Clark`s request to expedite the appeal

Case: 11-10683
Document: 00511568067
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT USCA No. 11-10683 USDC No. 5:11-CR-015 JAMES CLARK Appellant, v.
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION, and UNITED STATES ATIOREY'S OFFICE, and KHALID ALI-M ALDA WSARI Appellees. On Appeal Under Collateral Doctrine MOTION FOR A STAY OF ORDER OR ALTERNATIVELY MOTION TO EXPEDITE APPEAL James Clark 6229 36th Street Lubbock, TX 79407 james2813@hotmail.com 806796-5955 806 438-8472 (cell) PETITIONER, PRO SE Case: 11-10683
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CERTIFICATE OF INTERESTED PERSONS The Petitioner certifies that the following listed persons and entities as described in
Rule 28.2.1 have an interest in the outcome of this case. These representations are
made in order that the judges of this court may evaluate possible disqualification or
recusal.
James Clark, Petitioner
Sam R. Cummings, United States District Judge
Matthew Joseph Kacsmaryk, Assistant United States Attorney
Khalid Ali-M Aldawsari, Defendant/Respondent
Rod Hobson, Paul Doyle, & Dan Cogdell Counsel for Aldawsari
News Media Outlets
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* Rule 28.2.1 says, "If a large group of persons or firms can be specified by a
generic description, individual listing is not necessary."
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TABLE OF CONTENTS Declarations Page
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Certificate of Interested Persons .,",., .. ,",., ...... , ... ,.,............
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Table of Contents ......................................................
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Table of Citations ... , , ...... , .. , . , , ........ , , , , , , . . . . . . . . . . . . . .
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Statement of the Case ........... , , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Timeliness of Appeal ...........................................
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Authority For Intervention ............ , ...... , , , ....... , . . . . . . . . .
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Facts In Support Motion ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Procedural History ............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Argument .............. , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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(1) Likely To Success on Merits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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(2) Irreparable Injury If Not Stayed ... . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 (3) Stay Would Not Harm Other Parties ............... . . . . . . . . . . . .
12 (4) Stay Would Serve Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13 Justification For Expedited Appeal .............................. . .
15 Conclusion And Relief Sought. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16 Certificate Of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17 Attachments (A) Emergency Motion To Intervene And Stay
(B) Order To Deny Emergency Motion
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TABLE OF CITATIONS Branzburg v. Hayes, 408 U.S. 665,681,92 S.Ct. 2646, 2656, 33 L.Ed2d 626 (1972) ..... .
Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) .............. .
Hilton v. Braunskill, 481 U.S. 770, 776 (1987) ................................... . In re: JAMES CLARK 11-10403 (5th Cir. unpublished) ................................... .
United States v. Brown, 218 F.3d 415 (5th Cir. 2000) ...................................... .
United States v. Gurney,
558 F.2d 1202 ....................................................
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STATEMENT OF THE CASE James Clark, pro se, a member of the News Media, moves the Fifth Circuit Court
of Appeals for a Stay of the District Court's Order of March 9, 2011, forbidding
parties, their representatives, or their attorneys from communicating with the News
Media filed in United States v. Khalid Ali-m Aldawsari 5: 11-CR-015-C (referred
to herein as USA v. Aldawsari). Or in the alternative, Appellant petitions the Fifth
Circuit to expedite appeal.
The Appellant asserts the District Court has violated, and continues to violate,
Freedom of the Press, Freedom of Speech, Due Process and Appellant's right to
intervene in USA v. Aldawsari.
A stay is required to prevent further damage of Appellant's rights - damage which
has occurred suddenly and unexpectedly, and is likely to do so again during the
pendency of this case.
TIMELINESS OF APPEAL
The appeal is timely filed, with a more detailed substantiation of timeliness to
follow in the Appellant's forthcoming main brief.
AUTHORITY FOR INTERVENTION
Case law that authorizes Appellant to intervene and subsequently appeal a criminal
case to which he is not a party includes Davis v. East Baton Rouge Parish School
Bd., 78 F.3d 920,926 (5th Cir. 1996), In re Hearst Newspapen;, L.L.C., _ F.3d
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No. 10-40221, 2011 WL 1844189, and In re: JAMES CLARK 11-10403
(unpublished).
