Nos. 06-17132 and 0617137: Counsel For Amici Curiae Professors William G. Weaver and Robert M. Pallitto
Nos. 06-17132 and 0617137: Counsel For Amici Curiae Professors William G. Weaver and Robert M. Pallitto
Counsel for Amici Curiae Professors William G. Weaver and Robert M. Pallitto
TABLE OF CONTENTS
Page
ARGUMENT ......................................................................................................... 2
i
IV. REYNOLDS AND ITS PROGENY NOT ONLY
PERMIT, BUT REQUIRE THE HOLDING OF THE
DISTRICT COURT BELOW: ANALYSIS OF CASES IN .................. 19
CONCLUSION .................................................................................................... 21
ii
TABLE OF AUTHORITIES
Page
Cases
Beatson v. Skene,
5 H. & N. 838 (1860) .......................................................................................... 4
Black v. Sheraton,
371 F. Supp. 97 (D.D.C. 1974) ......................................................................... 18
Conway v. Rimmer,
[1968] A.C. 910 (1968) ................................................................................ 4 n.1
Darnel’s Case,
3 How. St. Tr. 59 (1628) ..................................................................................... 2
El-Masri v. Tenet,
437 F. Supp. 2d 530 (E.D. Va. 2006) .......................................................... 15-16
Elson v. Bowen,
83 Nev. 515 (1967) ........................................................................................... 18
iii
Hepting v. AT&T,
439 F. Supp. 2d 974 (N.D. Cal. 2006) ............................................. 7, 14, 15, 16, 17
Home v. Bentinck,
2 Brod. & B. 130 (1820) ..................................................................................... 9
In re U.S.,
872 F.2d 472 (D.C. Cir. 1989) ............................................................................ 5
Jabara v. Kelley,
75 F.R.D. 475 (D. Mich. 1977) .......................................................................... 5
Layer’s Case,
16 How. St. Tr. 94 (1722) ................................................................................... 3
Petrowicz v. Holland,
142 F. Supp. 369 (E.D. Pa. 1956) ..................................................................... 18
Rex v. Watson,
32 How. St. Tr. 1, 389 (1817) ......................................................................... 3, 9
Tenet v. Doe,
544 U.S. 1 (2005) ......................................................................................... 7, 15
iv
United States v. Ahmad,
499 F. 2d 851 (3rd Cir. 1974) ............................................................................ 18
The Zamora,
[1916] 2 A.C. 77 (1916) ..................................................................................... 4
Statutes
Other Authorities
Brief for the United States, United States v. Reynolds, No. 21,
U.S. Supreme Court, October Term, 1952, at 10-11 .......................................... 5
v
L. Fisher, In the Name of National Security: Unchecked
Presidential Power and the Reynolds Case 212-220
(U.P. Kansas 2006) ............................................................................................. 6
vi
INTEREST OF AMICI CURIAE
detailed study of the history and use of the state secrets privilege, State Secrets and
Executive Power, 120 Pol. Sci. Quart. 85 (Spring 2005), a historical legal analysis
Pres. Studies Quart. 102 (March 2006), and the book Presidential Secrecy and the
Law (Johns Hopkins U.P., 2007). Both Professors Weaver and Pallitto served on a
recent panel for the Constitution Project to frame reform guidelines for use and
testified before congressional committees twice during the last fourteen months
concerning aspects of current use of the state secrets privilege. Amici file this brief
vii
SUMMARY OF THE ARGUMENT
adapted to United States law from the British law doctrine of Crown Privilege. But
royal prerogative. The privilege, barely fifty years old in the United States, was
procedure. The scheme for assertion and use of the principle, first announced by
the U.S. Supreme Court in U.S. v. Reynolds, 345 U.S. 1 (hereinafter “Reynolds”),
makes it clear that the privilege is a pragmatic tool to prevent predictable and
consequential damage to the national security. Reynolds is also clear that the
The Amicus Curiae brief of Professor Robert Chesney in the instant action in
expansive view of the privilege’s reach. But the case law, which we
comprehensively analyze here, does not support such a view. The assertion of the
privilege under the facts of the present case is sui generis; it is without precedent.
The decision of the district court below, holding that application of the privilege is
premature and inapt in the present posture of this case, is not only consonant with
1
the Reynolds ruling it is required under any reasonable analysis of Reynolds and its
progeny.
