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10-1241
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UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT ___________________________________________
APRIL GALLOP, individually and for her minor child, E.G. Plaintiffs-Appellants, -vsDICK CHENEY, former Vice-president of the United States, DONALD RUMSFELD, former Secretary of Defense, Gen. RICHARD MYERS, U.S.A.F. (Ret.), Defendants-Appellees, and John Does Nos. 1-X, all in their individual capacities, Defendants. _______________________________________________________________ MEMORANDUM IN RESPONSE TO THE COURT'S OCTOBER 14, 2011 ORDER TO SHOW CAUSE _______________________________________________________________ DENNIS CUNNINGHAM 115-A Bartlett Street San Francisco, CA 94110 415-285-8091 denniscunninghamlaw@gmail.com Attorney for plaintiff-Appellant

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RESPONSE TO ORDER TO SHOW CAUSE

I. BACKGROUND Here are the words applied by the district court, and echoed and adopted by the Panel here, in rejecting the plaintiff's conspiracy theory in this case, out of hand, and here with sanctions: The complaint pleads little in terms of factual content, is filled only with speculation and conjecture, the product of cynical delusion and fantasy, which is factually frivolous, clearly baseless, and fanciful, fantastic or delusional. Decis, Doc 25, p.11-13. Of course the allegation of such a diabolical betrayal of the country is scandalous, repellant and outrageousand undoubtedly implausible, on its face, in the sense of being literally unimaginableto many people, even most. With all respect, that subjective response does not make the shocking accusations in the complaint frivolous, or warrant the courts' denigration and opprobrium. The complaint would be frivolous if there were no facts stated, or only bogus facts, to support the shocking claims. But we made detailed, unmistakably non-conclusory factual averments90-plus by actual countto support the charges, and the theory, in exercise of the right the Court itself said we certainly had to bring such a case. The district judge had abandoned any effort to identify the allegations not entitled to be taken as true, because they are conclusory, per Iqbalwhere our allegations, except within the permissible framework identified in Iqbal, 129 S.Ct at 1950, clearly were not conclusoryapparently because the very idea of the conspiracy we outlined struck him as simply unbelievable, and repugnant. Even if the facts alleged are true' he said, the

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claim is implausible; and thus the meaning of the facts was expelled from the calculus of his judgment. This Court followed suit, condemning our averments as fantastical alternative history, while adopting the contradictory and contested official version of the facts as its own; then went a step further to impose this hefty fine.

II. THE MOTION FOR RECUSAL WAS NOT MADE IN BAD FAITH. Looking back, it is difficult to seewhere we were met with such harsh characterization and peremptory dismissal of the carefully explicated, objectively plausible, factual narrative and theoretical scenarios we presented, as mere speculation and conjecturewhat we could do, besides attempt to disqualify the authors of such a sweeping, a priori condemnation from further authority over the plaintiff's case. It seemed a natural outgrowth of our duty as advocates. In good faith, the Court's action seemed to us to have no other plausible source than extremely strong feelingstotally understandable in the aftermath of the outrageous, deadly attackarising from the disaster that occurred that day, so close to home. Certainly it was not difficult to conceive that a natural, very strong feeling would abide, in Americans of high station who were right there when it happened, breathed the dust, weathered the chaos, and then lived through the aftermath. Many people in Manhattan were left with deep-etched memories, based in high emotions and consolidated around an extremely distorted, inflammatory, public story of what happenedas in, e.g, They hate us for our freedoms. Who simply would not brook any question of the patriotic version, let alone serious

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consideration of a false flag or inside job conspiracy theory, and were made seriously angry by the very thought.1 That alone was why we invoked the possible need for recusal also of any other members of the Court who lived through it, and might have shared the reaction that the Very Idea was outrageous, reprehensible, and in need of suppression. This view did not seem at all demeaning or outlandish; and we surely meant nothing personalany more than we would in questioning a prospective juror who had been present in lower Manhattan on 9/11 about sitting in a trial of our caseand no offense to anyone. I do apologize to the Court and to the judges of the Panel for aggressive, judgmental, or jarring, words and usages which I didn't tame out of the prose in the Affirmation, which have given offense. I mean it sincerely, because I know I have a tendency to be angry about what happens in abuse-of-authority cases, and to let it show and sometimes push it too far. I apologize also if I appeared to patronize the Court; it was an overreaction to feeling demeaned, and disrespected