FACTS IN SUPPORT OF MOTION
On February 23, 2011, the Appellant was among the first of the News Media
worldwide to report that Khalid Ali-M Aldawsari, a citizen of Saudi Arabia and a
resident of Lubbock, was arrested on a charge of Attempted Use of A Weapon of
Mass Destruction. He was accused of gathering the materials necessary to create a
chemical bomb and it was alleged that his proposed targets included the home of
former President George W. Bush. Aldawsari was subsequently indicted in the
Lubbock Division of the Northern District of Texas on the same charge.
In its Order of March 9, 2011 the District Court stated that it takes judicial notice
of "an extraordinary amount of media coverage" pertaining to USA v. Aldawsari.
The aforementioned order states:
IT IS, THEREFORE, ORDERED that the parties, their representatives, or
their attorneys of record, SHALL NOT communicate with the news media
concerning this case.
Said Order, referred to herein as the "Gag Order," is overly broad and fails to meet
the standards set forth time-after-time by the Fifth Circuit.
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PRECEDURUAL HISTORY Appellant came before the District Court as a Movant in USA v. Aldawsari on
April 4, 2011 with an Application For Leave to Intervene, which was denied. A
Motion to Reconsider was filed April 7, 2011, and was subsequently denied.
Appellant filed a Petition for a Writ of Mandamus, received by the Clerk on April
25, 2011 and ruled upon by the Fifth Circuit on July 13, 2011. In a Judgment as
Mandate, USCA No 11 10407, the Circuit Judges ruled that the Appellant must
proceed with an Interlocutory Appeal under Collateral Doctrine rather than
Mandamus.
The Petition was sent back to the District Court with orders to file it as a Notice of
Appeal, dated April 25. On August 3, Appellant filed an Emergency Motion to
Stay in District Court, which was denied. The Emergency Motion is described
more fully in the paragraphs to follow.
ARGUMENT
To obtain a stay pending appeal, the moving party must demonstrate: (1) that it is
likely to succeed on the merits; (2) that it would suffer irreparable injury if the stay
were not granted; (3) that granting the stay would not substantially harm the other
parties; and (4) that granting the stay would serve the public interest. Hilton v.
Braum'kill, 481 U.S. 770, 776 (1987).
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(1) Likely to Succeed on Merits
The Gag Order forbids all communication with the News Media from "the parties,
their representatives, or their attorneys of record."
The following definition of the word "representative" comes from the online
version of the Merriam-Webster dictionary (http://www.merriam­
webster.com/dictionary/representative):
2 a : standing or acting for another especially through delegated authority
b : of, based on, or constituting a government in which the many are
represented by persons chosen from among them usually by election
The United States is party to USA v. Aldawsari and so the Gag Order affects every
representative thereof. That means every person in the entire world who acts on
delegated authority for the United States, or is elected to serve a federal position in
the United States is covered by the Gag Order. The Gag Order potentially impacts
2 million government employees, 435 Members of the U.S. House, 100 U.S.
Senators, and the President and Vice President of the United States.
The District Court relies upon United States v. Gurney, 558 F.2d 1202 in the
original Gag Order. This is a perversion of Gurney.
Nowhere in Gurney does it say the District Court can stop all elected federal
representatives or federal officials from talking about current events that might be
ancillary to a pending criminal trial. Quite the contrary, Gurney talks about
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attorneys, parties, witnesses and others who would be thought of as inside the
Court.
Any restriction on Constitutionally protected communication should be the least
restrictive measure possible, should be narrowly tailored, should be a reasonable
remedial measure, and should fall short of prior restraints.
In it's Order of April 7, the District Court relies upon United State.'; v. Brown. 218
F.3d 415 (5th Cir. 2000). Again, this is a terrible perversion. Brown prohibited
parties, lawyers, and potential witnesses from granting interviews or statements to
the media other than matters of public record. Nothing in Brown authorizes a
prohibition on Congressional Representatives or others who act on delegated
authority for the United States from speaking to the News Media. Instead, Brown
calls for the Court to use "the least restrictive corrective measure available to
ensure a fair trial."