ARGUMENT
A. English Antecedents.
royal prerogative to withhold information from courts, Parliament, and the public.
The Prerogativa Regis, 17 Edw. II, Stat. 1 (1324), in its development over the
matter before the 17th Century most likely results from the fact that such a power
Charles I put this issue into debate after he ordered the detention of subjects who
In Darnel’s Case, 3 How. St. Tr. 59 (1628), detainees of the crown sought
relief in habeas corpus cum causa. The Crown asserted that courts could not
acquire jurisdiction over the detainees since no cause for their detention had been
identified; they were held “per speciale mandatum Domini Regis” (by special order
of the King). The Attorney General claimed that the Crown could hold the
detainees without answering to the courts because the reasons for detention were
2
secrets of state and constituted “Arcana Imperii.” Raising what has become a
reportedly declaimed at the time that secrets of state “in the latitude [they] had
been used . . . had eaten out, not only the laws, but all the religion of
In the Petition of Right of 1628, Charles grudgingly accepted the claim that
arrests and detentions without showing legal cause were beyond the Crown’s
power. This put into notice the limit of the King’s power to withhold information
from courts, but once the problem of disclosure of matters of state was separated
In the Trial of the Seven Bishops, the court refused to require a witness to
testify as to the events of a Privy Council meeting. 12 How. St. Tr. 183, 309-11
(1688). Similarly, in Layer’s Case, counsel for a defendant charged with high
treason lost in his effort to have minutes of a Council meeting read into the record
in open court. 16 How. St. Tr. 94, 223-224 (1722). And in Rex v. Watson a public
3
The apogee of deference to Crown withholding came in two cases. In
Beatson v. Skene, Chief Baron Pollock, for a unanimous panel of Law Lords,
found: “We are of opinion that, if the production of a State paper would be
injurious to the public service, the general public interest must be considered
838, 853 (1860). Beatson also held that the determination of the public interest is
solely in the hands of public ministers. Id. And in Duncan v. Cammel Laird,
[1942] A.C. 624, 641 (1942), the Law Lords reiterated the holding of Beatson and
approvingly quoted Lord Parker’s observation in The Zamora, [1916] 2 A.C. 77,
107 (1916), that “Those who are responsible for the national security must be the
sole judges of what the national security requires.” 1 But In the United States,
before Reynolds, there is virtually no history with the state secrets privilege. W.
Weaver and R. Pallitto, State Secrets and Executive Power, 120 Pol. Sci. Quart. 85
(Spring, 2005), 92-7. While there was little doubt before Reynolds that U.S. law
would recognize such a privilege, the form and reach that the privilege would take
was speculative.
Unlike England, the United States had no Crown Privilege or public interest
exception privilege, so that when Reynolds arose there was virtually no American
1
Abdication of judicial power in the face of ministerial withholding of information based on the public interest was
abandoned by the Law Lords in 1968, and the holdings in Beatson and Duncan on this matter have been overruled.
Conway v. Rimmer, [1968] A.C. 910 (1968).
4
law to draw on. Federal courts decisions, Justice Department briefs, scholarly
articles, and amicus briefs often point to the Aaron Burr trial of 1807 and the
Supreme Court case of Totten v. United States, 92 U.S. 105 (1876) (hereinafter
“Totten”) as valid precedents for the state secrets privilege. A district court in
1977, for example, claimed that the privilege “can be traced as far back as Aaron
Burr’s trial in 1807.” Jabara v. Kelley, 75 F.R.D. 475, 483 (D. Mich. 1977). In
1989, the D.C. Circuit said that although “the exact origins” of the state secrets
privilege “are not certain,” the privilege in the United States “has it initial roots in
Aaron Burr’s trial for treason.” In re U.S., 872 F.2d 472, 474-75 (D.C. Cir. 1989).
In the Reynolds case, the Justice Department’s brief to the Supreme Court
cited Burr’s trial as an apt precedent. Brief for the United States, United States v.
