Rev. Julie Marquez, Chair
Judicial, Criminal and Social Justice Committee
League of United Latin American Citizens (LULAC)
7202 Camino Grove
San Antonio, TX 78227
(210) 645-1515

Amicus Curiae Brief

LOK THYE LAU, CIV. S-02-0390 GEB/GGH
Plaintiff,
AMICUS CURIAE
v. BRIEF IN SUPPORT OF
PLAINTIFF'S RESPONSE IN
JOHN ASHCROFT, OPPOSITION TO MOTION FOR
ATTORNEY GENERAL, SUMMARY JUDGMENT OR FOR
Defendant. DISMISSAL

Date: Oct. 6, 2003
Time: 9:00 a.m.
Courtroom 10

_____________________________________

To the Judge of said Honorable Court:

Comes now the League of United Latin American Citizens (LULAC), hereinafter referred to as LULAC and files this AMICUS BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OR DISMISSAL heretofore filed by defendant and asks that this court deny said motion.

LULAC is the oldest most established Hispanic Civil Rights Organization in the United States. We ask to be allowed to file this Amicus Curiae Brief, as a friend of the Court, due to the gravity of the issues presented regarding the national security and safety of the American People. Each issue in this case is significant in that this is a case of first impression which will have momentous effect on minorities and other people of color who work for the government of the United States, who form an essential part of our National Security and without whom all of us would be less safe.

Human intelligence has come to the forefront as one of the most essential tools that we have to fight terrorism and to secure the safety of the American people in our post 9/11 world.

How the FBI, the United States and the American People deal with those whose sacrifice themselves and put their own lives at risk to safeguard the Freedoms we treasure, in our great country, will send a message of how we, as a country, deal with the faceless heroes who protect us and our way of life. The message we send through this case will be heard not only by our "Human Assets" but, indeed, by the whole world.

This case is of paramount importance to the safety and security of all of us in the United States and to those faceless heroes who risk their lives and the lives of their families at every turn twenty-four (24) hours a day while they are involved in undercover work.

LULAC accepts, adopts and incorporates by reference all of the facts and legal arguments presented by Plaintiff, through his Counsel, filed in his Response To Deny the Motion for Summary Judgment or Dismissal as though fully set out herein.

Counsel for Plaintiff Lau has set out the legal arguments and authorities LULAC will confine itself to the facts as set out in the reports and declarations as they have been laid out in the record and to the issues of material fact, presented by plaintiff, that require this court to deny the motion for summary judgment. We urge the court to so rule.

THE ALPHA OF THE CASE

This case arose not when plaintiff Lau was terminated by the FBI but when he was "hired". It is doubtful that the FBI ever had any intentions of having plaintiff work as a Special Agent of the FBI. Given the dates and times set out in plaintiff's declaration, it is obvious that a man of Asian ethnicity who spoke the languages that Lau was speaks was of great need to this country.

Not until Lau was about to terminate his relationship as an asset was a place found for him at the FBI Academy at Quantico. From his few weeks spent at the academy Lau went directly into his undercover work. He had received no formal training and it is doubtful that anything could have prepared him for the ordeal that was to be his, alone, to bear for the next six (6) years. He was not to be in an office setting working as a Special Agent of the FBI for the next six (6) years. His nightmare into the nether world of darkness and shadows and fear had begun.

FBI rules, regulations and policy were violated again and again in this case. Lau spent more time doing undercover work than was allowed and no one knew or could have expected the damage that would be done to the psyche of Lok T. Lau. The damage is still ongoing and may never go away. For six long years Lau served America as the best human intelligence officer that he could be. Joe Pistone is an example of one who did work as a Special Agent of the FBI and then later went in to do undercover work and to infiltrate and penetrate the MAFIA. By his own admissions, Agent Pistone participated in committing criminal acts of every kind including murder. FBI Agent Joe Pistone was brought back to the FBI and given a lot of support and medical help and after all of that he was never able to come back. He was given a medical disability and retired, honorably, from the FBI. Can we do any less than that for plaintiff Lok T. Lau? Nietzfche once said that the only way to slay the dragon was to become the dragon. Those were very prophetic words as they relate to the case of Lok T. Lau.

