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Lawsuit Against US Department of Defense to Release Report About Israel Nuclear Weapons  

By Grant Smith and IRmep

Al-Jazeerah, CCUN, November 27, 2014


The Institute for Research: Middle Eastern Policy (IRmep) challenged the Department of Defense last Friday in federal court.  For years DoD has stalled, ignored and denied Freedom of Information Act requests for an explosive 386-page report detailing how Israeli organizations lavishly funded by American tax-exempt charities develop nuclear weapons and delivery vehicles in secret.  DoD is now claiming "perpetual non-disclosure agreements" prohibit release of the unclassified report. 

IRmep countered why this is merely Pentagon sock-puppetry.  We again urged the court to personally review and directly release the report since secrecy has defrauded American taxpayers of $86 billion in US aid to Israel prohibited under foreign aid laws.
Judge Chutkan set a deadline of November 26 for the Defense Department to respond.
Court transcript of oral arguments: 


Plaintiff, :CA No. 14-1611

Defendants. :
Friday, November 21, 2014


For the Plaintiff: GRANT F. SMITH

P.O. Box 32041
Washington, D.C. 20007





1600 Defense Pentagon
Room 3B688.
Washington, D.C. 20001

Proceedings reported by machine shorthand, transcript
produced by computer-aided transcription.

P R O C E E D I N G S:

THE COURT: Good morning.

MR. SMITH: Good morning.

DEPUTY CLERK: Your Honor, this is Civil Action

14-1611, Grant F. Smith v. Department of Defense.

We have Mr. Smith, who is representing himself pro se. We have
from the Department of Defense Laura Jennings, Mark
Herrington, Jane Lyons.


Good morning. Thank you all for
agreeing to come in on such short notice. And I would not
normally do that except that I have some concerns about
the pace at which this case is proceeding. I know that
court cases occupy a substantial amount of time and
resources for the government, and I know that all
documents requested have reviewed, but I'm very concerned
about a couple things.

One is that the government filed for an
extension of time previously, and that motion was granted,
and I gave the government time to file an answer. There
is a procedure for these matters. There is a complaint,
then there is an answer, then there's scheduling and
motions, you know, dispositive motions.
An answer has not been filed in this case, and I
reviewed the government's second motion for an enlargement
of time. The answer was due yesterday, I believe, two

days ago. And the government on the very last day files a
motion for an enlargement of time and asks for time to
conduct a line-by-line review of the document to make a
final determination and then asks for an additional 30
days to allow a reasonable time to review the release, for
the plaintiff to review the release and determine whether
he's satisfied, at which point the Department of Defense
will move for summary judgment. That is putting the cart
ahead of the horse. There has not been an answer filed in
this case.

This is a 386-page document that has been
requested for some time, has been located, and I don't
understand why an answer hasn't been filed in this case.
An answer in this case should be a relatively simple
matter. And I am not inclined to give the government its
requested time to do what is a very simple task, which is
to file an answer.

So can the government please explain to me why
an answer hasn't been filed and why in its current motion
for an enlargement of time it is requesting time to do
things well in advance of the normal procedure in this
case, which is to file an answer.


Your Honor, this is Laura
Jennings. I represent the Department of Defense and a
Special Assistant U.S. attorney, and it certainly wasn't
our intention to circumvent the proceddures in this case.
Our thought was that it would, in fact, expedite the
process. Instead of filing an answer and going through
briefing schedule to review -- we had thought that the
document, there was a possibility that we would be able to
at least, if not release the document in its entirety, in
part. And it was determined on the day that the answer,
our response was due that that was not the case, and we
thought that by being more transparent and coming forward
and presenting that -- we've located the document. We've
also become aware of these nondisclosure agreements that
apply. We'll need to now do a line-by-line review of the
document -- we'll do that within 30 days -- release
portions that we can to the plaintiff, have him review it
and then determine from there whether we'd like to go
forward. But with that said, we are happy to file an
answer in this case.

