Motion to Stay Proceedings Pending Discovery

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CENTER FOR NATIONAL SECURITY STUDIES, )
et al., )
)
Plaintiffs, )
) Civil Action
v. ) No. 01-2500
)
DEPARTMENT OF JUSTICE, ) Judge Kessler
)
Defendant. )
______________________________________)

PLAINTIFFS’ MOTION TO STAY PROCEEDINGS ON
DEFENDANT’S SUMMARY JUDGMENT MOTION PENDING DISCOVERY

Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, plaintiffs hereby move for the entry of an order temporarily staying proceedings on defendant’s motion for summary judgment pending responses to plaintiffs’ discovery requests.

While plaintiffs believe that the government has failed to meet its burden of establishing the exempt status of the withheld information, the discovery plaintiffs seek will enable them to present facts material to their opposition to defendant’s motion and will assist the court in conducting its de novo review of the defendant’s decision to withhold the requested material, 5 U.S.C. § 552(a)(4)(B). Defendant has indicated that it will oppose this motion.

The grounds for this motion are set forth below and in the Declarations of David L. Sobel and Elizabeth S. Westfall, filed herewith.

Introduction

This is a case of extraordinary public interest, in which plaintiffs seek disclosure of the identities of, and other information about, hundreds of individuals who have been detained for weeks and months in the wake of the events of September 11, 2001, and in which the Department of Justice has sought to impose an unprecedented shroud of secrecy to shield highly controversial governmental actions from public scrutiny. The public interest in this matter is such that the material defendant filed with the court in support of its summary judgment motion formed the basis of a front-page news article in the Washington Post. Dan Eggen, Delays Cited In Charging Detainees, Washington Post, January 15, 2002, page A1.

In a stark departure from the bedrock principle of our legal system that the government must disclose the identity of people whom it forcibly deprives of liberty, the Department of Justice continues to withhold that information, and other basic facts (such as the place of arrest and the place of confinement), about more than 700 individuals, some of whom have been held in secret confinement for more than four months.

Specifically, the government continues to keep secret the names, the citizenship status, the places of arrest, the places of confinement, and the names and addresses of the attorneys representing hundreds of individuals who have been arrested or detained for alleged immigration violations in connection with its post-September 11 investigation.

Even as to 92 individuals who have been indicted on federal criminal charges in connection with the post-September 11 investigation and whose names have been provided, the government continues to keep secret the dates and places of their arrest and the places of their confinement. And as to a still-unknown number of individuals held as material witnesses in that investigation, the government refuses to disclose even the identity of the federal judicial districts that have issued orders governing their detention.

Defendant’s summary judgment motion rests principally upon the declaration of an agency official who asserts, in the broadest terms, that disclosure of the information plaintiffs seek would, inter alia, interfere with investigative activities, invade personal privacy, and endanger the safety of individuals. Declaration of James S. Reynolds (“Reynolds Decl.”). Defendant contends that those purported harms render the requested information exempt from disclosure under FOIA Exemption 7.

On its face, the Reynolds Declaration does not meet the government’s burden of establishing that the predicted law enforcement harms would follow from disclosure of the names of the detainees, because it fails to address the material facts relevant to determining the applicability of the exemption, about which plaintiffs need discovery. For example, the declaration states only that “some” of the detainees have “links” to “facets” of the anti-terrorism investigation. Apparently, then, some do not even have “links” to “facets” of the investigation, and as to those, the law enforcement harms that Mr. Reynolds discusses simply do not apply.

In addition to that basic flaw, there are other material issues of fact as to which there is reason to believe that the government’s declarations are inaccurate or at least incomplete. These factual issues can be resolved only through the discovery contemplated by Fed. R. Civ. P. 56(f). Therefore, further proceedings on defendant’s motion for summary judgment should be stayed pending limited discovery on issues material to defendant’s exemption claims and to the accuracy and completeness of defendant’s response to plaintiffs’ FOIA request.

ARGUMENT

DISCOVERY REGARDING CERTAIN MATERIAL FACTS IS NECESSARY TO OPPOSE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND TO DETERMINE THE ACCURACY AND COMPLETENESS OF DEFENDANT’S RESPONSE TO PLAINTIFFS’ FOIA REQUEST

The government argues that disclosing the identity of the INS detainees could compromise its ongoing investigation. However, as shown below, there are credible indications that the government itself has determined that most of the detainees are not connected to terrorism. If that is the case, defendant’s law-enforcement arguments for withholding this information are entirely pretextual. Plaintiffs need discovery in order to illuminate the potentially misleading nature of the government’s arguments.

Additionally, as shown below, there are several respects in which defendant’s response to the FOIA request appears to be incomplete or inaccurate. Plaintiffs also need discovery so that the Court will be able to determine the adequacy of defendant’s response.

