Champion of Peace

The explosive case that took David Mann to the U.S. Supreme Court

Published in 2012 Washington Super Lawyers Magazine

Perched along the Strait of Juan de Fuca, on a sweeping bluff with a panoramic view from Vancouver Island to Mount Baker down to Mount Rainier, Port Townsend is a Realtor’s dream.

Incongruously, this idyllic spot on the Olympic Peninsula, with its 19th-century lumber-baron architecture, is adjacent to a major U.S. Navy explosives storage ground. Two miles across the strait is Naval Magazine Indian Island, a weapons depot that handles munitions ranging from bullets and rocket propellant to bombs and torpedoes.

To live in Port Townsend for any period of time is to wonder just what in the heck is stored a scant half-hour kayak ride across the bay. That mystery is what sent local peace activist Glen Milner to David Mann’s door.

Mann, who practices land use and environmental law at Gendler & Mann in Seattle, is an avid bicyclist in his spare time and a frequent visitor to the Olympic Peninsula. He grew up in the East Bay area of California, near a munitions dump where a tragic explosion almost 70 years ago caused tremendous damage, killing 320 sailors and injuring nearly 400 people.

“The 1944 explosion—you just knew about it as a kid,” says Mann. “The weapons station was right there.”

Milner wanted the Navy to release details about the explosives-handling zones on Indian Island. He wanted to see its calculations estimating the force of accidental explosions and find out about its safety regulations. Considering the East Bay explosion, this was not a theoretical exercise.

The Navy claimed the information could be used by terrorists to figure out just what munitions were stored at the depot and where. Milner had filed a Freedom of Information Act (FOIA) request in 2003, which the Navy turned down, claiming two exemptions to the FOIA: one for personnel records; the other for records involving law-enforcement investigations. The district court agreed with the Navy on the first exemption, and the 9th U.S. Circuit Court of Appeals concurred.

Mann recalls, “He walked in here with maps showing Indian Island, and said the Navy was withholding his Freedom of Information Act request to release them publicly by calling these personnel records. I looked at them and said, ‘These aren’t personnel records,’ and said I’d take the case.”

It has been no small undertaking: Mann has put more than 300 pro bono hours into the litigation. The suit seemed to be pretty straightforward. “I thought it was a ‘plain language’ case—just a definition of what are and are not personnel records,” Mann says. “But once I dove into the research, I saw there was a lot more to it.”

He soon realized that the personnel-records exemption that the Navy was using to deflect the FOIA request had become the preferred legal rationale of the federal government for not releasing information after 9/11. “It was a blanket, catchall exemption,” Mann says. “I thought it was a misuse of the exemption.”

The importance of that disagreement got the case on the docket of the U.S. Supreme Court. In December 2010, Mann had his 30-minute appearance. “It was the thrill of my career,” he says. “The formality, the presentation style is so unique—you know you are up against the solicitor general’s office, and all they do is write briefs for the Supreme Court.”

Mann prevailed, nailing down an 8–1 decision supporting Milner’s request. The only dissent came from Justice Stephen Breyer, which surprised Mann. “I thought that the liberal side of the court would see our argument readily,” he says. “The easy way out was to see it the way Breyer did—‘This has been the law of the land for thirty years, and why change it?’” But even the more conservative judges agreed that the Navy was misusing the personnel exemption. Going in, Mann confesses, “I thought it would be a little closer.”

The Supreme Court decision, however, did not end the case. Assistant U.S. Attorney Peter Winn notified the 9th District Court in January that he is asking Secretary of Defense Leon Panetta to declare the data “critical infrastructure-security information” and to decide that “the public-interest consideration in the disclosure of such information does not outweigh preventing the disclosure of such information.” An exemption for critical infrastructure was included as part of the 2012 Defense Appropriations Act.

Mann was not surprised. “I think, at this point, since it has gone on so long, people wonder if there is something specific that they are hiding,” he says. “It is disturbing. We can all see the loading dock from Port Townsend.”

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