Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 1 of 9

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The Honorable Richard A. Jones

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ABDIQAFAR WAGAFE, et al.,

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Plaintiffs,
v.
DONALD TRUMP, President of the United
States, et al.,
Defendants.

No. 2:17-cv-00094-RAJ
DEFENDANTS’ SUPPLEMENTAL
BRIEF IN SUPPORT OF
DEFENDANTS’ MOTION FOR LEAVE
TO SUBMIT DOCUMENTS EX PARTE,
IN CAMERA
RE-NOTED FOR: APRIL 27, 2018

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SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 1
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 2 of 9

I.

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THE COURT HAS AUTHORITY TO RECEIVE AND REVIEW
CLASSIFIED AND PRIVILEGED DOCUMENTS EX PARTE AND IN
CAMERA REGARDING PRIVILEGE ASSERTIONS

The Court has the authority—and perhaps even an obligation—to review ex parte and in

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camera classified or otherwise privileged documents submitted in support of a privilege

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assertion. It is also entirely consistent with judicial ethics: Canon 3(A)(4)(a) of the Code of

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Conduct for United States Judges provides that a judge may “consider ex parte communications

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as authorized by law.” Such is the case here. Submission of classified and otherwise privileged

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material to a court for its ex parte, in camera review, particularly in support of a privilege

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assertion, is in full accord with longstanding precedent in this Circuit and nationwide.
Article III courts have inherent authority to review material ex parte and in camera,

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including classified material. 1 See, e.g., Meridian Int’l Logis. v. United States, 745 F.2d 740,

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745 (9th Cir. 1991) (quoting United States v. Thompson, 827 F.2d 1462, 1469 (9th Cir. 1987)

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(“this court has generally recognized the capacity of a district judge to ‘fashion and guide the

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procedures to be followed in cases before him.’”); Arieff v. Dep’t of Navy, 712 F.2d 1462, 1469

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(D.C. Cir. 1983) (“the receipt of in camera affidavits . . . when necessary . . . [is] part of a trial

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judge’s procedural arsenal.” 2). Appropriate material for a court to receive ex parte includes

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classified information. Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1203 (9th Cir.

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2007); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004) (“The court has inherent authority to

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review classified material ex parte and in camera as part of its judicial review function”). This

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principle is not limited to classified information. See Gilmore v. Gonzales, 435 F.3d 1125, 1129

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(9th Cir. 2008) (information protected by statute); Torbet v. United Airlines, Inc., 298 F.3d 1087,

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1089 (9th Cir. 2002) (information protected by statute); Thompson, 827 F.2d at 1469 (sensitive

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information not protected by statute).

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At the April 12, 2018 telephonic hearing, Plaintiffs’ counsel did not indicate an intent to seek access to classified
information. Accordingly, Defendants will not comment further upon that matter beyond reiterating that no
Executive Branch entity could grant such a request, Exec. Order No. 13,526, 75 Fed. Reg. 707, §§ 4.1(a)(3) &
6.1(dd), and the Court cannot order the Executive Branch to do otherwise, Dep’t of Navy v. Egan, 484 U.S. 518, 527
(1988); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081–82 (9th Cir. 2010) (en banc); Al-Haramain
Islamic Found., Inc., 507 F.3d at 1203; Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990).
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The court’s opinion in Arieff makes clear that the declaration at issue was reviewed by the court both in camera
and ex parte. Arieff v. Dep’t of Navy, 712 F.2d at 1469.
SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 2
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 3 of 9

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In addition, the Ninth Circuit has specifically approved of the use of ex parte procedures

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to substantiate claims of privilege. Kasza v. Browner, 133 F.3d 1159, 1169 (9th Cir. 1998)

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(“Elaborating the basis for the claim of privilege through in camera submissions is

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unexceptionable.”); see also In re City of New York, 607 F.3d 923, 948–49 (2d Cir. 2010)

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(discussing propriety of in camera, ex parte presentation of materials for privilege assessment);

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Wabun-Inini v. Sessions, 900 F.2d 1234 (8th Cir. 1990) (affirming ex parte, in camera review of

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submissions to support law enforcement privilege); Alexander v. FBI, 186 F.R.D. 154, 169

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(D.D.C. 1999) (explaining that in camera, ex parte hearing was required to determine whether

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law enforcement investigatory privilege applied).

