Intl. Refugee Assistance v. Donald J. Trump

Filing 126

Letter re: [118] Notice by Appellants Daniel R. Coats, Department of State, Elaine C. Duke, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security in 17-2231, Appellants Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson B. Sessions III, Rex Tillerson and Donald J. Trump in 17-2232, Appellants Elaine C. Duke, Rex Tillerson, Donald J. Trump, United States Department of Homeland Security and United States Department of State in 17-2233, Appellees Daniel R. Coats, Department of State, Elaine C. Duke, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security in 17-2240. [1000197345] [17-2231, 17-2232, 17-2233, 17-2240] Sharon Swingle [Entered: 11/24/2017 04:14 PM]

U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Ave. NW, Rm. 7250
Washington, DC 20530
DJ # 145-1-2979
Tel: [phone]

November 24, 2017

Ms. Patricia S. Connor
Clerk, United States Court of Appeals
for the Fourth Circuit
Lewis F. Powell Jr. Courthouse & Annex
1100 East Main Street, Suite 501
Richmond, VA 23219
RE:

IRAP v. Trump, No. 17-2231(L)

Dear Ms. Connor:
The government has received the Court’s letter of November 22, 2017,
indicating that the Court has voted to request that the government supplement the
record in this consolidated appeal with two reports referenced in Proclamation No.
9645 and the government’s opening brief: a report submitted to the President on
July 9, 2017; and a report submitted to the President on Sept. 15, 2017. The
Court’s letter appears to envision that those materials would be publicly filed with
the Court.
The reports requested by the Court, which were not submitted in district
court and are not part of the record on appeal under Federal Rule of Appellate
Procedure 10(a), contain national-security information that has been classified at
the Secret level under Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009).
In addition, the reports are protected by various privileges, including the
presidential-communications privilege and the deliberative-process privilege.
Requiring the government to disclose the reports publicly, or to opposing counsel,
would improperly compel the government to turn over classified information to
persons who neither hold the requisite security clearance nor have a need to know

the information. In addition, compelled disclosure of the documents to the public
or to opposing counsel could wrongly strip the reports of their privileges.
The government believes that this case can be decided based on the existing
record. Should the Court nevertheless decide to review the reports, however, the
government respectfully requests that the Court order their submission in camera
and ex parte, so as to preserve the protections afforded to the reports as classified
and privileged material. See, e.g., Tabaa v. Chertoff, 509 F.3d 89, 93 n.1, 96-106
(2d Cir. 2007); Bassiouni v. FBI, 436 F.3d 712, 722 n.7 (7th Cir. 2006); Jifry v.
FAA, 370 F.3d 1174, 1184 (D.C. Cir. 2004).
Sincerely,
/s/ Sharon Swingle
Sharon Swingle
Attorney for Appellants-Defendants

cc: All counsel via CM/ECF