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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Defendant.

UNITED STATES OF AMERICA

CR No. 02-37-A

Plaintiff,

v.

JOHN PHILLIP WALKER LINDH,

REPL Y MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DISCOVERY OF DOCUMENTS FILED IN CAMERA

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INTRODUCTION

In its opposition to Mr. Lindh's motion to compel production of the in camera

documents, the government fails to offer any persuasive reasoning that would justify continued

withholding of the documents from the defense. Instead of responding to Mr. Lindh's

arguments, the government makes conclusory assertions about Rule 16 and Brady and relies on

simple restatements of general legal principles regarding privilege. As the government has not

met its burden of demonstrating why the in camera documents should not be disclosed, the Court

should direct the government to produce them to Mr. Lindh.

ARGUMENT

I. RULE 16(a)(1)(A), RULE 16(a)(2), RULE 16(a)(1)(C) AND BRADY ALL PROVIDE FOR THE DISCLOSURE OF THE IN CAMERA DOCUMENTS

Both statutory and case law authority support the production of the in camera documents.

To the extent any of the documents contain "reference to a relevant oral statement by the

defendant," they must be produced pursuant to Rule 16(a)(1)(A). Fed. R. Crim. P. 16(a)(1)(A),

Notes of Advisory Comm. on 1991 Amendments (emphasis added). If any ofthe in camera

documents discuss or reference any of the circumstances surrounding Mr. Lindh's incarceration,

his interrogation, or his access to counsel, they are highly "material to the preparation of the

defendant's defense" and production is required under Rule 16(a)(1)(C). Moreover, to the extent

these documents offer exculpatory or impeachment information, or indicate government

misconduct in manipulating Mr. Lindh's circumstances in order to elicit incriminating statements

from him, they are material evidence favorable to the defense and discoverable pursuant to

Brady.

The government's response is two-fold. First, the government states its "conviction that

these documents [are] not relevant and [are] privileged." (Gov't's Opp. to Def.'s Mot. to Compel Discovery of Documents Filed In Camera ("Gov't. Opp.") at 1.) This contention falls

short. That the documents are relevant seems obvious from the dates and times the

communications were sent and received, as well as from the identities of the Department of

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Justice officials who sent, received and reviewed them. The dates and times correlate to the

same period during which Mr. Lindh was transferred to Camp Rhino and then interrogated by an FBI agent. Moreover, despite the government's attempt to cloak the in camera documents in the

protection of privilege, the privileges invoked are not necessarily absolute. The veil of privilege, once raised, may be pierced upon an adequate showing by the defendant. 1

Second, the government asserts that the documents "are not producible under either

Federal Rule of Criminal Procedure 16(a)(l)(A) or 16(a)(l)(C), nor are they Brady material."

(Gov't. Opp. at 1.) No reference to any legal authority accompanies this assertion, nor even any explanation as to why this is so, save for a single line in the government's brief that states the in

camera documents "concern internal communications by government attorneys and are not

relevant or discoverable under either Rule 16 or Brady." (Gov't. Opp. at 2.) To the extent the

government contends that the in camera documents contain no oral statements of Mr. Lindh, nor any evidence material to the preparation ofMr. Lindh's defense, nor any exculpatory material, Mr. Lindh relies on the Court's in camera review ofthe documents to determine that this is so.

If, however, the government's argument is that the documents are not discoverable because they

"concern internal communications by government attorneys," that position is flawed.

The fact that the documents may be internal government communications does not, in

itself, shield them from discovery. The plain language of Rule 16(a)(I)(A) makes oral

statements of the defendant discoverable even if those statements are contained in internal

government memoranda, notwithstanding Rule 16(a)(2). See Fed. R. Crim. P. 16(a)(2)

(prohibiting discovery of internal government documents "[ e ]xcept as provided in paragraph[ ]

(A) ... of subdivision (a)(l)"); see also, e.g., United States v. Ollison, No. 92-CR-365, 1995

1 Mr. Lindh recognizes that under some circumstances, the assertion of privilege may be absolute. See, ~, In re Sealed Case, 121 F.3d 729, 736-37 (D.C. Cir. 1997) (citing cases that give the executive the right to withhold documents that might reveal military or state secrets). Here, however, the asserted privileges at issue are not necessarily absolute. They have all been qualified in certain contexts: For example, the attorney-client privilege has been qualified when asserted in the context of a federal grand jury investigation, see In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C. 1998), or where there are indications of governmental misconduct, see Better Gov't Bureau v. McGraw, 924 F. Supp. 729 (S.D. W. Va. 1996), rev'd on other grounds; fact-work product may yield to defendant's showing of substantial need and inability to secure the substantial equivalent without undue hardship, In re Allen, 106 F.3d 582, 607 (4th Cir. 1997); and the deliberative process privilege may give way to demonstrable factors, In re Sealed Case, 121 F.3d at 737-38.

