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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF HOMELAND ) SECURITY, ) ) Defendant. ) ____________________________________)

Civil No. 08-1535 (RCL)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STAY PROCEEDINGS In a transparent attempt to avoid producing any documents responsive to CREW’s1 Freedom of Information Act (“FOIA”) request for White House visitor logs of Stephen Payne, the government seeks a stay of all proceedings pending a final resolution -- including any and all appeals -- of CREW v. U.S. Dep’t of Homeland Security, Civil No. 06-1912 (RCL) (“DHS II”), also before this Court. Delay has served the government well until this point by allowing the White House to avoid virtually any accountability or transparency for its actions. But delay has not served the public, which continues to be deprived of timely access to records that this Court has properly found are subject to the FOIA. Beyond these broad concerns, the specific facts here directly undermine the requested stay. The FOIA request at issue seeks documents relating to White House visits by an individual with known and repeated contacts with top White House officials. Indeed, Mr. Payne has profited handsomely from those contacts; his company literature touts his associations with both

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CREW is the acronym for Citizens for Responsibility and Ethics in Washington.

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President Bush and Vice President Cheney and the recent scandal surrounding Mr. Payne resulted from his efforts to sell his access to top White House officials in exchange for contributions to the Bush presidential library. Thus, defendant’s anticipated “Glomar defense” here has no chance of success and staying this case will only increase, not diminish, resources and delay. Accordingly, the Court should deny the stay and order defendant to process CREW’s request and release all non-exempt records immediately. FACTUAL BACKGROUND This Litigation On July 15, 2008, CREW sent a FOIA request to the Secret Service, an agency component of the U.S. Department of Homeland Security (“DHS”), seeking all records relating to any visit that Stephen Payne made to the White House or residence of the vice president from January 1, 2001, to the present. Complaint, ¶ 20. CREW also sought both a fee waiver and expedition in light of the urgency to inform the public about Mr. Payne’s activities as they relate to top White House officials. Id. at ¶ 22. As CREW noted, a Times of London investigator had asked Mr. Payne to arrange meetings in Washington for an exiled former central Asian president, to which Mr. Payne responded that such meetings could be arranged for “somewhere between $600,000 and $750,000, with a third of it going directly to the Bush Library.” Id. Stephen Payne is a former member of the U.S. Homeland Security Advisory Council, and was appointed in August 2007 to DHS’s Secure Borders and open Doors Advisory Committee. See http://www.dhs.gov/xnews/releases/pr_1188336249499.shtm. A brochure from Worldwide Strategic Partners, a company Mr. Payne heads, describes Mr. Payne’s accomplishments as including, inter alia, the following:

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White House senior presidential advance representative, having traveled with President Bush to Jordan in June 2003, and with Vice President Cheney to the Middle East in 2002 and 2005, Korea in 2004, Kazakhstan in 2006, and Afghanistan for the inauguration of Afghan President Karzai; Deputy Director and congressional liaison for the 2001 Presidential Inaugural Committee; Member of Rice/Chertoff Commission on Visas and border protection Member of DHS’s Essential Technologies Task Force.

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Worldwide Strategic Partners Corporate Profile (attached as Exhibit 1). In addition, his company arranged for a meeting between the president of Azerbaijan and President Bush, as well as a private phone call between Vice President Cheney and the president of Azerbaijan prior to the Azeri elections in November 2005. Id. In July 2008, Mr. Payne was caught on videotape discussing an agreement to arrange meetings between an exiled former central Asian president and Vice President Cheney, Secretary of State Condoleezza Rice and other senior officials in return for a payment of $750,000, $250,000 of which was to go to the Bush presidential library in Texas. Daniel Foggo, President George W. Bush lobbyist in ‘cash for access’ row, Times of London, July 13, 2008 (attached as Exhibit 2). On July 14, 2008, Chairman Henry A. Waxman of the House of Representatives Committee on Oversight and Government Reform wrote to Mr. Payne, expressing the Committee’s “concerns in light of this article about the ways in which foreign interests might be secretly influencing our government through large donations to the library,” and seeking additional information from Mr. Payne. See letter from Chairman Henry A. Waxman to Stephen P. Payne, July 14, 2008 (attached as Exhibit 3). Despite the growing public scandal generated by the secret videotaping of Mr. Payne,