Reynolds, No. 21, U.S. Supreme Court, October Term, 1952, at 10-11. See also
Edmonds v. U.S. Dept. of Justice, 323 F. Supp. 2d 65, 70 (D.D.C. 2004); Brief of
AT&T Corp., Nos. 06-17132 and 06-17137 (9th Cir. March 16, 2007), at 5-6
But the Burr trial is simply not a state secrets case, either directly or as a
concerning state secrets, the Jefferson administration ultimately not only did not
withhold documents but Jefferson himself took a personal and active interest in
5
making sure that all pertinent documents would be made available to the court. 11
the United States, 1904). Justice John Marshall, writing in his capacity of eyre
judge for the Circuit of Maryland, noted that on the matter of withholding for state
secrets “it need only be said that the question does not occur at this time.” United
States v. Burr, 25 Fed. Cas. 30, 37 (D.C.D. Va. 1807). See also Louis Fisher, In
the Name of National Security: Unchecked Presidential Power and the Reynolds
As for Totten, in Reynolds the Supreme Court cited several precedents for
established in the law of evidence.” Reynolds at 6-7. The first cite is to Totten. Id.
at n.11. Other federal court decisions, Justice Department briefs, scholarly articles,
and amicus briefs also cite Totten as a legitimate precedent for the state secrets
privilege. See e.g. Edmonds v. U.S. Dept. of Justice, 323 F. Supp. 2d 65, 71;
Petition for a Writ of Certiorari, Tenet v. Doe, No. 03-1395, U.S. Supreme Court,
But Totten is not a basis for the state secrets privilege. The case involved a
law of this narrowly defined case to justify the application of its principles to the
6
entire field of military secrets, national security, and foreign affairs. If Totten had
such a broad reach then it would have all but replaced the state secrets privilege,
the pleadings.
In Tenet v. Doe, 544 U.S. 1 (2005), the United States Supreme Court, in
overruling a holding of the 9th Circuit, found that Totten was a separate doctrine
from the state secrets privilege, noting “Reynolds . . . cannot plausibly be read to
have replaced the categorical Totten bar with the balancing of the state secrets
evidentiary privilege in the distinct class of cases that depend upon clandestine spy
relationships.” Id. at 10. As the Court further found, the Totten bar has no
application to the kind of tort claims action brought by the three widows in
Reynolds, nor, as we explain below, does it have any application in the present
The government claims that the Totten Bar requires dismissal of the present
action. Brief for the United States, 17-19. The district court considered, and
rejected, this claim. Hepting v. At&T, 439 F. Supp. 2d 974, 993 (N.D. Cal. 2006)
(hereinafter “Hepting”). This rejection was not surprising considering that the
Appellee is not in privity with the government, the whole world believes there is an
7
and AT&T freely acknowledges that when asked by the government to cooperate
in intelligence operations it does so. To bar the present case under Totten based on
the Fourth Amendment from the Constitution on the basis of a trite formalism one
In any event, the Totten Bar has no application to the present case. In
where plaintiff parties are not in privity with the government, we find that there is
only one case that meets this criterion. Hudson River Sloop Clearwater, Inc. v.
Navy, 1989 U.S. Dist. LEXIS 19034 (E.D.N.Y. 1989). The trial court found that
the Totten Bar “requires dismissal of the supplemental . . . claim.” Id. at *4. The
Second Circuit Court of Appeals upheld dismissal of the case, but reversed on the
grounds for dismissal. Totten, Hudson River Sloop Clearwater, Inc. v. Navy, 891
F.2d 414, 423 (2nd Cir. 1989). The court held that although it “agree[d] with this
result” (dismissal of the claim) it held that the case “need not be resolved on
the public.” Id. Other than this orphaned district court case there is no case law to
indicate that the Totten Bar is applicable against a plaintiff not in privity with the
government.
8
II. THE PRAGMATISM OF THE REYNOLDS DECISION
Crown Privilege proved maladroit when introduced into United States law.
Watson, 32 How. St. Tr. 1, 389 (1817), allegedly defamatory reports generated by
government officials, Home v. Bentinck, 2 Brod. & B. 130 (1820), or any other
basis for a claim of Crown Privilege. The standard that developed in English law,
which was really not much of a standard at all, was whether or not the disclosure of
the requested documents would be “prejudicial to the public interest.” See e.g.
