Defendant’s Statement of Material Facts

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________

)

CENTER FOR NATIONAL SECURITY STUDIES, )
ET AL., )

Plaintiffs, )

)

v. ) Civil Action
) No. 01-2500

UNITED STATES DEPARTMENT OF JUSTICE, )

) Judge Kessler

Defendant. )

______________________________________)

DEFENDANT’S STATEMENT OF MATERIAL FACTS

Defendant, United States Department of Justice, by and through its undersigned counsel, submits the following statement of material facts as to which there is no genuine issue.

1. Plaintiffs submitted three October 29, 2001 FOIA requests to the Department of Justice, sending the first to the INS, a second to the FBI, and a third to the Office of Information and Privacy (“OIP”). Declaration of Scott A. Hodes (“Hodes Dec.”) ** 2, 4; Declaration of Raymond Holmes (“Holmes Dec.”) * 6; Declaration of Melanie Ann Pustay (“Pustay Dec.”) * 3.

2. INS acknowledged receipt of the request on November 1, 2001. Holmes Dec. * 7. It further responded on November 23, approving expedited treatment but indicating that completing a response would be an “enormous undertaking.” Id. It therefore asked plaintiffs to narrow the scope of their broad request so that fewer records would have to be retrieved and reviewed. Id. Plaintiffs failed to respond or to narrow their request and instead filed this lawsuit. Id.

3. On November 1, 2001, the FBI informed plaintiffs that it was withholding material responsive to their requests pursuant to Exemption 7(A) of the Freedom of Information Act (“FOIA”), 5 U.S.C. * 552(b)(7)(A). Hodes Dec. * 4. Plaintiffs appealed, but, on December 10, the FBI affirmed its original denial under both Exemption 7(A) and 7(C), 5 U.S.C. * 552(b)(7)(A), (C). Hodes Dec. * 4.

4. Because of the enormity of the investigation and the vast FBI resources it is consuming, the FBI could not spare the personnel necessary to comb through the thousands of pages of documents responsive to plaintiffs* FOIA request without harming the progress of the investigation. Hodes Dec. * 9.

5. OIP acknowledged receipt of plaintiffs* request and granted expedited processing on November 1, 2001. Pustay Dec. * 4. OIP was still processing the request at the time plaintiffs filed this suit on December 5. Id.

6. Following the events of September 11, 2001, the United States government launched an extensive, broad based and world-wide investigation into those terrorist attacks and into threats, conspiracies, and attempts to perpetrate terrorist acts against United States citizens and interests. Declaration of James S. Reynolds (“Reynolds Dec.”) * 2. Since September 11, DOJ has actively been conducting the investigation in conjunction with other federal, state and local agencies. Id. Four thousand FBI agents are engaged with their international counterparts in an unprecedented worldwide effort to prevent further attacks by apprehending those responsible for the September 11 attacks and by detecting, disrupting, and dismantling terrorist organizations. Id. This is an open and ongoing investigation; the FBI is continuing to follow leads and conduct interviews at this time. Id.

7. As part of this investigation, law enforcement has questioned over one thousand individuals about whom concern had arisen. Reynolds Dec. * 3.

8. The concerns related to some of these individuals were resolved by the interviews and no further action was taken related to them. Reynolds Dec. * 4. Other interviews resulted in a decision to take individuals into custody. Id. Those detainees fall into three general categories. Id. First, some were arrested for alleged violations of federal criminal law. Id. Second, those who have violated immigration laws have been detained by INS for immigration violations. Id. Third, some individuals who were believed to have information material to the events of September 11 were taken into custody under material witness warrants pursuant to 18 U.S.C. * 3144. Reynolds Dec. * 4.

9. Plaintiffs seek information about all of these individuals. Reynolds Dec. * 5. The information they seek is contained in DOJ records created as a result of these investigations. Id. DOJ and its components, including INS and FBI, have opened and maintained these files. Id. These files pertain to the ongoing immigration proceedings of the detainees and related investigations. Id.

