PLO Brief in Opposition to Intervention of Press Applicants

8/10/2019 PLO Brief in Opposition to Intervention of Press Applicants

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Washington.1 Emerson has changed status from journalist to terrorologist. Emerson is the

Executive Director of the Investigative Project on Terrorism, which he describes as one of the

worlds largest storehouses of archival data and intelligence on Islamic and Middle Eastern

terrorist groups. Id.at 9. According to his website, Emerson is one of the first terrorism

experts to have testified and warned about the threat of Islamic militant networks operating in the

United States. Id. The most recent publication identified in his biography (Jihad

Incorporated: A Guide to Militant Islam in the U.S.) dates back to 2006. Id. Edwin Black also

is not employed by a media organization. See id.at 6-8.

The Press Applicants purport to have particular expertise and interest in the global,

political and moral issues being litigated in this Court. DE 628, Mem. at 2. This assertion is

troubling on two fronts. First, this is a civil lawsuit in which the jury is to decide tort liability

based on evidence, not based on global, political and moral issues. Given the potential for

extreme prejudice to Defendants, the Court should be watchful of attempts by Plaintiffs and

those allied with them to use the lawsuit as a vehicle to advance their global, political and

moral agenda of demonizing and delegitimizing the Palestinian government. Second, there is

no evidence the Press Applicants in fact have any journalism expertise relevant to this lawsuit.

Attkisson claims to have published news articles on payments received by Palestinian martyrs,

id.at 5, but provides no citation to these articles and Defendants have not been able to locate

any.2 Emerson has made a career out of fanning the flames of Islamophobia in the United States,

1 http://www.politico.com/blogs/media/2014/03/sharyl-attkisson-to-leave-cbs-news-184836.html

2 Defendants did locate Attkissons 2013 interview with the Sokolow plaintiffs on CBS This Morningabout their lawsuit against the Arab Bank for their alleged role in so-called martyr payments.https://archive.org/details/KPIX_20130421_130000_CBS_News_Sunday_Morning#start/2700/end/2760

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with such works as American Jihad: The Terrorists Living Among Us. DE 623-1 at 9.3 It is

not apparent he has any experience covering the Israeli-Palestinian conflict as a journalist. The

Palestinian Authority is not a jihadist organization, nor is it an Islamist state.

The only specific example the Media Applicants offer of prior coverage of the

Defendants is Mr. Blacks 2013 book, Financing the Flames: How Tax-Exempt and Public

Money Fuel a Culture of Confrontation and Terrorism in Israel, DE 628, Mem. at 6, in which

he inaccurately characterizes the Palestinian Authority as providing payment for terrorist acts

that follows a schedule of compensation pegged directly to the number of victims murdered and

the amount of carnage inflicted. Id. Plaintiffs counsel previously used this same book excerpt

to argue for the unsealing of documents covered by the Protective Order. In Mr. Yalowitzs

March 27, 2014 letter to the Court, he stated:

The fact that defendants pay generous salaries to convicted terrorists is not

confidential. . . . This policy is also discussed in a recent book by historian

Edwin Black, entitled Financing the Flames. As Mr. Blacks website

states, the book describes funding mechanisms by which the PA pays thesalaries of specific terrorists sitting in Israeli prisons, salaries that are

among the best paid jobs in the Palestinian Authority, and are calculated to

increase with the level of mass murder and destruction.

Letter at 5-6.

There can be little doubt that the Press Applicants have been recruited to further

Plaintiffs agenda. In their overwrought submission, the Press Applicants claim there has been a

cloak of secrecy over the contents of public filings in this litigation and that the information

3 Emerson also was quick to pronounce that the Oklahoma City bombing had a Middle Eastern trait andthat the Boston Marathon bombing was perpetrated by a Saudi national. SeeAlex Seitz Wald, Why is

Steve Emerson Still a Terrorism Expert, Salon.com (Apr. 16, 2013), available athttp://www.salon.com/2013/04/16/the_perils_of_steve_emersons_expertise/ ;see alsoJohn F. Sugg,Steven Emersons Crusade: Why Is a Journalist Pushing Questionable Stories from Behind the Scenes,FAIR: Fairness & Accuracy in Reporting (Jan. 1, 1999), available athttp://fair.org/extra-online-

articles/steven-emersons-crusade/



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thus freed from improper occlusion would reveal an unlawful, pernicious and murderous system

established and organized by the defendant, which they irresponsibly and wrongly characterize

as a suicide-murder for hire system. DE 628, Mem. at 1-2. So much for impartial journalism.

The Press Applicants claims that the martyr and prisoner payment practices of the Defendants

are cloaked in secrecy by virtue of the Protective Order also is squarely at odds with their

claims to special expertise on these practices. Indeed, as just noted, Mr. Yalowitz previously has

argued citing Blacks book that they are a matter of public knowledge.

The Press Applicants also irresponsibly engage in fear-mongering by implying

Palestinian Authority policies put the American public at risk. See id.at 2 (mischaracterizing the

martyr payment system and stating it presents [a]n ongoing danger to the public, regardless of

nationality and location);see also id.at 3 (characterizing the litigation over events in 2001-2004

as bear[ing] on issues of grave, immediate and ongoing concern). This fear-mongering is

reminiscent of Plaintiffs opposition to Defendants motion for summary judgment which began

by wrongly implying that President Obama viewed the Defendants as posing a current terrorism

threat to Americans at home. DE 545, Mem. at 1. There is a substantial risk that if the Press

Applicants obtain confidential discovery material before trial they will taint the jury pool with

inflammatory articles mischaracterizing the documents and making outlandish claims of

suicide-murder for hire programs that pose a grave threat to Americans at home. Plaintiffs

may well then cite these articles as reasons why the jury will be fearful for its safety,

necessitating an anonymous jury, which would further prejudice the Defendants. SeeDE 557

(Plaintiffs Motion for an Anonymous Jury in which they argue that trial publicity and the jurors

concern for their personal safety provide justification for an anonymous jury).



