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Judicial Watch • JW v DOD Defendant Opposition Motion 00360

JW v DOD Defendant Opposition Motion 00360

JW v DOD Defendant Opposition Motion 00360

Page 1: JW v DOD Defendant Opposition Motion 00360

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Number of Pages:9

Date Created:May 9, 2017

Date Uploaded to the Library:June 12, 2017

Tags:shiner memo, 00360, Shiner, Bin Laden, Declaration, Osama, Communications, Judgment, Opposition, presidential, privilege, Amnesty, Dod, defendants, motion, Attorney, defendant, Obama, White House, document, Supreme Court, FOIA, CIA


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Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
____________________________________
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 1:16-cv-00360 (RBW)
U.S. DEPARTMENT DEFENSE, al.,
Defendants.
___________________________________
DEFENDANTS MEMORANDUM POINTS AND AUTHORITIES OPPOSITION PLAINTIFF MOTION ALTER AMEND JUDGMENT
Defendants United States Department Defense DoD and the Central Intelligence
Agency CIA (collectively Defendants through undersigned counsel, oppose the Motion
Alter Amend Judgment filed Plaintiff Judicial Watch, Inc. Plaintiff This action arises
under the Freedom Information Act FOIA and involves five memoranda related the raid
Osama bin Laden compound. Plaintiff asks the Court alter amend its Memorandum
Opinion granting Defendants Motion for Summary Judgment and denying Plaintiff CrossMotion for Summary Judgment. particular, Plaintiff contends that the subsequent Notice
Clarification filed Defendants may call into question the Court determination that the
Government properly withheld the memoranda their entirety pursuant the Presidential
Communications Privilege. But Plaintiff has not established the extraordinary circumstances
necessary warrant the Court altering amending this conclusion. Indeed, Plaintiff has not
shown and cannot show how the Court judgment has been affected Defendants
clarification, especially light the Court alternative determination that the memoranda were
also properly withheld full pursuant the Attorney-Client and Deliberative Process
Privileges. Thus, discussed below, the Court should deny Plaintiff motion.
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
BACKGROUND
This action arises from identical FOIA requests Plaintiff submitted the CIA and DoD December 11, 2015. See Compl., Dtk. No. The requests sought [a]ny and all
documents, records, and/or communications concerning, regarding, related memoranda
drafted various government officials addressing options, authority, rationale, details,
analysis, legal factors, policy concerns, opinions, and conclusions for the search, raid, capture,
and/or killing Osama bin Laden 2011. Id. Plaintiff ultimately agreed limit its demand the five memoranda specifically identified the FOIA request. See Dkt. No.
letter dated June 13, 2016, Defendants informed Plaintiff that they had finished processing the
five responsive memoranda and that they were withholding them their entirety pursuant
FOIA Exemption U.S.C. 552(b)(5), well discreet pieces classified and statutorily
protected information pursuant FOIA Exemptions and U.S.C. 552(b)(1), and (b)(3). August 17, 2016, Defendants moved for summary judgment. See Dkt. No. 13.
Defendants explained, inter alia, that the advice and recommendations memorialized the five
memoranda squarely fell within the protections FOIA Exemption and the Presidential
Communications, Attorney-Client, and Deliberative Process privileges. Id. Plaintiffs opposed
the Government motion and cross-moved for summary judgment September 28, 2016. See
Dkt. No. 15. After Defendants opposed Plaintiff cross-motion October 18, 2016, see Dkt.
No. 18, Plaintiff filed its reply memorandum. See Dkt. No. 22. For the first time the reply,
Plaintiff argued that the Presidential Communications Privilege was undermined because
Defendants choice memorialize describe the memoranda suggests that the documents were
prepared after the briefing, adding further opacity the claim privilege. Id. March 28, 2017, the Court granted Defendants Motion for Summary Judgment and
denied Plaintiff Cross-Motion for Summary Judgment. See Mem. Op., Dkt. No. 24. The Court
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
determined, among other things, that Defendants properly withheld the five memoranda their
entirety pursuant FOIA Exemption and the Presidential Communications, Attorney-Client,
and Deliberative Process Privileges. Id. doing so, the Court rejected Plaintiff argument
concerning the Presidential Communications Privilege, remarking that defendants have clearly