10. Specifically, plaintiffs’ FOIA requests seek the following four items of information regarding individuals “arrested or detained” in the wake of the September 11 attacks on the World Trade Center and Pentagon:
a. (1) their names and citizenship status; (2) the location where each individual was arrested or detained initially and the location where they are currently held; (3) the dates they were detained or arrested, the dates any charges were filed, and the dates they were released, if they have been released; and (4) the nature of any criminal or immigration charges filed against them or other basis for detaining them, including material witnesses warrants and the disposition of such charges or warrants.
b. The identity of any lawyers representing any of these individuals, including their names and addresses.
c. The identities of any courts, which have been requested to enter order sealing any proceedings in connection with any of these individuals, any such orders which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders.
d. All policy directives or guidance issued to officials about making public statements or disclosures about these individuals or about the sealing of judicial or immigration proceedings.
Reynolds Dec. * 6.

11. The Department of Justice has already released publicly a significant amount of information sought by plaintiffs, varying according to the category of the detainee. Reynolds Dec. * 7. First, for INS detainees, DOJ has already disclosed to plaintiffs (1) their place of birth, (2) citizenship status, (3) the immigration charges brought against them, and (4) the date charges were filed. Id. With respect to citizenship status, none of the INS detainees is a United States citizen; each is in removal proceedings, subject to administrative removal, or subject to a final order of removal. Id. All of this information was broadly disseminated to the general public prior to the filing of this lawsuit. Id.

12. Second, for those persons being held on federal criminal charges whose cases are not under seal, DOJ has already disclosed to plaintiffs (1) their names, (2) the dates any charges were filed, (3) the date the defendant was released, if released, (4) the nature of the criminal charges filed against them, and (5) their lawyer’s identity. Reynolds Dec. * 8. Prior to the filing of this lawsuit, DOJ also released to the public the district where the complaint or indictment was filed, whether the defendant was the subject of a complaint or an indictment, and the Assistant United States Attorney assigned to the prosecution. Id.

13. Nevertheless, DOJ has withheld certain information on the three categories of detainees identified in paragraph 4. Reynolds Dec. * 9. The scope of the withheld information has been narrowly tailored to protect the integrity and efficacy of the ongoing investigations, to ensure the safety of the detainees and U.S. citizens, and to prevent the invasion of the personal privacy of the detainees and other individuals associated with them. Id.

INS DETAINEES

14. The first category of detainees are persons being held on immigration-related charges by INS. Reynolds Dec. * 10. These individuals were originally questioned because there were indications that they might have connections with, or possess information pertaining to, terrorist activity against the United States including particularly the September 11 attacks and/or the individuals and organizations who perpetrated them. Id. For example, they may have been questioned because they were identified as having interacted with the hijackers, or were believed to have information relating to other aspects of the investigation. Id. In the course of questioning them, law enforcement agents determined, often from the subjects themselves, that they were in violation of federal immigration laws, and, in some instances also determined that they had links to other facets of the investigation. Id.

15. Regarding the INS detainees, DOJ has withheld the following information: (1) the names of the INS detainees, (2) their citizenship status, (3) the location where they were initially arrested or detained, (4) the location where they are currently being held, (5) the date of their arrest or detention, and (6) their lawyer’s identity. Reynolds Dec. * 11.

16. Information regarding the INS detainees is being withheld pursuant to Exemption 7 (A), 7(C) and 7(F) of FOIA, 5 U.S.C. * 552(b)(7). Reynolds Dec. * 12. Exemption 7(A) protects from disclosure “records or information compiled for law enforcement purposes” if their production “could reasonably be expected to interfere with enforcement proceedings.” Reynolds Dec. * 12; 5 U.S.C. * 552(b)(7)(A). Exemption 7(C) protects law enforcement information the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Reynolds Dec. * 12; 5 U.S.C. * 552(b)(7)(C). Exemption 7(F) protects information compiled for law enforcement purposes, the disclosure of which could reasonably be expected to endanger the life or physical safety or an individual. Reynolds Dec. * 12; 5 U.S.C. * 552(b)(7)(F).