I. Plaintiffs are Entitled to Discovery Because Defendant’s Declaration is Inadequate for Plaintiffs to Oppose, and
the Court to Review, the Agency’s Claims

The FOIA’s exemptions are to be narrowly construed, Department of the Interior v. Klamath Water Users Protective Ass’n, 121 S. Ct. 1060, 1065 (2001) (quoting United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989)), and when an agency withholds requested documents, the burden is on the agency to justify its action. 5 U.S.C. § 552(a)(4)(B). Thus, the structure of the Act reflects “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Department of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quotation omitted).

Judicial consideration of claims under Exemption 7 (upon which defendant primarily relies) requires a two-part inquiry: (1) the requested information must be demonstrated to have been compiled for law enforcement purposes; and (2) the agency must show that release of the material will result in one of the harms specified in the statute. Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 622 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). Thus, in order to resist disclosure, the government must establish that some distinct harm could reasonably be expected to result if the information requested were disclosed. See Crooker v. ATF, 789 F.2d 64, 65-67 (D.C. Cir. 1986).

The standard for withholding information under Exemption 7(A) is “whether disclosure can reasonably be expected to interfere in a palpable, particular way” with enforcement proceedings. North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989) (emphasis added). “[T]he government must show, by more than conclusory statements, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding.” Campbell v. Department of Health & Human Services, 682 F.2d 256, 259 (D.C. Cir. 1982) (emphasis added). Material is exempt under 7(A) only where the government “states in detail the problems that would arise should such information be released.” Accuracy in Media v. FBI, No. 97-2107, slip op. at 5 (D.D.C. Mar. 31, 1999). “Specificity . . . is necessary to ensure meaningful review of an agency’s claim to withhold information subject to a FOIA request.” King v. Department of Justice, 830 F.2d 210, 223 (D.C. Cir. 1987); see also Neill v. Department of Justice, No. 93-5292, 1994 WL 88219, at *1 (D.C. Cir. Mar. 9, 1994) (conclusory affidavit lacked specificity “necessary to ensure meaningful review” of agency’s Exemption 7(A) claims).

In support of its motion for summary judgment, the government has presented only broad and general assertions that purport to apply to the various circumstances of hundreds of detained individuals. There is no solid information provided from which plaintiffs or the court can determine the applicability or validity of the government’s claims to the requested information. In fact, only one paragraph of the agency’s supporting declaration contains language making any connection between the harms posited by the government and the requested information: “in the course of questioning [the individuals detained], 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.” Reynolds Decl. 10 (emphasis added).

Attempting to build upon this glaringly broad and insufficient assertion, the government’s declarant proceeds to recite a litany of potential harms, using the assertion that “some” detainees have “links” to “facets of the investigation” to justify withholding information relating to each of the 725 INS detainees. But there has not been even an assertion by the defendant that each of the detainees — and former detainees — about whom basic information is being withheld has been “linked” to anything.

As the D.C. Circuit has held, “[a] district court may grant summary judgment to the government in a FOIA case only if ‘the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.’” PHE, Inc. v. Department of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993) (quoting King v. United States Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)).

Since “both the court and the requester must look to the affidavits for an explanation of the agency’s decision to withhold information . . . an affidavit that contains merely a ‘categorical description of redacted materials coupled with categorical indication of anticipated consequences of disclosure is clearly inadequate.’” Id. While the cited cases involved a lack of specificity in describing the withheld documents or the anticipated harms, the same principle applies here, where what is lacking is specificity in showing the connection between the material that has been withheld (identity of detainees who are not believed to have any connection to terrorism) and the reasons for withholding it (predicted law enforcement harms).

The deficiencies of the Reynolds Declaration are exacerbated by the fact that the information at issue in this case concerns matters that indisputably raise questions relating to potential governmental impropriety. In granting plaintiffs’ requests for expedited processing of their FOIA requests, defendant conceded that this is “(a) matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” Exhibit B to Declaration of Melanie Ann Pustay (attached to Defendant’s Motion for Summary Judgment as Exhibit 4).

For example, review of the list of INS detainees attached to defendant’s summary judgment motion indicates that, as the Washington Post reported last week, “[s]cores of immigrants detained after the Sept. 11 terror attacks were jailed for weeks before they were charged with immigration violations,” including at least one who was held for 66 days with no charge pending against him. And while the government asserts that “[n]o one has been denied their right to talk to an attorney,” Reynolds Decl. 21, there have been credible reports about the severe obstacles that the government has placed in the way of detainees seeking to contact legal counsel. Defendant’s continuing refusal to disclose the identity of the detainees or their counsel makes it impossible for the American people to know how many detainees continue to be without counsel after weeks or months in custody, or to find out how difficult the government made it for currently-represented detainees to obtain counsel.