Time and time again, the Fifth Circuit has said that restrictions on Constitutionally­
protected speech must be narrowly tailored. Gulf Oil Co. v. Bernard, 452 U.S. 89,
101 S.Ct. 2193, 68 L.Ed.2d 693 (1981), in which the Supreme Court upheld the
Fifth Circuit, says the courts have the power "to restrict certain communications,"
however the courts must give, "explicit consideration to the narrowest possible
relief which would protect the respective parties."
Unless the Fifth Circuit is going to create a new landmark and throw out long­
standing precedent, the current Gag Order cannot long stand. The Appellant is
likely to succeed on the merits.
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(2) Irreparable Injury if Stay Not Granted
On August 3,2011 Appellant filed an Emergency Motion to Intervene and
Immediately Stay the "Gag Order" of March 9, 2011. The emergency -- that is to
say the unexpected circumstance requiring immediate action
began shortly after
midnight with an Associated Press story indicating the imminent release of a White
House report on "violent extremism."
The premise of the report is that communities are in the best position to identify
and report those who would engage in violent extremism. The Appellant believes
that there is no better example than Lubbock and the facts alleged in USA v.
Aldawsari.
This should have been a major opportunity for the Appellant to write a local story
that would be picked up nationally by outlets including NBC NewsChannel (the
NBC news service for affiliate TV stations), CNN and the Raycom News Network.
But to whom shall the Appellant turn for comments in his story?
The Gag Order prevents comments from the U.S. Attorney's Office, counsel for
the Defendant, the FBI, Lubbock Police, Congressman Randy Neugebauer (or his
spokesperson), U.S. Senator John Cornyn (or his spokesperson), U.S. Senator Kay
Bailey Hutchison (or her spokesperson), and the White House Press Secretary (or
his subordinates).
The element of timeliness, an important aspect of newsworthiness, is passed and
therefore the Appellant no longer has an opportunity to pursue the aforementioned
story and offer it to national outlets. In the August 3rd instance, the damage to
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Appellant's Constitutional right of Freedom of the Press is permanent. It can never
be restored.
Appellant alleges that theoretically a strictly-local story could still be pursued but
experience teaches that it would be less attractive to both TV viewers and website
viewers because of the lost element of timeliness. Again, the damage is
permanent.
It is not enough to quote the documents. Yes, the media quote documents, but the
media must also quote those who make law and set policy. This is how the media
inform the public about the actions of those who are charged with keeping us safe.
This means the Appellant and other News Media must be able to ask questions of
our federal representatives; elected, appointed, and hired. " ... [F]reedom to speak
is of little value if there is nothing to say." United States v. Gurney, 558 F.2d 1202.
"[W]ithout some protection for seeking out the news, freedom of the press could
be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33
L.Ed2d 626 (1972). That is precisely what the District Court has done. The Gag
Order is both a Manifest Injustice and simultaneously a Prior Restraint.
The next emergency - that is to say, the next unexpected circumstance requiring
immediate action for the preservation of Constitutional rights - could come at any
moment. Twenty-two years of experience teaches the Appellant that there likely
will be other opportunities, and said opportunities are at this very moment quashed
by an illegal Prior Restraint.
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On August 3, the District Court incorrectly denied the Emergency Motion, but by
then it was already too late. Timeliness had been lost when the denial appeared on
PACER well after 4:00 PM CDT. The situation is capable of replication with
newsgathering opportunities corning and going faster than the District Court or the
Appeals Court can consider - thus escaping review.
(3) Stay Would Not Harm Other Parties
The Gag Order is not necessary. Members of the Bar in Texas have a moral
obligation to follow ethical guidelines including Rule 3.07. "In the course of
representing a client, a lawyer shall not make an extrajudicial statement that a
reasonable person would expect to be disseminated by means of public
communication if the lawyer knows or reasonably should know that it will have a
substantial likelihood of materially prejudicing an adjudicatory proceeding. A
lawyer shall not counselor assist another person to make such a statement." Texas
Disciplinary Rules of Professional Conduct, Rule 3.07 Trial Publicity.
Extra-judicial comments by Counsel of Record which might prejudice the
Defendant's Sixth Amendment right to a fair trial are already addressed. The Gag
Order is not necessary.