Court declared a state secrets privilege, and specifically refused the Justice
constitutional importance,” at 629, and noted that “When the Crown . . . is a party
9
to a suit, it cannot be required to give discovery of documents at all. No special
Reynolds at 10. These distinctions limit the operation of the privilege, emplace the
courts as the final authority as to when the privilege is correctly asserted, and
The state secrets privilege shares only superficial similarities and spotty
history with the doctrine of Crown Privilege. But the government attempts to elide
these crucial distinctions by claiming a constitutional basis for the privilege, often
alluding to, and sometimes simply declaring, that it protects the sphere of Article II
powers held by the President. 2 Reynolds explicitly holds otherwise. As the Court
noted, “We have had broad propositions pressed upon us for decision . . . [these]
government’s demand for a public interest exception and refusing to treat the
10
substantial differences between Crown Privilege and what shape an American
the nuts and bolts of judicial action, not the reach of Article II powers. The Court
compromise,” Id. at 9, weighing plaintiff’s need for the requested material when
deciding on in camera review, and the pursuit of alternatives to allow the case to
go forward in the face of a state secrets privilege claim. It is clear that the Court
believed that when the privilege applied, the information affected has absolute
protection, but all efforts must be made to allow the suit to go forward without
such information.
doctrine,” and Reynolds explicitly recognized the common law origins of the
privilege. Id. at 7 and note 11. The fact that the privilege is a common law
practice is important for two reasons. First, the genealogical link to Crown
foundation for the doctrine is acknowledged. Both of these points are frequently
11
On the one hand, this results in a misreading of the Reynolds ruling that sees
has always been there. But it has not always been there: it is a modern doctrine in
American law, driven by modern concerns arising mainly from the use of modern
technology. In the United States the idea of a state secrets privilege has long been
well established in legal scholarship, but before Reynolds, that idea was naked of
legal scaffolding.
On the other hand, the link to Crown Privilege and the Justice Department’s
tendency to look past the pragmatic spirit of Reynolds has allowed the government
to propagate the erroneous position that the privilege is central to Article II powers
held by the President. But it takes no studied analysis to conclude that the
Reynolds court did not accidentally, tacitly, or directly mean to eliminate operation
cases. If that were the case, the executive branch could digest the Bill of Rights
and avoid judicial accountability for its actions through calculated expansion of the
issues. Sidney Souers, the first director of the CIA, once defined “national
responsibility,” Policy Formulation for National Security, 43 Am. Pol. Sci. Rev.
12
534, 535 (June, 1949), but it has become only the executive branch’s “point of
view” and it is one that must be held to strict limitations imposed by law and the
Constitution.
The tendency on the part of some to cut the privilege from its moorings is
evident in the Chesney Brief urging reversal of the district court’s ruling on the
privilege in the instant case. This brief, similar to positions often taken by the
pragmatic banks.
The trial court carefully and correctly applied state secrets precedent,
including the varieties of application of the privilege contained in the case law.
However, the Chesney Brief would replace the court’s analysis with a novel and
arbitrary division of state secrets cases into “several categories based on the nature
rejected.
13
Professor Chesney suggests the following three classifications of state
relationships between private entities and the government.” Id. At 9. The first and
by the Hepting plaintiffs’ claims.” Id. At 10. Applying the categories to this case,
Professor Chesney drops the adjective “military,” thus leaving only “protection of
technical information.” Id. Since there does not appear to be any “military”
evidence involved in this case, it is understandable that one would want to drop the
term here, but what is left is a category so broad as to be of little analytical use. It
is difficult to see what would not fit under the category of “technical information,”
and of course no court has ever held that all technical information must be
matters further.
14
Totten, which Professor Chesney cites as an example of “espionage
independently from the more detailed analysis required in state secrets cases
generally. Tenet v. Doe, 544 U.S. 1, 9 (2005). Indeed, the trial court in this case
noting that unlike Totten, the plaintiffs in Hepting v. AT&T do not have a secret
which the trial court considered and specifically rejected as a basis for dismissing
this case. Hepting at 998. Further, in this case, plaintiffs have repeatedly stated
that they do not need to delve into “sources and methods” in order to prove their
claims; they are concerned instead with the fact of unlawful interception and
90. One case where inquiries into “means and methods” did, in fact, lead to
dismissal, was El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006). That case
was dismissed on state secrets grounds because, according to the court, “any
admission or denial by defendants in this case would reveal the means and methods
15
employed pursuant to this clandestine program and such a revelation would present
a grave risk to national security.” Id. at 537. But the trial court here distinguished
the “means and methods” inquiry in El-Masri from the Hepting plaintiffs’ claims
by stating:
Thus, the trial court in the instant case properly distinguished El-Masri by showing
that proving the “means and methods” of extraordinary rendition was the “whole
case will be, based on the declarations of intelligence officials and the statements
Reynolds that “[j]udicial control over the evidence in a case cannot be abdicated to
the caprice of executive officers.” At 9-10. Consistent with Reynolds, the trial
16
court states in its opinion that “it would be premature to conclude that the privilege
will bar evidence necessary for plaintiffs’ prima facie case or AT&T's defense.”