Exemption 7(A) of FOIA

17. As long as these investigations remain open and active, disclosing the information in question could result in significant harm to the interests of the United States and compromise the September 11 and other ongoing terrorism- related investigations. Reynolds Dec. * 13. Indeed, releasing this information could pave the way for additional terrorist activities in that it would undermine the ability of the United States to obtain cooperation from knowledgeable witnesses, thereby hampering follow up on investigative leads. Id.

18. First, disclosing the names of the detainees who may be revealed to have knowledge of or a connection to terrorism could lead to the public identification of individuals associated with them, other investigative sources, and potential witnesses. Reynolds Dec. * 14. Terrorist organizations that discover the identities of these individuals could subject them to intimidation or harm, thereby discouraging or preventing them from supplying valuable information or further leads. Id.

19. Second, divulging the detainees’ identities may deter them from cooperating with the Department of Justice once they are released from custody and impair their usefulness to the ongoing investigation. Reynolds Dec. * 15. As a result of their public identification, terrorist organizations with whom they have a connection may refuse to deal further with them. Id. This could eliminate valuable sources of information for the investigation. Id. It would similarly impair the government’s ability to infiltrate terrorist organizations engaged in ongoing criminal activities. Id. Moreover, a detainee who knows his name will be made public may be deterred from cooperating now or in the future for fear of retaliation by terrorist organizations against him or his family and associates. Id.

20. Third, releasing the names of the detainees who may be associated with terrorism and their place and date of arrest would reveal the direction and progress of the investigations by identifying where DOJ is focusing its efforts. Reynolds Dec. * 16. In effect, it would allow terrorist organizations to map the progress of the investigation and thereby develop the means to impede them. Id. Even disclosing the identities of those detainees who have been released may reveal details about the focus and scope of the investigation and thereby allow terrorists to counteract it. Id. This may cause terrorists, who learn that their associates or even people who know their associates have been detained, to alter their plans in a way that presents an even greater threat to the United States. Id. Official verification that a member has been detained and therefore can no longer carry out the plans of his terrorist organization may enable the organization to find a substitute who can achieve its goals more effectively, thereby thwarting the government’s ability to frustrate ongoing conspiracies. Id. For example, upon learning that a particular terrorist cell has been compromised through the detention of some or all of its members or affiliated persons, terrorists may switch to an alternative cell, thereby retaining the ability to mount future terrorist attacks. Id.

21. Fourth, the public release of names, and place and date of arrest, of detainees who may have knowledge of or connections to terrorism, could allow terrorist organizations and others to interfere with the pending proceedings by creating false or misleading evidence. Reynolds Dec. * 17. As a consequence, the investigations will be hindered by unnecessary and burdensome confusion. Id. Similarly, revealing the location of the detainees may facilitate contact between detainees and members of terrorist organizations. Id.

22. The rationale that underlies the withholding of the names of the detainees similarly supports the nondisclosure of their lawyers’ identities under 5 U.S.C. * 552(b)(7)(A) and (F). Reynolds Dec. * 18. Although some attorneys may voluntarily reveal the names of their clients, such sporadic, piecemeal disclosures are qualitatively different from DOJ’s publication of a comprehensive list of all lawyers’ names. Id. Release of such a list may facilitate the identification of the detainees themselves and the harms described above could ensue. Id.

Exemption 7(C) of FOIA

23. The detainees have a substantial privacy interest in their names and the requested personal information connected with their status as detainees. Reynolds Dec. * 19. All of these individuals were originally detained because of their possible connection to terrorism, particularly to the worst terrorist attack ever committed on United States soil. Id. Although they may eventually be found to have no connection to terrorist activity, release of their names and personal information at this time would forever connect them to the September 11 attacks. Id. Given the nature of these investigations, the mere mention of their name in connection with these investigations would cause the detainees embarrassment, humiliation, risk of retaliation, harassment and possibly even physical harm in the United States and in their home countries, if they are eventually deported. Id. They could be stigmatized by being viewed as “guilty by association.” Id. The viciousness of the attacks of September 11 is unprecedented. Id. The interests of these detainees in not being connected with such activity is overwhelming. Id.

