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Case 1:16-Cv-01610-TSC Document 25 Filed 01/18/17 Page 1 of 34 Case 1:16-cv-01610-TSC Document 25 Filed 01/18/17 Page 1 of 34 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GRANT F. SMITH, PRO SE ) IRmep ) P.O. Box 32041 ) Washington, D.C. 20007 ) 202-342-7325 ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OF AMERICA; ) ) CIVIL ACTION NO. 1:16-cv-01610 JOHN O. BRENNAN, Director, Central Intelligence ) Agency, C/O Litigation Division, Office of General ) Counsel, Central Intelligence Agency, Washington, DC ) 20505; ) ) ASHTON CARTER, Secretary, U.S. Department of ) Defense, 1000 Defense Pentagon Washington, DC 20301- ) 1000; ) ) JOHN KERRY, Secretary, U.S. Department of State, 2201 ) C Street NW, Washington, DC 20520; ) ) JACOB LEW, Secretary, U.S. Department of Treasury; C/O ) General Counsel, 1500 Pennsylvania Ave NW, Washington, ) DC 20220; ) ) ERNEST MONIZ, Secretary, U.S. Department of Energy, ) 1000 Independence Avenue SW, Washington, DC 20585; ) ) BARACK OBAMA, President, White House, 1600 ) Pennsylvania Avenue, Washington, DC 20500; ) ) PENNY PRITZKER, Secretary, U.S. Department of ) Commerce, C/O Office of the General Counsel, 1401 ) Constitution Ave., NW, Washington, DC 20230 ) ) Defendants. ) ) ) 1 Case 1:16-cv-01610-TSC Document 25 Filed 01/18/17 Page 2 of 34 REPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS 2 Case 1:16-cv-01610-TSC Document 25 Filed 01/18/17 Page 3 of 34 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. THE COURT SHOULD CONSIDER WPN-136 TO BE A LEGISLATIVE RULE ................. 2 A. Plaintiff has standing to challenge WPN-136 an unlawful legislative rule ......................... 2 B. Classification Bulletin WPN-136 is a legislative rule that is ripe for review .................... 13 C. WPN-136 is not challengeable under FOIA ...................................................................... 15 D. The Plaintiff has many interwoven claims upon which relief may be granted .................. 17 II. DEFENDANTS HAVE INJURED THE PLAINTIFF AS A DIRECT FUNCTION OF PROVIDING AID TO ISRAEL ................................................................................................... 22 A. Plaintiff was injured by the Defendant’s enactment of their foreign aid delivery scheme 22 B. There is no Political Question Doctrine barrier to redressing Plaintiff claims .................. 27 CONCLUSION ............................................................................................................................. 29 3 Case 1:16-cv-01610-TSC Document 25 Filed 01/18/17 Page 4 of 34 TABLE OF AUTHORITIES Cases Baker v. Carr, 369 U.S. 186 (1962). ........................................................................................................... 24 Citizens for Better Forestry v. United States Dep’t of Agric., 481 F. Supp. 2d (N.D. Cal. 2007) ................ 3 Community Nutrition Institute v. Young, 818 F.2d (D.C. Cir. 1987) ............................................................ 3 Kelley v. SOCIETE ANONYME BELGE D'EXPLOITATION, ETC., 1965 ................................................ 28 Levine v. Farley, 107 F.2d 186 (D.C. Cir. 1939) ........................................................................................ 26 Marbury vs Madison ................................................................................................................................... 27 Marbury, 5 U.S. (1 Cranch) ........................................................................................................................ 27 Meshal v. Higgenbotham, 2015 .................................................................................................................... 5 Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243. (D.C. Cir. 2014) .............................................................. 15 Nat’l Mining Ass’n, 758 F.3d ........................................................................................................................ 5 Syncor Inern corp v Shalala 127 F.3d ........................................................................................................ 15 US Department of Energy Office of Hearings and Appeals, Case No WBU-14-002, June 24, 2014 ........... 7 Williams v. Van Buren, 117 Fed. (5th Cir. Tex. 2004) ................................................................................. 3 Statutes Administrative Procedure Act ................................................................................................................... 2, 3 Other Authorities Daniel P. Moynihan and Larry Combest “Secrecy: A brief Account of the American Experience” at-59 Yale University Press, 1999. ................................................................................................................... 10 Douglas Birch, Israel’s Worst Kept Secret: Is Silence over Israeli Nukes doing more Harm than Good? The Atlantic, September 16, 2014 ........................................................................................................... 12 Douglas Birch, Nuclear weapons lab employee fired after publishing scathing critique of the arms race, Center for Public Integrity, July 31, 2014. ............................................................................................... 7 Goggle Consumer Surveys “Do You believe Israel has nuclear weapons?” 2014 ....................................... 9 James E. Doyle, Why Eliminate Nuclear Weapons, February 1, 2013 at the International Institute for Strategic Studies........................................................................................................................................ 6 Michael P. Colaresi “Democracy Declassified; the Secrecy Dilemma in National Security.” Oxford University Press P 6 201 ......................................................................................................................... 10 Revealed: the secrets of Israel's nuclear arsenal, October 5 1986 The Sunday Times ................................ 7 Avner Cohen, Israel and the Bomb, 1998 Columbia University Press ......................................................... 8 Seymour Hersh, The Samson Option: Israel’s Nuclear Arsenal and American Policy, 1991 Random House ........................................................................................................................................................ 8 The Vela Incident: South Atlantic Mystery Flash in September 1979 Raised Questions about Nuclear Test, National Security Archive, December 8, 2016 .................................................................................. 23, 25 Trust in Government, Gallup Poll .............................................................................................................. 28 Victor Marchetti in The CIA and the Cult of Intelligence, Knopf, 1974 ...................................................... 5 4 Case 1:16-cv-01610-TSC Document 25 Filed 01/18/17 Page 5 of 34 Rules WNP-136 Guidance on Release of Information Relating to the Potential for an Israeli Nuclear Capability ......................................................................................................................................................... passim Federal Statutes Arms Export Control Act ........................................................................................................................ 4, 10 Executive Orders Executive Order 12958 ................................................................................................................................. 4 Executive Order 13292 ................................................................................................................................. 4 Executive Order 13526 ........................................................................................................................ passim 5 Case 1:16-cv-01610-TSC Document 25 Filed 01/18/17 Page 6 of 34 INTRODUCTION The Defendants, acting in concert, through an easily visible chain of causation, have implemented a legislative rule that not only gags and punishes government employees and contractors who dare mention Israel’s nuclear weapons program, but also injures parties outside government conducting public interest research such as the Plaintiff. This legislative rule has but one purpose: enable unlawful US foreign aid deliveries to Israel, which otherwise would not stand if injured parties, such as the Plaintiff, were able to continue to expose the government’s own deep, longstanding knowledge of Israel’s nuclear weapons program and how failure to act violates the Arms Export Control Act. The Defendant’s legal arguments do not address the key facts in the Plaintiff’s first amended complaint, but rather seek to misdirect, inappropriately atomize, reprioritize, misstate and apply precedents that have little real bearing on the important legal questions raised by the Defendants’ improper actions. The court clearly has jurisdiction to redress the series of injuries inflicted upon the Plaintiff through a clearly discernable chain of causation by the Defendants pursuit of unlawful activities. 1 Case 1:16-cv-01610-TSC Document 25 Filed 01/18/17 Page 7 of 34 ARGUMENT I. THE COURT SHOULD CONSIDER WPN-136 TO BE A LEGISLATIVE RULE A. Plaintiff has standing to challenge WPN-136 an unlawful legislative rule Contrary to the assertions of the Defendants, that “Plaintiff’s
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