Hepting at 994.
continue, rather than dismissing it on the pleadings, falls squarely in line with the
post-Reynolds precedent as well as with Reynolds itself. The court notes that it “is
following the approach of the courts in Halkin v Helms and Ellsberg v Mitchell;
these courts did not dismiss those cases at the outset but allowed them to proceed
to discovery sufficiently to assess the state secrets privilege in light of the facts.
The government has not shown why that should not be the course of this
litigation.” Id.
supplement the trial court’s analysis of state secrets precedent with professor
Chesney’s analyses.
17
Four of the ten cases included in the table before 1975 are not state secrets
cases at all. United States v. Ahmad, 499 F. 2d 851 (3rd Cir. 1974); Black v.
Sheraton, 371 F. Supp. 97 (D.D.C. 1974); Elson v. Bowen, 83 Nev. 515 (1967);
Petrowicz v. Holland, 142 F. Supp. 369 (E.D. Pa. 1956). In none of those four
cases did the government assert the privilege or apparently even bring up the
privilege, and it can hardly be said that the courts involved “adjudicated” any
matter concerning the privilege. This apparent substantial selection bias would on
its own seriously compromise the value of the table, but this bias is also double-
edged: later cases that discuss Reynolds or the state secrets privilege in a similar
manner as in the erroneously included cases are omitted from the table. 3 In other
The inclusion of four non-state secrets cases prior to 1975, a time when such
cases were extremely rare, misleadingly gives the impression of continuity in use
of the privilege. Further, because of the general categories embraced by the table
3
See, e.g. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 389 (2004); United States v. Zolin 491 U.S. 554, 570-71 (1989);
American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1070 (9th Cir. 1995); Exxon Shipping Co. v.
United States Dep't of Interior, 34 F.3d 774, 778 (9th Cir. 1994).
18
IV. REYNOLDS AND ITS PROGENYNOT ONLY PERMIT, BUT
REQUIRE THE HOLDING OF THE DISTRICT COURT BELOW
Table Demonstrating the Unique, Unprecedented Request of the Government Compared to the
Universe of Reported State Secrets Cases
All Cases4
Cases Heard on Appeal District Court Cases
Halpern v. U.S. China v. Nat. Union
Hobson v. Wilson Heine v. Raus
Halkin v. Helms Pan Am v. Aetna
ACLU v. Brown Kinoy v. Mitchell
Clift v. U.S. Spock v. U.S.
Farn. Can. v. Grimes Jabara v. Kelley
U.S. v. The Irish U.S. v. Felt
Salisbury v. U.S. Alliance v. DiLeonardi Cases remaining after
Gandera, S.A. v. Block U.S. v. Felt eliminating those that Cases remaining after
Ellsberg v. Mitchell Sigler v. LeVan allowed discovery. 5 eliminating those that
Northrop v. McD. Doug. Zenith v. U.S would necessarily Cases
Molerio v. FBI Nat’l Law. Gld. v. Att. G. Farn. Can. v. Grimes-a reveal identities of remaining after Cases dismissed
Fitzgerald v. Penthouse Ceramica, S.A. v. U.S. Salisbury v. U.S.-a secret government eliminating where there is a
Guong v. U.S. Republic Steel v. U.S. Foster v. U.S. agents or expose secret those that congressional
Weston v. Lockheed AT&T v. U.S. Guong v. U.S.-a inner workings of would reveal command (such
In re U.S. U.S. Steel v. U.S. Weston v. Lockheed-a intelligence agencies. the details of as 50 U.S.C.
Zucker. v. Gen. Dyn Star-Kist, Inc. v. U.S. Nejad v. U.S. weapons or 1806(f)) to modify
Hudson River v. Navy In re Agent Orange Zucker. v. Gen. Dyn.-a Farn. Can. v. Grimes-a warfare state secrets
Wilkinson v. FBI Foster v. U.S. Bowles v. U.S.-a Foster v. U.S. systems. procedures.
