D.C. undercover operations blown?

A long-term undercover intelligence operation hangs in the balance as the District of Columbia appeals a circuit court judge's ruling ordering the Metro Police Department to reveal the identities of all undercover officers who have infiltrated and become active in a controversial anti-Bush group.

As part of an ongoing intelligence operation, D.C. undercover officers had posed as activists and infiltrated the International Action Center, or IAC, and its affiliates.

The officers attended the center's meetings, including those held in members' homes.

Some of the officers have been on long-term assignment and continue to operate undercover and provide law-enforcement agencies with intelligence data.

The D.C. Circuit Court's order followed a motion filed by the IAC that sought to discover the identities of any undercover officers who had infiltrated the group or its related organizations.

The motion is part of an ongoing lawsuit filed in 2001, charging the U.S. government, the Bush-Cheney Presidential Inaugural Committee and the District of Columbia with constitutional violations. They include the use of government agents provocateurs who allegedly assaulted protesters lining the inauguration parade route, the discriminatory operation of security checkpoints to deny access to protesters and unconstitutional disruption tactics of the police Civil Disturbance Units.

The plaintiffs allege covert law-enforcement personnel beat, pepper-sprayed, intimidated and terrorized peaceful protesters. They also contend a key checkpoint that was supposed to be manned by either the Secret Service or the Metro Police Department was instead delegated to the control of the Presidential Inaugural Committee, a private corporation, that subsequently detained protesters for hours while allowing Bush supporters to pass.

Lawyers from the Partnership for Civil Justice are working the case on behalf of IAC.

The plaintiffs are seeking compensatory and punitive damages from the Presidential Inaugural Committee and compensatory damages from the District of Columbia, as well as the filing of various permanent and declaratory injunctions.

The IAC describes itself as an unincorporated political association that fights racism, sexism, oppression of "gays," war and militarism, and the program of the Bush administration.

The group shot to prominence when it created an anti-war coalition named International ANSWER, immediately after 9-11.

ANSWER was formed to combat the "criminal conduct" of the U.S., and went on to organize and dominate the recent anti-war demonstrations.

Some see ANSWER as little more than an ideological tool of the IAC, which key activists and writers on both the right and the left claim is a front for the Workers World Party – a group condemned by critics as hypocritical because of its support of China's invasion and occupation of Tibet, the crushing of the 1956 Hungarian revolution and Tiannemen Square protests, and its adulation of Fidel Castro and Kim Jong-Il.

The IAC and WWP also oppose U.S. interventionism abroad, and act and publish material in support of the Revolutionary Armed Forces of Colombia and National Liberation Army – both of which are labeled terrorist groups by the U.S. State Department.

Adding to the controversy surrounding the group, the highest-ranking defector from the Soviet intelligence community, Ion Mihai Pacepa, recently stated that the Workers World Party was created in 1959 by the KGB's disinformation department and was tasked with portraying the U.S. as a war-mongering country full of political prisoners.

Pacepa says WWP leaders were originally trained and indoctrinated by the KGB overseas. The former intelligence chief defected in 1973 and allows that the group may have taken on a life of its own since then, even as the message remains the same.

Two of the plaintiffs in the case, Larry Holmes and Brian Becker, are described in court documents as co-directors of the IAC.

Both also are decades-long members of the secretariat of the Workers World Party, an affiliation not noted in court filings.

Judge Gladys Kessler agreed with the protesters that revealing the undercover officers' identities was necessary so IAC leaders could effectively "evaluate" the conduct of the officers and determine whether additional acts of alleged misconduct have occurred.

The Office of the Corporation Counsel – attorneys for the Metro Police Department – is appealing the decision, arguing the plaintiffs have consistently failed to identify the "disruptive conduct" or specify any illegal or otherwise actionable conduct, whether or not they suspect it was committed by an undercover officer.

Assistant Chief of Police Alfred Broadbent previously testified to concerns for the safety of the officers and their families, stating while many protest organizations are peaceful, there had been incidents across the country and locally where police officers have been "seriously injured and even killed."

The court ruled the assistant chief's concerns were invalid because he could provide no evidence that the officers would be in danger and because he was unable to identify any violent incidents from members of the organizations being investigated.

Previous attempts by the defendants to obtain through the court names of members of the plaintiffs organizations, political activities of the members and contributor lists were ruled violations of the protesters' First Amendment rights and were not allowed by the court. The IAC successfully argued the defendants were using the litigation process "for intelligence purposes" and to create "an enemy's list of all persons who have ever engaged in political dissent."

Broadbent also voiced concerns that revealing the undercover officers' identities would end the ongoing intelligence operation: "[This] intelligence information [is used] to make decisions on how to ensure the safety of the citizens and general public."

The court acknowledged the police department's concern that such an order would bring its intelligence operation to an end, flatly stating, "The identification of these undercover officers has been ordered by Judge Kessler and this disclosure will effectively terminate any ongoing investigations into the Plaintiff's organizations being conducted by these officers."

A subsequent hearing was charged with the seemingly oxymoronic task of choosing a method of "disclosure" that provided maximum confidentiality to the officers: Ten personnel members of the IAC were to be allowed to view photos of the undercover officers, and their aliases were to be revealed.

Also to be revealed, per the judge's order, were the dates, times and locations of IAC events that the undercover cops had attended.

"I think this says it all about Kessler," said writer Michael Tremoglie, a former Philadelpia police officer. "She says it is imperative that the Metro D.C. Police Department release confidential information that might endanger the lives of U.S. citizens, yet a government commission cannot release info of possible criminal conduct of labor unions and the Democratic Party."

Tremoglie was referring to a 2001 decision by Kessler blocking the Federal Election Commission from re-releasing public documents from an FEC probe of AFL-CIO dealings with the Democratic Party. Kessler's order sought to protect "proprietary information," including campaign strategies and employees' names of the DNC.

Kessler also made headlines in August 2002 when she ordered the government to release 9-11 detainees' names, a decision which was overturned by a federal appeals court.

In its appeal, the Office of the Corporation Counsel is arguing while no officer has been harmed, the threat of harm still exists, particularly for an officer who has been in a long-term undercover assignment.

The defendants also argue revealing undercover officers identities' would "chill" the police department's ability to recruit officers, who enter such assignments with the understanding and belief that their identity will not be disclosed by the department.

The IAC has contended the intelligence activities are illegal or unconstitutional, alleging such investigations are based not on suspected or potential criminal activity but on the political affiliations and First Amendment conduct of the plaintiffs.

The Metro Police Department states its operations are based on preventing the widespread destruction of property and violence that has occurred at numerous mass demonstrations that preceded the presidential inauguration.

They also have characterized undercover investigations conducted in preparation for inaugural events as seeking to identify, monitor and report on persons and/or groups that may be planning to disrupt the events, threaten property or public safety, or otherwise violate the law:

"[T]he Metropolitan Police Department's intelligence-gathering methods, including the use of undercover investigations, have been integral to the Department's success in minimizing property damage, violence and physical injuries at mass demonstrations. In contrast, since November 1999, there has been violence, significant property damage and physical injuries at mass demonstrations throughout the world, including Seattle, Wash.; Los Angeles, Calif.; Prague, Czechoslovakia; Quebec, Canada; and Genoa, Italy."

The defense has also stated law enforcement's ability to prepare for and provide security at demonstrations that occur in Washington, D.C. will be impaired if the identity of undercover officers is disclosed and that such intelligence gathering activities have been recognized as lawful for many years.

The defense lawyers argued the public interest in non-disclosure outweighs the IAC's stated need for disclosure.

WND asked the Office of the Corporation Counsel what bearing, if any, the IAC's relationship to terrorist groups had on potential court outcomes.

Peter Levallee, public information officer for the office, indicated they were unaware of any links between the IAC or its affiliates to terrorist groups.

In August 2001, IAC leaders shared their Washington, D.C., protest plans at an El Salvador meeting attended by Latin American revolutionary groups, including Faribundo Marti National Liberation of El Salvador and the Revolutionary Armed Forces of Colombia. The IAC has sent delegations to the latter group and the National Liberation Army, met with its leaders, relayed messages from leaders, agitated in support of the groups' goals and published material in support of the groups.

The Workers World Party has published communiqués from military leaders of the Latin American terror groups signed with the slogan, "Liberation or death."