THE COURT: Well, I mean, that is a procedure.
You have filed a complaint, and I still haven't heard why
the government didn't file an answer in the time that I
gave it the last time an enlargement of time was requested
in which to file an answer. And I'd like to know what is
taking so long for a 386-page document. The document was
located some time ago.

I also have questions about this affidavit from

Mr. Mark Herrington. Can you tell me why -- and I'm
referring to his declaration, paragraph 2, what is the
relevance of the Oleskey v. The Department of Defense case
to this case. It's unclear to me.
MS. JENNINGS: Can I talk to him just a moment?
(Discussion held off the record.)

THE COURT: Do you mean -- you're also if you
want to approach. Just state your name for the record.

MR. HERRINGTON: Good morning, Your Honor. I am
Mark Herrington with the Department of Defense.
THE COURT: You're Mr. Herrington?

MR. HERRINGTON: It's a classic problem of
trying to write a declaration quickly using an old one
from the Oleskey trial and not changing the jurat. I
apologize to the Court for that.

THE COURT: All right. I just was wondering if
there was something I missed in the complaint.


THE COURT: So it's an error in creating a

THE COURT: All right. So are you the ODC
counsel assigned to this case?

MR. HERRINGTON: To this case, yes, Your Honor.
THE COURT: All right. Can you tell me how
long -- how long has -- how long ago was this document

MR. HERRINGTON: The document was located quite
a while ago. As far as my involvement in the case would
have been shortly after the complaint was filed.

THE COURT: Why hasn't it been reviewed?

MR. HERRINGTON: So the document was reviewed
and withheld in full under both the initial FOIA request
and then the appeal. Once it went into litigation is when
my office becomes involved. And I am not as convinced
that it has to be withheld in full, so trying to figure
out, understanding the plaintiff's complaints, that it is
a 386-page document that's over 25 years old and
unclassified, the idea that it has to be withheld in full,
I understand his complaint, so it is my job to convince
them not of statutes apply but what is truly defensible in
court, and so I am in that process now of reviewing the
document myself.

THE COURT: But Mr. Herrington, this case was
filed on September 23. We are talking about one document
that's 386 pages long. I've reviewed my share of
documents in my career. It should not take that long to
review that document and decide what needs to be redacted,
whether it needs to be withheld. But even before that,
that's -- again, that's jumping ahead of ourselves. An
answer -- and maybe that's where I need to speak to your
co-counsel here -- I understand maybe the government
thought it was somehow expediting matters by, you know,
proposing this, but the fact is the Court gave the
government time to file an answer. And we're not talking
about a long answer. We're not talking about a
complicated answer. We're talking about an answer that
the plaintiff, Mr. Smith, could then proceed and this case
could proceed in logical fashion. We find ourselves back
in court two days after the answer is due debating whether
to give an enlargement of time and talking about reviewing
a document and an answer still hasn't been filed.
So I guess my question is what's taking so long
in terms of reviewing this document and determining what
your decision is going to be about its disclosure.

MR. HERRINGTON: The Department of Defense, as
you know, Your Honor, is a gigantic bureaucratic machine,
and giving the decision-maker and identifying who it is
that can decide whether or not to release part or all of
the document took me quite a while. I believe I've
identified that person and now it is a matter of
describing to them the process of if you want to deny a
document this is what is going to be required in order for
the Court to agree with our decision and explaining the
legal basis and these different things.

So I do not have release authority. All I can
do is persuade the decision-maker. I have finally
identified the decision-maker. I'm also taking it into my
own hands to review the document to decide, one: Whether
or not these nondisclosure agreements apply, and if they
do, to make sure that absolutely as much of the document
that can be released is rather than just saying there's no
segregable part of it in the 386-page document but to say
there certainly is something out of that document that can
be released.

So it's a matter of being able to provide
counsel to the decision-maker and deciding exactly how
much, if not all, of the document can be released. But we
have not reached that.

