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Memorandum in Opposition to Motion to Strike Affidavit of Thomas Rancich





Civil No. 1:04-CV-258

TOM RIDGE, Secretary, United States Department
of Homeland Security, et al.,




The Government moves to strike the affidavit of U.S.N. Lieutenant Commander Thomas C. Rancich, asserting that he is unqualified to speak or give opinions as an anti-terrorist security expert; that he offers no "factual information bearing upon Plaintiffs' claim"; and that his affidavit may not be considered in ruling on the Government's motion to dismiss.


The challenge to Lieutenant Commander Rancich's expertise (the Government dubs him a "quasi-expert," Reply Mem. 15, and asserts his lack of competence, Mot. to Strike 2) is both baseless and insulting.1 He is a Lieutenant Commander in the Navy Seals; he has specialized during most of his twenty-year Naval career in various anti-terrorism projects; he has both operational and policy-making experience, and as a civilian he has served as a security consultant for the company which operates ferries from Cape Cod to Nantucket and Martha's Vineyard. ¶¶ 1-4. The Government has no call to question his credentials, or to doubt that he is qualified to speak as an expert about "terrorist motivation, tactics, operations and strategy" and "security regulations and methods" responding to the threat of terrorism.


The Government insists that that Lt. Cmdr. Rancich "does not purport to provide the Court with any factual information bearing upon Plaintiff's claim." Mot. to Strike 1. On the contrary, his affidavit bears directly on two key aspects of the case: the need for the searches (which he judges insubstantial) and their efficacy in thwarting or deterring a terrorist attack on the LCT ferries (which he finds entirely lacking).

On a motion to dismiss in a case challenging official conduct under the fourth amendment, the reasonableness of challenged intrusion is a question of fact. Calamia v. New York, 879 F.2d 1025, 1035 (2d Cir., 1989); Kennedy v. The City of New York, 1995 U.S. Dist. LEXIS 7437 *11-14, 10 I.E.R. Cas. (BNA) 1174 (S.D.N.Y. 1995) (reasonableness of urine testing procedure a disputed question of fact); Medlin v. New York, 1990 U.S. Dist. LEXIS 15779 (E.D.N.Y., 1990) (reasonableness of seizure of bicyclist a disputed question of fact). See also Brower v. County of Inyo, 884 F.2d 1316, 1317-1318 (9th Cir. 1989), on remand from Brower v. County of Inyo, 489 U.S. 593 (1989) (whether police had non-deadly alternatives to preventing escape "a question of fact, and thus granting the motion for failure to state a claim was error").

a. Threats and Vulnerabilities: the Need to Search.

The threshold for a constitutionally reasonable special needs search is need: a showing that without suspicionless searches "an important government interest ... would be placed in jeopardy." Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 624 (1989); Chandler v. Miller, 520 U.S. 305, 314 (1997). The asserted need in this case is detecting and deterring sabotage to the LCT ferries by international terrorists. The Rancich affidavit speaks directly to this claim.

International terrorism in the United States will seek high-impact targets. Id. ¶ 7.

21. ...[The terrorist] will seek critical nodes whose destruction will have a direct effect on the population or targets that will have a cascading effect throughout the population. The LCT, a small local/regional ferry company is a poor target for terrorists. These are very rural routes, and the number of people using these ferries is small....Nothing in the area actually relies on the LCT ferries to survive. Two bridges, Rouses Point and Crown Point, service the same concerns and are not similarly "protected", and there destruction would have a much greater cumulative effect (most people in the United States use bridges). And of course a terrorist in transit from Vermont to New York could avoid the ferry completely and take one of the bridges.
22. The biggest population centers are Plattsburgh, N.Y., and Burlington, Vt., with nothing else of any size or importance nearby: no military installations of any importance, and no industrial complexes of any national significance.

Given the difficulty and risk to the terrorist in mounting an attack in the United States, id. ¶¶ 8-9, LCT ferries are highly improbable targets.

b. Reasonableness and Efficacy

Reasonableness also depends on a finding that the searches are an effective means of meeting the asserted need. The Government concedes as much. Reply Mem. 12, Mot. to Dsm. 13. The Rancich affidavit speaks to this issue extensively, concretely, persuasively and expertly.

Ferries have "unique vulnerabilities": they can be sunk, they can be set fire to, and they are removed from law enforcement or rescue response while in transit.

13. To exploit the ferry's vulnerability to sinking with an explosive attack, the explosion would have to occur at or below the waterline and be of such force or form to puncture the hull with unrecoverable damage. The demonstrated means of conducting this attack are a small explosive laden boat or a swimmer emplaced contact charge. Random searches of passengers, vehicles, or bags do not detect, deter, disrupt or respond to those methods of attack. An effective (and non-invasive) security measure to reliably keep terrorists from reaching the waterline or below would be more useful.
14. An explosion on the freight deck would not tend to cause the vessel to sink. Explosive force tends to the path of least resistance and would largely be deflected up and out by the decking, resulting in minimal penetration of the vessel. As the freight deck is above the waterline this means that there would be no flooding.