The first cry for help that Lau uttered went unheard. He was later reprimanded but the reprimand reflects that, at least at that time, there was someone within the bureau that knew what plaintiff had been going through. See Exhibits 3 and 4. Plaintiff Lau was sent back undercover in spite of the fact that the FBI knew there were stressors and other such things going on with Lau that were directly attributable to his undercover work.

The FBI took a young, virile, intelligent young man who was working for law enforcement and told him he was a Special Agent of the FBI and that all he was to do was to serve his country. That Lau served his country and the American people very well is evidenced by the many awards he won. The letter of recognition and commendation with a cash award given to him by the Director of the FBI William Sessions is evidence of Lau's success. This was Lau in the Omega. Lau had to become like the dragon that was the subject of his investigation - he did it, magnificently. See exhibit 1.

Lau had not spent one day at work in an office of the FBI preparing reports or anything else. His offices were the streets of the "subject community" both in the United States and abroad. It is important to note that pre 9/11/01, the FBI was prohibited from operating outside of the continental borders of the United States. The bureau acted outside the legal restrictions more than once. Lau took more than two trips abroad. To this day Lau has not been able to present any of his facts. By marking every document secret, classified material and undercover work, the FBI has managed to keep under cover all that it has done, as well as to cover up all that it has sanctioned and condoned and all that Lau has done.

From a reading of the record, it is not difficult to discern that Lau was involved in espionage activities, kidnappings, trading in human slavery, illegal immigration, murder, torture, kidnapping, extortion hostage taking and any number of other criminal activities that involved crimes against humanity, then and now, in his undercover work. Lau "penetrated" the Chinese Triads, the Tong and other Chinese Organized Crime Organizations that trade in all of these things as a way of life. There is no way that Lau could have performed his undercover so well that he received awards and other forms of recognition were that not so. See Exhibit #5.

Given his ethnicity and the languages he speaks, the subjects he lectured the CIA operatives in, the time during which he worked undercover coupled with Tianamen Square, it is quite obvious that he was of use to the United States in those areas regarding the Chinese. See Exhibit # 6 and 7.

It cannot be argued that the FBI had no knowledge of Lau's activities while working in his undercover capacity. He was not only expected but, also, he was required to engage in all of those awful things or run the risk of being found out. Had he been found out, by the "Hostile Forces", Lau would have been assassinated immediately. Lau and the FBI knew that fact was true. For six years Lau had to be on his guard and had to participate in whatever those hostile forces demanded of him if he was to be successful and penetrate the subject community. Lau had to, literally, work three 8 hour shifts every day, seven days a week and he had to be completely isolated from his family and friends and he had to become a member of the "Hostile Forces" if he was to survive. It staggers the imagination to think of what that must be like, to live like that for six years with no support system and completely submerged in the nether world he had to function in. Who could live like that and not be affected. Who could be at Dachau and not be affected, who could be subjected to slavery and not be affected, witness and/or participate in torture and not be affected, it is simply not possible to come out of a situation like that and be "normal".

THE OMEGA - AFTER THE UNDERCOVER

When Lau reported to work in Sacramento to the FBI office, that was the first time that he had ever been in the office to do the work of a Special Agent of the FBI. He did not anymore know how to write a 302 than the Consul General of the Chinese Embassy did. The first day Lau was in the FBI office was the Omega of his career as a Special Agent. He was but a shell of the man who went to the FBI Academy six years before. It is hard to believe that the FBI
could believe and, indeed, expect Lau to function as a Special Agent since Lau did not know what that entailed. He had not performed the "normal" duties expected of an Agent during his undercover activities. Lau had been acting as a hostile force with the Chinese Gangs and engaging in Organized Crime for six years, the entire length of his service to the Bureau and to the American People. See Exhibit #2 the OPR Report. Dated by 8/3/99 approved by the FBI's DeFeo.

