Case 2:17-cv-00094-RAJ Document 169 Filed 04/27/18 Page 1 of 7

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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,

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

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

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I.

CONSIDERATION OF THE LODGED DECLARATIONS IS
IMPORTANT TO CONSIDERATION OF THE RELIEF REQUESTED IN
PLAINTIFFS’ SANCTIONS MOTION
The Court’s ex parte, in camera consideration of the two declarations that Defendants

have lodged with the Classified Information Security Officer (“CISO”) is necessary and
appropriate here. Those two declarations—together with the six other privilege declarations filed
on the public docket (Dkts. 146-2 to 146-7)—assert the law enforcement and deliberative process
privileges over certain information in the Alien files (“A files”) of the named plaintiffs, and
explain the basis for their application. Courts routinely consider information ex parte, in camera

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DEFENDANT’S REPLY IN SUPPORT OF DEFENDANTS’
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 169 Filed 04/27/18 Page 2 of 7

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in the course of evaluating privilege claims. See Dkt. 154 at 3 (citing, e.g., Kasza v. Browner,

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133 F.3d 1159, 1169 (9th Cir. 1998)).
The Court has not previously considered these privilege assertions over this information. 1

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To the extent, therefore, the Court accepts Plaintiffs’ invitation (in their sanctions motion, Dkt.

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137) to consider ordering Defendants to produce the named Plaintiffs’ unredacted A files, the

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Court needs to consider these declarations, together with those filed on the public docket, to

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evaluate whether such an order would be proper, given the serious law enforcement and national

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security interests at stake. 2
II. EX PARTE, IN CAMERA CONSIDERATION OF DECLARATIONS IN
SUPPORT OF PRIVILEGE CLAIMS IS UNREMARKABLE

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As explained in Defendants’ supplemental brief, Dkt. 154, the Court clearly has authority

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to consider information ex parte and in camera in deciding questions of privilege. Indeed, even

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Plaintiff’s response, Dkt. 163, acknowledges that authority. Id. at 2-3 (citing Abourezk v.

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Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986)). Here, by asking the Court to order disclosure of

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named Plaintiffs’ unredacted A files, Plaintiffs have asked the Court to order disclosure of

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privileged information—information over which the Court has yet to consider the relevant claims

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of privilege. Consequently, the Court’s consideration of these declarations falls squarely within

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the types of situations in which even Plaintiffs acknowledge it is proper to consider material ex

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parte and in camera.

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Plaintiffs contend Defendants have not explained why they could not have raised these privilege claims
over particular information in the A files in response to Plaintiffs’ motion to compel in September 2017 (Dkt.
91). In fact, Defendants explained in their opposition to Plaintiffs’ sanctions motion that they could not have
litigated privilege claims over particular information in the named Plaintiffs’ A files that would concern the
reasons why those individuals were in CARRP because they were, at that time, asserting a privilege to neither
confirm nor deny whether any such information existed. Dkt. 146 at 12. At the time of Plaintiffs’ September
2017 motion to compel, the issue in dispute was whether Defendants had to acknowledge that named
Plaintiffs were subject to CARRP, not whether any particular piece of information in their A files was
privileged. To have litigated at that time the assertion of privileges over particular pieces of information
would have required disclosing the existence of (some of) the very information for which Defendants were
arguing they had a privilege not to disclose the existence.
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If the Court were not inclined to order production of the named Plaintiffs’ unredacted A files in connection
with the Plaintiffs’ sanctions motion (as Plaintiffs request), or were to prefer to litigate privilege claims over
the documents withheld from the A files separate and apart from the sanctions motion, then the Court would
not need to consider the declarations lodged for ex parte, in camera review in connection with the sanctions
motion (Dkt. 137), as they only address the application of privileges to those documents.

DEFENDANT’S REPLY IN SUPPORT OF DEFENDANTS’
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 169 Filed 04/27/18 Page 3 of 7

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Defendants have filed those declarations that can be made public on the public docket.

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But, as explained in Defendants’ motion for leave, Dkt. 147, the two declarations submitted for

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ex parte, in camera consideration contain sensitive non-public information about the basis for the

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asserted privileges that cannot be disclosed outside the government. Id. at 2. Additionally, as

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government counsel told the Court during its April 12, 2018 telephonic hearing on this issue, the

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Ghattas declaration is also classified, and cannot be made public for that reason as well.

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III. THE LODGED DECLARATIONS DO NOT GO TO THE MERITS OF
EITHER THE CLAIMS IN THE CASE OR OF THE SANCTIONS
MOTION

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Plaintiffs argue the Court may not rely on ex parte information to resolve the merits of
their sanctions motion. Dkt. 163 at 3-4 (citing Apple, Inc. v. Samsung Elecs. Co., No. 11-cv01846-LHK, 2015 WL 3863249 at *10 (N.D. Cal. Jun. 19, 2015), and United States v.
Abuhamra, 389 F.3d 309, 322 (2d Cir. 2004)). This argument misses the mark. The declarations
do not go to the merits of either Plaintiffs’ claims in this case or their sanctions motion. Rather,
the declarations are relevant to the appropriateness of the underlying privilege claims. We have
submitted them to show the validity of those privilege claims. Cases restricting ex parte
consideration of evidence on merits issues do not stand for the proposition that the Court cannot
consider documents ex parte, in camera for the purpose of evaluating claims of privilege. Apple
Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2015 WL 3863249, at *10 (N.D. Cal. June
19, 2015) (“a court may review documents in camera to assess the scope of a privilege”).
IV. FOIA CASES DISCUSSING THE REQUIREMENTS FOR IDENTIFYING
EXEMPT MATERIAL ARE INAPPOSITE IN THIS CONTEXT
Plaintiffs also contend, citing Freedom of Information Act (“FOIA”) cases, that

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Defendants have not created a public record of the information withheld and provided a detailed

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public justification. Dkt. 163 at 4. Obviously, the context in which these issues arise in FOIA

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cases is distinct from this case, and the FOIA cases Plaintiffs cite are inapposite on this point.

