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Thursday, March 02, 2006

Shaffer and Smith First Amendment Lawsuit

On February 15th, the DIA prevented Tony Shaffer and JD Smith from having any legal counsel if they testified on matters relating to classified information in the closed session, which I don't believe JD Smith attended. Their attorney Mark Zaid filed a complaint on February 27th alleging that this action violated both their First Amendment rights and internal Department of Defense regulations. Able Danger Blog has obtained a copy of the complaint filed in DC District Court. Here is what they are seeking:

(1) Issue a permanent injunction to block the defendants from restraining theplaintiffs’ disclosure to their counsel of relevant classified information concerning ABLEDANGER;
(2) Declare that the plaintiffs possess a First Amendment right to communicate withtheir counsel to include discussions involving classified information;
(3) Declare that the defendants violated the Administrative Procedure Act and theirinternal regulations governing the granting of access to counsel to classified information;
(4) Declare that the plaintiffs possess the ability to reach need-to-know decisionsregarding the disclosure of relevant classified information;
(5) Declare that the plaintiffs’ counsel possess a need-to-know relevant classifiedinformation concerning ABLE DANGER;
(6) Require, if necessary, the defendants to conduct expedited backgroundinvestigations of the plaintiffs’ counsel to determine eligibility of access to certain levelsof classified information;
(7) Award the plaintiffs the costs of the action and reasonable attorney fees under theEqual Access to Justice Act or any other applicable law; and
(8) grant such other relief as the Court may deem just and proper.


You can download it here as a PDF. I'm also going to try pasting it here:

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIAANTHONY SHAFFER*1920 N Street, N.W.*Suite 300*Washington, D.C. 20006**and**J.D. SMITH*1920 N Street, NW*Suite 300*Washington, D.C. 20006**Plaintiffs,**v.**DEFENSE INTELLIGENCE AGENCY*Washington, D.C. 20340-5100*Civil Action No. 06-271 (GK)*and**DEPARTMENT OF DEFENSE*Washington, D.C. 20301**and**DEPARTMENT OF THE ARMY*104 Army Pentagon*Washington, D.C. 20310-0104,**and**GEORGE PEIRCE, individually and in his *professional capacity as *GENERAL COUNSEL*DEFENSE INTELLIGENCE AGENCY*Washington, D.C. 20340-5100**and**
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2ROBERT H. BERRY, JR., individually *and in his professional capacity as *PRINCIPAL DEPUTY GENERAL *COUNSEL, DEFENSE INTELLIGENCE *AGENCY*Washington, D.C. 20340-5100**and**WILLIAM J. HAYNES, II, ESQ.*GENERAL COUNSEL*DEPARTMENT OF DEFENSE*Washington, D.C. 20301**and**TOM TAYLOR*SENIOR DEPUTY GENERAL COUNSEL *DEPARTMENT OF THE ARMY*104 Army Pentagon*Washington, D.C. 20310-0104**Defendants.*************FIRST AMENDED COMPLAINTNOW COME plaintiffs Anthony Shaffer and J.D. Smith, by and through undersignedcounsel, to bring this action for injunctive and other declaratory relief pursuant to theFederal 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 U.S. Constitution,against defendants Defense Intelligence Agency (“DIA”), Department of Defense(“DoD”), Department of the Army (“Army”) and George Peirce, General Counsel, DIA,in his individual and professional capacity, Robert Berry, Jr., Principal Deputy GeneralCounsel, DIA, in his individual and professional capacity, William Haynes, II, GeneralCounsel, DOD, and Tom Taylor, Senior Deputy General Counsel, Army.
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3JURISDICTION1. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 1331.VENUE2. Venue is appropriate in the District under 5 U.S.C. § 703 and 28 U.S.C. § 1391.PARTIES3. Plaintiff Anthony Shaffer (“Shaffer”) is a civilian employee of the DIA and aLieutenant Colonel in the U.S. Army Reserves. He was a team member of the DoD effortdesignated “ABLE DANGER”4. J.D. Smith (“Smith”) is a defense contractor. He served as a contractor whoperformed work for the DoD effort designated “ABLE DANGER”.5. Defendant DIA is an agency as defined by 5 U.S.C. § 701 and is the employer ofShaffer. The DIA’s actions are responsible for the harm imposed upon Shaffer and Smith.6. Defendant DoD is an agency as defined by 5 U.S.C. § 701. The DoD’s actions orinactions are responsible for the harm imposed upon Shaffer and Smith.7. Defendant Army is an agency as defined by 5 U.S.C. § 701. The Army’s actionsor inactions are responsible for the harm imposed upon Shaffer and Smith8. At all times relevant to the facts in this case, defendant George Peirce (“Peirce”)serves as the DIA’s General Counsel. His actions, both in his personal and professionalcapacity, are responsible for the harm imposed upon Shaffer and Smith.