The nether world that Lau reported to when he showed up at the FBI office to report for duty for the first time as an Agent of the FBI was to be just as foreign and almost as dangerous as had been his undercover activities. The only difference was that in the world of the FBI Lau would be assassinated on paper and would be terminated from the rolls of the FBI rather that to killed by a gun. Lau's first outcry involving the Sears incident had gone unheard and he had not been treated by a psychiatrist, instead, he had been sent back to undercover assignment after spending a week or so at the FBI Academy. Now, in the FBI world, Lau's cries for help were not only not heard, they were used against him and he was judged most cruelly and unfairly by his "colleagues" at the FBI. This was particularly true in the matters that involved SSA Pierce.

SSA Pierce expected Lau to do the work and fill out the reports of a veteran Agent except that Lau was not a veteran Agent of the FBI. SSA Pierce failed in her obligations and duties that she owed Lau as a member of the FBI; Lau was one of their own. Instead of obtaining help for Lau, Pierce made numerous and copious notes of each and every little detail that she could think of in order to harm Lau. From his being late on the day of the open house due to the fact that his face was "puffy" due to his allergies, a fact she could have clarified simply by asking Lau about it, to the fact that her secretary and her clerk were "outraged" by the fact that he was late when they all stood around and listened to the message he left which they played out loud for everyone to hear. Pierce determines there is nefarious and insidious conduct on Lau's part because he gave her a small present of costume jewelry at Christmas. He gave small presents to others, she found that objectionable too.

Pierce is someone whose conduct, in this case, needs to be carefully examined. This woman owed a duty to Lau that she failed to perform through misfeasance, malfeasance, nonfeasance and who engaged in gross misconduct at every opportunity that she had to hurt Lau or to judge him harshly and wrongly. There is no question but that she knew of Lau's disability because she authored Exhibit #8 in 1995, wherein she offered Lau a medical disability. Lau did not accept. It was to take Pierce several more years to accomplish her goal but she would and did all she could to contribute to the removal of Lau from the rolls of the FBI. See Exhibit #10 authored by her on 9/29/98, wherein she hand wrote a note from her position as Inspector FBIHQ to SAC Maddox, Sacramento FBI, of item that she thought would help in the termination of Lau. She claims there was no retaliation by her against Lau for his use of the EEO process against her but her activities belie her statements.

Then Acting ASAC Pierce's possession of classified materials regarding Lau Deep undercover work is very troubling and problematic and needs to be investigated further before any action in the form of a final disposition is taken on this case. Her conduct and actions raise serious ethical, legal and possibly criminal activity on her part. She has not been prosecuted for having classified documents in her possession and sharing them with other FBI employees. One can assume that as acting ASAC she did not have the requisite clearance to have them in her possession or the FBI has been negligent in prosecuting her. That is most troubling in that she admits to having the documents in her possession in her sworn statement attached and incorporated herein by reference marked
Exhibit #9.

Equally troubling is Pierce's admission that she "factored in" the contents of the classified documents in arriving at her conclusions that "Lau was susceptible to coercion by Agents of a Foreign Government". That conclusion is based strictly on the fact of the ethnicity of Lau as Pierce would not have reached the same conclusion if Lau had been Irish American. Worse still is the fact that there was no way that Lau could defend himself against her accusations and suspicions because he did not know she had the classified documents, had not discussed the evidence and facts contained in the documents because he believed them to be off limits and has not discussed those matters, not even to obtain medical treatment for himself nor with his attorney to prepare for this case. One could and maybe should reach the conclusion that her possession, sharing of, use and reliance upon, and treatment of those classified documents, to Lau's extreme detriment and the detriment to his Counsel and this case has placed them in the public domain. Hence Lau and his Counsel should be entitled to receive copies of them for use in obtaining appropriate, long overdue, psychiatric treatment and for use in this case. A careful reading of all the reports, letters, handwritten notes and drafts of all papers, documents, etc., authored by Pierce, to include Exhibit's 8, 9 and 10 is required in order to fully appreciate everything this woman did to remove Lau. Her efforts began early and ended only after Lau's termination.

Pierce documented everything she could about Lau not to help due to his disability, a condition she well knew he was suffering, instead she used all of the aberrant activities and his bizarre behavior to set him up for removal from the rolls. It would be funny, were it not Lau's life that hangs in the balance, that Pierce actually states, in Exhibit #10, she learned about the Asian Culture because she took the "Martial Arts".

