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Shaffer v. Defense Intelligence Agency

February 24, 2009


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiffs Anthony Shaffer ("Shaffer") and J.D. Smith ("Smith") bring this action against Defendants the Defense Intelligence Agency ("DIA"); the Department of Defense ("DoD"); the Department of the Army ("Army"); George Peirce, General Counsel of DIA; Robert Berry, Jr., Principal Deputy General Counsel of the DIA; William J. Haynes, II, General Counsel of the DoD; and Tom Taylor, Senior Deputy General Counsel of the Army,*fn1 pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the All Writs Act, 28 U.S.C. § 1651, and the First Amendment of the U.S. Constitution. Plaintiffs seek declaratory and injunctive relief.

On August 10, 2006, Plaintiffs' claims against Defendants Peirce and Berry in their individual capacities were dismissed.

This matter is before the Court on Defendants' Motion to Dismiss all remaining claims [Dkt. No. 13]. Upon consideration of the Motion, Opposition, Reply, the entire record herein, and for the reasons set forth below, Defendants' Motion to Dismiss is granted in part and denied in part.

I. Background*fn2

Plaintiffs Anthony Shaffer and J.D. Smith were involved in a DoD project known as "ABLE DANGER." Plaintiff Shaffer worked on the project as a civilian employee of the DIA, and was also a Lieutenant Colonel in the U.S. Army Reserves. Plaintiff Smith was a civilian defense contractor. Plaintiff Smith's work on ABLE DANGER was unclassified. Defs.' Mot., Exh. C.

ABLE DANGER was a U.S. Special Operations Command military intelligence program. Its mission was to develop an Information Operations Campaign Plan against transnational terrorism.

At an unspecified date prior to September 11, 2001, ABLE DANGER identified four individuals as possible members of an Al Qaeda cell that was linked to the 1993 bombing of the World Trade Center. One of these four individuals was Mohamed Atta.

By the spring of 2001, information collected as part of the ABLE DANGER program was destroyed, and the program was shut down. The DIA destroyed files maintained by Plaintiff Shaffer in his DIA work space, including some files related to ABLE DANGER.

On September 11, 2001, four commercial planes were hijacked. Two planes were flown into the World Trade Center towers, one was flown into the Pentagon, and one crashed in Pennsylvania. In total, nearly 3,000 people were killed. The hijackers included Mohamed Atta and the three other individuals identified by ABLE DANGER.

In the wake of the events of September 11, 2001, the 9/11 Commission ("Commission") was formed. In October 2003, Plaintiff Shaffer discussed ABLE DANGER with Philip Zelikow, the Commission's Executive Director, when both were in Bagram, Afghanistan.*fn3 He informed Zelikow that ABLE DANGER had identified individuals who were later learned to be participants in the September 11 hijacking, including Atta.

In response, Zelikow told Plaintiff Shaffer that this information was "very important," provided Plaintiff Shaffer with his business card, and asked him to contact the Commission upon his return to the United States. When Plaintiff Shaffer returned to the United States in January 2004, he contacted the Commission. The Commission informed Shaffer that it possessed all the information on ABLE DANGER that it needed.

The Commission also received information about ABLE DANGER from Navy Captain Scott Phillpott. In July 2004, Phillpott met with staff members from the Commission and informed them that ABLE DANGER had identified some of the hijackers prior to September 11, 2001.

Despite Plaintiff Shaffer's conversation with Zelikow and Phillpott's meeting with Commission staff, the Commission concluded that U.S. intelligence agencies had not identified Atta as a potential terrorist prior to September 11. Two of the members of the Commission claim that they received no information about ABLE DANGER. The Commission's final report does not mention ABLE DANGER.

After the Commission released its final report, members of the media inquired about the Commission's investigation of ABLE DANGER. In response, Thomas Kean, the Commission's Chair, and Lee Hamilton, its Vice Chair, issued a statement claiming that the Commission had been aware of ABLE DANGER but that it had no information that ABLE DANGER identified any of the hijackers prior to September 11, 2001. The statement also confirmed that Phillpott had met with Commission staff but noted that this meeting had occurred only days before the final report was scheduled to be released.

Since the spring of 2005, Plaintiff Shaffer has briefed Congressional committees and their staff members on ABLE DANGER. He has also described retaliation that he suffered from the DIA because of his discussions about ABLE DANGER.

In a letter dated August 30, 2005, Plaintiff Shaffer's counsel, Mark Zaid, requested that Defendants permit him and his law partner, Roy Krieger, to discuss classified information regarding ABLE DANGER with their clients. In a letter dated August 31, 2005, counsel repeated the same request with regard to an invitation from the Senate Judiciary Committee to present testimony.

In a letter dated September 16, 2005, Defendants rejected the requests. Pls.' Opp'n, Exh. 5. The letter stated that Plaintiff Shaffer had not demonstrated that access to classified information was "necessary" for counsel to "adequately" represent his client. Id. It also stated that due to counsel's "abusive" past behavior (including conduct described as a "'Rambo' litigation tactic" by one judge in this District, Assassination Archives & Research Ctr. v. CIA, 48 F. Supp. 2d 1, 10 (D.D.C. 1999) (Lamberth, J.)), allowing him to access classified information "would not represent an acceptable security risk." Id. Based on these two rationales, the letter concluded that denying Plaintiffs' counsel's request would be consistent with DoD regulations. Id.

Plaintiffs Shaffer and Smith were scheduled to testify about ABLE DANGER before the Senate Judiciary Committee in September 2005. Shaffer submitted his proposed testimony to the DoD for classification review. The DoD never responded, but Defendants claimed that all information was classified and refused to permit the ...

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