Buffalo Memo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

  PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This action was initiated on December 2, 2003 after defendant failed to comply with his Freedom of Information Act (FOIA) request of November 1, 2002 within the time parameters set forth in 5 USC 552 (a) (6) (A) (i).

STATEMENT OF THE CASE

Plaintiff, Leonard Peltier, was a member of the American Indian Movement (AIM).  See United States v. Peltier, 585 F. 2d 314, 318 (8th Cir. 1978).  AIM had been targeted by the FBI’s Counterintelligence Program.[1]  Plaintiff is currently incarcerated in the United States Penitentiary in Leavenworth, Kansas, for the deaths of two FBI agents, which occurred at the Pine Ridge Indian Reservation in South Dakota on June 26, 1975.

“COINTELPRO is the FBI acronym for a series of covert action programs directed against domestic groups.  In these programs, the Bureau went beyond the collection of intelligence to secret action designed to ‘disrupt’ and ‘neutralize’ target groups and individuals.”[2]

The Sixth Circuit recognized that: “COINTELPRO went beyond the detection and prevention of criminal activity; the program’s infringement of civil liberties seem well documented.”  Jones v. FBI, 41 F. 3d 238, 243 (6th Cir. 1994).It is submitted that plaintiff had been targeted by the FBI because of his involvement with AIM. It is plaintiff’s belief that the documents he is seeking access to under FOIA are exculpatory in nature and will ultimately contribute to his vindication and release from prison.

THE FBI IS A PROPER PARTY DEFENDANT

Defendant, Federal Bureau of Investigation (FBI), asserts that is it not a proper party defendant and that the United States Department of Justice should be substituted as the proper party. Defendant, however, does not cite any authority for this argument.The FBI is a proper party defendant.  The FBI is a component of the United States Department of Justice.  It clearly falls within the definition of an agency as that term is defined under the Administrative Procedure Act, 5 USC 551.The FBI is the custodian of the records sought by plaintiff.  Further, the FBI would act on any Order by this Court to produce the withheld material.  This argument, on the part of the FBI, that it is not a proper party defendant, is without merit and should be summarily rejected.

BRADY MATERIAL

At the time of plaintiff’s 1977 trial, the government produced roughly 3,500 pages of Brady material.  As a result of this instant action, as well as another FOIA lawsuit brought against the Chicago and Minneapolis field offices of the FBI, in the United States District Court for Minnesota[3], plaintiff has learned that the FBI actually maintains 142,579 pages that have never been reviewed or released to plaintiff or his attorneys.

It should be noted that the Tenth Circuit in Peltier v. Booker, 348 F. 3d 888, 896 (10th Cir. 2003), recently noted that:

“Much of the government’s behavior at the Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned.  The government withheld evidence.  It intimidated witnesses.  These facts are not disputed.”

In Ferri v. Bell, 645 F. 2d 1213, 1218 (3rd Cir. 1981), modified 671 F. 2d 769 (1982), the Third Circuit stated:

“The public at large has an important stake in ensuring that criminal justice is fairly administered to the extent disclosure may remedy and deter Brady violations, society stands to gain.”

Clearly, a great deal of the material sought in this case should have been turned over to plaintiff’s defense attorneys at the time of his 1977 trial.  This Court has the authority under 5 USC 552 (a) (4) (B) to correct this wrong by ordering the release of the requested documents without further delay. 

 TWO DOCUMENTS SEEM TO INDICATE POSSIBLE INAPPROPRIATE CONDUCT ON THE PART OF A CONFIDENTIAL SOURCE

Plaintiff is particularly interested in receiving unredacted copies of the pages marked PELTIER-74-Buffalo FO, PELTIER-75-Buffalo FO, PELTIER-76-Buffalo FO, PELTIER-550-Buffalo FO, PELTIER-551-Buffalo FO, and PELTIER-552-Buffalo FO.  For example, the language contained on PELTIER-75-Buffalo FO and PELTIER-551-FO seems to indicate that a confidential source was being advised by the FBI not to engage in conduct that would compromise attorney-client communications.

With respect to AIM, the FBI has a record of using confidential sources to compromise such communications.  The late Douglass Frank Durham[4] was a confidential source who infiltrated AIM.