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ARGUMENT

I. The Motion to Intervene Must Be Denied Because There Is No First Amendment or

Common Law Right of Public Access to the Record in this Action.

A. The Presumptive Right to Public Access Applies Only to Judicial Documents.

The Press Applicants claim the public and press have an affirmative presumptive right to

inspect all motion papers and the record in this action. DE 628, Mem. at 7. They seek an

order unsealing all motion papers and all other sealed documents filed on the docket and also

all substantive correspondence or other unfiled submissions by the parties. Id.at 11. The

Press Applicants offer no support for their position that there is a right of public access to

correspondence and other unfiled, under-seal submissions to the Court. The Press Applicants

citeLugosch v. Pyramid Co., 435 F.3d 110, 119 (2d Cir. 2006), as their principal legal authority.

That case, however, makes abundantly clear that the First Amendment and federal common law

right of public access applies only to judicial documents. Id.4 A judicial document is an item

filed on the docket that is relevant to the performance of the judicial function and useful in the

judicial process. Id. Thus unfiled submissions are not judicial documents, and there is no

presumptive right of public access to them.

Nor does the presumption of public access apply to all sealed documents filed on the

docket. The mere filing of a paper or document with the court is insufficient to render that

paper a judicial document subject to the right of public access. United States v. Amodeo, 44

F.3d 141, 145 (2d Cir. 1995) (Amodeo I). Only a small fraction of documents filed on the

docket may be treated as judicial documents, for an abundance of statements and documents

generated in federal litigation actually have little or no bearing on the exercise of Article III

4 Federal courts employ two related but distinct presumptions in favor of public access to courtproceedings and records: a strong form rooted in the First Amendment and a slightly weaker form basedin federal common law. Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013).



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judicial power. United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (Amodeo II).

Summary judgment motions and the documents relied upon in adjudicating them are

considered judicial documents. Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir.

2013). Documents filed with discovery motions are generally not considered judicial

documents and are not subject to the public right of access. Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001);EEOC v. GMT, LLC, 2012

U.S. Dist. LEXIS 96585, at *7-8 (D. Neb. July 11, 2012). And, the mere fact that a dispute

exists about whether a document should be sealed or disclosed . . . cannot ipso facto create a

presumption of access, because such a rule would bootstrap materials that are not closely

related to judicial proceedings into judicial documents. Newsday, 730 F.3d at 167. Thus,

although the Press Applicants complain that much of the correspondence with the Court on the

scope and application of the Protective Order is not available to the public, DE 628, Mem. at 4,

they have no right to access these documents.

As the Second Circuit observed inNewsday, [p]arties are entitled to litigate issues that

divide them, if they can fairly do so, without thereby exposing to public view confidential

materials. 730 F.3d at 167 n.15. Further, when a party chooses not to rely on documents or

other confidential information in court, the fact that the information is sufficiently relevant to the

proceeding that it could have been introduced into evidence does not entitle the press or public to

demand access to it or to put courts to the burden of evaluating whether the strict standards for

rebutting the presumption of public access have been met. Id. Accordingly, here, the parties

are entitled to litigate the confidentiality, relevance, admissibility, and discoverability of the

under-seal documents without subjecting the documents to public scrutiny.



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in unredacted form. DE 497. Only three exhibits were filed under seal, only one of which was

produced by Defendants. DE 497-63. Defendants reply brief was filed with minimal

redactions, and no exhibits were filed under seal. DE 554. Plaintiffs opposition brief was filed

with minimal redactions. DE 545. Rather than providing a set of exhibits to their opposition

brief, Plaintiffs counsel instead submitted as Exhibit A a CD with 18,400 pages of their

Selected Trial Exhibits, which included just about every document Defendants produced in

discovery. SeeDE 521 (Declaration of Kent A. Yalowitz) at 1. The index of the Selected Trial

Exhibits itself is 31 pages. SeeDE 521-1. Thus, Plaintiffs chose not to submit exhibits tailored

to their summary judgment motion. Plaintiffs, in conjunction with Press Applicants, may not

transform discovery materials as to which there is no presumptive right of public access, into

judicial documents merely by submitting with their summary judgment motion a data dump of

all discovery material submitted in the case. Those documents remain the raw fruits of

discovery, to which the public is not entitled access. See In re Terrorist Attacks on Sept. 11,

2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006) ([N]o public right of access exists with respect

to materials produced during the initial stages of discovery).

Moreover, the publics right to access is less pressing where there has been a public

hearing on the summary judgment motion. See Lugosch, 435 F.3d at 124 ([a]ccess to written

documents filed in connection with pretrial motions is particularly important in the situation . . .

where no hearing is held and the court's ruling is based solely on the motion papers) (quoting

Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984)). Here, the Court

conducted an extensive public hearing on the Defendants motion for summary judgment on July

22, 2014, the transcript of which is publicly available.



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In sum, any characterization of the judicial documents in this case being cloaked in

secrecy,see DE 628, Mem. at 1, is plainly wrong.

II. Even as to the Relatively Few Documents That Arguably Be Characterized as

Judicial Documents, There Is No Right to Unfettered Public Access.

While there is a legal presumption favoring access to judicial records, the fact that a

document is a judicial record does not mean that access to it cannot be restricted. Amodeo I, 44

F.3d at 146. According to the Supreme Court, it is uncontestedthat the right to inspect and

copy judicial records is not absolute. Nixon v. Warner Communications, Inc., 435 U.S. 589,

598 (1978). Indeed, a district court has the authority to redact a document to the point of

rendering it meaningless, or not to release it at all. In re Application of Newsday, Inc., 895 F.2d

74, 80 (2d Cir. 1990).