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u.s. Dist. LEXIS 207 at * 18 (N.D. Ill. Jan. 11, 1995) ("Of course, the immunity granted to

internal government reports by Rule 16( a)(2) furnishes no protection from the discovery of a defendant's statements which falls within the scope of Rule 16(a)(1)(a) [sic]."). Here, even the

government concedes that "the bulk of the evidence in this case" comes directly from oral

statements ofMr. Lindh, (Gov't's Opp. to Def.'s Mot. for Bill of Particulars at 7), underscoring the importance of ensuring the government complies with its obligation to produce such statements, regardless of whether they are memorialized in internal government documents or

elsewhere.

Moreover, although information normally discoverable under Rule 16(a)(1)(C) is not

subject to production if it is contained in internal government documents, it is clear that Brady material, even when found in internal government documents, must be disclosed. See United

States v. Horvwalt, No. 93-5193,1995 U.S. App. LEXIS 21965 at *5, n.l (4th Cir. Aug. 14,

1995) ("Although the government argues that it was entitled to refuse discovery of any alleged police reports under Rule 16(a)(2) of the Federal Rules of Criminal Procedure, this rule does not override the constitutional mandates required by Brady and Giglio. Fed. R. Crim. P. 16, Notes of

Advisory Committee on Rule, 1974 Amendment."); United States v. Spivey, Cr. No. 95-0491

LH, 1997 U.S. Dist. LEXIS 3903 at *4 (D.N.M. Jan. 16, 1997) (citing 2 C. Wright, Federal

Practice and Procedure § 254, p. 81 (2d ed. 1982) for the proposition that Brady overrides

16(a)(2)).

Therefore, to the extent the in camera documents contain oral statements of Mr. Lindh or

material evidence favorable to the defense, the government's objections must fail and the

documents should be produced to Mr. Lindh.

II. THE GOVERNMENT HAS FAILED TO MEET ITS BURDEN OF DEMONSTRATING SPECIFICALLY AND PERSUASIVELY THAT THE IN CAMERA DOCUMENTS ARE PRIVILEGED

As the Fourth Circuit has noted, "[l]ike all privileges, the attorney-client privilege

'interferes with the truth seeking mission of the legal process,' and therefore is not 'favored." In

re Allen, 106 F.3d 582, 600 (4th Cir. 1997) quoting United States v. Aramony, 88 F.3d 1369,

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1389 (4th Cir. 1996). Mr. Lindh does not contest that "in certain circumstances," the privilege is available to "governmental officials," Better Gov't Bureau, 924 F. Supp. at 733; however, government agencies who invoke the privilege bear the same burden as do private parties of

establishing its applicability. Allen, 106 F.3d at 600, n.8 citing Resolution Trust Corp. v. Diamond, 137 F.R.D. 634, 643 (S.D.N.Y. 1991). (Indeed, as keeper ofthe public trust, the

government has a special responsibility to "favor disclosure over concealment." Grand Jury

Proceedings, 5 F. Supp. 2d at 42.) That burden is not discharged by the government's blanket assertion that the documents at issue are legal advice protected by the attorney-client privilege.

Rather, "[t]he law ... places the burden of proof on the proponent ofthe privilege" to

demonstrate its applicability; Mr. Lindh is not required to disprove that the privilege applies.

Hawkins v. Stables, 148 F.3d 379, 381 (4th Cir. 1998) (reversing decision of the district court

which assumed the attorney-client privilege applied and placed the burden of proof on the

opponent of the privilege).

The government has failed to meet this burden. It has made no specific and persuasive showing that the attorney-client privilege applies to the in camera documents. Nor has the government demonstrated that the privilege, if applicable, has not been waived by wide distribution of the documents. (See Def.' s Mot. at 19.)