“Mr. Douglas Durham, infiltrated the American Indian Movement under instructions of the FBI, won the confidence of Dennis Banks and Russell Means and other leaders of the movement, and occupied a series of high level positions in the organization.”[5]

Mr. Durham, much like the confidential source referenced in PELTIER-75-Buffalo FO and PELTIER-551-FO, was allegedly advised by the FBI not to engage in any activity that would violate any confidences of the defense; to engage in no activities, or relate to the FBI any information that had to do with defense tactics, or any legal aspect of the operations of AIM or the defense at that point.[6]  In spite of the advice he allegedly received from the FBI, Mr. Durham testified in the United States Senate about the 1974 trial of AIM leader Dennis Banks:  “If Dennis and I were sitting in a room and an attorney would walk in and start talking, I couldn’t jump up and say, ‘I can’t be here, the FBI won’t allow it.’”[7]

In light of the conduct engaged in by Mr. Durham, the Court should direct defendant to release PELTIER-74-Buffalo FO, PELTIER-75-Buffalo FO, PELTIER-76-Buffalo FO, PELTIER-550-Buffalo FO, PELTIER-551-Buffalo FO, and PELTIER-552-Buffalo FO.  Alternatively, the Court should invoke its authority under 5 USC 552 (a) (4) (B) to conduct an in camera review of the aforementioned pages.

FOIA EXEMPTIONS CANNOT BE USED TO SHIELD ILLEGAL OR UNAUTHORIZED TACTICS

The withholding of evidence, coercion of witnesses, the use of confidential sources to compromise attorney-client communications, the targeting of groups and individuals the government deems subversive, these are hardly the type of “investigative tactics” that should be encouraged or allowed to be hidden through the use of FOIA exemptions. In Stern v. FBI, 737 F. 2d 84, 93 (D. C. 1984), the Court recognized that “. . . the public has a strong interest in the airing of the FBI’s unlawful and improper activities  . . .”  Further, in Kanter v. Internal Revenue Service, 433 F. Supp. 812, 822 (N. D. Ill. 1977), it was made clear that: “FOIA does not shield materials relating to unauthorized or illegal investigative tactics.”Given defendant’s history of misconduct with respect to its investigation of plaintiff and AIM, it is submitted that the FOIA exemptions are being improperly invoked by defendant and all documents withheld in full or in part should be disclosed to plaintiff.

DEFENDANT HAS MADE NO ATTEMPT TO ASCERTAIN WHETHER THE INDIVIDUALS IT SEEKS TO PROTECT ARE STILL ALIVE

The records being sought are over 25 years old.  See Second Hardy Declaration ¶33. Many of the individuals referenced therein are no longer alive.  Nevertheless, there is no indication that defendant has made any effort to ascertain whether the individuals it seeks to protect under Exemption (b) (7) (C) are still alive.  See Bright v. Ashcroft, 259 F. Supp. 2d 494, 500 (E. D. La. 2003)and Davin v. U. S. Dept. of Justice, 60 F. 3d 1043, 1059 (3rd Cir. 1995).

In Schrecker v. U. S. Department of Justice, 254 F. 3d 162, 166 (D. C. Cir. 2001), the Court noted: “The fact of death . . . while not requiring the release of information, is a relevant factor to be taken into account in the balancing decision whether to release information.” Further, in Campbell v. U. S. Dept. of Justice, 164 F. 3d 20, 33 (D. C. Cir. 1998), it was noted that: “. . . death clearly matters, as the deceased by definition cannot personally suffer the privacy-related injuries that may plague the living.  A court balancing public interests must therefore make a reasonable effort to account for the death of a person on whose behalf the FBI invokes exemption 7 (C).”  Requiring defendant to determine if any of the individuals it seeks to protect are deceased would not be unduly burdensome.

PLAINTIFF IS NOT SEEKING THE RELEASE OF CERTAIN INFORMATION

Plaintiff is not seeking the release of third party social security numbers, e-mail addresses, business telephone numbers of FBI employees, source symbol numbers, informant file numbers, or temporary source numbers, thereby making any claim of exemption by defendant moot.

DEFENDANT HAS FAILED TO SUSTAIN ITS BURDEN OF PROOF WITH RESPECT TO ITS CLAIM OF EXEMPTION UNDER (b) (1)

The preamble to E. O. 12958, as amended, states that “Our democratic principles require that the American people be informed of the activities of their Government.”  Further, E. O. 12958 §1.7 (a) is clear in that:

“In no case shall information be classified in order to:  (1) conceal violation of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency.”