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Here, by their request for an order to disclose unredacted A files, Plaintiffs injected a routine

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privilege dispute into their sanctions motion, forcing Defendants to raise their privilege claims in

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response to the sanctions motion or risk having those serious and weighty claims deemed to have
DEFENDANT’S REPLY IN SUPPORT OF DEFENDANTS’
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 169 Filed 04/27/18 Page 4 of 7

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been waived. Defendants have provided Plaintiffs with privilege logs identifying the material

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withheld, identifying the applicable privilege claims, and explaining the bases for those claims.

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Dkt. 153, Ex. 6. The Court’s consideration of ex parte, in camera declarations in the course of

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evaluating those privilege claims is appropriate.

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V.

DEFENDANTS HAVE EXPLAINED BOTH HOW THE EX PARTE, IN
CAMERA REVIEW WOULD BE ACCOMPLISHED AND HOW THESE
DECLARATIONS RELATE TO THEIR PRIVILEGE CLAIMS
Finally, Plaintiffs argue that Defendants fail to explain “what the ex parte, in camera

process would entail and how this motion relates to Defendants’ individual claims of privilege.”
Dkt. 163 at 2 n.1. In fact, Defendants explained that they have lodged the two declarations with
the CISO. Should the Court grant Defendants’ motion for leave, the CISO will work directly
with the Court to facilitate the Court’s review of those declarations in a way that maintains
proper security over them. Dkt 154 at 5-6. 3 As Defendants have already explained above how
these declarations relate to their claims of privilege, there is no need to repeat that explanation
again here.
VI. CONCLUSION
For the foregoing reasons, and those in Defendants’ motion for leave, Dkt. 147, and
supplemental brief in support of Defendants’ motion for leave, Dkt. 154, the Court should grant
Defendants’ motion and consider the lodged declarations ex parte and in camera, to the extent

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It is the general practice of the Department of Justice to provide a notice to the court that classified material
has been lodged with the CISO for the Court’s review without first moving for leave to do so. See, e.g., Beck
v. FBI, 15-cv-13662 (D. Mass.), ECF No. 56; Restis v. Am. Coalition Against Nuclear Iran, No. 13-cv-5032
(S.D.N.Y.), ECF No. 259; Tarhuni v. Holder, No. 13-cv-1 (D. Or.), ECF No. 76; Fazaga v. FBI, 11-cv-301
(C.D. Cal.), ECF No. 35; Mohamad v. Holder, No. 11-cv-50 (E.D. Va.), ECF Nos. 103, 170, 171, 182; AlAulaqi v. Obama, No. 10-cv-1469 (D.D.C.), ECF No. 16; Latif v. Holder, No. 10-cv-750 (D. Or.), ECF Nos.
328 & 335; De Souza v. Dep’t of State, No. 09-cv-896 (D.D.C), ECF Nos. 41 & 44; Mohammed v. Holder,
No. 07-2697 (D. Colo.), ECF No. 351; Mohammed v. Jeppesen Dataplan, Inc., No. 07-cv-2798 (N.D. Cal.),
ECF No. 43-2; Ibrahim v. DHS, No. 06-cv-545 (N.D. Cal.), ECF No. 431. Here, as a courtesy, out of an
abundance of caution, and given the Court’s stated desire to make as much information available to the public
as possible, ECF Nos. 65 ¶ 6 & 67, Defendants first moved for leave of Court.

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DEFENDANT’S REPLY IN SUPPORT OF DEFENDANTS’
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 169 Filed 04/27/18 Page 5 of 7

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the Court considers Plaintiffs’ request that the Court order disclosure of the named Plaintiffs’

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unredacted A files.

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Dated: April 27, 2018

Respectfully submitted,

ANNETTE L. HAYES
United States Attorney

CHAD A. READLER
Acting Assistant Attorney General

BRIAN C. KIPNIS
Assistant United States Attorney
Senior Litigation Counsel
Office of the United States Attorney for the
Western District of Washington
5220 United States Courthouse
700 Stewart Street
Seattle, Washington 98101-1271
Telephone: (206) 553-7970
e-mail: brian.kipnis@usdoj.gov

/s/ August Flentje
AUGUST FLENTJE
Special Counsel
Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530
Telephone: (202) 514-3309
E-mail: august.flentje@usdoj.gov
Counsel for Defendants

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DEFENDANT’S REPLY IN SUPPORT OF DEFENDANTS’
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 169 Filed 04/27/18 Page 6 of 7

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 27, 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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DEFENDANT’S REPLY IN SUPPORT OF DEFENDANTS’
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 169 Filed 04/27/18 Page 7 of 7

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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/ August Flentje
AUGUST FLENTJE
Civil Division
U.S. Department of Justice
Counsel for Defendants

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DEFENDANT’S REPLY IN SUPPORT OF DEFENDANTS’
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