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This is hardly surprising, because the factual basis for a privilege may itself be privileged.

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In the absence of ex parte review there would be no meaningful way for a court to evaluate a

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privilege assertion or a challenge to a privilege assertion without violating the very privilege at

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issue. By protecting the ability of parties to claim privileges even where the reasons for it are

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themselves privileged, ex parte review is a necessary component of the adversarial system.

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Congress, via the Rules Enabling Act and the Supreme Court, has codified this principle in

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Federal Rule of Civil Procedure 26(b)(5)(A)(ii), which permits a party to withhold information

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concerning privilege assertions where that information is “itself privileged or protected.” Fed. R.

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Civ. P. 26(b)(5)(A)(ii); Greyshock v. U.S. Coast Guard, 107 F.3d 16, 1997 WL 51514, *3 (9th

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Cir. Feb. 6, 1997) (unpublished) (“It is well settled that a court may examine an agency

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declaration in camera and ex parte when release of the declaration would disclose the very

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information that the agency seeks to protect.”). Thus, relying on ex parte procedures to submit

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classified documents to substantiate a claim of privilege is well within long-standing precedent

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from the Ninth Circuit and elsewhere.

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Moreover, the Ninth Circuit has rejected challenges to the use of ex parte procedures as

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contrary to due process. See United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987). In Ott,

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the Ninth Circuit explained that, despite a criminal defendant’s assertion “that the ex parte, in

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camera proceeding violated due process, . . . Congress has a legitimate interest in authorizing the

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Attorney General to invoke procedures designed to ensure that sensitive security information is
SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 3
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 4 of 9

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not unnecessarily disseminated to anyone not involved in the surveillance operation in question.”

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Id. (emphasis in original). Indeed, despite the Government’s heavier burden in criminal cases, it

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is the norm, where classified information is involved, to submit documents ex parte, and even to

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hold ex parte hearings. United States v. Klimavicius–Viloria, 144 F.3d 1249, 1261 (9th Cir.

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1998) (“Ex parte hearings are generally disfavored. In a case involving classified documents,

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however, ex parte, in camera hearings in which government counsel participates to the exclusion

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of defense counsel are part of the process that the district court may use in order to decide the

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relevancy of the information.”) (emphasis added).

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The Southern District of New York—a venue with considerable experience in national

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security-related matters—has concluded that the general reluctance to rely on ex parte

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proceedings “dissipates considerably when the case raises national security concerns” and noted

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that a court “may conduct an in camera review of ex parte agency affidavits after ‘attempt[ing]

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to create as complete a public record as is possible.’” ACLU v. Dep’t of Defense, No. 09-cv-

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8071, 2012 WL 13075286, *1 (S.D.N.Y. Jan. 24, 2012). There, the court concluded:

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Important as the right to due process and the judicial system’s dedication to an
adversarial process are, protecting the national security would be a futile effort if
those interests automatically trumped national security concerns. The law reflects
these competing objectives and allows for some sacrifice of adversarial process in
limited circumstances where national security concerns are implicated.
Id. at *2. Here, the very presence of classified information necessarily means that national
security concerns are implicated, because that is the only category of information that can be
classified. See Exec. Order No. 13,526, 75 Fed. Reg. 707 §§ 1.2, 1.4 (Dec. 29, 2009)
(enumerating the types information that can be classified). Moreover, because courts necessarily
evaluate privilege claims ex parte, see supra, there is no additional concern raised when the
information related to the evaluation of the privilege is classified information, and, therefore,
must be reviewed ex parte.
Finally, “[i]n determining whether ex parte and in camera review is appropriate, the court
must conduct an independent review of the contents of the classified submission . . . ‘accord[ing]
substantial deference to agency affidavits that implicate national security.’” ACLU, 2012 WL

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SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 4
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 5 of 9

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13075286 at *1 (quoting Assoc. Press v. Dep’t of Defense, 498 F. Supp. 2d 707, 710 (S.D.N.Y.

