinarily they will not reveal anything definite enough to come within the scope of Rule 6(e).”  Id.  “Nor does it violate the Rule to state the general grounds for [] an indictment . . . where no secret grand jury material is revealed.”  Id. at 1004.


Finally, “[t]he extent to which the grand jury material in a particular case has been made public is clearly relevant because even partial previous disclosure often undercuts many of the reasons for secrecy.”  Id. (quoting In re Petition of Craig v. U.S., 131 F.3d 99, 107 (2d Cir. 1997)).  “The purpose in Rule 6(e) is to preserve secrecy.  Information widely known is not secret.”  Id. (quoting In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)).

In the case at bar, the information Plaintiff seeks to publish does not reveal some secret aspect of a grand jury investigation, such as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, or the deliberations or questions of jurors, or even refer to the existence of a grand jury.[36]  In fact, Plaintiff could not reveal any “matter[s] occurring before [a] grand jury” because he was not privy to any grand jury proceedings.[37]  At a minimum, Plaintiff has demonstrated the existence of a genuine dispute of material fact regarding whether any of the information at issue is non-public information regarding “a matter occurring before [a] grand jury” (Fed.R.Crim.P. 6(e)), precluding entry of summary judgment in Defendants’ favor.


Indeed, the information Plaintiff submitted for prepublication review concerns his involvement in the FBI’s Vulgar Betrayal investigation, not any grand jury investigation.[38]  Whether or not some of the information contained in Plaintiff’s answers coincidentally ended up in front of a grand jury is of no consequence because grand jury material was not Plaintiff’s source, nor does Plaintiff claim it to be his source in his written answers.  Id.; see also Senate of the Commonwealth of Puerto Rico, 823 F.2d at 582.  Nor is it of consequence that Plaintiff’s written answers to certain questions, e.g., Questions 10 and 20, might comment on the opinions of other special agents and/or prosecutors as to whether there was sufficient evidence gathered in the Vulgar Betrayal investigation to prosecute certain individuals.  A “statement of opinion as to an individual’s potential criminal liability [does not] violate the dictates of Rule 6(e).”  In re: Sealed Case, 192 F.3d at 1003. 

Moreover, Defendants have again failed to demonstrate that their prior restraint on Plaintiff’s free speech rights was or is justified by any overriding “substantial government interest unrelated to the suppression of free speech,” or was or is “narrowly drawn” to restrict Plaintiff’s speech “no more than is necessary to protect the substantial government interest.”  McGehee, 718 F.3d at 1142-43.  This is especially the case where Defendants themselves have taken inconsistent positions on whether Plaintiff’s answers concern “a matter occurring before [a] grand jury,” as demonstrated by their subsequent reversals allowing Plaintiff to publish at least some of his answers or portions thereof, and where Defendants themselves made public significant amounts of the information at issue by disclosing it to Ms. Miller in the first instance.  See Section III B, supra.

E .        Defendants Violated Plaintiff’s First Amendment Right to Free Speech by Unduly Delaying Approval and Failing to Provide Detailed and Specific Objections.


Because an agreement requiring an employee to submit to prepublication review is a prior restraint on speech, a government agency “must act promptly to approve or disapprove any material which may be submitted to it.”  Marchetti, 466 F.2d at 1317.  “Undue delay would impair the reasonableness of the restraint, and that reasonableness is to be maintained if the restraint is to be enforced.”  Id.  In Marchetti, the U.S. Court of Appeals for the Fourth Circuit held that, “in all events, the maximum period for responding after the submission of material for approval should not exceed thirty days.”  Id.  Defendant FBI’s own internal procedures incorporate this rule by requiring the requestor receive notice of approval or disapproval within thirty working days.[39]

In addition, if a government agency denies permission to publish material, it has the “obligation to specify its objections” to the requester.  Penguin Books USA Inc., 756 F. Supp. at 788.  Defendant FBI’s own internal procedures incorporate this rule by requiring the requestor receive detailed, written objections specifying why the FBI is withholding permission to publish.  Moreover, these objections must identify the reasons for the denial “by page and paragraph number” of the material submitted.[40]   The obvious reason for this requirement is to enable the requestor to modify and resubmit his or her request without unduly infringing on the requestor’s First Amendment rights.  Id.


Defendants failed to provide any meaningful information about why it denied Plaintiff permission to answer Ms. Miller’s questions, much less the detailed, specific objections, “by page and paragraph number,” as required by law and by the FBI’s own internal procedures.  Defendants also failed to provide Plaintiff with any information that would have enabled him to revise his answers and resubmit them to correct any legitimate concerns.  They further failed to provide such information within 30 working days.  Moreover, Defendants’ subsequent reversals of their summary denial, as much as two years later and without explanation, conclusively demonstrate that they had no proper basis to deny permission to publish in the first instance.[41]

Clearly, this is not the sort of speedy review of prior restraint envisioned by the Court in Marchetti, where the Court declared, “[W]e think that the CIA must act promptly to approve or disapprove any material which may be submitted to it by Marchetti,” i.e., “the maximum period for responding after the submission of material for approval should not exceed thirty days.”  Marchetti, 466 F.2d at 1317.  Indeed, Defendants have blatantly ignored settled law and their own procedures by waiting as much as two years to approve Plaintiff’s written answers for publication.  Defendants’ two-year delay has denied Plaintiff his First Amendment rights and caused him irreparable injury, especially considering that his speech concerned events that were the subject of an important public debate two years ago.  See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). 


