State of Hawaii v. Trump

Filing 384

MOTION for Leave to File Response to Notice of In Camera, Ex Parte Lodging of Report Neal Katyal appearing for Plaintiffs Ismail Elshikh, John Does 1 & 2, Muslim Association of Hawaii, Inc., State of Hawaii (Attachments: #1 Exhibit Proposed Response, #2 Exhibit Proposed Order, #3 Certificate of Service)(Katyal, Neal) forwarded to MAGISTRATE JUDGE KEVIN S. CHANG

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawaii
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawaii
DEIRDRE MARIE-IHA (Bar No. 7923)
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff, State of Hawaii

NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email:
[e-mail]
*Admitted Pro Hac Vice

Attorneys for Plaintiffs

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAII, ISMAIL ELSHIKH,
JOHN DOES 1 & 2, and MUSLIM
ASSOCIATION OF HAWAII, INC.,
Plaintiffs,
v.

[PROPOSED] RESPONSE
TO NOTICE OF IN
CAMERA, EX PARTE
LODGING OF REPORT
CONTAINING
CLASSIFIED
INFORMATION

DONALD J. TRUMP, in his official capacity as
President of the United States; U.S.
DEPARTMENT OF HOMELAND SECURITY;
ELAINE DUKE, in her official capacity as
Civil Action No. 1:17-cvActing Secretary of Homeland Security; U.S.
00050-DKW-KSC
DEPARTMENT OF STATE; REX TILLERSON,
in his official capacity as Secretary of State; and
the UNITED STATES OF AMERICA,
Defendants.

ADDITIONAL COUNSEL
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
KALIKO‘ONALANI D. FERNANDES
(Bar No. 9964)
KEVIN M. RICHARDSON (Bar No. 10224)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff, State of Hawaii

COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
YURI S. FUCHS*
SUNDEEP IYER*†
REEDY C. SWANSON*††
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: [phone]
Fax: [phone]
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1735 Market St., 23rd Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members
Attorneys for Plaintiffs

[PROPOSED] RESPONSE TO NOTICE OF IN CAMERA, EX PARTE
LODGING OF REPORT CONTAINING CLASSIFIED INFORMATION
On October 10, 2017, the Court ordered the Government to provide “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.” Dkt. 371.
On October 14, the Government furnished the report, which is classified Secret, to
the Court in camera and ex parte. The Government also objected to the Court’s
review or consideration of the report. Dkt. 376.
Plaintiffs did not seek disclosure of the report and do not believe that the
Court needs to review or consider the report in order to resolve the case.
Nonetheless, if the Court does consider or review the report, Plaintiffs respectfully
request that the Court require the Government to permit Plaintiffs’ counsel who
have in the past obtained security clearances at or above the Secret level to view
the report. In the alternative, Plaintiffs respectfully ask that the Court require the
Government to disclose the unclassified portions of the report to Plaintiffs’ counsel
and to provide substitutions for any classified material in the form of a statement or
summary of the relevant classified material.
As an initial matter, Plaintiffs believe that it is unnecessary for this Court to
review the report. As the recently completed TRO briefing makes clear, the
September 24, 2017 Proclamation and other publicly available information are
sufficient by themselves for this Court to determine whether the Proclamation
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complies with the immigration laws and the Constitution. Moreover, even if the
facts contained in the report “could be reviewed by courts in camera,” “the dangers
and difficulties of handling such delicate security material further counsel against
requiring disclosure in a case such as this.” Kerry v. Din, 135 S. Ct. 2128, 2141
(2015) (Kennedy, J., concurring in the judgment). Accordingly, Plaintiffs believe
it would be entirely appropriate for the Court to exclude the report from the record.
And if the report is so excluded, Plaintiffs would have no need to view its contents.
If, however, the Court decides to review or consider the report, counsel for
Plaintiffs who have had appropriate security clearances should be permitted to
view the report as well upon their renewal. A basic premise of our adversarial
system is that each party is permitted to view and consider documents material to
the resolution of its case. Only the most extraordinary circumstances justify a
departure from that practice. This case does not present such a circumstance.
Several of undersigned counsel have been granted security clearances at or above
the Secret level. As the Ninth Circuit has explained, a lawyer “who has the
appropriate security clearance” does not “implicate national security when viewing
the classified material because, by definition, he or she has the appropriate security
clearance.” Al Haramain Islamic Foundation, Inc. v. U.S. Dep’t of Treasury, 686
F.3d 965, 983 (9th Cir. 2012).

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Furthermore, considering the report while denying Plaintiffs’ counsel an
opportunity to view it would inflict severe prejudice on Plaintiffs. Unlike instances
in which the Court has permitted Plaintiffs to file declarations in camera, see, e.g.,
Dkt. 379, the Government has not simply hidden names and identifying details for
Plaintiffs; rather, it has hidden all material information contained in the report.
This wholesale redaction deprives Plaintiffs and their attorneys of any opportunity
to consider the report or explain how, if at all, it affects the merits of their claims.
Accordingly, if the Court decides to review or consider the report, Plaintiffs
respectfully request that it permit Plaintiffs’ counsel with appropriate security
clearances to view the report in a secure location, subject to appropriate assurances
against its improper use or disclosure. In the alternative, Plaintiffs respectfully
request that the Court order the Government to disclose the non-classified portions
of the report to Plaintiffs’ counsel, and to provide a non-classified statement or
summary of the relevant classified material. That procedure is a familiar one: The
federal courts regularly follow it in other cases involving classified materials. See,
e.g., Classified Information Procedures Act § 6(c), 18 U.S.C. app. 3 § 6(c).
Following the same procedures here would afford Plaintiffs’ counsel access to any
material information in the report while still giving due weight to the
Government’s interest in protecting against the disclosure of classified information.

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DATED:

Washington, DC, October 16, 2017.
Respectfully submitted,
/s/ Neal K. Katyal

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawaii
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawaii
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
KALIKO‘ONALANI D. FERNANDES
(Bar No. 9964)
KEVIN M. RICHARDSON (Bar No.
10224)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
Attorneys for Plaintiff, State of Hawaii

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
YURI S. FUCHS*
SUNDEEP IYER*†
REEDY C. SWANSON*††
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
*Admitted Pro Hac Vice
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members
Attorneys for Plaintiffs

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