Once a court has determined that the documents are judicial documents, it must

determine the weight of that presumption. Lugosch, 435 F.3d at 119. As the Second Circuit

explained inLugosch, the weight to be given the presumption of access must be governed by

the role of the material at issue in the exercise of Article III judicial power and the resultant value

of such information to those monitoring the federal courts. Id. Then, after determining the

weight of the presumption of access, the court must balance competing considerations against

it. Id.at 120 (quotingAmodeo II, 71 F.3d at 1050). Such countervailing factors include but

are not limited to the danger of impairing law enforcement or judicial efficiency and the

privacy interests of those resisting disclosure. Id.(quotingAmodeo II, 71 F.3d at 1050); see

also United States v. Longueuil, 567 Fed. Appx. 13, 16 (2d Cir. 2014) (recognizing law

enforcement techniques and procedures and privacy interests of third parties as strong

countervailing interests).



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The parties cited less than two dozen under-seal exhibits in their summary judgment

briefs. Those documents fell into three categories: (1) personnel files (PTE 88); (2) General

Intelligence Service (GIS) files (PTE 129, 131, 143, 163, 164, 233, 1038, 1060); and (3) the

so-called martyr files (PTE 16, 19, 21, 22, 23, 24, 36A, 60).5 Given the general transparency

of the summary judgment briefing and hearing and the limited nature of the under-seal exhibits,

the law enforcement and privacy interests associated with the under-seal documents override any

public right to access.

In particular, potential damage to law enforcement is a legitimate basis for sealing

documents and restricting public access to them. See Amodeo I, 44 F.3d at 147 (We have

recognized the law enforcement privilege as an interest worthy of protection.). The law

enforcement privilege is designed

to prevent disclosure of law enforcement techniques and

procedures, to preserve the confidentiality of sources, to protect

witness and law enforcement personnel, to safeguard the privacy of

individuals involved in an investigation, and otherwise to preventinterference with an investigation.

Id. Indeed, protect[ing] witnesses and law enforcement personnel is just one purpose of the

law enforcement privilege. Dinler v. City of New York, 607 F.3d 923, 934-935 (2d Cir. 2010);

see also In re United States Dept of Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006) (Our

case law has acknowledged the existence of a law enforcement privilege beyond that allowed for

identities of confidential informants.).

5 Press Applicants will no doubt argue that all of Defendants discovery materials are judicial

documents because they provided them to the Court on a CD marked as Exhibit A to their opposition toDefendants motion for summary judgment. The Court should not sanction such a cynical attempt to

bootstrap plainly confidential material into judicial documents. In addition, the admissibility of thesedocuments is contested by the parties, and the Court has yet to rule which, if any, of the under sealdocuments would be relevant to a summary judgment ruling.



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The Court should not unseal any of the GIS documents or require the Defendants to

reveal redacted material relating to such documents. Throughout this litigation, Defendants have

argued that the GIS documents are privileged, and Defendants only produced the GIS documents

to Plaintiffs pursuant to court order and subject to Defendants objections. The PA clearly has a

compelling interest in preventing disclosure of its intelligence materials. SeeDeclaration of

Majed Faraj 12-14, 17 (attached as Exhibit A) (declaring that disclosure of GIS investigative

methods would,inter alia, increase security threats and impair GISs ability to conduct future

investigations);see also In re United States Dept of Homeland Sec., 459 F.3d at 569 ([I]n

todays times the compelled production of government documents could impact highly sensitive

matters relating to national security.);Gilmore v. Palestinian Interim Self-Government Auth.,

No. 01-853, 2014 U.S. Dist. LEXIS 38037, at *6 (D.D.C. Mar. 24, 2014) (noting the courts

previous finding that Defendants had made numerous persuasive arguments for concluding that

disclosure of the requested [GIS] files would undermine important interests of the PA.).

Moreover, GIS documents are protected from public disclosure by the PAs Intelligence

Law, which prohibits public revelation of [i]nformation regarding the regulation of [GIS] and

its activities, functions, documents, headquarters, and properties, and provides that GIS

investigations and information may only be viewed by special permission of the President.

SeeEx. A 12, 18; see alsoGIS Law at 253, 259 (attached as Exhibit B). Violation of this law

is a criminal offense. Ex. A 18; Ex. B at 259. Courts have considered the following factors in

determining whether to order disclosure of documents in contravention of foreign law: (1) the

importance of the documents to the litigation; (2) the specificity of the request; (3) whether the

information originated in the United States; (4) alternate means to secure the information; (5)

the extent that disclosure or non-disclosure would undermine interests of the United States or the



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state where the information is; (6) hardship of compliance on the party or witness from whom

discovery is sought; and (7) the good faith of the party resisting discovery. Gucci Am., Inc. v.

Weixing Li, No. 10-cv-4974, 2011 U.S. Dist. LEXIS 97814, at *15-16 (S.D.N.Y. Aug. 23, 2011).

These factors weigh against any type of disclosure of GIS materials. Because the GIS is

a law enforcement body, its records are protected. See United States v. Basciano, No. 97-1264,

1998 U.S. App. LEXIS 3085, at *6 (2d Cir. Feb. 26, 1998). Access to GIS records would cause

irreparable harm to the PAs compelling interest in keeping its intelligence materials

confidential. In re United States Dept of Homeland Sec., 459 F.3d at 569;Gilmore, 2014 U.S.

Dist. LEXIS 38037, at *6. And no other alternative restriction would adequately protect the

PAs interests in avoiding an increase in security threats and in avoiding any impairment in the

GISs ability to conduct future investigations. SeeEx. A 12-14, 17.

The remaining under-seal exhibits referenced in the parties summary judgment briefing

are a personnel file and the so-called martyr files, which at the very least could be produced only

in redacted form. These documents contain personal identifying information, including birth

years and government-issued identification numbers, and many also include bank account

numbers. See,e.g., PTE 21, 22, and 36A. Under Federal Rule of Civil Procedure 5.2, public

filings must redact the last four digits of the individuals identification number, the year of the

individuals birth, and the last four digits of the financial account number. Fed. R. Civ. P. 5.2(a).