As is now evident, Defendants never had a valid legal basis for withholding permission from Plaintiff to publish his written answers, but only sought to delay and/or wrongfully suppress Plaintiff’s speech.  Defendants likely sought to delay and/or wrongfully suppress Plaintiff’s speech because it is critical of how the FBI handled a closed counter-terrorism investigation.  However, it is unlawful for Defendants to suppress Plaintiff’s speech merely because it is undesirable and/or critical of the FBI.  See Agee v. CIA, 500 F. Supp. 506, 508 (D.D.C. 1980) (“[I]t is certain that the Government cannot use enforcement of [a] Secrecy Agreement for the sole purpose of suppressing speech that is unfavorable to the agency.”); see also Defendants’ Exhibit 2  (Excerpt from FBI’s Manual of Administrative Operations and Procedures) at § 1-24(5)(a)(2) (prohibiting suppression of speech because it is critical of the FBI) and Defendants’ Exhibit 6 (A Handbook for Reviewers) at pp. 3 and 11 (same). 

F.         Plaintiff’s Administrative Procedure Act Claim Is Viable.

Count III of Plaintiff’s Complaint is brought pursuant to the Administrative Procedure Act (“APA”),  5 U.S.C. §§ 706(2)(A) (B) and (D).  See Plaintiff’s Complaint at ¶¶ 22-24.  Plaintiff claims that Defendants’ original refusal to grant him permission to answer Ms. Miller’s questions was a final agency decision, and that decision was arbitrary, capricious, and contrary to law, as well as Defendants’ own internal guidelines and procedures.  Id. 

Defendants argue that this claim should be dismissed because their internal guidelines and procedures do not create enforceable rights.  See Defs Mem. at 22-24.  Defendants’ argument misses the mark because Plaintiff not only has demonstrated that Defendants’ actions were contrary to their own internal guidelines and procedures, but Plaintiff also demonstrated that Defendants’ actions were arbitrary, capricious, an abuse of discretion, and contrary to law, including the U.S. Constitution.  See Section III B, C, D and E, supra.  Even if Defendants’ internal guidelines and procedures do not create enforceable rights, Defendants’ failure to follow those guidelines and procedures, and their subsequent reversals of their original, blanket denial, without explanation and as much as two years later, demonstrate that Defendants’ initial refusal to grant Plaintiff permission to answer Ms. Miller’s questions was arbitrary and capricious.  


Defendants also argue that Plaintiff’s claims are moot because they allegedly complied with their own internal guidelines and procedures by giving Plaintiff specific written objections to his prepublication request in their summary judgment motion.  See Defs Mem. at 24.  Defendants’ argument is without merit.  Plaintiff submits that Defendants’ attempts to describe in their May 4, 2004 motion the reasons for their May 10, 2002 blanket denial are not sufficient, and FBI special agent seeking prepublication review should not have to wait more than two years -- and endure the burden and expense of filing a lawsuit -- to obtain some degree of detail about the basis for why permission to publish was denied.  Elrod, 427 U.S. at 373.  Moreover, Plaintiff has demonstrated that Defendants’ continuing refusal to allow him permission to publish the remaining portions of his answer is unlawful.     

The APA expressly empowers this Court to “compel agency action unlawfully withheld or unreasonably delayed” and “hold unlawful and set aside agency action, findings, and conclusions” that are found to be arbitrary, capricious, an abuse of discretion, and/or contrary to law or constitutional right.  5 U.S.C. §§ 706(1) and (2).  Accordingly, this Court should declare Defendants’ original blanket denial to be unlawful and should set aside that decision.  It also should find that Defendants continue to unlawfully withhold and unreasonably delay permission for Plaintiff to publish the remaining portions of his written answers, and should set aside Defendants’ continuing denial of his First Amendment rights. 

IV.       Conclusion.

For the aforementioned substantial reasons, Defendants’ motion for summary judgment should be denied.  In addition, Plaintiff’s cross-motion for summary judgment should be granted, and this Court should employ its injunctive powers to supervise Defendants’ prepublication process and enjoin Defendants to comply with the law and to follow their own prepublication review procedures in the future.


Respectfully Submitted,

 

JUDICIAL WATCH, INC.

 

 

 

______________________________           

Paul J. Orfanedes

D.C. Bar 429716                                            

501 School Street, S.W.

Suite 500                                                         

Washington, D.C.  20024                                

(202) 646-5172                                              

 

Attorneys for Plaintiff



[1]           Plaintiff is not alone in suffering deprivations of his First Amendment rights because of the improper manner in which Defendants’ prepublication review process is being carried out.  Special Agent Wright also has a similar action pending before this Court challenging the application and constitutionality of the FBI’s prepublication review process with respect to his own requests for prepublication review, Wright v. FBI, et al., Case No. 02-915 (GK) (D. District of Columbia).