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DHS never responded to CREW’s FOIA request. Accordingly, CREW filed its complaint in this matter on September 4, 2008. In response, DHS filed an answer on October 6, 2008 (Document 4), in which it claimed that the Court lacks subject-matter jurisdiction over this action, that the complaint fails to state a claim upon which relief can be granted, and that plaintiff lacks standing to maintain some or all of its claims. Answer, First Defense, Second Defense, Third Defense. Despite its admission that it had yet to respond to the FOIA request, id. at ¶ 6, defendant asserted that it “can neither admit nor deny the existence of any records that may fall within plaintiff’s request” because to do so “could reveal information protected by the presidential communications privilege.” Id. at ¶ 7. In its prayer for relief, defendant requests that “[t]his Court enter judgment for defendant and dismiss this action with prejudice.” Prayer for Relief, ¶ 1. On the same day defendant also filed a motion to stay proceedings (Document 5) (D’s Stay M.”), in which it argued that granting a stay will “avoid unnecessary and duplicative expenditures of resources by the Court and the parties.” D’s Stay M. at ¶ 6. DHS also claimed that the so-called “Glomar response” -- an inability to either confirm or deny the existence of responsive documents because doing so would reveal protected information -- set forth in its answer in this case supports its stay request. Because that same response is at issue in DHS II, the agency contends that “a determination by this Court [in DHS II] that DHS’s Glomar response is applicable to records reflecting visits to the White House and Vice Presidential Residence would resolve all outstanding issues in this case.” Id. DHS II DHS II also involves a request by CREW for White House visitor records of nine

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prominent conservative religious leaders. In December 2007, this Court ruled that White House visitor records are agency records and ordered DHS to process and produce all non-exempt records within 20 days. The D.C. Circuit dismissed the subsequent appeal for lack of jurisdiction based on the fact that this Court’s order did not require the agency to release any specific documents. On remand, DHS now claims to have completed its processing of CREW’s request. In lieu of releasing any documents or claiming specific exemptions for specific documents, the agency has taken a “Glomar” approach by asserting an inability to either confirm or deny the existence of responsive documents based on its claim that to do so “would reveal information protected by the presidential communications privilege.” Letter from Craig W. Ulmer to Anne L. Weismann, September 24, 2008 (attached as Exhibit 4). On September 30, 2008, the Court in DHS II issued an order vacating the stay in place pending the appeal, requiring defendant to produce all non-exempt records within 20 days of September 30, 2008, and requiring defendant to file any dispositive motions within ten days thereafter. Given that defendant had completed its processing when this order issued, it was required to file any dispositive motion by October 15, 2008 (10 days after September 30, 2008), which it failed to do. ARGUMENT THE REQUESTED STAY IS UNSUPPORTED BY ANY FACTUAL OR LEGAL BASIS AND SHOULD BE DENIED. The issue before this Court is not whether it has the power to stay this action -- it clearly does -- but whether it should exercise that power in view of the posture of this case and its relationship to DHS II. The answer is clearly no; defendant’s stay request is completely 5

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unsupported by facts or law and would serve only to prolong the litigation unnecessarily. Defendant’s stay request rests on its stated intent to assert here the same Glomar response it asserted in DHS II,2 its assumption that this Court’s resolution of the validity of the response in DHS II necessarily will dictate the outcome here, and its further assumption of subsequent appellate review that will dictate the outcome in both cases. See D’s Stay M. at ¶¶ 6-7. From all this defendant posits that a stay is warranted to “eliminate the need to separately litigate these multiple issues that are already being litigated in [DHS II].” Id. at ¶ 8. While plaintiff takes issue with DHS’s reliance on a Glomar response in DHS II, which is without any support in fact or law and seems designed expressly to avoid having to produce any records while this administration is still in office, the issue before this Court is quite narrow. The promised Glomar response here defies logic, given the acknowledged close relationship between Stephen Payne and top White House officials. Revealing that Mr. Payne visited the White House will reveal nothing legitimately subject to privilege, as Mr. Payne is publicly recognized as a close supporter of President Bush who has worked with both the president and the vice president to establish contacts with foreign leaders and has served the administration in a variety of contexts, including as a member of the U.S. Homeland Security Advisory Council. Moreover, as defendant’s own declarations establish, “‘in many if not most cases, the purpose of the visits [to the White House Complex and Vice President’s Residence] is not apparent from the face of the documents, nor is the relationship of the visitor to the Vice-