24. In their requests plaintiffs state that “there is an overriding public interest in knowing the activities of the government in detaining people in connection with the September 11 attack.” Reynolds Dec. * 20. This assertion of generalized public interest is not linked to the specific information that has been requested. Id. The Department of Justice has already released much information about “the activities of the government in detaining people,” such as the number of people detained and the charges brought against them. Id. The disclosure of their names and their current location * which could lead to their identification * would pose the risks discussed in paragraphs 14-17 while not adding significantly to the public’s understanding of the overall activities of the government. Id. As a result, when the strong privacy interests of the detainees are balanced against any public interest in disclosure, the privacy interests in protection outweigh any perceived public interest in release. Id.

25. Moreover, all of these individuals have been charged with immigration violations which are at various stages of the administrative process. Reynolds Dec. * 21. Many detainees have retained counsel and all detainees have that right. Id. No one has been denied their right to talk to an attorney. Id. INS has provided each of the persons detained on immigration violations with information about available pro bono representation. Id. Persons with criminal charges filed against them and material witnesses have been assigned counsel at government expense if they cannot afford one. Id.

26. While these proceedings are usually public, see 8 C.F.R. * 240.10(b) (with various exceptions, see 8 C.F.R. * 3.27), the Department of Justice has ordered them sealed if they involve a detainee originally taken into custody in connection with the terrorist investigation. Reynolds Dec. * 22. Identifying information has been kept confidential to avoid stigmatizing the detainee through the implication that he is associated with terrorism. Id.

27. If the detainees wish to disclose their names they may do so. Reynolds Dec. * 23. For the Department of Justice to publish a list of potential or actual immigration violators, however, would violate their personal privacy interests, which are protected by 5 U.S.C. * 552(b)(7)(C). Reynolds Dec. * 23. Release of this information would not contribute meaningfully to the public*s understanding of the inner workings of the government. Id.

Lawyers of the Detainees

28. The names of the detainees’ lawyers are also being withheld pursuant to FOIA Exemption 7(C). Reynolds Dec. * 24. In reaching our determination to withhold this information, we balanced the privacy interests of these individuals against any public interest in disclosure. Id. While there may be some other public interest * not applicable under the FOIA * in ensuring that the detainees are properly represented, that interest is not vindicated here. Id. In fact, we can discern no public interest cognizable under the FOIA in the identities of the individual private attorneys that have been retained. Id.

29. Any public interest that may exist is far outweighed by the strong privacy interests at stake here. Reynolds Dec. * 25. Unlike more routine immigration cases where attorneys readily, and openly represent clients, these particular lawyers are representing individuals who have been apprehended in connection with the investigation emanating from what has been described as an act of war against the United States. Id. The overwhelming grief and anger felt by the American people could be directed at these attorneys even more strongly than at the detainees themselves. Id. While all people have a right to counsel in this country, some individuals may view the attorneys’ representation of the detainees negatively because of the severity of the attacks on our nation. Id.

30. Indeed, some attorneys may have been dissuaded from representing individuals in this context. Reynolds Dec. * 26. Those that do, run the risk that they will be subjected to harassment or retaliation in their personal as well as professional lives. Id. Revealing the identities of these lawyers may also subject them to unwanted scrutiny by the public or the media that could distract them from effective representation of their clients. Id. They have a strong privacy interest in not having the government facilitate such harms by publicly identifying them to all the world. Id. Those attorneys who wish to come forward and identify themselves voluntarily are free to do so, but the government should not be forced to reveal a comprehensive list of all their identities thereby forcibly exposing those that chose to remain obscure to the risks described above. Id.