Both groups have made worldwide headlines for assassinations, kidnappings, bombings, disruption of the infrastructure and ties to the drug trade. In addition, a two-month investigation by U.S. News reported support cells for Islamic terrorist groups Hamas, Hezbollah, and Islamiyya al Gammat were operating in Venezuela, and the country was in turn aiding Columbian rebels, a conclusion also supported by Gen. James Hill, the head of the U.S. Southern Command.

WND and UPI have also reported on Venezuelan government defectors who allege the Chavez government supports al-Qaida – a concern amplified by Venezuela's close proximity to the U.S., in particular to Florida.

Despite it's support of terrorist groups, the International Action Center has succeeded in obtaining, by court order, large amounts of security data related to D.C. police operations and the presidential inauguration.

D.C. has already provided in excess of 1,000 pages of documents, 38 videotapes and numerous photographs and audiotapes related to D.C. police tactics, training and planning and the 2001 presidential inauguration

The information provided by the D.C. Metro Police Department by court order to the IAC so far includes:

Broadbent had previously testified that "disclosing the Department's intelligence reports, Intelligence Operational Plan or the identity of any undercover officers that may have been conducting an investigation … would undermine significantly the Department's ability to plan for and provide security at mass demonstrations."

District defendants object to producing intelligence reports and the Intelligence Operational Plan developed for the presidential inauguration, arguing that it is information protected by law-enforcement privilege.

They point out the need for such a privilege is also recognized in the Freedom of Information Act, which contains an exemption for investigatory records, and that courts have historically recognized their release might create a risk of circumventing the law.

MPD has refused to produce a copy of the department's training video on "crowd control formations," arguing it's not relevant to the case and is information that could be misused to forewarn suspects and suspect groups, providing them with sensitive law-enforcement information, including possible strategies, procedures and directions for confidential investigations.

The IAC has also sought through the court stored images of the presidential inauguration from the Command Center, all departmental e-mails related to the protest and inauguration, and related departmental databases accessed by police officers.

The Metro Police Department has responded that there are no stored images, an e-mail search with related keywords turned up nothing and that the databases are irrelevant to the IAC's case.

Phone calls seeking comment from the Partnership for Civil Justice, legal representatives for the plaintiffs, were not returned.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL ACTION CENTER, et al.,

Plaintiffs
Case No. 01CV00072 (GK)

UNITED STATES OF AMERICA, et al.,

Defendants.

REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT DISTRICT OF COLUMBIA’S MOTION TO RECONSIDER

Defendants filed their motion to reconsider to address an important area of law, and a matter of extreme importance to the Metropolitan Police Department specifically, and to law enforcement generally, not to delay or otherwise obstruct these proceedings. Moreover, the motion was timely filed and does raise new legal and factual issues.

The District of Columbia did not include this issue in the motion to reconsider filed subsequent to the Court’s August 30, 2002, Order because they believed it was possible that Magistrate Judge Kay would develop a method for disclosure that would alleviate their legal and factual concerns. Contrary to plaintiffs’ claims, the District of Columbia did propose a method for identifying undercover officers, albeit not by name or face, that they believed was consistent with this Court’s August 30, 2002 Order – to identify the undercover officers by disclosing the meetings they attended where more than fifteen people were present. This proposal sought to balance defendants’ safety concerns and their need to protect the viability of an on-going investigation with plaintiffs stated need to be able to determine whether currently unidentified and unplead “disruptive conduct” can be linked to the District defendants. However, that proposal was not accepted by Magistrate Judge Kay as explained in his Memorandum Order dated April 4, 2003.

After review of Magistrate Judge Kay’s Order, the District of Columbia timely filed their Motion to Reconsider. Defendants complied and cooperated with the process established in this Court’s August 30, 2002 Order and timely moved to reconsider once that process concluded and defendants were ordered to provide plaintiffs an opportunity to view photographs of defendant’s undercover officers.

Furthermore, there are new factual and legal issues that are raised in the current motion to reconsider. While Chief Broadbent did assert in his earlier Declaration that disclosure of the identities of undercover officers would impact negatively on the Department’s intelligence gathering capability, his testimony before Judge Kay, for the first time, revealed that disclosure would effectively terminate an on-going intelligence operation.

Moreover, although plaintiffs contend that the “August 30, 2002 opinion clearly conducted a balancing evaluation” and found that the balance of interests favored disclosure of the identities of those undercover officers who infiltrated plaintiffs’ organizations, Magistrate Judge Kay’s Memorandum Order concluded to the contrary. Therein, Judge Kay writes, “[H]owever, Judge Kessler concluded that with respect to the `very narrow issue of the identifications of those undercover officers who infiltrated Plaintiffs’ organizations,’ the balancing required for evaluating a claim of law enforcement privilege was not applicable and that information must be disclosed by the District of Columbia.” Memorandum Order at 1. In their motion to reconsider, the District of Columbia asserts that the law enforcement privilege is applicable, and that, on balance, the privilege protects against disclosure.

While conceding that the law enforcement privilege is applicable, plaintiffs have failed to identify a compelling need for disclosure, let alone that no harm would result from disclosure, both of which are required by law. Black v. Sheraton Corporation of America, 564 F.2d 531, 545 (D.C. Cir. 1977); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984). While plaintiffs claim they cannot link other “disruptive conduct” to undercover officers whose identity is not revealed, they have consistently failed to identify what this “disruptive conduct” was, let alone specify any illegal or otherwise actionable conduct, whether or not they suspect it was committed by an undercover officer. Rather in the face of a well recognized and properly asserted privilege, and in the absence of any specified illegal conduct, plaintiffs seek the identity of undercover officers to determine whether any misconduct occurred.

Instead of demonstrating a compelling need, plaintiffs’ opposition attacks the harm defendants contend may result from disclosure. Plaintiffs dismiss the threat of harm to the officer’s safety because defendants cannot identify officers who have been harmed or threatened. While fortunately no officer has been harmed, the threat of harm still exists, particularly for an officer who has been in a long term undercover assignment.

Further, plaintiffs assert that identity information should be disclosed even if such disclosure adversely impacts on-going operations because, they contend, those operations are illegal or unconstitutional.

Plaintiffs contend that the Metropolitan Police Department’s (“MPD”) intelligence gathering operation is illegal because it is based not on suspected or potential criminal activity but on the political affiliations and First Amendment conduct of plaintiffs. To the contrary, MPD’s operations are based on preventing the widespread destruction of property and violence that has occurred at numerous mass demonstrations that preceded the Presidential Inauguration. It is the destructive and criminal activity associated with some protests and protest groups that concern law enforcement, not the content of their expression.

Indeed, in Chief Broadbent’s July 30, 2002 Declaration he described the purpose for undercover investigations conducted in preparation for Inaugural events as seeking “to identify, monitor and report on persons and/or groups that may be planning to disrupt these events, threaten property or public safety, or otherwise violate the law.” Broadbent Declaration at Par. 1. Chief Broadbent further stated that: “[T]he Metropolitan Police Department’s intelligence gathering methods, including the use of undercover investigations, have been integral to the Department’s success in minimizing property damage, violence and physical injuries at mass demonstrations. In contrast, since November 1999, there has been violence, significant property damage and physical injuries at mass demonstrations throughout the world, including Seattle, Washington; Los Angeles, California; Prague, Czechoslovakia; Quebec, Canada; and Genoa, Italy.” Broadbent Declaration at Par. 7 and 8.

Judge Kay recognized MPD’s concern regarding on-going investigations as a “valid interest” and that disclosing the identities of undercover officers would effectively terminate their on-going investigation. Memorandum Order at 6. Law enforcement’s ability to prepare for and provide security at countless demonstrations that occur in Washington, D.C. will be impaired if the identity of undercover officers is disclosed and that harm is neither minimized nor overcome by plaintiffs’ conclusory allegations about the legality of defendants’ investigation. Moreover, such intelligence gathering activities have been recognized as lawful for many years. Hobson v. Wilson, 737 F.2d 1, 52-55 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985).

Plaintiffs have neither established a compelling need for the identity of undercover officers who “infiltrated” their organizations nor demonstrated that no harm will result from such disclosure and, on balance, the public interest in non-disclosure outweighs plaintiffs’ stated need for disclosure.