And then the 30 days is just because of my past
experience with FOIA case after FOIA case and the amount
of people that have to be briefed and discussed and the
back and forth. I hope to do it faster than that, but
that allowed enough time to make sure that I would not be
asking the Court to give us more time yet again. The only
reason we didn't file the answer, as you said, the answer
is not complicated, we can do that, but that puts it in
the regular process and takes time. We were hoping to
have had a decision two days ago. Came close, didn't
quite get there. So rather than --

THE COURT: If you were hoping to have a
decision two days ago and came close and didn't get there,
why are you asking for what is in essence 60 more days?

MR. HERRINGTON: The 30 days was, again, it
takes a while to commence and given the Thanksgiving
holidays and people's leave schedules this time of the
year, I was trying to build in enough time for that.
The 30 days after that was rather than in 30
days saying, Plaintiff, here is the document and Court,
here is our declaration and a brief and here is why it has
to be withheld, give the chance for the document to be
released to actually have been sufficient. So the
plaintiff can have a week or two to look at the document
and have the chance that the plaintiff says, Okay, that's
actually fine and thanks for the document. We'll dismiss
the case and then move and then file our summary judgment
motion in the declarations and everything else.
If we can avoid writing the declaration at the
same time we're reviewing the document, the document can
get out faster.

THE COURT: I'm going to stop because I'm a
little confused here. When you say you came close two
days ago, what did you come close to doing?

MR. HERRINGTON: Making a determination to
release the document.

THE COURT: So why can't you get -- so if you
came that close, why can't that be done in a few more

MR. HERRINGTON: It may very well be able to be.
The problem is the few more days is Thanksgiving week.


MR. HERRINGTON: Two weeks I think I can do.

THE COURT: The problem I think you're talking
about is you sort of decided to try and follow your own
internal scheduling system, and there's a process once
litigation has been filed in these cases and a procedure.
And I understand that it was well-intentioned.

MR. HERRINGTON: Yes, Your Honor.

THE COURT: But, you know, there's a complaint
and then there's an answer, and the filing of an answer
does not in any way, as far as I can tell, maybe you can
tell me differently, how would the filing of an answer
have stopped you from proceeding in the way you have been

MR. HERRINGTON: It would not, Your Honor. It
wouldn't have stopped anything proceeding the way we were
proceeding, but we were going under the idea of if we can
get the document out prior to the answer and having more
court involvement with the scheduling order and everything
else, we were trying to save both the Court's time and
resources and be able to -- again, you are correct that we
could have still been processing at the same time, and
just because the scheduling order is not for another month
doesn't mean we can't release the document in the interim.
That is absolutely true. It is really just a matter of
trying to keep the Court from having to review the answer
and come up with the scheduling order. It really was not
trying --

THE COURT: Your answer would not have burdened
this Court. And certainly -- you know what, I'm going to
hear from Mr. Smith.

MR. HERRINGTON: Thank you, Your Honor.

MR. SMITH: Thank you Judge.

THE COURT: Yes, good morning, Mr. Smith.

MR. SMITH: Can I just have a moment to talk
about the stakes and all through this?

THE COURT: I think I understand them and I know
that the talks are beginning and the time -- I understand
why you need this information.

MR. SMITH: Okay.

THE COURT: But certainly if you need a minute
or two to just lay the foundation, I'm going to let do you

MR. SMITH: Sure. After our filing of the FOIA
request, the administrative process, the Department of
Defense had 20 days to respond to our appeal. Rather than
respond within the administrative time limit, they began
to string us along with various email communications,
which I appreciated and documented in the lawsuit. But
continually promise that just over the horizon there would
be a bona fide response to our appeal, after a thousand
days, well over the time limit, and after they cut off
unilaterally communication with us, we filed a lawsuit,
again, at our own expense.