demonstrated that the five requested memoranda were solicited and reviewed prior the
President decision launch the raid bin Laden compound. Id. n.4 (citing
Declaration Antoinette Shiner Shiner Decl. Dkt. No. 13-2, 9).
Defendants subsequently filed notice clarifying this factual assertion the Court
Memorandum Opinion. See Notice Clarification, Dkt. No. 25. Defendants made clear that the
Shiner Declaration did not speak the timing the memoranda question. Id. Shiner Decl. Rather, the Shiner Declaration only confirmed that legal advice specific topics was
requested and provided President Obama and his closest advisers prior final decision
about whether conduct the Osama bin Laden operation, and that advice was memorialized
the five memoranda issue. Id. Plaintiff Motion Alter Amend Judgment followed. See
Pl. Mot. Alter Amend J., Dkt. No. (hereinafter Pl. Mot.
ARGUMENT
Standard Review
Plaintiff asks the Court alter amend its March 28, 2017 Memorandum Opinion
and Order pursuant Federal Rule Civil Procedure 59(e). See Pl. Mot. This Court,
however, has recognized that Rule 59(e) motion disfavored and relief from judgment
granted only when the moving party establishes extraordinary circumstances. Petrucelli
Dep Justice, 106 Supp. 129, 133 (D.D.C. 2015) (quoting Niedermeier Office Max Baucus, 153 Supp. 23, (D.D.C. 2001)). And such motion need not granted
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
unless the district court finds that there intervening change controlling law, the
availability new evidence, the need correct clear error prevent manifest injustice.
Id. (quoting Firestone Firestone, F.3d 1205, 1208 (D.C. Cir. 1996)).
II.
Plaintiff Has Not Demonstrated that Defendants Clarification Changes the Court
Analysis the Presidential Communications Privilege.
Plaintiff has not established, and cannot establish, the extraordinary circumstances
necessary for the Court grant its Rule 59(e) motion. See Pl. Mot. 3-4. First and foremost,
Defendants take issue with Plaintiff characterization the Notice Clarification
introducing new evidence new revelation. Id. The Shiner Declaration never spoke
the timing the five memoranda question the first place. See Notice, Dkt. No. 25. And
best, the Court misimpression the Shiner Declaration constitutes harmless error, Plaintiff
does not explain how the timing the memoranda has any bearing the Court ultimate
judgment. See Mohammadi Islamic Republic Iran, 947 Supp. 48, (D.D.C. 2013)
(denying Rule 59(e) motion part because arguably improper application precedent
amounted harmless error).
Regardless whether the memoranda were finalized before, contemporaneous with,
after the strike Osama bin Laden compound, the Presidential Communications Privilege
protects from disclosure the communications memorialized therein. The D.C. Circuit has held
that the Presidential Communications Privilege shields, this case, communications
solicited and received the President and his closest advisers. Sealed Case, 121 F.3d
729, 752 (D.C. Cir. 1997). And decisions the Supreme Court and D.C. Circuit support the
position that the Presidential Communications Privilege protects the communications
themselves, not the vessel which they have been memorialized. See, e.g., United States
Nixon, 418 U.S. 683, 686, 703 (1974) (concluding that the privilege applies President
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
conversations memorialized tape recordings); Sealed Case, 121 F.3d 758 (explaining
that notes taken meetings which these [White House] advisers were present are
clearly privileged since these notes reflect these advisers communications conclude
otherwise runs counter common sense, such rule would discourage parties, for good
reason, from memorializing writing information that unquestionably privileged. Nesse
Pittman, 206 F.R.D. 325, 329 (D.D.C. 2002).
Other district courts have concurred with this assessment. Citizens for Responsibility
and Ethics Washington U.S. Dep Homeland Sec. CREW another member this
Court citing D.C. Circuit precedent observed that the Presidential Communications Privilege
extends communications received the President his Office that are revelatory his
deliberations, opposed purely internal communications that not reach the President.
CREW, No. 06-cv-0173, 2008 2872183, (D.D.C. July 22, 2008) (citing Judicial
Watch Dep Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004)). such, the CREW court
reasoned that the Presidential Communications Privilege protects the communication
memorialized memoranda, not the memoranda themselves, and thus, when the memoranda
were authored has bearing the applicability the privilege. Id. The district court
Amnesty Int USA CIA reached the same conclusion. 728 Supp. 479, 522 (S.D.N.Y.
2010) (citing CREW, 2008 2872183, *3). that case, the district court likewise