But moreover the Gag Order goes too far in that it bans all communication instead
of just those matters above and beyond public record. The aforementioned rules of
ethical conduct say it is not a violation to describe that which is a matter of public
record. Similarly, every Gag Order that has passed muster before the Fifth Circuit
has allowed Attorneys and others to talk about those things which are a matter of
public record.
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Arguendo, if a gag order is needed, then it could be constructed in such a way as to
cover those who are directly related to the case
those who are inside the court
such as attorneys, jurors and witnesses. As for the current Gag Order, the Record
on Appeal will clearly show no consideration of lesser restrictive measures was
ever given. Neither the Defendant nor the United States are harmed by the Stay of
an order they did not request and to which they are not entitled, at least not in its
current plenary form.
As a matter of fact, one could argue that the Gag Order harms the Defendant by not
allowing him to choose for himself the exercise of First Amendment rights versus
Sixth Amendment rights. One could also argue the Gag Order harms the Uni ted
States because it eviscerates the very First Amendment rights that the United States
should be defending, not destroying. Lifting the Gag Order, at least insofar as it is
cunently constructed, would actually be beneficial to both parties.
It is important to note; the Gag Order has no expiration date. It lasts forever even
after the case is adjudicated. What need does either party have for a Gag Order
long after the Defendant is found to be guilty or not guilty - long after any Sixth
Amendment consideration has come and gone?
(4) Stay Would Serve Public Interest
The Appellant cannot state his case any better than the preamble of Chapter 552 of
the Texas Government Code:
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"Under the fundamental philosophy of the American constitutional form of
representative government that adheres to the principle that government is
the servant and not the master of the people, it is the policy of this state that
each person is entitled, unless otherwise expressly provided by law, at all
times to complete information about the affairs of government and the
official acts of public officials and employees. The people, in delegating
authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know. The people
insist on remaining informed so that they may retain control over the
instruments they have created."
The people of Lubbock have the right to know what their elected Representatives
have to say about allegations of a terrorist plot hatched in their own community.
The people have the right to know about certain laws ancillary to the case such as
the See Something Say Something Act. The Appellant is strictly forbidden from
talking to federal Representatives including Representative Randy Neugebauer
about the Act because the name Aldawsari is likely to come up in such a
conversation.
The indictment alleges that Con-Way Freight employees in Lubbock tipped off
police. The Act pertains to protections specifically for such persons and their
employers. The Appellant is effectively gagged by the Gag Order when it comes
to the Act and many other legitimate news items. This is intolerable for a Free
Press and for the public at large.
Moreover, the public has the right to know if a Saudi-based corporation or the
Saudi Arabian government are expending funds to frustrate the United States'
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prosecution of the Defendant. If so, does it increase the cost of prosecution for the
United States? Voters and taxpayers have the right to know how their federal
public money is spent. But in USA v. Aldawsari, everyone who knows the answer
to such questions is gagged.
Again, referring to what should have been a story for the Appellant to report on
August 3, the public has the right to consider the White House policy on "violent
extremism" and the citizens of Lubbock have the right to know that their
community is arguably the all-time best example of how this federal policy can be
successfuL The way they would learn this information is by way of the News
Media, including the work done by the Appellant, if he were not forbidden to do it
by court order.
Absent a Stay, the public's interest is harmed every day because news items
ancillary to USA v. Aldawsari, such as keeping the public safe, that should be
reported are instead silenced.
There can be no doubt that a Stay of the Gag Order is in the public's best interest.
Justification For Expedited Appeal
In the alternative, expedition of the appeal is clearly warranted by the above-listed
facts. The District Court has gone obviously awry of Fifth Circuit precedent and it
continues to cause irreparable harm to the Appellant. Appellant is prepared to file
his Principal Brief immediately. Appellees are familiar with the issues on appeal
due to the Writ for Petition of Mandamus in USCA No. 11-10407 and could
reasonably be expected to respond within 14 days of the Appellant's brief.
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Appellant believes oral argument is not needed, thus making it easier for expedited
reVIew.
CONCLUSION AND RELIEF SOUGHT
For the foregoing reasons, Appellant asks the Fifth Circuit to Stay the Gag Order
pending appeal. Or, in the alternative, the Appellant asks the Fifth Circuit to
expedite appeal.