Conclusion

For all the reasons stated in this reply and in defendants’ motion to reconsider, the Court should vacate those orders requiring the identification of the undercover officers who “infiltrated” plaintiffs’ organizations.
Respectfully submitted,

ARABELLA W. TEAL
Interim Corporation Counsel, D.C.
JOHN C. GREENHAUGH
Senior Deputy Corporation Counsel
for Torts & Equity

_______________________________
ROBERT C. UTIGER [437130]
Deputy Corporation Counsel, Equity Division

________________________________
RICHARD S. LOVE [340455]
MARTHA J. MULLEN [419036]
Senior Counsel, Equity Division
441 4th St., N.W. 6th Floor S.
Washington, D.C. 20001
(202) 724-6635
Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Reply to Plaintiffs’ Opposition to Defendant District of Columbia’s Motion to Reconsider was sent by facsimile and mailed postage prepaid to:
Carl Messineo, Esquire
Mara Verheyden-Hilliard, Esquire
Zachary Wolfe, Esquire
Partnership for Civil Justice, Inc.
1901 Pennsylvania Avenue, N.W., Suite 607
Washington, D.C. 20006

Eric A. Kuwana, Esquire
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037

Mark Nebeker
Edith Shine
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W., Room 10-439
Washington, D.C. 20530

on this _____ day of __________, 2003

______________________________
Richard S. Love
Senior Counsel

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL ACTION CENTER, et al., :
Plaintiffs : Case No. 01CV00072 (GK)

UNITED STATES OF AMERICA, et al.,

Defendants.

DEFENDANT DISTRICT OF COLUMBIA’S MOTION TO RECONSIDER

The District of Columbia defendants move to reconsider the orders requiring the identification of Metropolitan Police Department undercover officers who “infiltrated” plaintiffs’ organizations and in support thereof state as follows:
The law enforcement privilege is applicable to protecting the identity of undercover police officers engaged in an on-going intelligence operation.
There is no compelling need to disclose the identities of the undercover officers and harm -- the potential threat to the officers’ safety and the effective termination of an on-going investigation -- will result from disclosure.
These grounds are more fully set forth in the attached memorandum of points and authorities.
Respectfully submitted,

ARABELLA W. TEAL
Interim Corporation Counsel, D.C.

JOHN C. GREENHAUGH
Senior Deputy Corporation Counsel
for Torts & Equity

_______________________________
ROBERT C. UTIGER [437130]
Deputy Corporation Counsel
Equity Division

________________________________
RICHARD S. LOVE [340455]
MARTHA J. MULLEN [419036]
Senior Counsel, Equity Division
441 4th St., N.W. 6th Floor S.
Washington, D.C. 20001
(202) 724-6635
Attorneys for Defendant
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Defendant District of Columbia’s Motion to Reconsider was sent by facsimile and mailed postage prepaid to:
Carl Messineo, Esquire
Mara Verheyden-Hilliard, Esquire
Zachary Wolfe, Esquire
Partnership for Civil Justice, Inc.
1901 Pennsylvania Avenue, N.W., Suite 607
Washington, D.C. 20006

Eric A. Kuwana, Esquire
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037

Mark Nebeker
Edith Shine
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W., Room 10-439
Washington, D.C. 20530

on this _____ day of __________, 2003

______________________________
Richard S. Love
Senior Counsel
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL ACTION CENTER, et al.,

Plaintiffs
Case No. 01CV00072 (GK)

UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT DISTRICT OF COLUMBIA’S MOTION TO RECONSIDER

I. Introduction
Plaintiffs moved to compel a variety of discovery responses from the District of Columbia, all of which were addressed in the Court’s Memorandum Opinion and Order dated August 30, 2002. The Court ordered the District of Columbia defendants to disclose the identities of those undercover officers who “infiltrated” plaintiffs’ organizations and referred the matter to Magistrate Judge Kay to “explore how the information can be disclosed in such a manner as to provide maximum confidentiality to the Defendants.” Order at 6.
Magistrate Judge Kay held a hearing on this issue on December 12, 2002 and issued a Memorandum Order dated April 4, 2003. Therein, Magistrate Judge Kay found that the Court, in its August 30, 2002 Memorandum Opinion and Order, ruled that the law enforcement privilege was not applicable to the narrow issue of identifying undercover officers who “infiltrated” plaintiffs’ organizations. While recognizing that the District had raised valid interests against revealing the identities of the undercover officers, the Magistrate Judge concluded that the issue of disclosure had already been decided and that only the method of disclosure that best preserved defendants’ confidentiality was to be determined. The Court further acknowledge that it could not craft a disclosure procedure that would entirely protect the defendants’ confidentiality and rejected defendants’ proposal to disclose the date and location of meetings attended by undercover officers at which there were more than fifteen people. While the District contended that this proposal balanced their concerns with plaintiffs’ interests, the Magistrate Judge found that this Court had already determined that no balancing was required. Therefore, Magistrate Judge Kay ordered the District of Columbia to provide to the plaintiffs the alias(es) of the undercover officers and an opportunity to view, but not duplicate, a photograph of the officer(s).
These defendants move to reconsider these orders because the law enforcement privilege is applicable and, on balance, weighs in favor of protecting the identity of undercover officers engaged in an on-going intelligence operation.
Argument

The law enforcement privilege is applicable to protecting the identity of undercover officers engaged in an on-going intelligence operation.

As noted above, Magistrate Judge Kay concluded that this Court had found that the law enforcement privilege was inapplicable to the narrow issue of identifying undercover officers who “infiltrated” plaintiffs’ organizations. Finding the information “clearly relevant” and that the plaintiffs had little chance of discovering the identities from alternative sources, this Court, in its August 30, 2002 Memorandum Opinion and Order, ordered the identities disclosed, albeit in a manner designed to provide defendants’ maximum confidentiality.
The law enforcement privilege is rooted in the need to minimize disclosures that might impair the necessary functioning of an executive branch department and based on the understanding that many law enforcement operations cannot be effective if conducted in full view. Black v. Sheraton Corporation of America, 564 F.2d 531, 542 (D.C. Cir. 1977). The purpose of the privilege is to protect the confidentiality of sources as well as law enforcement techniques and strategies. Black, supra, 564 F.2d at 545, 546; Kay v. Pick, 711 A.2d 1251, 1256 (D.C. App. 1998) (emphasis added).
The law enforcement privilege is clearly applicable to protecting the identity of the source of undercover investigations – the involved undercover officer(s). An undercover investigation cannot be effective if conducted in full view and identifying the undercover officer would, as Magistrate Judge Kay acknowledges, effectively terminate an on-going investigation. Memorandum Order at 6. Law enforcement’s ability to prepare for and provide security at countless demonstrations that occur in Washington, D.C. and to gather critical related intelligence would be impaired if the identity of uncover officers was disclosed. See the July 30, 2002 Declaration of Alfred J. Broadbent, filed with the Opposition to Plaintiffs’ Motion to Compel Discovery Production from the District of Columbia (“Declaration”). Thus, the law enforcement privilege is applicable and necessary to protecting the identity of a law enforcement source, as well as the related techniques and strategies that would, necessarily, be ascertained if the undercover officer’s identity was disclosed.
Given the applicability of the privilege (and the fact that it was properly asserted by Chief Broadbent), the burden shifts to the plaintiffs to demonstrate a compelling need for disclosure and the lack of harm that would result from disclosure. Black, supra, 564 F.2d at 545; Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984); Kay, supra, 711 A.2d at 1256; Collins v. Shearson/American Express, Inc., 112 F.R.D. 227, 228 (D.D.C. 1986). The court must then balance the public interest in non-disclosure against the stated need. The Court “must look beyond the issue whether the documents sought are simply relevant. If that were the only test, the rules of privilege would be relatively meaningless. “ Collins, supra, 112 F.R.D. at 230. Plaintiffs must demonstrate a compelling need for the information. In Re: United Telecommunications, Inc. Securities Litigation, 799 F. Supp. 1206, 1208, 1209 (D.D.C. 1992).

There is no compelling need to disclose the identities of the undercover officers and harm -- the potential threat to the officers’ safety and the effective termination of an on-going investigation -- will result from disclosure.