[2]           See Defendants’ Statement of Material Facts as to Which There Is No Genuine Dispute (“Defs Facts”) at ¶ 24; Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory); Plaintiff’s Exhibit 1 (Defendants’ Response to Plaintiff’s Request for Production of Documents (Notes of March 20, 2002 interview)). 

[3]           Id.

[4]           Id.

[5]           Id.

[6]           See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 1; Defs Facts at ¶ 1; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at ¶ 3; and Defendants’ Exhibit 4 (Declaration of Joseph Ferguson) at ¶ 3.

[7]           See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 3; Defs Facts at ¶ 2; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent); and Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory).

[8]           See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit A (March 21, 2002 Letter from Thomas Fitton, Judicial Watch, Inc.); Exhibit B (March 28, 2002 Letter from Larry Klayman, Judicial Watch, Inc.); Defs Facts at ¶ 2.

[9]           See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 2; Defendants’ Exhibit 2  (FBI’s Manual of Administrative Operations and Procedures) at §§ 1-24(3)(a) and 1-24(4)(a)(1); Defendants’ Exhibit 3 (Example of Secrecy Agreement).

[10]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 4; Defs Facts at ¶ 4; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[11]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 5; Defs Facts at ¶ 6; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit I (May 10, 2002 OPCA’s Response to Plaintiff’s Prepublication Review Request).

[12]          See Defendants’ Exhibit 2 (Excerpt from FBI’s Manual of Administrative Operations and Procedures) at §§1-24(4)(a)(3)(d) and 1-24(4)(a)(4); Defendants’ Exhibit 6 (A Handbook for Reviewers) at 8-9; Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 5; Defs Facts at ¶ 6; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit I (May 10, 2002 OPCA’s Response to Plaintiff’s Prepublication Review Request).

[13]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 5; Defs Facts at ¶ 6; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit I (May 10, 2002 OPCA’s Response to Plaintiff’s Prepublication Review Request).

[14]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 6; Defs Facts at ¶ 25 (“The proposed responses do not contain properly classifiable information.”); Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit M (January 17, 2003 Letter from Associate Deputy Attorney General David Margolis) (“. . . former SA Vincent’s responses do not contain properly classifiable information.”); Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory) at 2-5 (noting that the Vulgar Betrayal investigation was closed by the FBI).

[15]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 7; Defs Facts at ¶ 7-8.

[16]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 8; Defs Facts at ¶ 9; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit N (December 22, 2003 Letter from David M. Hardy, U.S. Department of Justice).

[17]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 9; Defs Facts at ¶ 10; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit P (May 4, 2004 Letter from David M. Hardy, U.S. Department of Justice).

[18]          Id.

[19]          Id.

[20]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 4; Defs Facts at ¶ 4; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[21]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 6; Defs Facts at ¶ 25 (“The proposed responses do not contain properly classifiable information.”); Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit M (January 17, 2003 Letter from Associate Deputy Attorney General David Margolis) (“. . . former SA Vincent’s responses do not contain properly classifiable information.”).

[22]          See Defs Facts at ¶ 24; Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory); Plaintiff’s Exhibit 1 (Defendants’ Response to Plaintiff’s Request for Production of Documents).

[23]          See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[24]          Id. at questions 2, 3, 4, 5, 7, 8, 11, 13, 14, 15, 16, 17, 18, 19, 20, and 21.

[25]          See Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory) at 2-5.

[26]          See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[27]          See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[28]          See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[29]          See Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory) at 2-5.

[30]          See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[31]            See Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory) at 2-5.

[32]          See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[33]          See Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory) at 2-5.

[34]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 6.

[35]          See Defendants’ Exhibit 5 (Defendants’ Response to Plaintiff’s Interrogatory) at 5 (emphasis added).

[36]          See Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[37]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶ 6.

[38]          See Plaintiff’s Exhibit 2 (Affidavit of John Vincent) at ¶¶ 3, 6; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit E (Questions from Judy Miller of the New York Times/Answers by John Vincent).

[39]          See Defendants’ Exhibit 2  (Excerpt from FBI’s Manual of Administrative Operations and Procedures) at § 1-24(4)(a)(2)(b); Defendants’ Exhibit 6 (A Handbook for Reviewers) at 7.

[40]          See Defendants’ Exhibit 2 (Excerpt from FBI’s Manual of Administrative Operations and Procedures) at §§1-24(4)(a)(3)(d) and 1-24(4)(a)(4); Defendants’ Exhibit 6 (A Handbook for Reviewers) at pp. 8-9.

[41]          See Plaintiffs’ Exhibit 2 (Affidavit of John Vincent) at ¶¶ 8 and 9; Defs Facts at ¶¶ 9 and 10; Defendants’ Exhibit 1 (Declaration of Karlton D. Bolthouse) at Exhibit N (December 22, 2003 Letter from David M. Hardy, U.S. Department of Justice) and Exhibit P (May 4, 2004 Letter from David M. Hardy, U.S. Department of Justice).