Dated August 8, 2011
James CI k, Appe lant, Pro Se
6229 36th Street
Lubbock, TX 79407
james2813@hotmail.com
806796-5955/438-8472 (cell)
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CERTIFICATE OF SERVICE
Date Filed: 08/10/2011
A'130s-i &'"f?£­
I, James Clark, Appellant, Pro Se, hereby certify that on &::pril::;w., 2011 I provided
a copy of this Motion to Stay Order to the U.S. District Court, Lubbock Division,
Northern District of Texas, and counsel of record for the for United States on
appeal, and to the attorney of record for the Defendant on appeal by U.S. Postal
Service deli very as follows:
United States District Court
Lubbock Division,
Northern District of Texas
1205 Texas Avenue, 2nd Floor
Lubbock, Texas, 79401
Law Office Of
Paul Doyle
600 Travis Suit 4700
Houston, Texas, 77002
United States Attorney's Office
1205 Texas Avenue, 7th Floor
Lubbock, Texas, 79401
Law Office Of
Dan Cogdell
1401 McKinney St,
Suite 1625
Houston, Texas 77010
United States Attorney's Office
Matthew Joseph Kacsmaryk
Suite 300,
801 Cherry Street
Fort Worth, TX 761
Law Office Of
Roderique S. Hobson
816 Main Street
Lubbock, Texas, 79401
Jame
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Attachment (A) Emergency Motion To Intervene And Stay Filed August 3, 2011 Case: 11-10683 Document: 00511568067 Page: 19 Date Filed: 08/10/2011
Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 1 of 14 PagelD 277
CLfR US DISTRICT COURT
HGR'fH
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
UNITED STATES OF AMERICA
)
)
v.
)
KHALID ALI-M ALDAWSARl
)
)
DIST. OF TX
, AUG -.;; Ai1 iO: 57
DEPUTY CLERK
«&.__
NO. S:1l-CR-01S-C
EMERGENCY MOTION TO INTERVENE AND IMMEDIATELY STAY OR ALTER "GAG ORDER" OF MARCH 9, 2011 COMES NOW Intervener/Appellant and Movant James Clark, pro se, an
individual member of the news media, to respectfully request that the court allow
him to intervene for the purpose of an emergency motion to immediately stay or
abate or alter the Court's order of March 9,2011, or, in the alternative, to schedule
an immediate hearing relevant to the issues iterated herein. The present
circumstances on the very day of the instant filing require immediate
consideration for the preservation of unalienable Constitutional rights.
Furthermore, the Movant believes that he must come to the District court first for a
request to stay before filing a substantially similar emergency petition before the
Fifth Circuit.
I. Background
1. On February 23, 2011, Khalid Ali-M Aldawsari, a citizen of Saudi Arabia and a
resident of Lubbock, was arrested on a charge of Attempted Use ofA Weapon of
Mass Destruction. In the instant case, he was subsequently indicted in the
Emergency Motion to Intervene and Stay Page 1 of 8
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Lubbock Division of the Northern District of Texas of the U.S. District Court on
the same charge.
2. In its Order of March 9th the Court stated that it takes judicial notice of "an
extraordinary amount of media coverage" pertaining to the above-styled case. The
aforementioned order states:
IT IS, THEREFORE, ORDERED that the parties, their representatives, or
their attorneys of record, SHALL NOT communicate with the news media
concerning this case.
Movant requested and re-requested the Gag Order be modified or lifted; in Orders
filed on AprilS, 6 and 7, the Court denied such requests.
3. Movant filed an appeal before the Fifth Circuit in the form of a Writ For Petition
of Mandamus. The result in USCA No. 11-10407 was a Judgment as Mandate
requiring the re-filing of said appeal in the form of an Interlocutory Appeal under
Collateral Doctrine, which is currently pending as USCA No 11-10683, and in
which the Movant fully expects a briefing calendar this week or next.
II. Jurisdiction, Venue & Standing
4. Jurisdiction is established under 28 U.S.C. § 1331, "The district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States." Venue is proper under 28 U.S.C. § 1391(e)(2).
5. Movant has standing because he makes a claim of injury in fact, and his interest
that he seeks to protect is guaranteed by the United States Constitution.