In re Under Seal Xerox v. U.S. Maxwell v. FNB-a Weston v. Lockheed-a
Bowles v. U.S. Patterson v. U.S. Clift v. U.S.-a Nejad v. U.S. NONE NONE
Maxwell v. FNB Nejad v. U.S. Bareford v. Gen. Dyn.-a Zucker. v. Gen. Dyn.-a
Bareford v. Gen. Dyn. N.S.N. v. DuPont Bentzlin v. Hughes Clift v. U.S.-a
In re U.S. Clift v. U.S. Black v. U.S.-a Bareford v. Gen. Dyn-a.
Black v. U.S. Hyundai v. U.S. Tilden v. Tenet Bentzlin v. Hughes
Monarch, P.L.C. v. U.S. U.S. v. Koreh Trulock v. Lee-a
Kasza v. Browner Bentzlin v. Hughes Co. Edmonds v. DOJ
U.S. v. Klimavicius-Vil. In re Smyth Sterling v. Tenet-a
Crater v. Lucent McD. Douglas v. U.S. El-Masri v. Tenet-a
DTM Research v. U.S. Kronisch v. U.S. Doe v. CIA
Doe v. Tenet Yang v. Reno
Trulock v. Wen Ho Lee Frost v. Perry
Darby v. U.S Linder v. Calero
Tenenbaum v. Simonini Tilden v. Tenet
Schwartz v. Raytheon Barlow v. U.S.
El-Masri v. Tenet Virtual, Inc. v Moldova
Sterling v. Tenet U.S. v. TRW
Horn v. Huddle
Burnett v. Al Baraka
Edmonds v. DOJ
Arar v. Ashcroft
Doe v. CIA
4
Cases consolidated under In re NSA Telecoms. Records Litig., 444 F.Supp 2d 1332 (J.P.M.L. 2006) are not
included in the table.
5
“-a” following a case means it was heard on appeal.
19
The preceding chart shows the uniqueness of the appellants’ position in this
case. The trial court’s ruling falls squarely within existing precedent, and the
appellants’ request for reversal of that ruling urges a result that would be without
precedent in state secrets jurisprudence. The chart lists in Cell 1 all state secrets
cases that resulted in published opinions. From that universe of cases, Cell 2
eliminates all cases that allowed some amount of discovery. Those remaining in
Cell 2 – a much smaller group than the original universe of all state secrets cases –
were dismissed at the pleadings stage, as appellants ask the court to do here. But
that group is further reduced in Cell 3 by removing the cases that would reveal
secret agents’ identities or intelligence agencies’ inner workings. The trial court in
this case correctly concluded that identities and inner workings of the NSA would
eliminated cases are distinguishable from this case and cannot serve as precedent
Cells 4 and 5 are empty. There are no state secrets cases left once weapons
systems cases are eliminated. Of the narrowed group of cases remaining in Cell 3,
courts found that the cases could not be litigated without revealing secret details of
weapons or warfare systems. This concern is not present in the instant appeal, and
20
therefore the weapons systems cases are distinguishable and unavailable to
appellants as precedent.
Cell 5 shows, further, that there has never been a case dismissed at the
pleadings stage where Congress commanded a modified use of the state secrets
Surveillance Act.
CONCLUSION
In sum, the government is asking this court to decide this case counter to
from accepted practices of judicial decision making, since it would be: (1) contrary
to clear precedent; (2) based solely on the unverified self-serving claims of the
the state secrets privilege. This court ought not entertain such a result.
21
CERTIFICATION OF COMPLIANCE PURSUANT TO
FED. R. APP. P. 32(a)(7)(C) AND CIRCUIT RULE 32-1 FOR
CASE NOS. 06-17132 AND 06-17147
Dated:
_______________________________________
Jean-Paul Jassy
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original and fifteen (15) copies of the
Robert M. Pallitto in Support of Affirmance were this day filed with the
Clerk of the United States Court of Appeals for the Ninth Circuit by Federal
Express next-day delivery service. I also certify that two (2) copies of the
Peter D. Keisler
Carl J. Nichols
Anthony J. Coppolino
Andrew H. Tannenbaum
Joseph Hunt
U.S. Department of Justice
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Bruce A. Ericson
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Dated:
_______________________________________
Jean-Paul Jassy