The sought-after records at issue are over 25 years old.  See Second Hardy Declaration ¶33.  Defendant argues that these records are exempt from automatic declassification by virtue of E. O. 12958 §3.3 (b) (6), as amended.  The Second Hardy Declaration, however, does not indicate whether the procedures contained in E. O. 12958 §3.3 (c) and (d), as amended, were followed.In addition, the Second Hardy Declaration fails to indicate how release of the requested information would impair relations between the United States and a foreign government.  Further, the Second Hardy Declaration fails to provide details regarding the FBI’s promise of confidentiality with the intelligence component of a specific foreign government.  The Second Hardy Declaration does not shed any light on when or how this promise was allegedly made.  Nor does the Second Hardy Declaration indicate who at the FBI gave this promise and under what authority such promise was made.

Also, the Second Hardy Declaration is deficient in that it does not provide details regarding the agreement with foreign law enforcement agencies which expressly forbids dissemination of the information it provided to defendant.  When was this agreement made?  Who at the FBI made the agreement and under what authority was it entered into?  Was it a verbal or written agreement?  What is the duration of the agreement?  The Second Hardy Declaration is seriously lacking in all of these areas.

After the June 26, 1975 firefight in which two FBI agents and AIM member Joe Stuntz Killsright lost their lives, plaintiff left South Dakota.  On February 6, 1976, plaintiff was arrested in Canada.  Plaintiff was later extradited from Canada to the United States, based in large part, on two of three contradictory affidavits provided by Myrtle Poor Bear, described by the Eighth Circuit as being “. . . not a reliable witness.”  See United States v. Peltier, 585 F. 2d 314, 332-33 (8th Cir. 1978).  In its opinion the Eighth Circuit noted:

“The use of the affidavits of Myrtle Poor Bear in the extradition proceeding was, to say the least, a clear abuse of the investigative process by the FBI.  This was conceded by government counsel on the hearing in this court.” See United States v. Peltier, supra, at 335, fn. 18.

Plaintiff believes that defendant may have improperly invoked Exemption (b) (1) to conceal misconduct on its part and to avoid further embarrassment concerning the manner in which it handled plaintiff’s case, particularly his extradition from Canada.

DEFENDANT HAS NOT PROVIDED ADEQUATE PROOF TO JUSTIFY NON- DISCLOSURE UNDER EXMEPTION (b) (3)

According to the Second Hardy Declaration ¶51, specific records had been requested by a Federal Grand Jury.  The Second Hardy Declaration, however, fails to indicate how this information would reveal the inner workings of the Federal Grand Jury that considered the case.  Defendant, therefore, has failed to meet its burden of proof with respect to Exemption (b) (3).In discussing Rule 6 (e) of the Federal Rules of Criminal Procedure, the Second Circuit has noted that,     “. . . the Rule is intended only to protect against disclosure of what is said or what takes place in the grand jury room.”  See United States v. Interstate Dress Carriers, Inc., 280 F. 2d 52, 54 (2nd Cir. 1960).  Also see Fiumara v. Higgins, 572 F. Supp, 1093, 1104 (D. N. H. 1983).The Second Circuit went on to say:

“. . . when testimony or data is sought for its own sake—for its intrinsic value in the furtherance of a lawful investigation—rather than to learn what took place before the Grand Jury, it is not a valid defense to disclosure that the same information was revealed to a grand jury or that the same document had been, or were presently being examined by a grand jury.” United States v. Interstate Press Carriers, Inc., supra.

In discussing Rule 6 (e), the D. C. Circuit has made clear that: “There is no per se rule against disclosure of any and all information which has reached the grand jury chambers . . .”  See Senate of Puerto Rico v. U. S. Dept. of Justice, 823 F. 2d 574, 582 (D. C. 1987).  Also see Securities and Exchange Commission v. Dresser Industries, 628 F. 2d 1368, 1382 (D. C. Cir. 1980).The Court in Senate of Puerto Rico v. U. S. Dept. of Justice, supra, went on to state:

“Automatically sealing all that a grand jury sees or hears would enable the government to shield any information from public view indefinitely by the simple expedient of presenting it to the grand jury.”