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49. At all times relevant to the facts in this case, defendant Robert H. Berry, Jr.,(“Berry”) serves as the DIA’s Principal Deputy General Counsel. His actions, both in his personal and professional capacity, are responsible for the harm imposed upon Shafferand Smith.10. At all times relevant to the facts in this case, defendant William Haynes, II,(“Haynes”) serves as the General Counsel, DOD. His actions, or inactions, areresponsible for the harm imposed upon Shaffer and Smith.11. At all times relevant to the facts in this case, defendant Tom Taylor (“Taylor”)serves as the Senior Deputy General Counsel, Army. His actions, or inactions, areresponsible for the harm imposed upon Shaffer and Smith.FACTS12. The plaintiffs performed certain duties in association with a Department ofDefense program code named ABLE DANGER which included both classified andunclassified components.13. ABLE DANGER was a United States Special Operations Command militaryintelligence program under the command of the U.S. Special Operations Command(“SOCOM”). It was created as a result of a directive from the Joint Chiefs’ of Staff inearly October 1999 by the chairman of the Joint Chiefs of Staff, Hugh Shelton, todevelop an Information Operations Campaign Plan against transnational terrorism,specifically al-Qaeda. 14. Upon information and belief, ABLE DANGER identified the September 11, 2001attack leader Mohamed Atta, and three of the 9/11 plot’s 19 hijackers, as possiblemembers of an al Qaeda cell linked to the 1993 World Trade Center Attacks or its
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5participants. This information was contained, among other locations, on a chart preparedby Smith and turned over to Shaffer for use by ABLE DANGER. Although no specificcriminal or terrorist activity was detected, these individuals were viewed as havingassociational links with known terrorists. No copies of the chart have been located.15. ABLE DANGER used all information legally collected under the rule of law. Allpublicly obtained information was approved after a legal review of SOCOM lawyers.However, the information was ordered destroyed and this was accomplished by the Spring of 2001, after ABLE DANGER had been officially and formally shut down forunknown reasons. Additionally, upon information and belief, in or around Spring 2004,the DIA improperly destroyed ABLE DANGER and other files that Shaffer hadmaintained in his DIA work space.16. If the primary assertion of the ABLE DANGER members is true, the earlyidentification of the four hijackers by ABLE DANGER contradicts the officialconclusion of the 9/11 Commission that American intelligence agencies had notidentified Atta as a potential terrorist prior to the 9/11 attack.17. Thus it is no surprise that former members of the 9/11 Commission, most notablyformer Senator Slade Gorton, who has appeared on numerous television programs on thismatter, have publicly challenged these assertions and, at times, implicitly or explicitlycalled those who have claimed to the identification of Atta pre-9/11 as liars. Two other9/11 Commission members, Timothy J. Roemer and John F. Lehman, both have claimednot to have received any information on Able Danger. Lee H. Hamilton, former ViceChair of the 9/11 Commission, and Al Felzenberg, a former spokesman for the 9/11
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6Commission, both denied that the 9/11 Commission had any information on theidentification of Mohammed Atta prior to the attacks. 18. However, Shaffer asserts that in October 2003, in Bagram, Afghanistan, he toldPhilip D. Zelikow, the Executive Director of the 9/11 Commission, and three other 9/11Commission staff members, that ABLE DANGER had identified 9/11 hijackers, “toinclude Atta”. Although Zelikow told Shaffer that what he had said was “very important”and provided Shaffer his business card and asked him to call the Commission uponShaffer’s return to the United States, when Shaffer did so in January 2004, his attempts toestablish recontact with the Commission were rebuffed. Instead Shaffer was told that theCommission had all the information it needed concerning ABLE DANGER from thePentagon. 19 In July 2004, Navy Captain Scott Phillpott independently met with 9/11Commission staff and also informed them that ABLE DANGER had identified several9/11 hijackers pre-9/11. 20. Not one mention of ABLE DANGER can be found in the 9/11 Commission’sfinal report.21. On August 12, 2005, Thomas H. Kean and Lee H. Hamilton, former Chair andVice Chair of the 9/11 Commission, issued a statement in response to media inquiriesabout the Commission’s investigation of ABLE DANGER. They now stated theCommission had been aware of the Able Danger program, and requested and obtainedinformation about it from the DoD, but none of the information provided had indicatedthe program had identified Atta or other 9/11 hijackers. They also confirmed that CaptainPhillpott had provided them information that Atta had been identified prior to the attacks