We believe that we were due a bona fide response
on the 19th that if there were new attorneys coming into
this case that they comply with Rule 7A of the federal
procedure and 83-6. That didn't happen. We had this
mysterious exhibit referring to an entirely different
case, which is the second example of boilerplate being
filed in response to our complaint.
So we're upset with that. Don't think it was
actually a response, as you've alluded to. It was just
another delaying tactic. The stakes couldn't be higher
for us. It's our basic position that in 1987 the
Department of Defense discovered that Israel had a nuclear
weapons program, detailed it and then has covered it up
for 25 years in violation of the Symington and Glenn
amendments, costing taxpayers $86 billion. That's our

It's our view that this should be discussed
within the contention of increased attention on the whole
issue of nuclear weapons in the Middle East. That's what
I do as a public interest researcher. That's what I write

So what we've seen most recently is that the
government is now coming up with novel ways to try and
delay this by talking about mandatory disclosure reviews.
We don't think it's meaningful that their captive think
tank may have signed NDAs. Perhaps they even have a sock
puppet within the Pentagon that signs NDAs on their
behalf. It would be the same from our perspective.
So what we'd like the Court to do is to realize
that the Department of Defense has failed to respond. If
it's necessary that we file an additional motion
requesting your personal in-camera review of the document
in question and allowing DOD to submit these NDAs if they
really think they are that important, that's what we'd
like to do. We'd like to file that motion, proceed so
that at least there's an outside chance that we can review
this very important study by November 24. I know that
seems unrealistic in the bigger framework, but these
issues are too important to just allow this sort of
spurious, you know, utter refusal to engage in court
that's been demonstrated by DOD.

THE COURT: That you, Mr. Smith. I'm not
willing to characterize the government responses as
necessarily trying to be evasive or deceptive on the

As to the Rule 7 and Local Rule 83 issue, I do
find that Ms. Jennings, entering an appearance, you know,
she entered her appearance, the government has filed
pleadings in this case. I don't think that's an issue.

But I do think that this matter is dragging
along. It is, like I said, this is a document that was
created in 1987. It is one document. I have a lot of
FOIA cases that may have been involved thousands and
thousands and thousands of documents. This is not that
kind of case. I've reviewed the attached emails to the
complaint. It appears Mr. Smith has diligently and with
some forbearance tried to obtain this document through the
proper channels and brought this case after those attempts
proved fruitless, and I gave them one previous
continuance. And I would note that the first request
asked for a lot more time than I gave.

But Mr. Smith, I don't think you're going to get
the document produced by the 24th of November. I think
even had the government filed an answer within the time it
was given by this Court, the document would not have been
produced. So I understand the urgency, the timing, but I
don't think that's going to happen. But what I will --
I'm going to caution the government, this case has to
proceed along more expeditiously than it has, far more
expeditiously than it has.

I am ordering the government to file an answer
by Wednesday. I know it's Thanksgiving. I also know with
an answer how long it would take to prepare it. It
probably would takes an afternoon in this case, and I
don't think that's unreasonable, that's an unreasonable
request given how much time has passed.
Mr. Smith, you're free to file any motion you
wish after that point, although the Court's normal
scheduling procedures will begin immediately. And I want
to caution the government that I'm going to be looking
with disfavor on further motions for extensions of time.
And given that -- given Mr. Herrington's representations
to me as to what has already taken place, I'm expecting
that notwithstanding the holiday schedule that all efforts
are going to be made to review and internally decide how
much of this document is going to be disclosed very, very
quickly. This is, as I said, a document that was made in
1987 that is 386 pages long. It should not take very
long. You've located the parties who have the sign-off
authority. I would like you to convey to them the Court's
desire to have this reviewed quickly. That's the order
from the Court. Is there anything else?


MR. SMITH: Thank you.

THE COURT: You're welcome. Have a good

(Proceedings adjourned at 11:28 a.m.)


I, Barbara DeVico, certify that the foregoing is
a correct transcript from the record of proceedings in the
above-entitled matter.


DATE:  11-24-14



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