The government has also not met its burden of showing that the work product doctrine or the deliberative process privilege protect the in camera documents. The government makes no attempt to demonstrate how any of the asserted privileges specifically attaches to any of the documents at issue. In addition, the government simply does not respond to any of Mr. Lindh's

arguments regarding: The discoverability of facts underlying the communications; potential

waiver by wide distribution of the documents; the unavailability of privilege to protect potential governmental misconduct; the discoverability of standard analysis regarding Department of Justice policy or applicable law; the substantial need for the information as demonstrated by the

Defendant; or competing interests that weigh in favor of disclosure. (See Def.'s Mot. at 18-26.)

III. TO THE EXTENT THE IN CAMERA DOCUMENTS REVEAL FACTS UNDERLYING THE CIRCUMSTANCES OF MR.

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LINDH'S INTERROGATION, THE CIRCUMSTANCES OF HIS INCARCERATION, OR HIS ACCESS TO COUNSEL, THEY SHOULD BE DISCLOSED, NOTWITHSTANDING GOVERNMENT CONTENTIONS ABOUT HOW

MR. LINDH'S TREATMENT SHOULD BE CHARACTERIZED

Finally, in its opposition under the title "A Note About 'Torture,',,2 the government goes

to great lengths to attempt to demonstrate that Mr. Lindh was well-treated, particularly after he

was interrogated by the FBI. The government's explanations miss the mark. It is instructive that, notwithstanding its protestations, the government does not deny the essential facts proffered

with regard to the conditions of Mr. Lindh's incarceration up to and including the time that he

was interrogated by the FBI, namely: That the government, knowing of Mr. Lindh's dismal

condition after having been subjected to forty U.S. missile strikes, multiple grenade attacks, a

fuel-powered fire and flooding by freezing cold water, subjected Mr. Lindh to a week of

interrogation without advising him of his rights and despite his requests for counsel; that

Mr. Lindh was stripped naked upon arriving at Camp Rhino around December 7; that his naked body was then duct-taped to a stretcher in a supine position (see Ex.1, West Declaration in

Support of Reply Memoranda, filed herewith.); that, while restrained in this position, Mr. Lindh remained handcuffed, blindfolded, with duct tape binding his ankles (id.); that he was then placed in a metal shipping container with no light and with a bullet still lodged in his body from nearly two weeks before; and that, when he repeatedly asked for counsel, Mr. Lindh was told

there were no lawyers available.

That the government now argues such treatment "wasn't torture'" is not the point.

Rather, the point is that while Mr. Lindh was incarcerated in such conditions, the Department of

Justice rushed an FBI agent to Camp Rhino to elicit statements the government intended to use against Mr. Lindh in this criminal prosecution. The government did this despite knowing of

Mr. Lindh's incarceration conditions, his bullet wound, his diminished physical state and without

allowing him to receive communications from his parents or his legal counsel, who were trying

2 Gov't. Opp. at 5. 3 Gov't. Opp. at 8.

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incessantly to contact and offer him the Very legal assistance Mr. Lindh was repeatedly requesting.

Therefore, given that the dates of the in camera documents correlate with Mr. Lindh's arrival and interrogation at Camp Rhino, it is not far-fetched to assume that the documents contain factual information regarding the conditions of that interrogation and incarceration. In addition, it is possible that the in camera documents also reveal government misconduct in attempting to manipulate Mr. Lindh's incarceration conditions or deny him access to counsel such that it would be easier to elicit incriminating statements from him. In either case, the government's assertion of privilege should not be allowed to shield these documents from full and fair review by the defense.

,

CONCLUSION

For the foregoing reasons, Mr. Lindh's Motion to Compel Production of Documents Filed In Camera should be granted.

Dated: April I, 2002

Respectfully submitted,

BY;,--I=.~~· ~~~-_ "iTONY\\fBsT

Attorneys for Defendant IohnLindh

lAMES J. BROSNAHAN GEORGE C. HARRIS TONY WEST

RAJ CHATTERJEE

425 Market Street, 32nd Floor San Francisco, California 94105 Telephone: (415) 268-7189 Facsimile: (415) 268-7522 Admitted Pro Hac Vice

WILLIAM B. CUMMINGS WILLIAM B. CUMMThTGS, P.C. 112 South Pitt Street

Alexandria, Virginia 22314 Telephone: (703) 836-7997

Fax: (703) 836-0238

VSB #6469

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