The opinion of the court was delivered by: Wayne R. Andersen, United States District Judge
MEMORANDUM OPINION AND ORDER
This case is before the Court on the emergency motion of the plaintiff,
Global Relief Foundation, Inc., to preclude ex parte, in camera proceedings
before this Court. For the following reasons, the plaintiffs motion is
Global Relief Foundation, Inc. ("Global Relief") is a domestic,
non-profit corporation chartered and headquartered in Illinois. On December
14, 2001, the Department of the Treasury's Office of Foreign Assets Control
("OFAC"), pursuant to the International Emergency Economic Powers Act
("IEEPA"), 50 U.S.C. § 1701 et seq., and the President's Executive
Order, issued a "Blocking Notice and Requirement to Furnish Information."
The notice blocked the funds, accounts and business records in which Global
Relief had an interest, pending further investigation.
According to the defendants, on December 14, 2001, agents from the
Federal Bureau of Investigation ("FBI") conducted a search of the offices
of Global Relief and a search of the home of its executive director,
Mohammed Chehade, pursuant to the terms of the Foreign Intelligence
Surveillance Act, 50 U.S.C. § 1821 - 1829. During these searches, the
FBI collected records, video equipment, financial literature, promotional
books, tapes, e-mail, and computers.
On January 28, 2002, Global Relief filed its Petition for Declaratory and
Injunctive Relief and for a Writ of Mandamus. In that petition, Global
Relief seeks a judgment which would "unfreeze" money blocked by the
defendants as well as order the defendants to return documents and other
materials recovered during the search of Global Reliefs offices. On
February 12, 2002, Global Relief filed its Motion for Preliminary
Injunction arguing that the block of its assets and records was illegal and
On March 8, 2002, in preparation for the filing of a response to the
Global Relief's motion for a preliminary injunction, counsel for the
defendants sent a letter to the Court. In that letter, defendants
requested permission to suggest to the Court, in camera and ex parte (in
the judge's chambers with only one party present), the procedures under
which the Court should consider the proposed in camera submission
supporting the defendants' opposition to the Global Reliefs motion.
Global Relief objected to this meeting, which took place on March 14,
2002. Global Relief then filed the motion before the Court today.
In its motion, Global Relief maintains that the letter, the meeting that
ensued, and the forthcoming court review of in camera submissions violate
this Court's normal procedures, and, more importantly, that an ex parte, in
camera consideration of the defendants' submissions is illegal and
unconstitutional. Indeed, Global Relief characterized the proposed review
as "Orwellian" and argues that it violates at least ten constitutional
principles. Global Relief asserts that this Court should neither review nor
consider any of the proposed in camera submissions until it has first
decided the validity of Global Reliefs legal challenges to the actions of
the defendants. Due, however, to the extraordinary circumstances alleged by
the defendants, this Court, for the reasons stated below, respectfully
declines to grant the motion of Global Relief.
Accordingly, a proper evaluation of Global Reliefs challenges to the
defendants' actions in this case requires a review of all the available
submissions, whether publicly disseminated or in camera and ex parte. Our
review of the proposed in camera submission does not presuppose that the
Court will rely on that submission when ultimately ruling on Global Reliefs
motion for a preliminary injunction. A court cannot determine if proposed
evidence is admissible and probative without first examining it.
Our conclusion with respect to the review of the proposed in camera
submissions is supported by Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir.
1986), aff'd, 484 U.S. 1 (1987). See also Patterson v. Federal Bureau of
Investigation, 893 F.2d 595, 599-600 (3d Cir.), cert. denied, 498 U.S. 812
(1990); United States v. Ott, 827 F.2d 473, 475 (9th Cir. 1987); United
States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982); and United States
v. Nicholson, 955 F. Supp. 588, 592 (E.D. Va. 1997). In Abourezk, suits
challenged the refusal of the Secretary of State to issue visas to aliens
whom the plaintiffs had invited to come to the United States to speak on
issues of public concern. The court addressed the proper standards that
should apply when a court is asked to review in camera and ex parte
submissions. While noting that, as a general rule, "a court may not dispose
of the merits of a case on the basis of exparte, in camera submissions,"
the court recognized that, in "extraordinary circumstances," it may be
necessary for a district court to review and rely on certain evidence in
camera and ex parte. Id. at 1061. One such circumstance recognized by the
court is the assertion of the "state secrets privilege" by the government
when "acute national security concerns" are involved. Id. In that
situation, the court held that review of in camera and exparte submissions
was only appropriate when: a) the government demonstrated "compelling
national security concerns;" and b) the government publicly disclosed,
prior to any in camera inspection, as much of the material as it could
divulge without compromising the privilege. Id. (citing Molerio v. Federal
Bureau of Investigation, 749 F.2d 815 (D.C. Cir. 1984)).
In this case, the defendants have acted in accordance with the rationale
espoused in Abourezk. On March 27, 2002, the Attorney General of the United
States filed a declaration in which he stated that "it would harm the
national security of the United States to disclose or have an adversary
hearing with respect to materials submitted to the [United States Foreign
Intelligence Surveillance Court] in connection with this matter." (Ashcroft
Declaration at ¶ 3.) The defendants claim to have satisfied the second
prong of the Abourezk rationale by publicly filing on March 27, 2002 four
binders of exhibits to support their arguments in opposition to the motion
for a preliminary injunction. Therefore, in light of the standards
enunciated in ...