concluded that the privilege extends recommendations about detainee policies memorialized certain CIA records. Id.
Plaintiff spends less than two pages rehashing the argument from its reply memorandum.
See Pl. Reply Mem. But Plaintiff never explains why the privilege should extend only information contained memoranda that were authored prior the operation. Id. Nor does
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
Plaintiff acknowledge CREW decision, let alone other relevant Supreme Court and D.C. Circuit
precedent. Id. short, Plaintiff has failed satisfy its burden demonstrating the
extraordinary circumstances necessary for the Court alter amend its judgment.
Finally, Plaintiff asks the Court order Defendants provide supplemental information
about the memoranda themselves. See Pl. Mot. But the Shiner Declaration already
affirms that the memoranda memorialize legal advice requested and communicated the
President and his closest advisers prior the raid Osama bin Laden compound. See Shiner
Decl. Plaintiff has not explained how the ancillary details about the written memoranda,
opposed the communications contained within, have any relevance the assertion the
Presidential Communications Privilege. See Pl. Mot. Thus, additional information
necessary for the Court leave undisturbed its reasoned decision granting summary judgment
the Government favor.
III. Any Event, the Documents are Also Protected Their Entirety the AttorneyClient and Presidential Communications Privileges.
Plaintiff ignores the fact that the Court also upheld the withholding the five
memoranda their entirety pursuant the Attorney-Client and Deliberative Process Privileges, addition the Presidential Communications Privilege. See Mem. Op. 17. Instead,
Plaintiff suggests that the timing the authorship the memoranda also has bearing the
The procedural history CREW may have instigated Plaintiff request. that case, the
district court originally denied the defendant agency motion for summary judgment because its
initial declaration failed establish whether the documents memorialized internal agency
communications or, conversely, communications transmitted the President his immediate
advisers their staff[.] CREW, 2008 2872183, *2. The district court decision
prompted the defendant agency put forth supplemental declarations with additional
information about the recipients the communications. Id. Here, contrast, the Shiner
declaration already confirms that the President and his closest advisors received the advice
memorialized the memoranda. See Shiner Decl.
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
assertion these privileges. See Pl. Mot. Unlike the timing argument made about the
Presidential Communications Privilege, however, Plaintiff briefing did not make the same
argument with regard the Attorney-Client and Deliberative Process Privileges. See Pl. Opp.
and Cross-Mot. Pl. Reply Mem. And Rule 59(e) motion may not used
raise arguments present evidence that could have been raised prior the entry judgment.
GSS Grp. Ltd. Natl Port Auth., 680 F.3d 805, 812 (D.C. Cir. 2012). Regardless, Plaintiff has
put forth absolutely explanation for why the timing the memoranda, opposed the
communications memorialized therein, has any relevance the assertion these privileges.
See Pl. Mot. Again, the Shiner Declaration confirms that the memoranda memorialize
confidential legal advice provided national security attorneys and shared with the President
and his closest advisers during their deliberations about whether conduct the raid Osama
bin Laden compound. See Shiner Decl. 11. Accordingly, the Court should give short
shrift Plaintiff specious motion.
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
CONCLUSION
For the foregoing reasons, the Court should deny Plaintiff Motion Alter Amend
Judgment.
Dated: May 2017
Respectfully submitted,
CHAD READLER
Acting Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Director
Federal Programs Branch
/s/ Stephen Elliott
STEPHEN ELLIOTT
Trial Attorney (PA Bar# 203986)
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Avenue, N.W., Room 7318
Washington, D.C. 20530
Tel: (202) 305-8177
Email: stephen.elliott@usdoj.gov
Counsel for Defendants
Case 1:16-cv-00360-RBW Document Filed 05/09/17 Page
CERTIFICATE SERVICE hereby certify that May 2017, electronically transmitted the foregoing the
clerk court for the United States District Court for the District Columbia using the CM/ECF
filing system. Participants the case are registered CM/ECF users and will served the
CM/ECF filing system.
/s/ Stephen Elliott
STEPHEN ELLIOTT
Trial Attorney
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Avenue, N.W., Room 7318
Washington, D.C. 20530