While not all of the illustrative factors cited in Frankenhauser are relevant to this situation, a review of those that are reveals that on balance the public interest in non-disclosure outweighs plaintiffs stated need for the undercover officers’ identity.
In their motion to compel discovery, plaintiffs described their reason for seeking the identities of undercover officers who “infiltrated” their organization. They allege that one undercover officer who they were able to identify on their own disrupted a meeting by allegedly “suggesting that activists place bombs on bridges and call in bomb threats.” Plaintiffs contend that they lack information as to who else may have been an undercover officer and cannot “necessarily link any other disruptive conduct to such unidentified persons.” Therefore, they posed discovery seeking the identity of undercover officers who “infiltrated” their organization. Motion at 15 – 16. However, plaintiffs have never specifically described any other “disruptive” or illegal conduct that occurred at their meetings that they suspect may be attributable to an undercover officer. Rather, in the absence of any specified illegal conduct, plaintiffs seek the identity of undercover officers in order to determine whether such misconduct may have occurred. Plaintiffs’ speculation that the identification of undercover officers may allow them to determine whether additional alleged misconduct occurred fails to demonstrate a compelling need for disclosure, let alone that no harm would result.
Conversely, in his Declaration Chief Broadbent describes how disclosure of the undercover officers’ identities will impair and thwart the Department’s ability to prepare for and provide security at demonstrations and jeopardize and/or chill the Department’s intelligence gathering capability. The Chief indicates that “[D]isclosing the Department’s intelligence reports, Intelligence Operational Plan or the identity of any undercover officers that may have been conducting an investigation …, would undermine significantly the Department’s ability to plan for and provide security at mass demonstrations. Disclosure would create a huge void in the Department’s intelligence gathering capability, threaten undercover officer’s physical safety and expose citizens, visitors, and demonstrators themselves to increased risk of violence, physical injury, and property damage. Disclosing such information could forewarn suspects and suspect groups, providing them with sensitive law enforcement information, including possible strategies, procedures and directions for confidential investigations. Broadbent Declaration at 2 and 3.

In his Declaration, Chief Broadbent opined that “[The Metropolitan Police Department’s intelligence gathering methods, including the use of undercover investigations, have been integral to the Department's succes’ in minimizing property damage, violence and physical injuries at mass demonstrations. Declaration at 7. As indicated in his testimony before Magistrate Judge Kay and as recognized in the April 4, 2003 Memorandum Order, identification will effectively terminate an on-going investigation and eliminate a source of intelligence that is used to make decisions related to ensuring the safety of citizens and the general public. Memorandum Order at 3 and 6. The termination of this source of information will hamper the Department’s intelligence gathering capability both now and into the future. It will also chill the Department’s ability to recruit undercover officers, who enter such assignments with the understanding and belief that their identity will not be disclosed by the Department. Furthermore, identifying the undercover officers will necessarily identify, at least to some degree, the methods and strategies they employed to gather intelligence and other investigative information.
The public interest in non-disclosure is particularly high in this instance “because many of the individuals and groups that protested at the Inauguration regularly engage in demonstration activity and could counter intelligence gathering methods and security preparations, if known. … Furthermore, the violence encountered during demonstrations in other countries and cities -- Seattle, Quebec, Prague, Genoa and Australia -- coupled with the current concerns about domestic terrorism, underscores the need to maintain confidentiality. Declaration at 13.

Conclusion

The law enforcement privilege is applicable to protect the source of an undercover operation – the undercover officer – and on balance the public interest in non-disclosure outweighs plaintiffs stated need for the identities of the undercover officers. For these reasons, the Court should reconsider and vacate those orders requiring the
identification of the undercover officers who “infiltrated” plaintiffs’ organizations.
Respectfully submitted,

ARABELLA W. TEAL
Interim Corporation Counsel, D.C.

JOHN C. GREENHAUGH
Senior Deputy Corporation Counsel
for Torts & Equity

_______________________________
ROBERT C. UTIGER [437130]
Deputy Corporation Counsel
Equity Division

________________________________
RICHARD S. LOVE [340455]
MARTHA J. MULLEN [419036]
Senior Counsel, Equity Division
441 4th St., N.W. 6th Floor S.
Washington, D.C. 20001
(202) 724-6635
Attorneys for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL ACTION CENTER, et.al.,

Plaintiffs
Case No. 01CV00072 (GK)

UNITED STATES OF AMERICA, et al.,

Defendants.

ORDER
Upon consideration of the Defendant District of Columbia’s Motion to Reconsider, the memorandum of points and authorities filed in support thereof and in opposition thereto and the entire record herein, it is by the Court, this
___________ day of ______________________, 2003
ORDERED: That defendants’ above-referenced motion be and hereby is granted and it is;
FURTHER ORDERED: That the Memorandum Order dated April 4, 2003 and those portions of the Order of August 30, 2002 that require the identification of undercover officers who infiltrated plaintiffs’ organizations be and hereby are vacated.

_______________________________________
UNITED STATES DISTRICT JUDGE

Copies to:

Richard S. Love
Martha J. Mullen
Office of the Corporation Counsel
Senior Counsel, Equity Division
441 Fourth Street, N.W., Sixth Floor South
Washington, D.C. 20001

Carl Messineo, Esquire
Mara Verheyden-Hilliard, Esquire
Zachary Wolfe, Esquire
Partnership for Civil Justice, Inc.
1901 Pennsylvania Avenue, N.W.
Suite 607
Washington, D.C. 20006

Eric A. Kuwana, Esquire
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037

Mark Nebeker
Edith Shine
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W., Room 10-439
Washington, D.C. 20530

[Lo-pro NOTE- legal appeal details material turned over----and material still being sought by IAC]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL ACTION CENTER, et al.,
Plaintiffs
Case No. 01CV00072 (GK)

UNITED STATES OF AMERICA, et al.,

Defendants.

OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL DISCOVERY PRODUCTION FROM THE DISTRICT OF COLUMBIA

Introduction

The District of Columbia opposes plaintiffs’ motion to compel discovery production. Plaintiffs seek discovery of information and/or documents that far exceeds that which is relevant to the claims referenced in their complaint or any defense thereto and, further, seek information and/or documents that are protected from disclosure by the law enforcement privilege.

The District of Columbia has, in good faith, attempted to resolve and, at minimum, narrow discovery issues. Plaintiffs’ first detailed complaint of alleged deficiencies in any of the District of Columbia’s discovery responses was set forth in a letter dated April 30, 2002.

In response, the District of Columbia provided, on May 29, 2002, Supplemental Responses to Plaintiffs’ First Set of Interrogatories (a copy of which is attached to plaintiffs’ motion to compel at tab 3).

Thereafter, consistent with this Court’s Order of June 5, 2002, the District of Columbia provided, on June 21, 2002, Supplemental Responses to plaintiffs’ International Action Center, Justice Action Movement, Elizabeth Ayer, Brian Becker and Adam Eidenger’s First Request for Production of Documents (plaintiffs’ motion, tab 9); a Supplemental Document Production Index and Privilege Log (plaintiffs’ motion, tab 6) and a Second Supplemental Response to Plaintiffs’ First Set of Interrogatories (plaintiffs’ motion, tab 4).

The parties subsequently met on June 28, 2002 to discuss discovery issues and the District of Columbia agreed to provide a Redaction Log that would, for the most part, describe the redaction made and the basis for the redaction on a page by page basis.

That Redaction Log was provided to plaintiffs on July 12, 2002.

Also produced on that date were lesson plans on O.C. Spray, the Use of Force, and the Use of A.S.P. Tactical Baton, portions of which had previously been redacted.

The parties had further discussion about discovery issues in a July 18, 2002 telephone call, pursuant to which the District of Columbia agreed to review, one additional time, items from its Redaction Log that plaintiffs contended were relevant and should be produced. Pursuant to that review, and in a final attempt to resolve the remaining discovery issues, defendants produced several pages of previously redacted documents. Plaintiffs filed the instant motion to compel discovery production on July 19, 2002.

Background

Plaintiffs seek injunctive relief alleging that the defendants use practices and tactics that are unconstitutional because they disrupt and interfere with activities protected by the First Amendment.

Plaintiffs’ Amended Complaint involves alleged actions taken against them at three locations, in the area of 14th and K Streets, N.W. (where the Metropolitan Police Department, responding to reports of a large crowd of demonstrators marching in the street, south on 14th Street, without a permit, and reports of cars and/or property being damaged, and vending machines being thrown into the street, blocked further southbound movement in the street); at the 14th and Pennsylvania Avenue entry point to the Inaugural Parade, where plaintiffs claim they were delayed entrance, and at the Navy Memorial where one plaintiff asserts she was sprayed with mace or pepper spray.

Plaintiffs have filed exceedingly broad discovery requests to which defendants have responded with thousands of pages of documents.

The District of Columbia has produced in excess of one thousand pages of documents, thirty-eight video tapes, and numerous photographs and audio tapes.

Notwithstanding this voluminous production, and defendants’ efforts to resolve discovery issues, plaintiffs seek to compel further discovery production from the District of Columbia.

The information plaintiffs seek to compel is not “relevant to the claim or defense of any party” (Fed. R. Civ. P. 26(b) (1), and/or is subject to non-disclosure pursuant to the law enforcement privilege.