16. Exploiting the unique vulnerability of a ferry that it can be burned while at sea would require the introduction of no illegal substances and such an act would not be uncovered any search, regardless of how intrusive....Puncturing an external gasoline tank and igniting the fuel would exploit a unique vulnerability and likely lead to significant loss of life, while never exposing the terrorist to risk prior to his attack or "actions at the objective area". Searches can not be seen to deter, disrupt or respond to those methods of attack.

The Government says not one word to contradict any of this, beyond the simple ipse dixit that the challenged searches are "eminently reasonable." Mot. to Dsm. 13.2 Instead of facts the Government cites the September 11 tragedy, the Congressional purposes behind the MTSA, the process by which DHS and the Coast Guard have gone about categorizing relative risks for various classes of vessels nationwide, and the "Chevron deference" due to the notice-and-comment rulemaking which produced 33 C.F.R. part 104. Reply Mem. 14; Mot. to Dsm. 27-29.

There are two reasons to reject the Government's call for deference. First, nothing in Chevron USA Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), undermines the courts' statutory authority to set aside agency action which is "contrary to constitutional right, power, privilege, or immunity...." 5 U.S.C. 706(2)(B). White v. United States, 989 F.2d 643, 647 (3d Cir. 1993). The constitutional reasonableness of special needs searches is a question for the courts, not DHS or Coast Guard.

Second, the deference argument is irrelevant to the agency action at issue. The Government recognizes that this is not a facial challenge to the DHS regulations, but a challenge to the LCT search program. As argued in Plaintiff's Memorandum in Opposition, at 17-18, and as the Government effectively concedes, neither the MTSA nor part 104 of the regulations mandated these searches. Rather, they were required by the Alternative Security Program prepared by the PVA, submitted to the Coast Guard by LCT, and approved and made binding by the Coast Guard. That local decision clearly lacks the force of law, and is not the sort of agency action entitled to deference under Chevron. United States v. Mead Corp., 533 U.S. 218, 234 (2001); Christensen v. Harris County, 529 U.S. 576, 586-587 (2000).


The Government argues that the Rancich affidavit (which, unlike the Tourville affidavit, is not explicitly referenced in the amended complaint) should not be considered in ruling on its motion to dismiss. It takes a different position with regard to other affidavits filed by the plaintiffs, considering them supplements to the amended complaint, Reply Mem. 11, n.12, and not asking that they be stricken or ignored. The Government evidently found the Rancich affidavit particularly damaging, despite its flippant dismissal.

With this memorandum plaintiffs have filed a motion pursuant to F.R.C.P. 7(a) to amend the complaint by adding three paragraphs referencing Lt. Cmdr. Rancich's affidavit and the affidavits of Anthony Pavone and Dr. Christopher Filippi. If, as argued, the Rancich affidavit is probative on the factual question of reasonableness, the amendment should be allowed in the interest of justice. Rachman Bag. Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234 (2d Cir. 1995). But even as the pleadings now stand, the Rancich affidavit is properly before the Court in connection with plaintiffs' pending motion for a preliminary injunction.

The request to strike it from the record should therefore be denied.


1 On January 6, 2005, one day before the Government filed its motion to strike, Navy Admiral V.E. Clark, on behalf of President Bush, awarded Lt. Cmdr. Rancich the Bronze Star Medal for his service in Afghanistan and elsewhere in the Middle East. The citation reads in part as follows:

For meritorious achievement in connection with combat operations against the enemy while serving as Commander, Naval Special Operations Forces Afghanistan in support of Operation ENDURING FREEDOM from 21 April to 21 July 2003. LCDR Rancich planned and executed multiple combat operations, including no fewer than fourteen reconnaissance missions and two direct action missions. Demonstrating exceptional knowledge and expertise as a Special Operations Commander, he led his unit to the pinnacle of efficiency and professionalism, whether it acted as a supported or supporting unit. His ability to rapidly assimilate operational situations enabled NAVSOF-A to begin combat operations almost immediately upon deploying. LCDR Rancich's careful planning and stalwart leadership were key to the success of a direct action mission against an enemy compound that required the coordination of multiple air, blocking and assault forces, especially when the assault force was surprised by the presence of over fifty unknown personnel on target. His strategic understanding and operating acumen led to the development and execution of a successful strategic reconnaissance and area denial campaign in the Tora Bora Mountains. LCDR Rancich's unparalleled leadership, zealous initiative and exceptional dedication to duty reflected great credit on him and were in the keeping with the highest traditions of the United States Naval Service.

2 They also "readily meet the Fourth Amendment's reasonableness requirement," id. 11; and "readily satisfy" the reasonableness standard, id. 34, while plaintiffs' contrary claim is "readily dismissed[,]" id. 36, because it is only "common sense" that LCT's searches "are reasonable means of deterring and preventing terrorist attacks," id. 30, i.e. "an effective means of deterring such an incident." Reply Mem. 6.

Dated: January __, 2005

Respectfully submitted,

William A. Nelson
52 High Street
Middlebury, VT 05753
Counsel for Plaintiffs

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