State of Hawaii v. Trump

Filing 376

NOTICE by John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America re 371 Link,,, Notice of In Camera, Ex Parte Lodging of Report Containing Classified Information and Objection to Review or Consideration of Report John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Schwei, Daniel)

CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Branch Director
BRAD P. ROSENBERG (DC Bar No. 467513)
MICHELLE R. BENNETT (CO Bar No. 37050)
DANIEL SCHWEI (NY Bar)
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]; Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI’I and
ISMAIL ELSHIKH,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States;
U.S. DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security;
U.S. DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.

No. 1:17-cv-00050-DKWKSC
NOTICE OF IN CAMERA,
EX PARTE LODGING OF
REPORT CONTAINING
CLASSIFIED
INFORMATION AND
OBJECTION TO REVIEW
OR CONSIDERATION OF
REPORT
Judge: Hon. Derrick K.
Watson
Hearing: None Requested

NOTICE OF IN CAMERA, EX PARTE LODGING OF REPORT
CONTAINING CLASSIFIED INFORMATION AND OBJECTION
TO REVIEW OR CONSIDERATION OF REPORT
On October 10, 2017, this Court entered an Order directing Defendants to
“provide, with its response to Plaintiffs’ filings, a copy of the September 15, 2017
Report submitted by the Secretary of Homeland Security, which is referenced in
Section 1(h) of Proclamation No. 9645,” and to do so “no later than 6:00 AM H.S.T.
on October 14, 2017.” Dkt. No. 371. The report that the Court directed the
government to provide contains information that is classified SECRET.

As

explained below, Defendants respectfully object to (A) the Court’s Order requiring
submission of the report, which was entered without any prior notice and
opportunity to brief the propriety of requiring the government to provide the report;
and (B) the Court’s consideration or review of the report in adjudicating plaintiffs’
pending motion for a temporary restraining order (TRO).

Defendants are

nevertheless furnishing the report to the Court in camera and ex parte, subject to
those objections and in compliance with the Court’s Order.
Because the report contains information that is classified SECRET,
Defendants are not submitting the report publicly or serving it on opposing counsel.
Instead, Defendants hereby provide Notice that they have lodged a copy of the
report with a properly cleared security officer in the United States Attorney’s Office
for the District of Hawaii, who will contact the Court’s chambers and, if it is
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determined that review of the report is appropriate, will arrange to make the report
available for the Court’s review in a secure setting. The report is being provided
subject to applicable regulations governing the handling of classified information.
See, e.g., 28 C.F.R. § 17.17 (providing that classified information may be disclosed
by Justice Department attorneys to a court, as long as proper security measures are
taken); id. § 17.46(c) (providing that Article III judges “do not require a
determination of their eligibility for access to classified information” but that “[a]ll
other . . . Judicial personnel including . . . court reporters, typists, secretaries, [and]
law clerks . . . must be determined eligible by the Department Security Officer”).
1.

Notwithstanding Defendants’ ex parte furnishing of the report,

Defendants respectfully object to the Order. Defendants submit that the Court
should not direct the government to provide internal communications and
deliberations of the Executive Branch, here in the form of a classified report to the
President, on matters of national security and foreign policy without first providing
the government with notice and an opportunity to brief the relevant issues,
including whether the Court’s consideration of the report is appropriate and
necessary in the case. The Court’s Order here was entered without any prior notice
or an opportunity for the government to brief the legal issues involved.
2.

Defendants also respectfully object to the Court’s review or

consideration of the report in connection with its decisions in this case. As will be
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explained in Defendants’ forthcoming opposition to Plaintiffs’ TRO motion, the
plaintiffs’ claims are not justiciable. But even if they were, any review by this
Court of the legality of the President’s Proclamation should be limited to the four
corners of that document and the national-security and foreign-policy judgments of
the President that it sets forth, which the Court may not “look behind.” Kleindienst
v. Mandel, 408 U.S. 753, 770 (1972); see also Reno v. American-Arab AntiDiscrimination Committee, 525 U.S. 471, 491 (1999) (stating that “[t]he Executive
should not have to disclose its ‘real’ reasons for deeming nationals of a particular
country a special threat,” and that even if the government did “disclose them a court
would be ill equipped to determine their authenticity and utterly unable to assess
their adequacy”). Consideration of any material beyond the Proclamation—let
alone a classified submission to the President—is contrary to those precedents. The
Government’s forthcoming opposition will not rely on the contents of the report
beyond the descriptions set forth in the Proclamation itself, and therefore the
briefing in this case also does not provide a basis for the Court’s review of the
underlying report.
Moreover, the report cannot be discussed on the record or provided to
opposing counsel for two reasons. First, the report contains classified information.
Cf. Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (the President has “authority
to classify and control access to information bearing on national security and to
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determine whether an individual is sufficiently trustworthy to . . . give that person
access to such information,” and that authority “flows primarily” from his role as
Commander in Chief and “exists quite apart from any explicit congressional
grant”).
Second, the report is privileged. The report is protected by the presidentialcommunications privilege because it involves confidential, indeed classified,
communications to the President of the United States. See Cheney v. United States
District Court, 542 U.S. 367, 389-90 (2004); United States v. Nixon, 418 U.S. 683,
706 (1974); In re Sealed Case, 121 F.3d 729, 744-53 (D.C. Cir. 1997). The report
is also protected by the deliberative-process privilege. It is pre-decisional and
deliberative, because it contains the Acting Secretary of Homeland Security’s
recommendations about what entry restrictions the President should adopt. See
generally Proclamation No. 9465, § 1(h) (describing the report as “recommending
entry restrictions and limitations on certain nationals”). Accordingly, the report is
not subject to disclosure. See Dep’t of Interior v. Klamath Water Users Protective
Ass'n, 532 U.S. 1, 8 (2001) (“[D]eliberative process covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated.”).
For these reasons, Defendants respectfully submit that the Court should not
review or consider the contents of the report in connection with its decisions in this
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case. Until further order of the Court, however, a copy of the report will remain in
the custody of the security officer in the United States Attorney’s Office for the
District of Hawaii.

Dated: October 13, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Daniel Schwei
DANIEL SCHWEI (NY Bar)
BRAD P. ROSENBERG (DC Bar. No. 467513)
MICHELLE R. BENNETT (CO Bar. No. 37050)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that, on this 13th day of October, 2017, by the methods of
service noted below, a true and correct copy of the foregoing was served on the
following at their last known addresses:
Served Electronically through CM/ECF:
Alexander Bowerman
Clyde J. Wadsworth
Colleen Roh Sinzdak
Deirdre Marie-Iha
Donna H. Kalama
Douglas S.G. Chin
Elizabeth Hagerty
Kimberly T. Guidry
Mitchell Reich
Neal Katyal
Robert T. Nakatsuji
Sara Solow
Thomas Schmidt

Date: October 13, 2017

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/s/ Daniel Schwei
Daniel Schwei
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, N.W.
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Defendants