Argument

Information Related to Tactics and Training

Plaintiffs assert that they seek production of documents that identify the Metropolitan Police Department’s (MPD) “official or de facto policies, practices and tactics relating to demonstration activity as evidence(d) by official rules, regulations, manuals or handbooks , as well as evidenced by training materials…”

Plaintiffs’ motion at 4.

Plaintiffs also seek audits, reviews or evaluations of “such practices.” Yet a review of plaintiffs’ referenced discovery requests show they are far broader.

For example, plaintiffs seek any correspondence from MPD officers to counterparts in other jurisdictions or countries; audits, evaluations, and reviews that relate in any way to mass protests; and all materials that reflect this or other jurisdictions’ response to protesters, without regard to whether any such information, if it exists, was used to train any MPD officer or incorporated, in whole or in part, in any policy, practice, regulation, manual or handbook.

Plaintiffs’ requests are also not tailored to the actions challenged or even the demonstration (January 2001 Presidential Inauguration) at issue in this complaint. As such, these requests are overly broad, unduly burdensome and not reasonably calculated to lead to admissible evidence.

Nonetheless, the District of Columbia has provided plaintiffs with all responsive relevant materials including the O.C. Spray Lesson Plan, General Order 901.4 – Aerosol O.C. Spray Dispensers, Lesson Plan – Use of Force, Lesson Plan – Use of A.S.P. Tactical Baton, Handbook on Management of Mass Demonstrations, Civil Disturbance Units (CDU) initial and refresher training class schedules, General Order 901.7 – Use of Force, General Order 901.1 – Use of Firearms and Other Service Weapons, and relevant portions of the Operations Plan, Parade Manual and Civil Disturbance Unit Response Plan for the 54th Inauguration of the President of the United States.

Plaintiffs allege that the District of Columbia has refused to produce the training materials used in the CDU training classes.

The only document the District defendants have not produced is the lesson plan on chemical munitions (tear gas) because there is no allegation in plaintiffs’ complaint about the use of tear gas at the Inauguration demonstrations.

Defendants have also refused to produce a copy of the MPD training video on “crowd control formations.”

The videotape on crowd control formations is not relevant to plaintiffs’ claims or any defense in this matter and is not likely to lead to admissible evidence. (Even if it were relevant, this videotape is protected from disclosure by the law enforcement privilege, as subsequently set forth herein).

The videotape on crowd control formations is approximately ten minutes long and is an extremely small part of the 40 hour initial and 8 hour annual refresher training provided to MPD officers in civil disturbance units.

The syllabus for both the initial and refresher course has been provided to plaintiff. The syllabus indicates that the videotape is shown within the context of an hour-long class on crowd control formations which is followed by over an hour of field exercises in these formations.

While the tape demonstrates a number of crowd control formations that may be employed in a variety of situations, it does not require that any particular formation be used in any particular situation.

Plaintiffs complaint is not about any particular crowd control formation, rather, as plaintiffs’ assert in their motion, the general use of police lines to disperse, box in, splinter, redirect and misdirect groups of protesters. Thus, a videotape depicting various formations police may use to control crowds in different situations, information that could be misused to counter the formations depicted in the training tape, is not relevant to plaintiffs’ claims or likely to lead to admissible evidence. There are no additional CDU training materials that have not been produced and the CDU training classes are not videotaped.

Plaintiffs complain that the MPD has not produced contracting and other documents from SRB Productions, Inc. However, plaintiffs have, pursuant to their own subpoena to SRB, the relevant SRB documents for the surveillance videos SRB produced during the January 2001 Inauguration. See plaintiffs’ motion tab 12. The MPD has provided copies of all of the video tapes of Inaugural events it obtained from SRB Productions to all of the parties.

Plaintiffs correctly point out that MPD has not provided a training video tape, produced by SRB Productions, that was created during the summer of 2001, months after the January 2001 Inauguration.

Plaintiffs do not, however, correctly describe that video tape. The video tape -- The Changing Face of Demonstrations -- is approximately twenty-five minutes long. Contrary to plaintiffs’ assertions the video tape does not focus “very much” on the Inaugural events at the Navy Memorial. There is approximately one minute of footage from the Inauguration, mostly from the Navy Memorial, footage, however, which is the same as that found on the SRB video tapes already produced to the parties. There is an intelligence portion that is approximately five minutes long but there is no showing of images of individuals the intelligence unit has “targeted as troublemakers,” and the MPD does not maintain a “face book” on political activists.

There are three video tape “dubs” - one of which is titled “Rough Edit – Worst Case Scenario Anti-Globalization Protest Footage.” This is a rough cut compilation of mostly violent scenes from mass demonstrations, many of which are contained in the final training tape – The Changing Face of Demonstrations. This tape contains sound but no voice over, and has not been used to train officers or otherwise shown.

Another tape is titled “MPD Demonstration Training – Off Line Dub.” This tape depicts most of the same scenes and voice over contained in the final training tape. Occasionally, there are directions on the right hand side of screen to place bulleted information that appears in the final training tape. This tape has not been used to train officers or otherwise shown. The last tape contains raw footage of scenes from demonstrations without any sound. Most of the scenes depicted in this footage are included in the final training tape. Similarly, this tape has not been used to train officers or otherwise shown.

Defendants do object to the production of these video tapes since they were created months after the January 2001 Inauguration. The three “dubs” are not used to train officers and have not otherwise been shown and the final training tape – The Changing Face of Demonstrations -- was not used to train officers in preparation for Inaugural events.

All Unproduced Video Tapes or Digital Records Related to the Inauguration

As previously indicated, defendants have produced all video tape it possesses related to the Inauguration.

While SRB Production’s records indicate that an earlier start time for recording was anticipated, MPD has produced all of the rooftop video tapes it received from SRB Productions and SRB has indicated that it has no additional video tapes of Inaugural events.

Furthermore, there are no stored images from the Command Center that have been maintained from the January 2001 Inauguration. Similarly, all of the street level video tapes have been provided.

A search of the MPD email system for January 20, 2001 using the keywords Inauguration, demonstrations, demonstrators, and protesters did not identify any email messages. Police cruisers are equipped with digital mobile computers. However, most MPD officers that were involved in Inaugural events did not use police cruisers. The use of police cruisers during the Inauguration was, for the most part, limited to neighborhood patrols outside the perimeter of Inaugural events.

Records Maintenance

There is no record-keeping system for protesters, political organizations or activists. The intelligence unit does maintain paper files relative to some, mainly large, demonstrations. These files may include information on protesters or protest groups. Generally paper files are maintained, with only occasional incidental storage on individual word processors or computer diskettes. These files contain information gathered from law enforcement sources and investigations and other information obtained from public sources such as the Internet. The information is generally event-specific and is maintained by event/demonstration. Due to the large number of events/demonstrations taking place in Washington, D.C. much of the information is not retained beyond a particular event/demonstration.

MPD does not maintain a “Face Book” and does not routinely or systematically identify or broadcast photographs of “troublemakers” or activists. Insofar as plaintiffs’ interrogatory seeks to identify any electronic data base that any MPD officer has accessed that may contain information on protesters or protest groups, it is over broad, unduly burdensome, irrelevant and not calculated to lead to admissible evidence.

Intelligence and Surveillance Records

A. Intelligence and Surveillance Records are not Relevant to any Claim or Defense

Plaintiffs seek discovery concerning the Metropolitan Police Department’s intelligence operations and data, including the identification of any undercover officers and operations. Defendants have provided redacted logs from the Synchronized Operations Command Center (SOCC)(Document 73, Bates pages 867-939), and the Running Resume for the Inauguration Day intelligence teams (Document 82, Bates pages

1127-1141), as well as 38 video tapes and numerous audio tapes, all of which report and/or record activities of law enforcement and protesters/protest groups on Inauguration Day. Defendants have not provided any handbooks, rules, policies or procedures regarding the operation of the MPD intelligence unit and the use of “undercover agents” because there are no such written documents.

Defendants have identified all of the MPD officers who were detailed for Inauguration Day to intelligence teams. (See Defendant District of Columbia’s Supplemental Response to Plaintiffs’ First Set of Interrogatories, number 10 – Tab 3 to plaintiffs’ motion).

MPD officers detailed to intelligence teams worked on Inauguration Day in plain clothes in various locations along and near the Parade route in order to monitor the crowds and to report any information heard or observed concerning plans, attempts or actions that might disrupt Inaugural events and/or violate the law and to take law enforcement action, if needed. These officers, whose names were identified, were not “undercover officers.”