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7but that it was just days before the Commission’s report was scheduled to be released. However, at one point ABLE DANGER was described by a former 9/11 Commissionsenior staffer as “historically insignificant.”22. Since in or around Spring/Summer 2005, Shaffer has provided briefings on ABLEDANGER and/or the retaliation he has suffered from the DIA to several Congressionalcommittees and their staff. 23. By letter dated August 30, 2005, the plaintiffs’ counsel requested that thedefendants officially permit their access to relevant classified information concerningABLE DANGER in order to represent Shaffer, particularly in relation to the need tohandle classified congressional and DoD inquiries. This request was reiterated by letterdated August 31, 2005, due to a formal invitation for Shaffer to testify before the UnitedStates Senate.24. By letter dated September 16, 2005, defendant Peirce responded on behalf of alldefendants denying the undersigned counsel’s request for access to classifiedinformation. Upon information and belief, defendant Berry participated in drafting andformulating the defendants’ response. Peirce, as General Counsel, does not possess theauthorization or qualifications to render clearance determinations under thecircumstances.25. In September 2005, both Shaffer and Smith were scheduled to testify before theUnited States Senate Judiciary Committee to discuss their involvement with ABLEDANGER. Shaffer submitted proposed testimony to the DoD for classification review,but the DoD has never responded. In any event, the defendants claimed all informationconcerning ABLE DANGER was classified and refused to consent to allow the
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8testimony. Their undersigned counsel, Mark S. Zaid, testified in their place on September 21, 2005.26. Just days before Shaffer was to testify before the U.S. Senate JudiciaryCommittee, the DIA revoked his security clearance amidst allegations of criminalconduct and unfavorable credibility determinations. The DIA specifically asserted thatShaffer had lied during appeal proceedings. Upon information and belief, the revocationof Shaffer’s security clearance, particularly the speed at which it occurred, was, in part orin whole, in retaliation for Shaffer’s public and/or private comments concerning ABLEDANGER. Additionally, as part of Shaffer’s security clearance adjudication process, theundersigned counsel was provided access to classified information.27. By letter dated February 2, 2006, the plaintiffs renewed their request to sharerelevant classified information with their counsel, particularly in order to appear in aclosed, classified House of Representative’s hearing.28. By letter dated February 14, 2006, defendant Peirce responded on behalf of alldefendants denying the undersigned counsel’s request for access to classifiedinformation. Upon information and belief, defendant Berry participated in drafting andformulating the defendants’ response. Peirce, as DIA General Counsel, does not possessthe authorization or qualifications to render clearance determinations under thecircumstances.29. On February 15, 2006, Shaffer and Smith testified before two Subcommittees ofthe House Armed Services regarding ABLE DANGER and related programs. Shafferdesired to be represented by counsel in the closed session, which was allegedly to includeclassified testimony. He publicly commented during his open session testimony (and
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9reiterated during the closed session) that he was not going to be permitted counsel in theclosed session and that this fact placed him in potential legal jeopardy. Defendantsrefused to permit undersigned counsel access to classified information so as to permitthem to attend the closed, classified portion of the hearing and have therefore deprivedShaffer of his right to assistance of counsel during said hearings. Although theSubcommittees did not issue subpoenas, it was made clear that were Shaffer or Smith todecline to appear voluntarily they would be compelled to do so.30. At the last minute Smith was not permitted to testify during the closed, classifiedsession on February 15, 2006, so his access to counsel was no longer an issue. However,he will likely be called as a witness in classified sessions (and at one point in or aroundSpring 2000, unknown federal agents appeared at his workplace and confiscatedmaterials claiming they were now classified) in the future so the dispute remains live.31. Upon information and belief, additional Congressional hearings are to be heldincluding by, but not limited to, the House International Relations Committee and the Senate Judiciary Committee. If Shaffer or Smith decline to appear voluntarily they wouldbe compelled to do so by virtue of a subpoena.32. In addition to congressional meetings, the DoD Office of Inspector General iscurrently conducting an investigation into ABLE DANGER in general and specificallyallegations of the DIA’s retaliation against Shaffer. Both Shaffer and Smith have beeninterviewed. The undersigned counsel was forbidden to be present during Shaffer’sclassified interview notwithstanding Shaffer’s desire to be represented by legal counsel.33. Shaffer and Smith’s appearances before congressional committees andGovernment investigators are under oath or are subject to criminal penalty pursuant to