It is fair to point out that the situation has precedent. No legal case we know of has involved an attack on United States soil, killing many people. A comparable attack, Pearl Harbor, occurred when none or few of the present justices were alive, and no case arose from it. However, a respected 1999 book by a World War II veteran, Robert Stinnett, provided abundant well-documented detail showing that President Roosevelt put in place an eight point plan to provoke the Japanese to attack Pearl Harbor, and to leave Pearl Harbor undefended, and that the purpose was to provide the motivation for the U.S. to declare war on Japan, and because of Japans mutual defense pact with Germany, to justify our getting into the war in Europe to stop Hitler, which otherwise the American people would not support. For many years, almost any American would have considered someone accusing Roosevelt of that betrayal a loony conspiracy theorist. The Gulf of Tonkin incident similarly is now well known to have been a fraudulent excuse to expand the war against Vietnam in 1964.
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by nature and tenor of the Courts judgments. As always, I felt it my obligation to the cause of exposure and truth-finding, and the interests of the plaintiff and her child, which motivated our efforts, to press the case as strongly as such strong evidence seemed to allow.2 I meant no disrespect to the Court. I was mad at the judges for being mad at me, so I fought back. I should have known I need to exercise much more restraint and to avoid appearing to attack the court; I'm sorry for that.

III. FACTUAL JUSTIFICATION FOR THE PLAINTIFF'S CLAIMS On the underlying issue of supposed frivolousness, we can only deny that we presented only irrelevant information, in a jarringly disorganized manner, and random accounts, as the Court called it, or failed to show a sufficient basis for pursuing the appeal. The allegations the plaintiff was entitled to have taken as true under Iqbal, because they were concretelyand meaningfullysupported, and not conclusory', form a coherent, plausible fact basis for the framework of plaintiff's conspiracy claims. At a minimum, we have made the following claims of concrete fact, which still deserve recognition as suchthe failure to grant which was what we appealed, as a matter of right: A. Failure of the Defenses. The Bush government, and the military, received a strong and pointed series of warnings over the course of 2001, that al Qaeda, and bin Laden, were determined to attack the US. These warnings were

I have previously been the object or part of the object of such judicial consternation, provoked by the very idea of charges we raised against high officials, but it didn't carry the day. See, Hampton v. Hanrahan 600, F.2d 600, 6?? (7th Cir. 1979) (Pell, J., dissenting), and Hanrahan etal v. Hampton, etal, __ U.S. __, 100 S.Ct. 1987, 19??) (Powell, J., joined by Frick and Frack, JJ., dissenting).
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ignored, and Bush, and Cheney, later told the co-chairs of the 9/11 Commission there was no warning; and the Commission ignored the contradiction in its Report. FAA flight controllers in Boston and elsewhere gave timely notice to military authorities that the four airliners were out of contact and possibly hijacked. According to normal protocol and practice USAF-NORAD jets would have been readily able to intercept all four planes, but launchings were inexplicably delayed and misdirected, and three of the planes got through to their targets. The defendants, the president and other high officials insisted publicly afterwards that no one in the U.S. security apparatus ever remotely dreamed that terrorists might seize airliners and fly them into buildings as living bombs. In fact, however, all the agencies, NSA, CIA, USAF, FAA, etc. had planned and trained extensively for just such a possibility, and elements of them were involved in a supposed training exercise based on that premise, on that very day. B. The Destruction of the Towers. We aver there is zero possibility that the crash of the two planes into the twin towers caused their sudden disintegration, 56 and 102 minutes, respectively, after the crashes; let alone the unmistakable controlled demolition of WTC7, seven hours later, which went unmentioned in the 9/11 Commission Report. The evidence of one's own eyes makes it clear that both towers were blown up, in enormous explosions, which necessarily involved pre-placed explosives, including nanothermitea secret, high-grade, microscopically fabricated explosive and incendiary substance, under exclusive control of the U.S. military, which heats immediately to some 4500 degrees F when ignited, and cuts right through solid steel.