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2007)).

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II.

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THE DEPARTMENT OF JUSTICE USES CLASSIFIED INFORMATION
SECURITY OFFICERS TO TRANSMIT CLASSIFIED MATERIAL TO
FEDERAL COURTS

In cases where classified materials are submitted for review, Department of Justice
regulations require government counsel to take all appropriate action to protect the information
against unauthorized disclosure. See 28 C.F.R. § 17.17(a). These regulations set forth the
minimum security measures necessary to protect classified information, and require the
undersigned to ensure the Court’s cooperation in adopting such measures. See 28 C.F.R.
§ 17.17(a)(2). In civil proceedings, the security procedures include the following:
1. Classified information is not to be disclosed or introduced into evidence without the
prior approval of either the originating agency, the Attorney General, or the President. See 28
C.F.R. § 17.17(c)(2).
2. Attendance at any proceeding where classified information will be disclosed is to be
limited to those persons with appropriate authorization to access this information, whose duties
require knowledge or possession of the classified information to be disclosed. See 28 C.F.R.
§ 17.17(c)(3).
3. Although Article III judges are automatically eligible to access classified information
pertaining to matters in litigation before them, access by other court employees is limited to
those individuals who have been determined eligible for such access by the Department of
Justice Classified Information Security Officer (“CISO”) 3 and who have been fully advised of all
pertinent safeguarding requirements and their liability in the event of unauthorized disclosure.
See 28 C.F.R. §§ 17.17(c)(3) and (c)(10); id. § 17.46(c).
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The CISO is part of the Litigation Security Section (“LSS”), a component of the Department of Justice’s Security
and Emergency Planning Staff (“SEPS”). SEPS is responsible for developing policies, methods, and procedures for
the implementation of security programs for the Department of Justice, and provides advice, technical assistance,
and support to executive offices and personnel throughout the Department. The LSS is comprised of Security
Specialists who work with federal Judges at all levels to serve as CISOs. The CISOs assigned to the LSS assist
the courts primarily in connection with criminal cases where the Classified Information Procedures Act (“CIPA”) is
applicable. See 18 U.S.C. App. III, § 9 & note. However, CISOs also provide litigation assistance in civil matters
involving classified or otherwise sensitive information to assist in implementation of 28 C.F.R. § 17.17(a) and other
relevant regulations.

SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 5
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 6 of 9

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4. Classified documents must be appropriately handled and stored. With regard to some

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National Security Information (“NSI”) materials, Department of Justice implementing directives

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require storage in approved areas and handling only by approved individuals, among other

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security controls.

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5. In the event that the Court wishes to hear any testimony or oral argument which the

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government believes would include classified information, this testimony or argument is to be

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recorded and transcribed pursuant to the instructions of the CISO. See 28 C.F.R. § 17.17(c)(7).

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6. Any notes or other documents prepared by the Court or its personnel that contain

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classified information are to be prepared, handled, and stored consistent with the directives of the

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Department of Justice Security Officer, see 28 C.F.R. § 17.17(c)(7), and retrieved at the close of

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the proceedings by the CISO for safeguarding or destruction, see 28 C.F.R. § 17.17(c)(9).

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7. At the conclusion of the proceedings, all original classified information shall be

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returned to the Department of Justice or the originating agency, or placed under court seal for

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safekeeping by the CISO. See 28 C.F.R. § 17.17(c)(8).