Defendants do object to identifying any “undercover officers.” Unlike plain clothed officers assigned to an intelligence team for the day of a particular event, “undercover officers,” if utilized, conduct on-going investigations to monitor and report on individuals and groups who may be planning actions that threaten property or persons or otherwise violates the law. Unlike officers in plain clothes, “undercover officers” do not carry MPD issued service weapons, do not take law enforcement action while acting in an undercover capacity and take precautions not to identify themselves as police officers. Their operation (and safety) depends on their ability to ensure their anonymity.

Defendants object to identifying any “undercover officers” that may have been assigned to investigations conducted to aid in security preparations for the Presidential Inauguration because any such identification is irrelevant and not likely to lead to admissible evidence and is protected from disclosure by the law enforcement privilege. For these same reasons, the District defendants object to producing intelligence reports and the Intelligence Operational Plan developed for the Presidential Inauguration.

Similar to the discovery filed against the federal defendants, plaintiffs’ requests for intelligence information from the District defendants is overly broad and not at all calculated to lead to admissible evidence. Defendants, as indicated above, have provided the names of all MPD officers who were detailed to intelligence teams on the day of the Inauguration as well as a redacted “Running Resume” of their reports.

Any “undercover investigation” that may have been conducted and intelligence plan prepared in advance of the Inauguration is not relevant to the actions plaintiffs, in their amended complaint, allege were taken against them at the 14th Street checkpoint, at 14th and K Streets and at the Navy Memorial. Plaintiffs claim that this information may have been used to inform, influence or direct the government’s conduct toward them. Yet, the District defendants do not assert that their actions were influenced or based upon intelligence reports, plans or similar information. Indeed, Assistant Chief Broadbent, in his Declaration, clearly states that “[N]othing in the Intelligence Operational Plan or the intelligence reports authorizes, sanctions or directs the use of O.C. spray by Metropolitan Police Department officers in the manner alleged in the complaint filed in this civil action. Neither the Intelligence Operational Plan nor the intelligence reports authorize, sanction or direct undercover officers to suggest or take any illegal action. Broadbent Declaration at paragraph 5.

Moreover, the events at 14th and K Streets, NW, were based on reports of a large crowd of demonstrators marching in the street, south on 14th Street, without a permit, and reports of cars and/or property being damaged, and vending machines being thrown into the street. (See, e.g., attached Destruction of Property Incident Report – Attachment A). Similarly, the District defendants do not assert and the complained about events at the 14th Street checkpoint were not based on or influenced by any earlier intelligence information.

At mass demonstrations, particularly an Inaugural event subsequent to a deeply divided and controversial Presidential election, police must prepare for the worst and hope for the best. Police in their planning (and comments) cannot ignore the violence and destruction that has over the past several years occurred at demonstrations in the United States, Canada and Europe.

Plaintiffs, however, apparently perceive such planning as animus or hostility toward protesters or protest groups. Plaintiffs’ mistaken perception does not make the intelligence information sought relevant to the claims raised in this lawsuit and is not a basis for compelling production.

The District defendants agree with the federal defendants’ suggestion, in their opposition to plaintiffs’ motion to compel discovery as to them, that the Court should attempt to resolve issues of relevance before addressing privilege claims. See, Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968) and other authority cited in the federal defendants’ opposition at page 9. (Moreover, since there may be some intelligence or other privileged information that the federal and District defendants have in common, the issue as to privilege should be addressed as to both defendants at the same time).

Nonetheless, defendants do address herein some of the documents referenced in plaintiffs’ motion to compel that in addition to being irrelevant or otherwise objectionable are protected from disclosure by the law enforcement privilege.

B. Intelligence and Surveillance Records are Protected from Disclosure by the Law Enforcement Privilege.

Even if these documents were relevant or likely to lead to admissible evidence, defendants’ objections should be sustained because, as described below, pursuant to the law enforcement privilege, the public interest in non-disclosure outweighs plaintiff’s stated need for these documents. See e.g., Collins v. Shearson/American Express, Inc., 112 F.R.D. 227, 229-30 (D.D.C. 1986) (when law enforcement privilege is asserted, Court must look beyond whether documents are simply relevant).

There is a public interest in and privilege against disclosure of documents that would tend to reveal law enforcement techniques, procedures or sources. Black v. Sheraton Corporation of America, 564 F.2d 531, 545, 546 (D.C. Cir. 1977); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341, 1342 (D.C. Cir. 1984).

The law enforcement privilege “shares with those typically labelled ‘executive’ a justification rooted in the need to minimize disclosure of documents whose revelation might impair the necessary functioning of a department of the executive branch. The argument here – that law enforcement operations cannot be effective if conducted in full public view – is analgous to that made on behalf of intra-agency deliberations.” Black, supra, 564 F.2d at 541, 542.

The need for such a privilege is also recognized in the Freedom of Information Act, which contains an exemption for investigatory records, 5 U.S.C. § 552(b) (7). Indeed, decisions in this and other circuits have recognized that this exemption protects the disclosure of information where release might create a risk of circumventing the law. For example, in PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 250-251 (D.C. Cir. 1993) the Court held that documents not generated in the course of a particular investigation, including portions of a FBI manual, were exempt because the FBI demonstrated that the release of the information might create a risk of circumventing the law. Similarly, this Court in Tax Analysts v. IRS, 1999 U.S. Dist. LEXIS 19514 (D.D.C. 1999) found that the release of certain IRS documents were exempt because their release could be exploited to circumvent enforcement of the tax laws. See also, Becker v. IRS, 34 F.3d 398, 405 (7th Cir. 1994) (document discussing investigative techniques used by IRS held exempt); Ferguson v IRS, 1990 U.S. Dist. LEXIS 15293 (N.D. Cal. Oct. 31, 1990) (portion of IRS manual which revealed investigatory techniques held exempt). Admittedly, this is not a Freedom of Information Act (FOIA) case, however, a FOIA case, unlike civil discovery, neither requires a plaintiff with an actual injury nor a showing that the requested information is relevant to a party’s claims or defenses.

Assertion of the law enforcement privilege “requires: (1) a formal claim of privilege by the `head of the department’ having control over the requested information; (2) assertion of the privilege based on actual personal consideration by that official; and (3) a detailed specification of the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege.” Landry v. Federal Deposit Insurance Company, 204 F.3d 1125, 1135 (D.C. Cir. 2000).

Here, Assistant Chief of Police Alfred Broadbent has properly asserted the privilege as to the Intelligence Operational Plan, intelligence reports and the training videotape on crowd control formations.

See attached Declaration of Alfred J. Broadbent – Attachment B. Chief Broadbent claimed the privilege based on his personal familiarity with and review of these documents and clearly specifies the documents for which the privilege is being claimed and why they properly fall within the scope of the privilege. Just as the District defendants have sought to resolve or at minimum narrow discovery disputes, the assertion of the law enforcement privilege has been made with deliberate consideration and in an appropriately specific manner.

Once the privilege is properly asserted, the burden shifts to the party seeking the documents to demonstrate a compelling need for disclosure and the lack of harm that would result from disclosure. Black, supra, 564 F.2d at 545; Friedman, supra, 738 F.2d at 1341; Kay v. Pick, 711 A.2d 1251, 1256 (D.C. App. 1998); Collins, supra, 112 F.R.D. at 228. The court must then balance the public interest in non-disclosure against the stated need for the documents. Once the privilege is properly asserted, the Court “must look beyond the issue whether the documents sought are simply relevant. If that were the only test, the rules of privilege would be relatively meaningless. “ Collins, supra, 112 F.R.D. at 230. Plaintiffs must demonstrate a compelling need for the information. In Re: United Telecommunications, Inc. Securities Litigation, 799 F. Supp. 1206, 1208, 1209 (D.D.C. 1992).

The “intelligence reports” and other documents at issue herein are described in Chief Broadbent’s Declaration. For example, Chief Broadbent indicates that “intelligence reports” could include information on confidential investigations conducted to identify, monitor and report on persons and/or groups that may be planning to disrupt an Inaugural event(s), threaten property or public safety, or otherwise violate the law. They could also provide confidential intelligence information from a consortium of federal and local law enforcement agencies that were coordinating security preparations for Inaugural events, or other intelligence information derived from law enforcement sources or public sources such as the Internet.