Before the Court could publicly disclose any under-seal exhibits ultimately found to be

judicial documents, the Court also would have to weigh the publics presumptive right to access

against privacy and safety interests of individuals referenced in the files. Some exhibits include

information about individuals mental health or identify intelligence sources. The Second

Circuit has held that privacy is a proper concern[] for a trial court in performing the balancing



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test required to determine whether access should be allowed or denied. Amodeo I, 44 F.3d at

147;see also Newsday LLC, 730 F.3d at 165 (holding that the common law right should be

balanced against countervailing interests favoring secrecy). Private information should

therefore be protected:

We have previously held that the privacy interests of innocent thirdparties should weigh heavily in a courts balancing equation. Such

interests, while not always fitting comfortably under the rubric

privacy, are a venerable common law exception to the

presumption of access. Courts have long declined to allow publicaccess simply to cater to a morbid craving for that which is

sensational and impure.

Amodeo II, 71 F.3d at 1050-51 (internal citations and quotation marks omitted). The job of

protecting such interests rests heavily with the trial judge, since all the parties who may be

harmed by disclosure are typically not before the court. In re Application of Newsday, Inc., 895

F.2d at 80.

Moreover, the individuals whose private information is at risk of being made public also

have a strong interest in preventing its disclosure. See In re Terrorist Attacks on Sept. 11, 2001,

454 F. Supp. 2d 220, 223 (S.D.N.Y. 2006) (entering protective order based on privacy and

prejudice concerns, where most of the individual defendants were accused of committing

terrorist acts and where they would be asked to turn over a vast array of private and confidential

information during discovery, much of which will have little or no bearing on the resolution of

these actions but will be subject to widespread public scrutiny with prejudicial effects in the

absence of a protective order). If the Court were to disclose all of the materials accompanying

the parties summary judgment papers, this would include, inter alia, bank account numbers,

government-issued identity numbers, and potentially embarrassing mental health information.

As the Plaintiffs have previously conceded, see DE 455 at 8, all such information should be



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redacted. Amodeo II, 71 F.3d at 1050-51; In re Application of Newsday, Inc., 895 F.2d at 80;see

alsoFed. R. Civ. P. 5.2(a).

CONCLUSION

The Press Applicants motion to intervene should be denied. They have not

demonstrated that the public has a presumptive right of access to all material that has been filed

under seal. Because they failed to limit their requested relief to judicial documents, the Press

Applicants are not entitled to intervene. In any event as to the relatively few arguable judicial

documents filed under seal, countervailing law enforcement and privacy interests outweigh the

public interest in access, especially in light of the general openness in which the motions for

summary judgment have been litigated and the fact that the Court has yet to determine which

exhibits will be relevant to any judicial decisions on the merits.

November 13, 2014 Respectfully Submitted,

/s/ Laura G. FergusonMark J. Rochon

Laura G. Ferguson

Brian A. HillDawn E. Murphy-Johnson

Michael J. Satin

MILLER & CHEVALIER CHARTERED

655 15th

Street, NW, Suite 900Washington D.C. 20005-6701

(202) 626-5800 [tel]

(202) 626-5801 [fax][email protected] [email]

Counsel for Defendants the Palestinian Authority and thePalestine Liberation Organization



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EXHIBIT A

Case 1:04-cv-00397-GBD-RLE Document 636-1 Filed 11/13/14 Page 1 of 14


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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

)

MARK I. SOKOLOW,

et al.,

Plaintiffs,

v.

ivil Action No. 04-397 (GBD) (RLE)

)

PALESTINIAN LIBERATION

ORGANIZATION,

et al.,

Defendants. )

DECLARATION OF MAJED FARAJ

Pursuant to 28 U.S.C. 1746, I, Majed Faraj, declare under penalty of perjury under the

laws of the United States of America, as follows:

1

I currently reside in the city of Ramallah, in the State of Palestine.

2.

I am over eighteen years old, and I am competent to make this declaration. Unless

otherwise stated herein, the facts set forth below are based on my personal knowledge.

3.

I am currently the Head of Intelligence for the General Intelligence Service ( GIS ) of

the State of Palestine, formerly the Occupied Palestinian Territory, or Palestinian

Authority ( PA ).

4.

I understand that Plaintiffs in the above captioned action have requested all files in

possession of the PA (now, the State of Palestine) relating to the following individuals:

Nasser Shawish

Mohammad Hashaika

Abdel Karim Aweiss

Sana' Shehadeh

Kahira Saadi

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Marwan Barghouti

Ahmad Taleb Mustapha Barghouti

Abdullah Barghouti

Ibrahim Hamed

Mohammad Hassan Ahmad Arman

Wael Mahmoud Mohammad Ali Qasam

Walid Abdel Aziz Abdel Hadi Anjas

Mohammad Aschak Odeh

Wisam Said Abbasi

Ali Munir Ja'ara

Abdel Rahman (Zaher) Yousuf Abdel Rahman Makdad

Ahmad Salah Ahmad Salah

Halmi Abdel Karim Hamash

Ahmad Mohammad Ahmad Sa'ad

Mohammed Issa Mahmoud Ma'ali

Ali Mohammad Hamed Abu Halail

Ahmad Abu Radab

Said Ramadan

Majed-Al-Masri

Mohammad Abdel Rahman Salam Maslah

Naser Aweiss

Faras Sadak Mohammed Ghanem

Mohammad Sami Ibrahim Abdullah

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Sa'id Awada

Naef Abu Sharkh

Mazen Faritakh

Kamal Eddin Musa el Abed

5.

ursuant to Chapter II, Article 9 of the General Intelligence Law No. 17 of 2005 of the

Palestinian Authority (now, the State of Palestine) (the General Intelligence Law ) the

GIS performs numerous functions including:

a.