Although defendant suggests it has already responded to plaintiff’s request here with a Glomar response, D’s Stay M. at 4, this is untrue. Defendant has yet to respond to plaintiff’s FOIA request. See Answer at ¶ 6 (“Defendant admits that it has not responded to plaintiff’s FOIA request.”). Thus, at best defendant has stated its intent to respond to the request at issue here with a Glomar response. 6

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President, his family, OVP staff, or any outside organization.’” DHS II, Memorandum Opinion (December 17, 2007), p. 38, quoting Supplemental Declaration of Claire M. O’Donnell at ¶ 7 (emphasis in original). Indeed, as Ms. O’Donnell noted in her declaration, “many visitors to the Complex and Residence, people like ‘repair personnel [entering] to fix broken office equipment’ . . . would not relate to policy considerations at all.” Id. Thus, as this Court correctly concluded in DHS II, “as a factual matter, it seems unlikely that visitor records will often pose a bona fide risk of improper disclosure.” Id. Nothing has changed since the Court last confronted this issue; the nature of the visitor records at issue remains the same, and their disclosure still carries no risk of disclosing anything confidential or legitimately privileged. It remains the case that, contrary to defendant’s unsupported assertion, revealing the requested visitor records will present little risk of “revealing with whom the President, the Vice President, or their advisers have and have not consulted . . .” D’s Stay M. at ¶ 5. And given the publicly acknowledged relationship between Stephen Payne, President Bush and Vice President Cheney, that risk here goes from negligible to non-existent. Moreover, defendant’s litigation conduct here undermines the requested stay. While defendant asserts that “this case is very early in its proceedings,” D’s Stay M. at ¶ 8, defendant has at the same time requested that the Court “enter judgment for defendant and dismiss this action with prejudice . . .” Answer, Prayer for Relief, ¶ 1. The requested dismissal with prejudice directly contradicts defendant’s assertion that a stay is warranted given the “very early” stage of this case. To accede to DHS’s request for a stay under these circumstances is to accede to DHS’s

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efforts to delay for the sake of delay itself.3 DHS’s transparent efforts to evade this Court’s processing order through the novel and unsupported assertion of a Glomar defense for material claimed to be protected by the presidential communications privilege provide no legitimate basis for a stay of any and all litigation seeking copies of White House visitor records. And in the context of this case with its own set of facts, the requested stay is particularly without merit. CONCLUSION For the foregoing reasons, plaintiff respectfully requests that the Court deny the stay and order defendant to process plaintiff’s request fully and produce immediately all non-exempt documents. Respectfully submitted, /s/ Anne L. Weismann (D.C. Bar No. 298190) Melanie Sloan (D.C. Bar No. 434584) Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 Washington, D.C. 20005 Phone: (202) 408-5565 Fax: (202) 588-5020 Attorneys for Plaintiff October 16, 2008

Of course, DHS may also be seeking a stay to avoid having a public spotlight shone on Mr. Payne’s activities and their link to the Bush presidential library. 8

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF HOMELAND ) SECURITY, ) ) Defendant. ) ____________________________________)

Civil No. 08-1535 (RCL)

[PROPOSED] ORDER The Court having considered defendant’s motion to stay proceedings, plaintiff’s opposition thereto and the entire record herein, it is hereby ORDERED that defendant’s motion be and hereby is DENIED.

Dated: _____________

___________________________ ROYCE C. LAMBERTH Chief Judge