Chief Broadbent indicates that these “intelligence reports” were confidential and reviewed by only three MPD officials other than himself. Declaration at 1 and 2.
Further, Chief Broadbent describes how disclosure of these documents might impair and thwart the Department’s ability to prepare for and provide security at demonstrations and jeopardize and/or chill the Department’s intelligence gathering capability. As Chief Broadbent indicates in his Declaration, “[P]roduction of the Intelligence Operational Plan and intelligence reports would disclose law enforcement intelligence gathering methods and techniques, including those utilized in the design, operation and implementation of the security plan for Inaugural events.”

Further, the Chief indicates that “[D]isclosing the Department’s intelligence reports, Intelligence Operational Plan or the identity of any undercover officers that may have been conducting an investigation …, would undermine significantly the Department’s ability to plan for and provide security at mass demonstrations. Disclosure would create a huge void in the Department’s intelligence gathering capability, threaten undercover officer’s physical safety and expose citizens, visitors, and demonstrators themselves to increased risk of violence, physical injury, and property damage. Disclosing such information could forewarn suspects and suspect groups, providing them with sensitive law enforcement information, including possible strategies, procedures and directions for confidential investigations. Broadbent Declaration at 2 and 3.

Disclosure of information received from other law enforcement agencies or from the consortium of federal and local agencies that collaborated on security preparations for the Presidential Inauguration (as well as any information derived from private citizens) would discourage such collaborative law enforcement efforts.
Similarly, Chief Broadbent describes the Department’s training video tape on crowd control formations and declares that disclosure of the techniques and methods depicted on this video tape could assist protesters and protest groups to counteract these techniques, undermining the Department’s ability to maintain crowd control.

The public interest in non-disclosure of the challenged documents is particularly high in this instance “because many of the individuals and groups that protested at the Inauguration regularly engage in demonstration activity and could counter intelligence gathering methods and security preparations, if known. …

Furthermore, the violence encountered during demonstrations in other countries and cities -- Seattle, Quebec, Prague, Genoa and Australia -- coupled with the current concerns about domestic terrorism, underscores the need to maintain the confidentiality of these documents. Access to the Metropolitan Police Department’s Intelligence Operational Plan and intelligence reports would enable future protest groups to more effectively counter such plans as would production of the videotape on crowd control formations.

The Inauguration, the World Bank/IMF meetings, as well as other politically controversial meetings, are regularly occurring events in Washington, D.C. and disclosure of law enforcement intelligence gathering techniques and methods used to plan and provide security, and of training videotapes that depict law enforcement protective measures and techniques will compromise law enforcement’s ability to provide security for such events in the future and jeopardize the Department’s intelligence gathering capability.”

Broadbent Declaration at 3 and 4.
Many of the remaining illustrative factors are not particularly relevant to this situation. Both factual data and evaluative information is contained within the documents at issue and while the Presidential Inauguration has concluded, demonstrations in Washington, D.C. are regularly occurring events.

The public interest in non-disclosure cannot, under these circumstances, be disregarded merely because the Inauguration of the 54th President has concluded. See, e.g., Black, supra, 564 F.2d at 546 (public interest in non-disclosure not disregarded despite a ten year lapse since the investigation).

On balance, the public interest in non-disclosure of the Intelligence Operational Plan, intelligence reports and the training videotape on crowd control formations outweighs plaintiff’s stated need for these documents, even if the Court were to find these documents relevant or likely to lead to admissible evidence.

As indicated above, the District defendants join in the federal defendants’ suggestion that issues of relevance be addressed before addressing privilege claims, and, further, suggest that the federal and District defendants’ claims of privilege be addressed at the same time (to minimize the risk of inconsistent ruling regarding any documents or information these parties may have in common or may have obtained from the other).

If there are documents at issue herein that the Court concludes are relevant then, as the federal defendants noted in their opposition to plaintiffs’ motion to compel discovery from them, in camera inspection should be utilized where privilege is asserted as a basis for withholding information. Black, supra, 564 F.2d at 543-544.

The District of Columbia has provided the parties with a detailed document production index and privilege log and, pursuant to plaintiffs’ request, a redaction log, which, for the most part, sets forth a page by page description of any redaction and the basis for the redaction.

Defendants’ revised redaction log, which accounts for the additional documents produced pursuant to plaintiffs’ July 18, 2002 letter to counsel, is included herein as attachment C. (The District of Columbia’s Supplemental Document Production Index and Privilege Log is attached to plaintiffs’ motion to compel, tab 6). A review of these logs should, as set forth more fully in the below section, be sufficient to determine relevancy. Should the Court desire to review any redacted (or unredacted) document or document withheld in its entirety for in camera review, production can be accomplished.

5. Redactions Based on Relevancy Made on Produced Documents

While plaintiffs set forth examples of portions of subsequently produced documents that were once redacted as irrelevant or otherwise objectionable, they do not cite any examples of the documents that remain redacted because they are irrelevant. Instead, plaintiffs assert that to avoid a redaction by redaction review, defendants should be ordered to turn over all redacted material that plaintiffs contend is relevant, where no claim of privilege is made.

A review of the District of Columbia’s revised redaction log demonstrates that the remaining redacted documents are not relevant to plaintiffs’ claims.

For example, the only entry point at issue in plaintiffs’ amended complaint is the 14th Street checkpoint. The first document referenced in defendants’ Revised Redaction Log (Bates pages 181- 195) indicates that the entry point assignments and instructions (which are the same for each location) for the entry points on Pennsylvania Avenue between 13th and 14th Streets have been provided but that information for locations not referenced in plaintiffs’ complaint have not.

The next document (Bates pages 231 and 232) contains instructions to and a description of arrest teams used in mass arrest situations. Such teams were not utilized during the Inauguration as there were no mass arrests and these documents are, therefore, not relevant to plaintiffs’ claims.

With regard to the Outside Jurisdictions Operations Plan (Bates pages 256-268), the information that has been redacted includes the time the assigned units were to report to their post, the length of their tour of duty, the initial staging location and the location for officers’ breaks (break room).

Defendants did not redact information identifying the jurisdiction providing manpower and their area of responsibility when it was in a location referenced in plaintiffs’ complaint (from 7th to 9th Streets and from 13th to 15th Streets). Otherwise that information was redacted.

Information in the MPD Operations Plan (Bates pages 274-329) such as staging locations (areas police report to before moving to their area of assigned responsibility), location and phone number for the MPD Command Bus, the modes of transportation available to Civil Disturbance Units, general instructions for responding to individuals/groups utilizing improvised locking devices, and locations and procedures for prisoner control processing centers all have been redacted as none are relevant to plaintiffs’ claims. The area of assigned responsibility for each Civil Disturbance Unit has not been redacted.

The MPD Parade Manual (Bates pages 336-389) similarly provides manpower assignments and instructions for locations referenced in the plaintiffs’ complaint but redacts that information for locations that are not referenced. (Break room and staging area locations are not provided for any locations). Similar to the Operations Plan, modes of transportation available to Civil Disturbance Units, locations and procedures for prisoner processing, general instructions for responding to groups or individuals utilizing improvised locking devices and vehicle credentials have been redacted. The area of assigned responsibility for each Civil Disturbance Unit has not been redacted.

Limited redactions are made on the Synchronized Operations Command Center (SOCC) log (Bates pages 867-939). For example, participant instructions for logging on to the system and adding information are deleted. While substantive information that is being reported is rarely redacted (exceptions include the President and Vice President’s schedule) the identity of some public and law enforcement sources for reported information is occasionally redacted.

Also redacted are the identity or other identifying information for individuals arrested or stopped by the police, none of whom are the plaintiffs herein, staging locations, and contact phone numbers. The information that has been redacted is not relevant to any claim or defense raised herein.

Similar redactions were made on the Running Resume (Bates pages 1127-1141). Substantive information that is being reported is rarely redacted (exceptions include security information concerning a ballroom location and capacity and information regarding a parade route exit and the time for closing crossover gates), while the identity of some sources is occasionally redacted. Also redacted is the identity or identifying information for suspects stopped or arrested by the police (none of whom are plaintiffs herein). The information that has been redacted is not relevant to any claim or defense raised herein.
As indicated in the Revised Redaction Log,
redactions to the Civil Disturbance Response Plan (Bates pages 1247-1271) are, similarly, irrelevant and include information on procedure and provision of meals, staging locations and reporting times, transportation available to CDU platoons, instructions regarding response to mechanical or locking devices, the location of the command bus and a list of prisoner control vehicles and locations.

The MPD After Action Reports have been provided with two minor redactions, neither of which is relevant to plaintiffs’ claims, the location of the command centers and a recommendation regarding the number of available scooters (information which is also protected by the deliberative process privilege).