Taking measures to prevent acts that may endanger the security and

safety of Palestine... ; and

b.

Reveal[ing] external dangers which may jeopardize the Palestinian

national security in the fields of espionage, collusion and sabotage, and

any other acts which may threaten the unity, security, independence,

and resources of the homeland.

6. In executing these functions, the GIS maintains security files on some, but not all,

Palestinians.

7. The GIS maintains these files, among other reasons, in order to help monitor security-

related allegations made by Israel, ensure security within the Occupied Palestinian

Territories (now, the State of Palestine), monitor militant or subversive activities within

the Occupied Palestinian Territories (now, the State of Palestine), engage in law

enforcement activities, and execute its functions under the General Intelligence Law.

8. The information in the files is collected through numerous meant-:, including through

public sources, GIS agent investigative fieldwork, interrogations, and confidential

sources and informers. With respect to persons who have been charged and/or convicted

3

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by Israel with security-related offenses, the information in the files often includes or

consists of allegations or charges made by Israel against those persons, which the GIS has

neither confirmed nor officially adopted as true.

9. In response to Plaintiffs' request, I directed my staff to collect files relating to the

individuals listed in 114. As a result, documents were located for persons that I believe

match one or more of the names of nearly all the individuals described in paragraph 4.

In some cases, in response to our attorneys' inquiries, my staff created entries in files that

summarize the status of a particular individual or sent correspondence related to the

request.

10. I have personally reviewed these files and conclude they constitute State Secrets of the

Palestinian Authority (now, the State of Palestine), and I am invoking the State Secrets

Privilege on behalf of the State of Palestine.

11.

I understand that this affidavit will be public, and I have therefore described many of the

below concerns generally, so as not to compromise the very information that ought to be

held confidential. I am willing to provide a more detailed affidavit to the Court, should

such an affidavit be kept under seal by the Court.

12. Revealing info'

ation contained in the files including, but not limited to, the identity of

confidential sources, the methods of intelligence collection, and the identity of security

suspects identified by the GIS (other than those individuals listed in Plaintiffs discovery

requests), would directly threaten GIS's role in securing the homeland because it would

endanger the security and safety of Palestinian nationals and potentially subject

Palestinian nationals to external dangers, and reveal intelligence methods regarding

dangers such as espionage, collusion and sabotage, all in direct contradiction of the

4

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General Intelligence Law. Furthermore, disclosure of this information would potentially

reveal GIS intelligence methods to foreign powers and increase the likelihood of security

threats from foreign powers.

13. The files additionally contain information relating to GIS law-enforcement investigations,

and therefore I am also invoking the Law Enforcement Privilege on behalf of the PA

(now, the State of Palestine).

14. The information contained in the files includes information relating to GIS investigatory

techniques and law enforcement investigations and should not be disclosed. The success

of GIS's investigations depends on the confidentiality of these files and the sources

located within them. Specifically, disclosure of these files would:

a.

Expose GIS intelligence gathering and analysis techniques;

b. Expose the identity of GIS informants, officers, and security suspects;

c.

Undermine the privacy of the subjects of the files as the files contain

personal information relating to the subject of the file, such as the

names of their family members and friends, political affiliations, and

occupations; and

d.

Impair the ability of the GIS to conduct future investigations

15. Moreover, like files maintained by intelligence and security forces in other countries, the

information contained in the files is not necessarily completely reliable or accurate.

Rather, the files contain information that is often collected from sources outside of the

PA (now, the State of Palestine) that are of varying degrees of reliability. This

information may or may not be true and may or may not be based on first-hand

knowledge.

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16.

The files do not contain any information which would suggest the PA (now, the State of

Palestine) or PLO had advance knowledge or information regarding any of the attacks at

issue in this matter.

17.

Disclosure of this information to third parties could compromise the GIS' s intelligence

gathering and law enforcement abilities and result in the disclosure of sensitive

intelligence and law enforcement information.

18. Various provisions of the General Intelligence Law generally prohibit and criminalize

the disclosure of GIS intelligence information, including the identities of informants or

information provided by such informants. Specifically, Chapter I Article 7.2 of the

General Intelligence Law states:

The Head of Intelligence shall be accountable to the President or

the person whom he may authorize to maintain the confidentiality

of the work of the Intelligence, the information and the means of

accessing it, and its sources. Investigations or information of the

Intelligence may not be viewed except by special permission of the

President or the person whom he may authorize.

Chapter VII, Article 30, of General Intelligence Law states:

Information regarding the regulation of the Intelligence and its

activities, functions, documents, headquarters and properties and

the data of its members shall be a secret of national security, the

revealing of which is prohibited. Such shall apply to any member

of the Intelligence and those working by special contracts, even

following the expiration of their service.

and C hapter VII Article_31 ofThe_Genezal_Intellig_ence_Law_states:

Any person who deviates from the requirements of the functional

obligation, or commits any of the prohibited acts set forth under

this law and its bylaw, or appears in manner that violates the

dignity of the function and its requirements shall be punished

pursuant to the

Penal Law in force.

6

1334903 1



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19. Based on the foregoing, I request that this Court permit the PA (now, the

State of Palestine) to withhold production of these documents pursuant to

the State Secrets and Law Enforcement Privileges.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE

UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT.

Executed on this

ay of May 2013, in the State of Palestine.