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10statute if false or inconsistent statements are made. Both Shaffer and Smith’s credibilityhas been called into question and, based on the official views of the defendants and othercurrent or former Government representatives, the claims they continue to make arenothing less than intentionally false. Therefore, the plaintiffs could potentially faceprosecution should their answers be held to be either false or inconsistent therebyrequiring representation throughout every aspect of these matters.FIRST CAUSE OF ACTION(FIRST AMENDMENT RIGHT TO COUNSEL)34. The plaintiffs repeat and reallege the allegations contained in paragraphs 12through 33 above, inclusive.35. The defendants have denied the plaintiffs’ access to counsel where classifiedinformation is concerned. Based on the defendants’ position neither plaintiff is permittedto share classified information with counsel, nor have counsel present to represent andprotect their interests during classified discussions. Should the plaintiffs share classifiedinformation with counsel they would be subject to civil and/or criminal penalties.36. The plaintiffs have determined that their counsel has the requisite need-to-knowrelevant classified information pertaining to ABLE DANGER that is essential to theprotection of their legal rights.37. The defendants’ denial of classified access to plaintiffs’ counsel constitutes aneffective denial of counsel and implicates and violates the plaintiffs’ protected rightsunder the First Amendment.38. The plaintiffs’ counsel both have a need-to-know relevant classified informationpertaining to ABLE DANGER and have been in the past, and would be now, favorablyadjudicated as eligible to receive the specific relevant classified information.
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1139. The plaintiffs are continually requested to participate in classified discussionswith members of Congress and/or their staff, as well as cooperate in official governmentinvestigations, and they prefer/need to do so with counsel in order to properly andeffectively ensure protection of their legal interests.SECOND CAUSE OF ACTION(VIOLATION OF INTERNAL REGULATIONS)40. The plaintiffs repeat and reallege the allegations contained in paragraphs 1through 33 above, inclusive.41. The defendants have denied the plaintiffs’ access to counsel where classifiedinformation is concerned. Based on the defendants’ position neither plaintiff is permittedto share classified information with counsel, nor have counsel present to represent andprotect their interests during classified discussions. Should the plaintiffs share classifiedinformation with counsel they would be subject to civil and/or criminal penalties.42. The plaintiffs have determined that their counsel has the requisite need-to-knowrelevant classified information pertaining to ABLE DANGER that is essential to theprotection of their legal rights.43. The defendants’ denial of classified access to plaintiffs’ counsel constitutes aneffective denial of counsel and was in violation or inconsistent with their existingregulations.44. The plaintiffs’ counsel both have a need-to-know relevant classified informationpertaining to ABLE DANGER and have been in the past, and would be now, favorablyadjudicated as eligible to receive the specific relevant classified information.45. The plaintiffs are continually requested to participate in classified discussionswith members of Congress and/or their staff, as well as cooperate in official government
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12investigations, and they prefer/need to do so with counsel in order to properly andeffectively ensure protection of their legal interests.WHEREFORE, Plaintiffs seek judgment against Defendants. (1) Issue a permanent injunction to block the defendants from restraining theplaintiffs’ disclosure to their counsel of relevant classified information concerning ABLEDANGER;(2) Declare that the plaintiffs possess a First Amendment right to communicate withtheir counsel to include discussions involving classified information;(3) Declare that the defendants violated the Administrative Procedure Act and theirinternal regulations governing the granting of access to counsel to classified information;(4) Declare that the plaintiffs possess the ability to reach need-to-know decisionsregarding the disclosure of relevant classified information;(5) Declare that the plaintiffs’ counsel possess a need-to-know relevant classifiedinformation concerning ABLE DANGER;(6) Require, if necessary, the defendants to conduct expedited backgroundinvestigations of the plaintiffs’ counsel to determine eligibility of access to certain levelsof classified information; (7) Award the plaintiffs the costs of the action and reasonable attorney fees under theEqual Access to Justice Act or any other applicable law; and(8) grant such other relief as the Court may deem just and proper.
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13Date: February 27, 2006Respectfully submitted,/s/______________________________Mark S. Zaid, Esq.DC Bar #440532Krieger & Zaid, PLLC1920 N St., N.W.Suite 300Washington, D.C. 20006