The information that has been redacted is not relevant to any claim or defense raised herein and is not likely to lead to admissible evidence, and production should not be compelled.

Conclusion

For all of the above-stated reasons, plaintiffs’ motion to compel discovery production from the District of Columbia should be denied.
Respectfully submitted,

ROBERT R. RIGSBY
Corporation Counsel, D.C.

JOHN C. GREENHAUGH
Senior Deputy Corporation Counsel
for Torts & Equity

_______________________________
ROBERT C. UTIGER [437130]
Deputy Corporation Counsel
Equity Division

________________________________
RICHARD S. LOVE [340455]
CHARLOTTE A. BRADLEY [388582]
MARTHA J. MULLEN [419036]
Senior Counsel, Equity Division
441 4th St., N.W. 6th Floor S.
Washington, D.C. 20001
(202) 724-6635
Attorneys for Defendant
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Defendant District of Columbia’s Opposition to Plaintiffs’ Motion to Compel Discovery Production from the District of Columbia was sent by facsimile and mailed postage prepaid to:
Carl Messineo, Esquire
Mara Verheyden-Hilliard, Esquire
Partnership for Civil Justice, Inc.
1901 Pennsylvania Avenue, N.W.
Suite 607
Washington, D.C. 20006

Eric A. Kuwana, Esquire
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037

Mark Nebeker
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W., Room 10-439
Washington, D.C. 20530

on this 30th day of July, 2002

______________________________
Richard S. Love
Senior Counsel

Judge Gladys Kessler...

Oh, shi'ite. No wonder.

Judge Gladys Kessler Bio (Clinton Judge Who Is Siding With Terrorist Sympathizers)
United States District Court of The District of Columbia (Official Gov't Site) ^

Posted on 08/02/2002 8:41 PM CDT by Recovering_Democrat

This genius just ruled the DOJ must make public all the names of detainees held for questioning in the 9/11 attacks. In a time of war, Judge Kessler has taken it upon herself to determine how that war is conducted. How nice.
...She is an outrage!!! She is the judge that misinterpreted the commissioners term on the civil rights counsel. I think that was just over turned a couple of months ago. Also she is the one who tried to put the labor union/ Rat party veto power documents back in the bottle. It was a Landmark Legal case and don't know the status. Judge Kessler is probably the most overturned judge in history.

Tripp Lawsuit Switched From Reagan Judge to Clinton Judge

News/Current Events News
Source: Associated Press
Published: Aug 17, 2000 - 01:27 PM Author: By Pete Yost
Posted on 08/17/2000 10:45:56 PDT by Lance Romance

Three federal judges appointed by President Clinton took a lawsuit filed by Linda Tripp away from a Reagan appointee, and randomly assigned the case by computer to one of themselves, court records show.
The three, Emmet Sullivan, Paul Friedman and Gladys Kessler, run the calendar committee that controls the docket at the U.S. District Courthouse. In a five-page order dated Aug. 11, they said the year-old Tripp suit never should have been directed to U.S. District Judge Royce Lamberth.
The court sent a copy of the ruling to Tripp's lawyers Wednesday.
Sullivan is now overseeing the lawsuit. It ended up in his hands as a result of the calendar committee's decision to put the Tripp case through a computer process that randomly selects judges for cases.
Odds favored the case going to a Clinton appointee, notwithstanding the random nature of the computerized selection process, because nine of the 13 judges in the federal courthouse were appointed by Clinton. Three are Republican appointees and one was appointed by President Carter, a Democrat.
The decision to remove the case from Lamberth's control comes amid a judicial investigation into why the chief federal judge in the District of Columbia, Norma Holloway Johnson, bypassed the computer system and directed half a dozen criminal prosecutions of campaign fund-raisers and friends of Clinton and Vice President Al Gore to Clinton-appointed judges.
The Judicial Council, which oversees judges' conduct, took the rare step of hiring a former U.S. attorney to investigate the matter. That investigation is in its fourth month. The Associated Press first reported Johnson's decision to bypass the random assignment system last year.
Johnson directed several of the fund-raising prosecutions to Friedman, one of the three judges who took the Tripp case away from Lamberth.

N.E.fishing season opens with most restrictions ever-Thanks Gladys-Clintoon Judge
Boston Herald | Wednesday, May 1, 2002 | by Kay Lazar

Posted on 05/01/2002 7:16 AM CDT by ninonitti

Scores of New England fishermen faced this morning not knowing how they will pay their bills and feed their families, as the new fishing season opened today with the most severe restrictions ever to hit the centuries-old industry.

``I got a truck payment, a house payment, my wife has a car payment and I got two young kids, but I can't work,'' said Paul Theriault, 37, a Rockport fisherman who will likely turn to a construction job to keep his family, including a 1-week-old baby girl, afloat.
``With these new rules, I'm allowed to go fishing for a total of six days during May, June and July,'' Theriault said. ``I'm all done.''
Under a sweeping federal order issued Friday, 1,800 square miles of prime fishing grounds off Boston's North and South shores and the tip of Cape Cod will be closed during May. Another huge section off Cape Ann and southern New Hampshire will be closed in June. And prime off-shore fishing grounds east of Cape Ann, known as Cashes Ledge, will be closed year-round.
The closures are in addition to several others, effectively shutting fishermen out of thousands of miles of ocean.
The order also drastically cuts the number of days fishermen will be allowed at sea starting Aug. 1, and eliminates the ability of an estimated 340 to fish altogether.
Citing the ``harsh'' effects of the order, the state's Division of Marine Fisheries yesterday filed a motion asking a federal judge to reconsider her actions.
U. S. District Court Judge Gladys Kessler issued her April 26 order in response to a lawsuit by environmentalists, who accused federal fishing regulators of failing to protect depleted stocks of cod and other groundfish.
Many had expected Kessler to approve a less-strict agreement to ease overfishing, which had been reached April 16 by environmentalists, fishermen and others. A number of parties who signed that agreement, including state officials, now are asking for a reconsideration.

Judge Rules In Favor Of Wilson In Civil Rights Commission Case
CNSNews.com ^ | 2/04/02 | Melanie Hunter

Posted on 02/04/2002 1:41 PM CST by kattracks

Federal Judge Gladys Kessler ruled Monday in favor of Victoria Wilson and against President Bush's most recent appointment to replace Wilson on the U.S. Commission on Civil Rights, Peter Kirsanow.
The Justice Department said it will appeal the judge's ruling.
At issue is whether federal law allows Wilson to serve a full six-year stint on the panel, or only the unexpired portion of Higginbotham's term to which she was appointed.
The 1983 law reauthorizing the USCCR specifically limited commissioners appointed to fill unexpired terms to the remaining length of the original term. A 1994 reauthorization law did not include that language. However, it also included no contradictory provisions.

A free pass for the AFL-CIO ~ Bob Novak

Politics/Elections Editorial Editorial Keywords: AFL; TEAMSTERS; TERRY MCAULIFFE; DNC; JANET ASHCROFT; DOJ; MARY JO WHITE
Source: Chicago Sun-Times
Published: July 23, 2001 Author: Bob Novak
Posted on 07/23/2001 12:25:41 PDT by Elle Bee

Four days after the House briefly debated rival campaign finance reform bills that both overlooked the AFL-CIO's political excesses, Big Labor got another break. A Clinton-appointed federal judge last Monday blocked the Federal Election Commission from its scheduled release the next day of thousands of documents that neither the union nor the Democratic National Committee wants made public.
This is evidence from the notorious 1996 national election, for which the Democratic Party and the AFL-CIO joined in questionable practices leading to the re-election of Bill Clinton. The supine FEC last year dismissed a Republican complaint that the party and the labor federation coordinated activities in violation of the law. At issue since then has been investigative files that Democrats and labor complain reveal too much of their political strategies.
Their concerns produced last Monday's injunction by U.S. District Judge Gladys Kessler of the District of Columbia, whose career is closely tied to liberal-labor Democrats. Unless reversed, her edict would keep evidence out of the hands of congressional and Justice Department investigators until the five-year statute of limitations for embezzlement under the Landrum-Griffin Labor Reform Act expires in November. Labor appears to be getting another free pass.

Judge orders release of Cheney task force records, criticizes Energy Department
Associated Press / SFGate

Posted on 02/27/2002 4:08 PM CST by RCW2001

And on and on and on and on. This hideous hard left judge is on the panel that assigns cases in the DC District Court and is very powerful and VERY partisan.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.