Majed Faraj

7

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EXHIBIT B



30/38

;;40 1

f1:4;

Lut,

The ::;eCUrily Sector .egisl6t ion of the Pales finianNational Authority

General Intelligence Law No. 17 of 2005

The Chairman of the executive 'Committee of the Palestine Liberation

Organisation,

,

The President of the Palestinian National Authority,

Having reviewed the

Amended Ba sic Law of 2003

and its Amendments,

Having reviewed the Law

of Civil Service No. 4 of 2998

and its Amendments,

Having reviewed the

Law of Insurance and Pension of the Paleninian Security p

oives

No. 16 of 2004

and its Amendments,

Having revieWed the Law of Pub lic Retirement No: 7 of 2005,

Having :reviewed the Law

of Seevice in the Palestinian Security F orces No, 8 of 2005,

Based upon approval of the Legislative Co uncil during its sessioma 21September,

2005,

Based upon the powers bestowed upon me, and

in

the

name of the-Arab Palestinian People,

I hereby piomulgate the followingltal:

Chapter Y x Definitions and General Pr visions

Article I

In applying the provisions of this law, the following terms and expressions shall

have the m eanings specified below, u nless the context determines Otherwise:

NationakAti thority:

President;

fead of Intelligence:

Member

The Palestinian National Atithority.

The P resident of the P alestinian National Authority.

The. Palestin:art General Intell'gence.

The H ead of the PaleStinkut General Intelligence.

Any of ficer, non-corn iissioned Off icer, orineinbei of

p . _,

rsonnel appointed In the httelligence.'

Article 2

The Intelligence shall be a regular security' agency gub orditiato to the President`

It shall perform its functions and Continence its jurisdictions pursuant to the

provisions of the law un der the presidency ilta(e comm and of its Head, who shall

issue the decisions necessary for the management of its work and the regulati

on

of all of its affairs.

252



31/38

ndincrtts,

; Amendments,

est inian Secu ri ty Forces

t Forces No, 8 of 2005

;

,scion Of 21 September,

Provisions

.-i arid expressions

tinkles -otherwise:

ity,

[9:#tiortal Authority.

4

nce,

,oral Intelligence.

officer, or member

of

ligence.

iinate to the tiNsident.

coons pursuant to the

of its Head, who shall

tork and the regillation

Friuhewurk

of the PNA Security Foxes

Artkle

3

The Intelligence shall consist of a Head, a Depu ty, and a sufficient number O f of ficers

and individuals expedient to carry out the wo rk in accordance w ith the organisational

structure to

be issued by the President, The pmvisions of

this

law shall apply to all

members thereof.

Article 4

1

The Head of Intelligence shall be appointed by the. President in the rank of a

minister.

2.

The duration of the appointment of the Head of Intelligence shall last fOr three

(3) years. It may be extended for one (1) year only.

Article 5

The Headof Intelligence

shall be the authority competent

to

enforce the provisions

of this law and defining the jurisdictions of the units in the light of the bylaw, He

may delegate some of his authority to whomever he deems fit from. among the

officers.

Made '6

1.

The

Deputy-Head of Intelligenee,shall be appointed bythoPresident and upon

the notuirtation of the Head of intelligence.

2.

The appoint ent in the functiOn of a director of

a

department at the intelligence

OA be made by the Head of Intelligence- and upon the nomination of. the

Con

milt:tee of Off icers.

The directors of departments shall' be part of the exccutiVe

conuirtnd of

ti

te Intelligence and fully responsible for the implementation: of the duties

assigned to thern.

Article.?

1

The H ead of Inteil igence shall assume the au thority of superVising the activities

of the Intelligence and its members. He may establish necessary committees

and issue decis.ons and orders required for the regulation of the progress of

work

and

the ensurement of good performance.

2.

The ilead of Intelligence shall be accountable to the President or the person

whom he may authorise to maintain the confidentiality of the work of the

Intelligence, the information and the Means of acceSSing it, and its sottices.

InVestigations or information of the Intelligence may not be viewed

, except

by

a special permission of the President or the person whom he ina.y

authorise.

The Head of Intelligence shall notify the. President or the person whom he

may

authorise

of all matters of significant or urgent nature.

Authority

of 2005

Palestine Liberation

25



32/38


33/38

rig Article are applicable

'arm a h ostile act against

Ile of war with Palestine.

fence of Palestine in the

vign state.

:Atka physical injury, or

mses or their ascendants

idents of States or prime

lities or those occu py log

toward them

heir

ited with the State d

/ate properties fo r

public

cities of a state connect'

The Legislative. Framework of the INA SecerityBurces

The manufacturing, possession or acquisition

of

weapons, explosives

or any detrimental materials

with the intention

to perpetrate any of the

aforem entioned acts in any state.

7.

ny act

o

violence or threat, whatever its motives or pu rposes, which occu rs

in the implementation of an individual or collective criminal plot aimed at

creating fear amo g the people or intimidating them. by harming them or

putting their life, freedoms or security in danger, or by causing damage to

the environment or to any facilities or public properties, or occupying or

seizing control of them, or forfeiting land, tv subjecting a national resource

to danger.

Artic...e 11

Pursuant to

the

provisions of the laW, the intelligence shall have the right to collate

inftirmation in the jurisdictions which the. law Approves And to request it from

the agencies Of the. N ational Authority and others without objection, The Head o f

Intelligence may request from the Attorney-G eneral pursuant to the law the right

to bring about legal decisions to prevent foreign nationals from travelling from or

to Palestine and, for reasons of national security, to prevent citizens from travelling,.

Furthermore, the Intelligence shall have, in the cause of the co mmencem ent of its

jurisdictions set forth tinder this law, the authority of oversight and investigation

through various technical and professional means pursuant to the law.

Article 12-

The

Intelligence, in the

,

cause of the oilnniericernent of its jurisdiction set forth

under this law, shall have the Capac ity of the Judicial Police

Article 13

The Intelligence must heed

the

Tights and. guarantees set xorth in

the

Palestinian

laws and, the rules otthd international law in this ciciniain,

Article 14

Pursuant to the provisions of the law, the Intelligence shalt conduct preliminary

investigations into incidents

ascribed to the detained person; exercise oversight;

search; investigate and inspecte; may requeg t the attachMent of properties

and the

detention of individnaig; may suntinon and interrogate individuals and hear their

statements; .and may reqnest data, Information and documents-from any person

t

keep

them and take such miens as it deems necessary

in their

regard pursuant

to th

e l

aw.