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III. Authority For Intervention
6. In the instant case the Court has said previously that Movant James Clark has no
right to intervene. However, this is not consistent with case law in the Fifth
Circuit. In the most recent example, In re Hearst Newspapers, L.L.c., _ F.3d
No. 10-40221, 2011 WL 1844189, the Fifth Circuit notes that Hearst intervened in
the criminal case of United States v. Oziel Cardenas-Guillen (Case 1:OO-cr-OOlI8
Document 232, and related case 1: 10-mc-00002).
7. Other cases in the Fifth Circuit, including in Re: James Clark USCA No. 11
10407 (unpublished) in its Judgment as Mandate, also recognize the right of media
to intervene when First Amendment rights of newsgathering are breached in
criminal proceedings. The Movant makes such a claim herein.
IV. Conditions Requiring An Emergency Motion
8. In particular, on the date of the instant emergency motion, the Gag Order
prevents the Movant from newsgathering on the imminent release of a White
House report expected to address the need for "communities" to combat violent
extremism including but not limited to AI-Qaeda. (See Associated Press articles
attached as Exhi bi ts 1 and 2.)
9. Movant alleges that just as documents filed in this Court must be timely, so also
news must be timely in order to give American citizens the full benefit of a free
press, more so now than in any time heretofore. Movant further alleges that the
court-ordered loss of timeliness is necessarily the loss of Freedom of the Press.
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Time is of the essence, as the story in question must be covered this very day in
order to be timely.
10. Other news stories are also presently and immediately subject to a chilling
effect and/or Prior Restraint including local coverage of the See Something, Say
Something Act, which is indisputably tied to the same issues as those raised in the
instant case.
v. Argument
10. Far and away at a local level, there is no better example of community
safeguards against violent extremism than those facts alleged in the above-styled
case. Even on a national level there would be few or no instances of a community
approach to combat violent extremism as good or better than the instance alleged
in the above-styled case. Other local cases do not even come close to the issues
presented in the above-styled case either in terms of federal policy or local
response. Without the local example, the local story for a local news reporter is
censored and the victim of Prior Restraint.
1l. This news item in question, which needs to be covered this very day, and the
issues ancillary thereto is the very example of a free press that the Constitution
seeks to protect and that the court currently injures. It pertains to federal policy,
local policy, decisions by elected officials, use of taxpayer resources, and safety of
the public.
12. The Gag Order forbids the Movant from all communications with the parties,
their representatives, or their attorneys of record. The following definition of the
Emergency Motion to Intervene and Stay - Page 4 of 8
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Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 5 of 14 PagelD 281
word "representative" comes from the online version of the Merriam-Webster
dictionary (http://www.merriam-webster.com/dictionary/representati ve):
2 a : standing or acting for another especially through delegated authority
b : of, based on, or constituting a government in which the many are
represented by persons chosen from among them usually by election
13. The United States is party to USA v. Aldawsari and so the Gag Order affects
every representative thereof. That means every person in the entire world who acts
on delegated authority for the United States, or is elected to serve a federal position
in the United States is covered by the Gag Order. The Gag Order potentially
impacts 2 million government employees, 435 Members of the U.S. House, 100
U.S. Senators, and the President and Vice President of the United States. That's
not hyperbole but rather a simple statement of the overly-broad and abusive nature
of the Gag Order.
14. There is no reason to gag the President of the United States, the White House
Press Secretary, Representative Randy Neugebauer or designated
subordinates/agents/representatives thereof. It serves literally no interest in the
effort to protect the Sixth Amendment Rights of Khalid Ali-M Aldawsari. Even
arguendo, if it did serve a legitimate Sixth Amendment interest, the Gag Order
would still have be balanced against the Fifth and First Amendment rights of the
Movant, if it is to comply with well-established precedent in this Circuit.
15. Movant does not challenge all gag orders in the Northern District, Lubbock
Division, but specifically at issue is the plenary construction of the Gag Order in
Emergency Motion to Intervene and Stay - Page 5 of 8
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Case: 11-10683 Document: 00511568067 Page: 24 Date Filed: 08/10/2011
Case 5: 11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 6 of 14 PagelD 282
the instant case. Where is the precedent that allows the Court to gag people who
have no direct involvement in the Defendant case? Where is the precedent that
allows the court to gag anyone, including those directly involved, from talking
about those matters which are already established as public record? Where in the
history of the United States is there any gag order as catholic or plenary as the one
in question?