Suffice it to say that all of the creepiness, craziness, bizarre behavior and every act that indicated Lau was lost and sick and needed help went unheard and all of it was used against him to label him a problem employee instead. The Performance Appraisal Rating that showed Lau was an excellent employee contained in Exhibit #5 dated 1995 is a far cry from the circumstances plaintiff Lau found himself at the time the Fitness For Duty Request dated 9/9/98. See Exhibit #11.

ISSUES OF MATERIAL FACT PRESENTED

Whether by its misconduct or treatment or mistreatment of plaintiff, defendant and his agents and employees has caused plaintiff to suffer irreparable injury to his health, his emotional and mental health, his career and has placed plaintiff's very life at grave risk is for a jury to determine.. The same holds true for the lives of plaintiff's family. Plaintiff is a sick and mentally damaged, disabled and hurt person who got those disabilities during the course and as a direct result of his service to the FBI and the American People. Plaintiff had several psychiatric examinations and evaluations before and after his employment by the FBI to do his undercover work as a member of this country's human intelligence. This too, is an issue of material fact for the trier of fact to determine.

Defendant's own employees and managers considered Lau to be disabled and recommended either medical disability or treatment by mental health professionals. See Exhibits #8 and 12. The declaration of Margaret M. Grey, Exhibit #12 is very telling. They found that Lau needed therapy and made the decision to so recommend but were "instructed by management" to withhold therecommendation pending the outcome of the OPR investigation.

The Administrative Law Judge Reinhart made a finding on the Raley's incident which the FBI used to terminate Lau that is completely contrary to the finding made by the FBI's DeFeo that formed the basis to terminate plaintiff. A jury could and very probably will find that the termination and all that was used to accomplish that result was nothing more than a sham engaged in by the FBI.

This court should not reward defendant for being disingenuous enough not to mention the fact of plaintiff's disabilities in the letter of termination. Whether the action to terminate Lau was based on a "sham or pretext" engaged in by defendant is an issue of material fact.

Whether defendant knew or should have known that plaintiff was disabled is moot as defendant has admitted that plaintiff is, in fact, disabled. Why then did defendant fail in his duty to treat plaintiff as a disabled employee and get him the medical help he has needed since he reported for work at the FBI office? Has defendant failed to provide a duty owed to plaintiff? All of these are issues of material fact that require this court deny the motion for summary judgment or dismissal.

This case has numerous issues of material fact require that they be presented to a jury. This court should not, in the interests of justice of the American People, those engaged in human intelligence in furtherance of our national security and most of all plaintiff who is, indeed, a hero and who gave everything he had during his undercover work for our country. Plaintiff gave his life to safeguard our way of life. How could the FBI have let this case get this far? The only explanation is racial discrimination. African American Agents have had to sue the FBI (BADGE), so have Hispanic Agents, case settled. Considering the sensitivity of the matters that were the subject of the undercover work performed by plaintiff, one must question the wisdom of defendant herein.

The right of a citizen to be able to defend himself and his rights underpins our entire system of justice in the United States. That is what holds us together and gives us confidence in our judicialsystem. The Government would have this court act as the trier of fact. The court should deny the Motion filed by defendant.

LULAC has submitted Exhibits #14 through #20, inclusive, in order to illustrate the culture of racism and discrimination that still permeates agencies of the Federal Government at the highest levels. Whether the FBI terminated Lau solely because of his disabilities clothed in a sham action is an ultimate issue of material fact that must be decided by a jury.

Wherefore, Premises Considered, LULAC prays this court will deny the Motion filed by defendant in all things. That this court enter an Order that no further rulings will be made unless and until plaintiff is given "adequate" medical and psychiatric treatment as was the recommendation contained by health professionals of the FBI in Exhibit #12.

The court should also enter an Order sanctioning defendant for putting plaintiffâ's attorney in the unenviable position of being ineffective. That plaintiff should not have to proceed further, in this case, until his attorney is fully briefed and is prepared to render effective assistance of counsel to plaintiff.

Plaintiff has no adequate remedy at law and this court has plenary jurisdiction to enter Orders that are in the interest of justice at law and in equity.

Respectfully submitted,

____________________________
Rev. Julie Marquez, Chair