Article 15

If the detained person is a fo reign national, he must be assisted to contact the

2

losest representative of the state to which he is a subject.

.

IV Intelligence may notify any other stale of interest if it deems app ropriate

for (he fact of such measure and the cfrettinstanees which required it to be

taken.

(mat Authority

telligence

ise security activities and

s within the geographical

measures and activities

ericitinger thesecurity and

ten perpetrators pu rsuant.

the Paleatinian 'national

otage, and any other acts

Ice, and resources of the

nes- tOfight all acts which

elds of external seciiiity,

255



34/38

The Security lector Legistatior,of the Palestiniao National Authority

Article 16

In a manner not contradicting the:ofoyisions of this law; the treaties pertaining to

the extradition of defendants in crimes subject o'extradition between the National

Allthority and any other

state musvbe abided by.

Chapter trt.

The Btidget

Article 17

1

Pursuant to the Tto#15ions of the 1

aW, the Intelligence shall have its own

inderse'ilderielsucfger, Which sliai-Pbe:included.as one figure within the .Ger

Midget of tha$tate.

,

The Intel4erfeerafatlmanage itsown budget and-ev.

(loin; if {Wet

aieluperVision

2.

The Legysiativecouncil'.shair Itirain An ad hoc court

f three (3) mein

that shall assume Ifie

di'scugaortndaproval of the budget of the Inteir,g.2.,

a:

p-t.lof lfie.approvalkof,,ihe Oeft01

7

Budget.

3,

finartoW 'controller. Shall be afrinted in; the Intelligence by the President

andUpon the noininivtioh 0,PtIAI

letidof Int elligerice: The financial controller

fye resgonsible

4Or IewieWing the items of exp.-Iv:MI.1re, have ditect

an

ctvisiort. over Mi.E.'altell,flng

-

oNccolintS,, anclenStire ft " s are sound.

Artitleff$

The Head of Intcll genre shall'be responsible for preparing the Intelligence's-

annual budget and submitting it to the President for approval.

Z.

he Head of Intelligence shall issue the decisions which include the bases and

procedures pertaining to the implementation of the items of the budget for the

purposes designated thereto,He shall have the power to disburse confidential

expenditures in the mannetWhich he decides without abiding by the bylaws

and decisions applicable to other governmental agencie,S. All the items and

procedures related thereto Shall be' deemed confidential.

Article 19

The Head of intelligence shall prepare a regulatiOn far;

urchases which shall conform

to the nature of

the

function of the Intel ligenee, Which regalation is subject to approval

by the President The Head of Intelligenee sl eII &Ivo f fe f ull pow er to enforce it.

Chapter IV. The Committees

Article 20

The Head of Intelligence may establish coot iittees in accordance with

ti

,

requirernentg of the work, The decision of establishment shall determin

e

duties, powers and restrictions of the function of a committee, provided t 1 1 1 .

, . , , , d

function of a committee does trot conflict with the duties of

a

dministratio

nsd

r

units already in existence, Cornmiaees of investigation which are establish

e

specific purposes shall be excepted therefrom.

256



35/38

The Legislative Fiarnework of the P1\ 1

ASequeity Forces

Article 21

Pursuant to- the previsions of

the :Law o f $ere ice in the Pales t in ian Se tuf i ty F orces

and by decision of the Head of Intelligence, a subcommittee of officers shall be

established in the Intelligence.

Axtide 22

The conunittee shall exercise Its jurisdictions over all members of the.Intelligence.

It may also include in its meetings persons from whom it deems fit to seek

assistance.

Chapter V. The Obligations of the Members and

Prohibited Acts

Article 23

The Head a

ntelligence, his Deputy or any of the members may not bear witness

before the courts, even following their retirement from work, with regard to

information which came to their knowledge &frig the- performance of their

work, but which was not diSserriinated in a legal manner and which the National

Authority did not allow tO be, disseminated. The Permission of the competent

authority shalt be given to the Head of Intelligence and his Deputy Vale Presideat.

Other members shall thus be given by the Head of Intelligence.

1,

[he

nrp

rok.

vis'uno ui unis law ana its bylaw They

nustalse abide4 the

-

by.laWs-and Regulations operating insicle

.

and outside

4,theitifelllgOteL:

A mantraI.O

tt.e members w)ifehlegulateS.their demeanoUr and ethics is to

% )e.. issued.

Article 25

In addition to prohibitions set forth under the

Law of Serv ice in the Pales t in ian

Security F ottes

; the

members shall be prohibited from the following.

1.

ombiningwork at the Intelligence with any other work, unless the interest of

the work so requires and by decision of the Head of Intelligence.

2,

Negligence or failure due to will& a right of the State may be lost.

3.

Revealing any data pertaining to the matters of work to the media, whether

during

hereor

the service or thereafter, except through a person authorised

4.

Performing any political or media activity.

5,

ffiliating

with

associations, institutions or dubs, unless the interest of the

work thus requires and by decision of the Head. Of Intelligence,

6.

txpioiu

ng

the function in order to achieve personal goals.

7.

keepin

g k

fo: themselves

any

official downier

-

its, even if they pertained to

which they were assigned.

opal Authority

the-treaties pertaining to

:ion between the National

;mice shall have its own

figure within the General.

i.own budget and expend

fttee

of three (3) members

budget of the Intelligence,

11.1gence by the PreSident

ii The financial controller

expenditure, have direct

re that they are sound.

eparing the Intelligence's

r approval,

rich include the bases and

tennis of the budget for the

nr to disburse co nfidential

iut abiding by the bylaws

orioles. All the items and

hases which shall confo rm

ation is subject to approval

11 power to enfo rce it

tees

10 accordan

c

e with the

-

tent shall determine. the

Inittee, provided that the

s

dntinistrations and

which are established fol



36/38

1 . .

ursuant to the p

to

prepare, train

2,

he Heact

,

of Trite

courses and shat

interest and achit

The Legislative Cotu

hold the Head of Into

hi. cases other than

a member or interr

Intelligence.