Substantial amounts of both ignited and unignited nanothermite chips and

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spherules have been found in at least four separately-collected dust samples from the site, and confirmed in peer-reviewed tests and analysis published in a scientific mainstream journal, The Open Chemical Physics Journal, for April 2009. Quantities of molten iron, were uncovered in the wreckage, days later, which could not be accounted for in the absence of the extreme heat generated by nanothermite ignition. Many hundreds of upstanding architects, engineers and scientists have joined in formal rejection of the official explanation(s) of how the towers collapsed, and demanded a new, full, independent investigation of their destruction. More than a hundred firefighters and other personnel at the scene have testified that they heard and felt multiple large explosions inside both towers in the moments before and during the collapse of each.. C. What Hit the Pentagon. The evidence of one's own eyes also proves that no airliner crashed into the Pentagon, as claimed by authorities (and conspirators) in the aftermath of the bombing in which the plaintiff and her child were injured. In view of the plain evidence, photographic and physical, and the telling, wholly implausible lack of such evidence supporting the official version, the withholding of 85 Pentagon surveillance videotapes, and the first-hand testimony of the plaintiff and numerous others, the claim that no airliner hit3 is certainly far from conclusory. It is entitled to be taken as true.

And it is already concluded that no warning was given, despite clear

Go to http://911research.wtc7.net/pentagon/evidence/photos/bluehi.html for the clearest photos. 7

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knowledge that a dangerous rogue plane was approaching, and plenty of time for interceptor jets to stop it. Defendant Cheney was kept aware of its approach up to the last minute, Ten miles out. Truly, the striking testimony of Secretary Mineta about Cheney's ordersof course they still stand!is a solid concrete pillar supporting the set of facts alleged in this complaint, and entitled to be taken as true. If a plane was comingand no conspiratorial standdown orders were in effectwhy didn't U.S. Forces shoot it down, or at least try to; and why on Earth did the commanders not order evacuation of the building? And why was the plaintiff not free to plead the matter in the alternative, or to amend, if her allegations needed clarification and marshaling? The interceptors and the anti-aircraft defenses, at the moment of the greatest need, the greatest threat ever, were silent, inert, and nowhere to be found. Whether it was a plane or a bomb that injured her, the high command is jointly implicatedand their acts and omissions throughout clearly show a meeting of the minds about iton this evidence. D. Pleading The Conspiracy. Indeed, anent the suggestion that we failed to support the conspiracy charge, with our random accounts, we review highlights: The named defendants were jointly in charge of our country's defensesCheney for counter-terrorism, Rumsfeld for defense, and the Pentagon, and Myers the Air Force and the military generallywhen the same so totally broke down; and the system-wide failure has proved not simply inexplicable since, if no standdown orders were in effect, but it basically was of no concern to these highest commanders in the aftermath. They did not take responsibility for the foulups that occurred, nor yet investigate to fix responsibility among their subordinates, and inform the Public of the truth about the system breakdown.
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Instead, the blame has been deflected onto vague, contentious intelligence failures, which, in relation to the operational failures in the immediate events of that day, with the defendant commanders actively involved, is not simply implausible, but unresponsive and basically irrelevant. On that day, as Richard Clarke reported, Rumsfeld and Myers were in their seats together in the Pentagon for the teleconference, as one would expect, shortly after the second plane hit in New York, at 9:03 a.m. The FAA had put out word that Flight 77 was headed back east at about 8:55 a.m., they say. Cheney was in action in the White House bunker when Mineta got there at 9:20, latest, getting the updates; obviously they were all in touch, and evidently all had basically the same radar hookups. Clearly they and others shared what is called situational awareness well before the Pentagon was hit. Is it not fantastical alternative history then, to pretend that in such a fraught moment the three defendants and their cohorts collectively, and without design, failed to mobilize and direct or oversee the superbly practiced, top-gun defense forceor at least be in touch to make sure they were in action, at the Pentagon in particularwhich in normal operation unquestionably would have neutralized the threat of this airliner before it crashed into yet a third American target that day? That is a fact entitled to be taken as true, at the pleading stage: the defendants as top commanders implausiblyto such a degree as to shift the burden onto them to explain itfailed to ensure the proper normal operation of the defenses, and have dissembled and fudged all reasonable accounting and explanation of what went wrong.