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Consistent with the Department of Justice’s practice in matters involving classified

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materials to be reviewed ex parte by a court, the documents have been lodged with the U.S.

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Department of Justice CISO, and are available to the Court upon request.

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III.

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For the foregoing reasons, Defendant’s Motion for Leave to Submit Documents Ex Parte,

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CONCLUSION

In Camera should be granted.
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SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 6
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 7 of 9

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Dated: April 20, 2018
ANNETTE L. HAYES
Acting United States Attorney

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
AUGUST FLENTJE
Special Counsel
Civil Division
WILLIAM C. PEACHEY
Director, District Court Section
Office of Immigration Litigation
TIMOTHY M. BELSAN
Deputy Chief, National Security
& Affirmative Litigation Unit
/s/ Edward S. White
EDWARD S. WHITE
Senior Litigation Counsel,
National Security & Affirmative
Litigation Unit
AARON R. PETTY
JOSEPH F. CARILLI, JR.
CHRISTOPHER C. HOLLIS
Trial Attorneys, National Security
& Affirmative Litigation Unit
District Court Section
Office of Immigration Litigation
U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Tel: (202) 616-9131
Fax: (202) 305-7000
Email: Edward.S.White@usdoj.gov
Counsel for Defendants

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SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 7
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 8 of 9

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 20, 2018, I electronically filed the foregoing with the

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Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

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following CM/ECF participants:

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Harry H. Schneider, Jr., Esq.
Nicholas P. Gellert, Esq.
David A. Perez, Esq.
Laura Hennessey, Esq.
Perkins Coie L.L.P.
1201 Third Ave., Ste. 4800
Seattle, WA 98101-3099
PH: 359-8000
FX: 359-9000
Email: HSchneider@perkinscoie.com
Email: NGellert@perkinscoie.com
Email: DPerez@perkinscoie.com
Email: LHennessey@perkinscoie.com
Matt Adams, Esq.
Glenda M. Aldana Madrid, Esq.
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
PH: 957-8611
FX: 587-4025
E-mail: matt@nwirp.org
E-mail: glenda@nwirp.org
Emily Chiang, Esq.
ACLU of Washington Foundation
901 Fifth Avenue, Suite 630
Seattle, WA 98164
Telephone: (206) 624-2184
E-mail: Echiang@aclu-wa.org

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SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 8
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309

 Case 2:17-cv-00094-RAJ Document 154 Filed 04/20/18 Page 9 of 9

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Jennifer Pasquarella, Esq.
Sameer Ahmed, Esq.
ACLU Foundation of Southern California
1313 W. 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-5211
Facsimile: (213) 997-5297
E-mail: jpasquarella@aclusocal.org
E-mail: sahmed@aclusocal.org
Stacy Tolchin, Esq.
Law Offices of Stacy Tolchin
634 S. Spring St. Suite 500A
Los Angeles, CA 90014
Telephone: (213) 622-7450
Facsimile: (213) 622-7233
E-mail: Stacy@tolchinimmigration.com
Trina Realmuto, Esq.
Kristin Macleod-Ball, Esq.
American Immigration Council
100 Summer St., 23rd Fl.
Boston, MA 02110
Tel: (857) 305-3600
Email: trealmuto@immcouncil.org
Email: kmacleod-ball@immcouncil.org
Lee Gelernt, Esq.
Hugh Handeyside, Esq.
Hina Shamsi, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, NY 10004
Telephone: (212) 549-2616
Facsimile: (212) 549-2654
E-mail: lgelernt@aclu.org
E-mail: hhandeyside@aclu.org
E-mail: hshamsi@aclu.org
/s/ Edward S. White
EDWARD S. WHITE
Senior Litigation Counsel
U.S. Department of Justice

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SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION
FOR LEAVE TO SUBMIT DOCUMENTS EX PARTE, IN CAMERA - 9
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
950 Pennsylvania Avenue, N W
Washington, D C 20530
(202) 514-3309