Arty person who dE

or

commits

any of tl

ppe rs in

a

manner

Shall be punished pu

Information tegardir

documents, headqw

secret of national se(

to any member of tt

following the expiral

Every member of the

and ineaSures issued

Chapter

Char

111

a manner not contr

of

Service in the Palest

a

PPOintment, senforit

b

sd

a

lolarships,

salaries,

cigea, arid medals, t

"I' other matter of z v

The Security Sectoe Legiilation Of the Palest[(dart NatiCntal Authority

8.

Contravening the security measures of which a decision is issued by the

Com petent authority.

9.

Concealing errors and contraventions by their colleagues at work.

10.

Com municating or establishing special relationships with fo reign nationals or

members of embassies and missions accredited at the State, unless the'interest

of the wo rk so requires and by decision of the Head of Intelligence.

Chapter VI. Appointments

Article 26

The following shall be required from

>a person to be appo inted in the intelligence:

1.

e of Palestinian nationality and P alestinian parents.

2.

ot be previously convicted of a crime or rnisderneanour violating honou r or,

trust.

3,

e physically fit fo r service.

4.

Not be married to a nen-Arab,

5.

Be between eighteen (18) and thirty (30) years of age.

6.

Not have been dismissed from fanner service by a disciplinary decision.

7.

Be of good conduct.and repute,

8.

liold the academic qualifications required for the function.

9.

Pass the examinations necessary to occupy the fu nction.

Article 27

1.

ny person who is appointed; as

an

off icer in the Intelligence shall'swear the.

Oath of A llegiance

in accordance with the fo llowing;formula:

swear"by. the Almighty Codlo be sincere to the homeland and the people, to defend

there and sacrifice my soul in their cause, to preserve ray weapon and military honour,

to respect the laws and regulations and enforce them, to safeguard the secrets of

my career, and to perform al l of my funct ional and national obligat ions in honou r,

trus

worthiness and sincerity, God shall hereby be witness

upon

what I say, '

The swearing of the oath by the Head of intelligence and hisneputy shall be

befo re the President.

3.

he swearingof the oath shall be bef ore the Hea

ntelligence or the person

wham he delegates therefor. The officer shaft sign the form ofthe 'Swearing

of the Oath' which shall be kept in the service file.

Artiele 28

Assistance may be soug ht from exp erienced retirees who were previously

members

of the Intelligence for the performance of particular functions by spec work

contracts

for a period of one (1) year that stuill

-

be renewable for three (3) year's in

return for a fixed remuneration,

258



37/38

ThelegislativeFramework of the Pt4 A Security Forces

Chapter VII. Confidentiality and Discipline

Article 29

gverymernber of the Intelligence shall be sub ject to the security directives, restrictions,

and measu*sisbued by the H ead of Intelligertce.

Article 30

Information regarding the regulation of the Intelligence and its activities, functions,

documents, headquarters and properties and the data of its members shall be a

secret of national security, the revealing of W hich is prohibited. Such shall apply

to any member of the Intelligence and those working by special contracts, even

follow ing the expiration of their service.

tide 31

Any person who deviates from the

requirementS of the functional obligation,

or commits any of t114

-

prohibited::att6

.-

set forth under this law and its bylaw,

or

appears in. a mariner that violates the dignity of the f unction and its requirements

shall be purls ct pats

uant to the

Peal taw iit fOrce.

Article 32

In cases other than

flagrante clench ),

the competent authorities may not detain

a member or interrogate him except following notification of the Head of

Intelligence.

Chapter VIII. Concluding Provisions

Article 33

The Legiglative Council, through its ad hoc-committees, shall have the right to

hold the Head. of Intelligence accou ntable.

2

Article 34

Purtuant to the prov isions of this law, a security academy shall be established

to prepare, train and qualify the mem bers of the Intelligence.

The H ead of it utellIgence Shall aSSurrte the supervision over the curricula and

courses and shall appoint trainers and instructors in accordance With the

interest and'achievettient of the goals.

Article 35

In a inanner not contradicting the prrivisions of this law, the provisions of the

Law

of Service in the Palest inian Security Forces

Shall

apply to the members regarding

appointm ent, seniority, promo tion, delegation, assignment, transfer, secondment,

scholarships, salaries; leaves, obligations, prohibited acts, penalties, decorations,

badges, and medals, transfer to provisional retirement, expiration of service, and

any other matter of which a relevant provision is.not' mentioned in this law.

aittiartty

on is issued by the

at work.

t foreign nationals or

:e, unless the interest

.telligence.

in the Intelligence'.

'violating honour or

liriary decision.

al;

;erice shall swear the

ilat

td the people. to defend

,

tt

anti mititary honouri

ifeguarci the secrets of

obligat ions in honour,

on wh at I say. '

his Deputy shall be

ligence or the Person

man of the 'Swearing

previously members

orts by special work

for three (3) years in

259



38/38

The Security Sector Legislation of the Palestinian National Authority

Article 36

The Head of ffitelligence- shall draft the bylaw of this law and the regulations

necessary for the function of the Intelligence, which shall he issued by decision of

the.president.

Article 37

All competent 'authorities, each one within its sphere of jurisdiction, shall

intplement the provisions of this law, which shall enter into force as of the date of

its publicatioit in the Official Ga zelte.

Issued in the city of Ramallah on 26 October, 2005 AD, corresponding to 23

Ramadan 1426 AXL

Mah rnoud Abbas

Cha irman of ,the Executive Comm ittee of the Palestine Liberation Organisation

President the Palesiinian National Authority

D

in

A

li

B

In

I

I

In

ha

i.
