State Secrets? or Lies & Coverup?
TJ files Judicial Notice about State Secrets
Executive Order 13526 clearly states that no government agency can classify information in an attempt to coverup corruption or incompetence.
DOJ has claimed that our efforts to obtain the TSDB files on our Plaintiffs and Members should be disallowed due to "law enforcement privilege." But then DOJ also hinted that it might involve “National Security” and “foreign affairs.” Both of these claims are trying to deceive and mislead the court, because the information we requested is unclassified.
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A State Secret is defined by the courts, not the Pentagon. It is a judicial term.
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In 2014, Judge Anthony Trenga ruled on a relevant case and denied the government's Motion to Dismiss.
Case 1:11-cv-00050-AJT-MSN Document 144 Filed 10/30/14
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(2014) The Court has reviewed those documents and based on that review has concluded as follows:
1. Certain of the submitted documents appear to contain confidential, security sensitive information that may fall appropriately within a law enforcement privilege. However, the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient to allow the Court to conclude that "there is a reasonable danger" that disclosure of these documents to at least the plaintiffs counsel, under the protections of an adequate protective order, would disclose information that would "expose military matters which, in the interest of national security, should not be divulged." U.S. v. Reynolds, 345 U.S. 1, 10(1953).
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2. None of the documents are so related to plaintiffs procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents, particularly in light of the public declarations submitted by the defendants, which describe in detail the procedures used in connection with the placement of an individual on the No Fly List. In this regard, the state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability, whose applicability and consequences, where applicable, are best considered within a specific context during the actual adjudication of any claims to which it may apply.
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ORDERED that Defendants' Motion to Dismiss [Doc. No. 104] be, and the same hereby is, DENIED as to plaintiffs procedural due process claims, without prejudice, as stated herein; and it is otherwise taken under advisement, pending further orders of the Court;
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Much respect to Ana Toledo in her work on this case. I am aware that you can only argue legal theories on appeal which were raised at the trial level. Ana is wisely raising all the relevant legal theories in her pre trial motions so she can argue them on appeal, evan if there is no trial. Brilliant work, Ana. Thank you so much.
"The law enforcement privilege is designed "to prevent disclosure of law enforcement techniques and procedures, to preserve confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation." "
https://casetext.com/case/kahn-v-united-states-16
Audit of the Department of Justice Terrorist Watchlist Nomination Processes, 2008:
"Nomination of Non-Investigative Subjects
In addition to nominating subjects of its terrorist investigations, the FBI has a formal process for nominating to the watchlist known or suspected international terrorists who are not subjects of FBI investigations. FBI policy states that an FBI entity wanting to nominate an individual must provide the FBI Counterterrorism Division a memorandum containing information to support nominating the individual for inclusion on the consolidated terrorist watchlist even though it is not formally investigating the individual. The Counterterrorism Division is then responsible for submitting a request to NCTC to nominate the individual for watchlisting.
However, the FBI policy governing the nomination of known or suspected international terrorists not under FBI investigation does not describe procedures or mechanisms for modifying or removing watchlist records created by this process. Additionally, the FBI policy does not define quality control procedures to help ensure the accuracy and completeness of the information submitted to NCTC for watchlist nominations. While the FBI policy describes the process for nominating non-investigative subjects to the consolidated terrorist watchlist, it does not identify entities or procedures to be used in conducting a review of the information. In contrast, the FBI’s policies for nominating its investigative subjects include quality control procedures and mechanisms to help ensure watchlist records are modified and removed as appropriate. We believe the FBI needs to develop quality control procedures and describe mechanisms or procedures to modify or remove watchlist records for non-investigative subject nominations.
In addition, although the FBI has a formal process for nominating non-investigative subjects to the watchlist, when we discussed this process with a Counterterrorism Division section manager responsible for receiving such information and forwarding nomination requests to NCTC, we were informed that the section had not received any such nomination requests. When we discussed this issue with an NCTC official, we learned that NCTC is receiving nominations for non-investigative subjects directly from FBI field personnel. Because this nomination practice is not covered in FBI policy, there are no requirements for FBI personnel to ensure that any resulting watchlist records are updated or removed as appropriate. There is likewise no mechanism to ensure that the nominations directly passed to NCTC by field personnel are appropriate and that the information is complete and accurate."
https://oig.justice.gov/reports/plus/a0816/index.htm