Our investigation (and Rule 11 due diligence), showed numerous qualified

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people available to prove up what normal operations would have been, and how things might, or could have, or did or didn't, go wrong, within the system these men commanded. That is to say the buck, for the grand, harrowing failure of normal operation of U.S. defenses, which led to so much death and destruction, stops with these defendants. But, instead of moving forcefully to discover where within their commands the breakdowns occurred, and who was responsible for them, they made no effort to find that out or explain it to the Public. Rather, all three defendants gave vague accounts of their own actions, and contradicted themselves, and each other, and none were ever seriously questioned about what actually happened, and who was responsible. An elaborate cover-up was mounted instead, which came to center around a fraudulent official report, constructed by a Bush Administration plant, containing 115 identifiable, significant errors, omissions and distortions; and, in the fervent, new, post-new Pearl Harbor atmosphere, the defendants turned quickly to other concerns.

IV. CONCLUSION. The case is complex and profound, the body of evidence is vast and continually growing, and the obvious avenues for inquiry in a discovery process are manifold. Were it not for the brute implausibility and scandal of the underlying Very Idea that such men as these defendants would ever in the world imagine doing such a thingand an undoubtedly strong resentment of this accusation among their peers, likely including many judges4a case with this The late Justice William O. Douglas in his autobiography, reported receiving some crucial teaching from Chief Justice Charles Evans Hughes (an eminent Republican from New York), in ...a statement to me which at the time was shattering but which over the years turned out to be true: 'Justice Douglas, you
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much concrete factual support, especially with so much of it already conclusively established, could not plausibly be quashed at the pleading stage. It must be acknowledged that the Iqbal decision, appears to authorize some subjective form of appraisal: When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief; a context-specific task to which the court will apply judicial experience and common sense. This surely is not license to simply pronounce shocking claims of wrongdoing in high places, and the factual narrative supporting them, implausible! and throw them out of courteven if the factual allegations are true.5 It remains difficult, in any case, in the legal, political, and evidentiary circumstances shownwhere the Court said explicitly that, Gallop or any other plaintiff certainly may allege that the most senior members of the government conspired to commit acts of terrorism against the United Statesto understand the basis on which the Court reasoned that we should have known, within our

must remember one thing. At the Constitutional level where we work, 90% of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.' Before that, Douglas said, I had never been willing to admit to myself that the 'gut' reaction of a judge at the level of Constitutional adjudications, dealing with the vagaries of due process, freedom of speech and the like, was the main ingredient of his decision. The admission of it destroyed in my mind some of the reverence for immutable principles. William O. Douglas, The Court Years, 1939-1975: The Autobiography of William O. Douglas, p.8. Plaintiff is now attempting to persuade the high Court to see the problem Iqbal created, reflected here, and consider the need for refinement of its new rule. See Gallop v Cheney etal, Petition for a Writ of Certiorari to the 2nd Circuit; submitted October 25, 2011.
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ethical selves, confronted with the ruling that even non-conclusory facts don't matterthat to appeal would be an actionable transgression. That expectation appeared unjust, and was the foundation of the impulse to move for recusal. As noted, we felt it was our obligation, within the terms of our advocacy, and the right to be obnoxious6 in pursuit of it. I regret that it caused offense. ** ** **

Withal, there is a necessary special plea to be made: to wit, that the Court agree to remit the share of the fine accruing to Mustapha Ndanusa, Esq., and otherwise exonerate him herein, because he was not involved in the case until after the complaint was filed, and then he served as local counsel only, implementing our needs on the ground, not forging or determining in any way what we said to the Court (indeed, he repeatedly counseled restraint; sometime successfully, sometimes not...). Whatever guilt there is for the appeal or the motion, he should not share in it. WHEREFORE, I ask again that the Court recognize that the recusal motion, in response to the original decision, was made as a matter of righteous if See In re: Dellinger etal, & Kunstler and Weinglass (R.I.P.), 461 F.2d 389, 400 (7th Cir. 1972)(Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client's behalf. An attorney may with impunity take full advantage of the range of conduct that our adversary system allows. Given this extreme liberality necessary to a vital bar and thus the effective discovery of truth through the adversary process, an attorney possesses the requisite intent (to commit contempt, or, say, deliberate, malign frivolityed.) only if he knows or reasonably should be aware in view of all the circumstances, especially the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.) (Emphasis added).
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overheated advocacy, and not in bad faith, andto the extent the matter is not already foreclosed by the present decision and order against Vealethat it decide to refrain from imposing sanctions for it, on him or me; that the sanctions be vacated altogether as to Attorney Ndanusa, for the reasons given, and that the Court grant such other and further relief as is just in the premises of the case. Respectfully submitted, /s/ Dennis Cunningham Attorney for Plaintiff

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