DETAINEES CHARGED WITH FEDERAL CRIMES

31. The second category of detainees consists of 117 individuals who have been held on federal criminal charges. Reynolds Dec. * 27. One individual, Zaccharias Moussaui, has been charged with violations of federal criminal laws in connection with the September 11 attacks. Id. Like the INS detainees, these individuals were originally apprehended by federal, state, or local law enforcement as a result of the federal investigation emanating from the September 11 attacks. Id. These individuals face federal criminal charges. Id. They remain a potential source of relevant or probative information. Id.

32. The following information has not been disclosed: (1) their citizenship status, (2) the location where they were initially arrested or detained, (3) the location where they are currently being held, and (4) the date of their arrest or detention. Reynolds Dec. * 28. This information was withheld pursuant to 5 U.S.C. * 552(b)(7)(A), 7(C) and 7(D). Reynolds Dec. * 28. The release of this information would assist terrorist organizations in tracking the flow and progress of the investigation and to develop a strategy to counteract it, as described above. Id. Accordingly, it was properly withheld to prevent the possible compromise of this most sensitive investigation. Id.

33. Information pertaining to the detainees charged with federal crimes is also exempt from release under Exemption 7(C). Reynolds Dec. * 29. Because of these individuals’ association with the terrorist investigation, disclosing their detention location could subject them to possible harassment, intimidation and even physical harm. Id. It is not unusual for other prisoners in a facility to attempt to harm or harass those they believe have been involved in particularly heinous crimes. Id. If prisoners learn that an individual who was detained as a result of the investigation emanating from the September 11 attacks is in their own prison facility, some may try to retaliate against this individual. Id.

34. In addition, the detention location is an item of information about each of these individuals. Id. The detainees have no voice in the determination as to where they are detained. Id.

MATERIAL WITNESSES

35. The third category of detainees consists of persons who have been the subject of a material witness warrant issued by a federal court. Reynolds Dec. * 31. Plaintiffs have requested the names of these detainees, their citizenship status, the location where they were arrested or detained, the location where they are being held, the dates they were arrested or detained, the date any charges were filed, the date they were released, if released, the nature of any charges against them, and their lawyers’ names. Id. All information sought in the FOIA request regarding these detainees has been withheld. Id.

36. The United States District Courts before which the material witnesses have appeared have issued sealing orders prohibiting the government from releasing any information about these proceedings. Reynolds Dec. * 32. Hence, this information is not under the control of the Department of Justice, which therefore cannot release it to plaintiffs. Id.

37. Moreover, this information is also protected from disclosure by Exemption 3 of the FOIA, 5 U.S.C. * 552(b)(3). Reynolds Dec. * 33. This exemption protects information exempted from disclosure by statute. Id. In this case, information pertaining to material witnesses was withheld pursuant to Federal Rule of Criminal Procedure 6(e). Reynolds Dec. * 33.

38. Rule 6(e) prohibits the disclosure of information that would reveal the inner workings of the grand jury. Reynolds Dec. * 34. This prohibition includes the identities of witnesses and the substance of testimony, as well as information that would reveal the scope, focus and direction of the grand jury proceedings. Id. To reveal any information pertaining to the material witnesses, including their identities and any information which would lead to their identities, would violate Rule 6(e) by revealing witness names as well as the scope and direction of the grand jury proceedings. Reynolds Dec. * 34.

39. Disclosure of this information about material witnesses could also reveal the strategy or direction of the investigation as described above. Reynolds Dec. * 35. These justifications are particularly compelling for the material witnesses, as they are believed to have evidence directly relevant to acts of terrorism. Id. Therefore the information is also being withheld pursuant to 5 U.S.C. * 552(b)(7)(A). Reynolds Dec. * 35.

40. Those individuals who are being held on material witness warrants also have a substantial privacy interest in their names and the requested personal information connected with their status as a material witness. Reynolds Dec. * 36. As with the INS detainees, these individuals were apprehended as a result of the terrorist investigation and they have a strong interest in not being identified with the investigation. Id. Even more significantly, these material witnesses would be assumed by many people to have significant information relevant to the events of September 11. Id. In fact, it may turn out that these individuals have no information useful to the investigation or that they are innocent people who are able to assist the government in its investigations. Id. To reveal their identities in connection with these investigations could stigmatize them and subject them to harassment and possibly even retaliation. Id. Defendant can discern no public interest that outweighs their strong privacy interests. Id.