16. Neither Gurney nor Brown even come close. United States v. Gurney, 558 F.2d
1202, United States v. Brown, 218 F.3d 415 (5th Cir. 2000). Quite the contrary,
courts must give, "explicit consideration to the narrowest possible relief which
would protect the respective parties." Gulf Oil Co. v. Bernard, 452 U.S. 89,101
S.Ct. 2193, 68 L.Ed.2d 693 (1981).
17. Due to the Fifth Circuit's Dickinson Rule United States v. Dickinson,
465 F.2d 496 (5th elr. 1972), Movant cannot in good faith ask Congressional
Representatives or the White House Press Secretary or agents/subordinates thereof
to violate the Order of March 9. Therefore newsgathering is quashed, which is
Prior Restraint.
18. Movant has given Notice Of Appeal in the instant case (See USCA No. 11­
10683) and believes he is likely to prevail on the merits. In a related appeal (See
USCA No. 11-10407) the Fifth Circuit had every opportunity to dismiss the
petition as frivolous but did no such thing. Instead, the Fifth Circuit issued a
Judgment as Mandate to proceed as an Interlocutory Appeal under Collateral
Doctrine. This court should stay or otherwise disrobe the Gag Order of authority
until such time as the Fifth Circuit has an opportunity to hear from the Appellees
and render a decision.
Emergency Motion to Intervene and Stay - Page 6 of 8
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Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 7 of 14 PagelD 283
VI. Relief Requested
19. Wherefore premise considered, the Movant respectfully requests the Court to
stay or abate the Gag Order; or alter the Gag Order so as to not be plenary in
nature; or to schedule an immediate hearing at which parties including the
Movant/Intervener/Appellant can be heard for the preservation of Constitutional
rights.
Dated August 3, 2011
James Clark, MJ>vant, Pro Se
6229 36th Street
Lubbock, TX 79407
',. . '28 1 'il"d ! ". , . ' l " ) "
J4m~~.§....L.\.,.;.~,::.:.1QLf.rL~1:!'U~.~:;}'f:t
806796-5955/438-8472 (cell)
1
Emergency Motion to Intervene and Stay Page 7 of 8
Case: 11-10683 Document: 00511568067 Page: 26 Date Filed: 08/10/2011
Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 8 of 14 PagelD 284
CERTIFICATE OF SERVICE: I, James Clark, Movant, Pro Se, hereby certify that on August 3, 2011 I provided a
copy of this Emergency ."dotion to Intervene and Stay, to Attorneys for United
States and to the Attorney for the Defendant by hand or U.S. Mail delivery as
follows:
United States Attorney's Office
1205 Texas Avenue, 7th Floor
Lubbock,Texas, 79401
(Hand Delivery)
Law Office Of
Dan Cogdell
1401 McKinney St,
Suite 1625
Houston, Texas
(U.S. Mail)
Law Office Of
Paul Doyle
600 Travis Suit 4700
Houston, Texas, 77002
(U.S. Mail)
Law Office Of
Roderique S. Hobson
816 Main Street
Lubbock, Texas, 79401
(Hand Delivery)
James Clark, Movant, Pro Se
CERTIFICATE OF CONFERENCE:
No conference was
and Stav, due to
March 9,201 .
~VU'..l"'l
prior of the filing of this Emergency Motion to Intervene
. on of said conference by Order of Court on or about
Emergency Motion to Intervene and Stay Page 8 of 8
Case: 11-10683 Document: 00511568067 Page: 27 Date Filed: 08/10/2011
Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 9 of 14 PagelD 285
Exhibit 1 Associated Press Wire Story Slugged "Be- US­
Violent Extremism­
Strategy, 126" ----
~
....-
- - ...
~--.
Case: 11-10683 Document: 00511568067 Page: 28 Date Filed: 08/10/2011
Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 10 of 14 PagelD 286
_~_C-US--Violent Extremism-~rategY'L126 _____~_. . . .___.______ .... BC-US--Violent Extremism-Strategy,126
New White House strategy to hit violent
extremism
Eds: APNewsNow. Will be updated.
By EILEEN SULLIVAN
Associated Press
WASHINGTON (AP) - The White
House is releasing its national
strategy to counter violent extremism,
an eight-page document that
outlines in broad strokes the approach
the country must take to
prevent homegrown terrorist attacks.