Also see Fiumara v. Higgins, 572 F. Supp, 1093, 1104 (D. N. H. 1983).The Second Hardy Declaration ¶51 is woefully inadequate and, as consequence, defendant has not sustained its burden of proof with respect to its claim of exemption under (b) (3).

THE CLAIM OF EXEMPTION UNDER (b) (7) (C) BY DEFENDANT IS UNWARRANTED

Defendant has invoked (b) (7) (C) to, among other things, protect third party names as well as the identities of some FBI employees.  The invocation of this exemption by defendant is curious indeed.  Defendant maintains a website, www.minneapolis.fbi.gov/peltier.htm, which contains third party names, along with the identities of FBI personnel.It should also be noted that retired FBI Agent, Edward Wood, maintains a website, www.noparolepeltier.com, relating to plaintiff’s case.  This website, much like the website maintained by defendant, contains third party names as well as those of FBI personnel.Further, a number of FBI employees have maintained a particularly high profile as it relates to plaintiff’s case.  These agents are:  Special Agent in Charge Richard G. Held, Special Agent in Charge Joseph Trimbach, Special Agent J. Gary Adams, Special Agent David Price, Special Agent William Woods, and Special Agent Norman Zigrossi.Earlier this year the Supreme Court dealt with an agency’s claim of exemption under (b) (7) (C).  The Court held that a “. . . requester must produce evidence that would warrant belief by a reasonable person that the alleged Government impropriety might have occurred.”  National Archives and Records v. Favish, 124 S. Ct. 1570, 1581 (2004).

In light of the facts referenced above, as well as those previously cited herein, any claim of exemption under (b) (7) (C), therefore, is of dubious validity. 

DEFENDANT HAS NOT SUSTAINED ITS BURDEN OF PROOF WITH RESPECT TO IT CLAIM OF EXEMPTION UNDER (b) (7) (D)

 The Supreme Court noted in Department of Justice v. Landano, 508 US 165, 178 (1993):

“ . . . Congress did not expressly create a blanket exemption for the FBI; the language that it adopted requires every agency to establish that a confidential source furnished the information sought to be withheld under Exemption 7 (D).”

     The Supreme Court went on to note that:

“ . . . the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7 (D) whenever the source provides information to the FBI in the course of a criminal investigation.” Landano, supra, at 181.

In order to sustain a claim of Exemption under (b) (7) (D) where a confidential source was allegedly provided an express assurance confidentiality, evidence must be provided in one of a number of forms.  The Second Circuit has held that such proof may include “ . . . declarations from the agents who extended the express grants of confidentiality, contemporaneous documents from FBI files reflecting the express grants of confidentiality, evidence of a consistent policy of expressly granting confidentiality to certain designated sources during the relevant time period, or other such evidence that comports with the Federal Rules of Evidence.”  See Halpern v. FBI, 181 F. 3d 279, 299 (2nd Cir. 1999).Defendant has failed to provide the requisite supporting documentation to support its claim that several sources provided information under an express assurance of confidentiality.The Second Hardy Declaration ¶63 asserts individuals were interviewed under circumstances from which an assurance of confidentiality may be implied.  The Second Hardy Declaration fails to indicate what formed the basis for this conclusion or the evidence used to support this contention.  Additionally, the Second Hardy Declaration ¶70 claims that it is clear that a local law enforcement agency provided information under circumstances from which confidentiality could be implied.  Once again the Second Hardy Declaration fails in that it does not indicate what formed the basis for this finding or the evidence used to support this belief.

CONCLUSION

The Second Circuit has recognized that “. . . where any agency withholds or redacts documents requested under FOIA, the agency bears the burden of sustaining its action.” See Massey v. FBI, 3 F. 3d 620, 622 (2nd Cir. 1993).  The defendant has not met its burden in this case.  Consequently, defendant’s motion for summary judgment should be denied and the material sought by plaintiff must be Ordered released. 

Dated:  August 11, 2004

Of Counsel:

Barry A. Bachrach, Esq.Bowditch & Dewey, LLP311 Main StreetP. O. Box 15156Worcester, MA 01615-0156

(508) 926-3403

bbachrach@bowditch.com

Bruce Ellison, Esq.P. O. Box 2508Rapid City, SD 57709-2508

(605) 348-9458

belli4law@aol.com