Exemption 7(F) of the FOIA

41. FOIA Exemption 7(F), 5 U.S.C. * 552(b)(7)(F) also protects the identities of the INS detainees, the identities of those being held on material witness warrants, the detention location of those who have been charged with a federal crime, and the identities of the detainees* lawyers. Reynolds Dec. * 37. Exemption 7(F) protects information the disclosure of which “could reasonably be expected to endanger the life or physical safety of any individual.” Reynolds Dec. * 37. As discussed above, all of the detainees were apprehended in connection with the investigation emanating from the September 11 attacks. Id. Revealing their identities could subject them to physical danger both in the United States and in their home countries if they are deported. Id. Detainees who are, in fact affiliated with a terrorist group may be perceived by such groups as informants for the United States and be killed to preclude their future cooperation. Id. In addition, the detainees* family members and friends could face threats of physical violence by terrorists to deter the detainees from cooperating. Id. Moreover, revealing the detention facilities where these individuals are being detained could place at risk not only those detainees, but the facilities themselves and their employees.

42. For these same reasons, attorneys who are representing the detainees could also face physical harm if their identities are revealed. Reynolds Dec. * 38. Some might construe the attorneys as working against the interests of the United States and seek to retaliate against them. Id. Also, members of terrorist organizations may fear that detainees are supplying their attorneys with too much information and, lacking the ability to get at the detainees while they are imprisoned, may instead choose to harm their attorneys. Id. In light of the brutality of the acts committed against the United States, even the mere possibility of retaliation against these lawyers justifies withholding their identities. Id.

PLAINTIFFS’ FOIA REQUEST NO. 3 (COMPLAINT * 29(c))

43. DOJ has denied plaintiffs’ request for the identity of any courts which have been requested to enter orders sealing any proceedings in connection with individuals arrested or detained in the wake of the September 11 attack, any such orders which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders. Reynolds Dec. * 39. Nationwide, there are ten orders responsive to plaintiffs’ request. Id. However, neither the orders nor any of the other information requested is under DOJ’s control. Id. Rather, the orders have been sealed by the relevant United States District Courts and prohibit the government from releasing any information. Id. Thus, the Department of Justice cannot properly provide the information plaintiffs request. Id.

44. Even if the information could be disclosed, it is exempt from disclosure pursuant to 5 U.S.C. * 552(b)(7)(A). Reynolds dec. * 40. Publicizing this information would reveal investigative strategy or an unusual level of law enforcement interest in a detainee which would impair investigative efforts, as further described herein. Id.

45. As has been described above, the Department of Justice has made every effort to segregate and release all non-exempt information requested by plaintiffs. Reynolds Dec. * 41. Toward that end, defendant has released entire categories of information. Id. The information defendant continues to withhold cannot be disclosed without causing or risking the serious and substantial harms outlined herein. Id.

Respectfully submitted,

ROBERT D. McCALLUM, JR.
Assistant Attorney General

ROSCOE C. HOWARD
United States Attorney

DAVID J. ANDERSON

ANNE L. WEISMANN

LISA A. OLSON

U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-5633
Facsimile: (202) 616-8470
E-mail: lisa.olson@usdoj.gov

Dated: Jan. 11, 2002 Counsel for Defendant

 

CERTIFICATE OF SERVICE

I hereby certify that on January 11, 2002, copies of the Answer, Defendant’s Statement of Material Facts, Defendant’s Motion for Summary Judgment, and the Memorandum in Support of Defendant’s Motion for Summary Judgment, with attached Exhibits were served by hand-delivery, first-class mail, or federal express, upon plaintiffs’ counsel as follows:

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
fax: (202) 483-1248

Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: (202) 452-1868

Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037
fax: (202) 994-7005

Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
fax: (212) 549-2651

Ellior M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
fax: (202) 293-2672

__________________________
LISA A. OLSON

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