It took more than a year for the
administration to come up with
the plan, obtained by The Associated
Press.
The strategy being released
Wednesday is short on specifics but
pledges the federal government's
support of local communities
around the country so they can come
up with solutions specific to
their own problems with violent
extremists. It references the
nation's community-based approach to
countering criminal gangs as a
guide to combatting violent extremism.
Though the Obama administration
says al-Qaida poses the largest
threat to the U.S., the strategy generally
addresses violent
extremism in all forms.
Printed:
:41
James Clark
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Case: 11-10683
Document: 00511568067
Case 5:11-cr-00015-C -BG Document 49
Page: 29
Filed 08/03/11
Date Filed: 08/10/2011
Page 11 of 14 PagelD 287
_J~~=LJ 5_= -Vi olentJ:xtte11]J~m:~tfa tegyL 1.2==..: :=6_ _ _~ . .___.. ~__~. .____._______.. __ _
(Copyright 2011 by The Associated
Press. All Rights Reserved.)
AP-NY-08-03-11 0304EDT
Printed:8/3/2011 09:41
by James Clark
Page 2
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Case 5: 11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 12 of 14 PagelD 288
Exhibit 2 Associated Press Wire Story Slugged "AP_4th NewsMinute, 257" Case: 11-10683 Document: 00511568067 Page: 31 Date Filed: 08/10/2011
Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 13 of 14 PagelD 289
2:45:05 AM 1:41 AP-4th NewsMinute,257
Fighting extremism at home ... Markets down following
debt limit
increase ... Searching for source of bad turkey
WASHINGTON (AP) - The Obama administration
says local
communities are best suited to battle the kind of violent
extremism
that inspires people to kill. The administration is
expected to
release later today a national plan to fight the threat of
al-Qaida
and other violent radicals at home.
WASHINGTON (AP) - Moody's Investors Service
says it'll leave the
United States' triple-A bond rating alone for now, but
it's giving
it a "negative" outlook, meaning it could be
downgraded in the
future. U.S. and Asian markets have been down
sharply following
yesterday's debt limit increase.
WASHINGTON (AP) - Health officials say they're
still looking for
the source of a salmonella outbreak that appears to
have started in
March. Investigators say one person has died and at
least 76 have
become ill after eating ground turkey, but officials don't
know the
source of the bad meat.
Printed 8/3/2011 09:45 by James Clark
Page 1
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Case 5:11-cr-00015-C -BG Document 49 Filed 08/03/11 Page 14 of 14 PagelD 290
2:45:05 AM 1:41
MOREllA, Mexico (AP) - Authorities in Mexico are
treating the
disappearances of nine polling workers as kidnappings.
Two polling
firms have reported some of their workers missing in
Michoacan
(mih-koh-uh-KAHN') state in western Mexico, a
stronghold of warring
drug cartels. Three of the workers were reported
missing just
yesterday.
SAN DIEGO (AP) - The top leader of the Marine
Corps says it's
time Congress honors the nation's first black Marines
with the
Congressional Gold Medal. The Montford Point
Marines were trained
in the 1940s at a segregated camp in North Carolina,
and weren't
allowed to enter nearby Camp Lejeune unless
accompanied by a white
Marine. The Corps was fully integrated during the
Korean War.
(Copyright 2011 by The Associated Press. All
Rights Reserved.)
AP-NY-08-03-11 0345EDT
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Document: 00511568067
Page: 33
Date Filed: 08/10/2011
Attachment (B) Order To Deny Emergency Motion Filed August 3, 2011 Case: 11-10683 Document: 00511568067 Page: 34 Date Filed: 08/10/2011
Case 5:11-cr-00015-C -BG Document 51 Filed 08/03/11 Page 1 of 1 PagelD 295
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION UNITED STATES OF AMERICA
v.
)
)
)
KHALID ALI-M ALDAWSARI
)
)
NO. S:ll-CR-OlS-C
ECF
ORDER
The Court having considered the Emergency Motion to Intervene and Immediately Stay
or Alter "Gag Order" of March 9,2011, filed August 3, 2011, is of the opinion that the same
should be DENIED.
SO ORDERED. Dated August 3, 2011.