Likewise, there have been highly credible reports about detainees being refused or hindered in exercising their undoubted legal right to contact consular officials from their country of citizenship. For example, the Canadian government recently sent a formal diplomatic note to the U.S. State Department, protesting the treatment of a Canadian citizen who “disappeared” on September 20 and whose detention in federal custody was not disclosed for nearly three months, despite inquiries by Canadian authorities.

Equally troubling — and equally raising concerns about misconduct by government officials — are the reports about detainees being abused or treated improperly while in federal custody. For example, some detainees are reported to have been left in the cold without blankets “apparently to weaken their resistance,” or to have been housed with convicted criminals. Others have reportedly been kept blindfolded during questioning or confined without a mattress, blanket or drinking cup. At least one female detainee was guarded by male guards 24 hours a day, even while bathing. Just last Friday, Abdallah Higazy was released after 31 days in detention when the government admitted that it had no evidence linking him to terrorism. He told the New York Times that during most of that time “he had not been allowed to speak to anyone or use the telephone,” and although he had retained counsel, his attorney was excluded from his interrogation by FBI agents. Monitoring organizations such as plaintiff Human Rights Watch, seeking to respond to such complaints, have been “flatly refused access, in contrast to past practice.”

As common sense would indicate, and as courts have concluded, “where it becomes apparent that the subject matter of a [FOIA] request involves activities which, if disclosed, would publicly embarrass the agency . . . government affidavits lose credibility.” Rugiero v. Department of Justice, 257 F.3d 534, 546 (6th Cir. 2001) (quoting Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994)). Under the circumstances presented here, plaintiffs’ right to seek material facts to rebut defendant’s self-serving blunderbuss declarations is concomitantly heightened.

II. Plaintiffs are Entitled to Discovery of Information that will Rebut Defendant’s Overbroad Assertions

Not only does the government fail to allege, much less show, that it has information establishing some connection between each detainee and terrorism, but there is reason to believe that with respect to most of the detainees, the government has already concluded that there is no connection to terrorism. Plaintiffs are entitled to take discovery in order to illuminate the misleading nature of the government’s arguments.

Perhaps the best illustration of plaintiffs’ need for discovery is found in defendant’s own submission, where the 118-page list of INS detainees is divided into two segments: a 58-page segment with 381 names captioned “INS Special Interest List,” and a 60-page segment with 344 names, with each page bearing the legend “INACTIVE CASES.” The apparent meaning of that legend is that these 344 individuals have been cleared of any link to terrorism and thus are no longer of “special interest” to the government; plaintiffs are entitled to know whether that is true.

Indeed, it is public knowledge that hundreds of these individuals have been released from custody. See Brooke A. Masters and Patricia Davis, Moussaoui Has Va. Hearing, Washington Post, December 20, 2001, page A32 (“yesterday, the Justice Department announced that 460 people are currently in federal custody on immigration charges”). And at a public forum sponsored by the Washington Council of Lawyers just last week, a high-level Justice Department official stated that there are now only 160 post-September 11 INS detainees still in custody. See Declaration of Elizabeth S. Westfall, filed herewith.

If the government has concluded that many or most of those initially detained no longer need to be in custody, it is fair to conclude that those individuals are no longer suspected of being involved in terrorist activity. Indeed, the Department of Justice has so stated. See Brooke A. Masters and Patricia Davis, Moussaoui Has Va. Hearing, Washington Post, December 20, 2001, page A32 (“’People who have been determined to have no links to terrorism organizations’ have been freed on bond or deported, the department said in a statement”). And if the government has no evidence that they are involved in terrorist activity, then its parade of horribles will have no application to information about those individuals. It is therefore highly relevant for plaintiffs to confirm, through discovery, this information about the number of individuals no longer in custody.

There are yet other sources of support for the proposition that many of the detainees or former detainees are neither suspected of terrorist activity, believed to have knowledge of terrorist activity, nor of any continuing interest to the government’s ongoing post-September 11 investigation. The Los Angeles Times reported that “[o]fficials have said that, of the 700, only a few have links to the terrorism investigation. The vast majority were swept up on immigration violations or state and local charges.” Richard A. Serrano, Many Held in Terror Probe Report Rights Being Violated, Los Angeles Times, October 15, 2001, page A1.

It is logically essential to the government’s assertions about the harms to its investigation and enforcement activities that could result from disclosure of identifying information about the detainees that the detainees are individuals involved in terrorism or having knowledge about terrorism. The Reynolds declaration rests on the assumption that each of the detainees has such involvement or knowledge, and falls of its own weight if they do not. Yet the declaration never goes further than to say that “some” detainees had “links” to “facets” of defendant’s investigation, Reynolds Decl. 10, and the information noted above emphasizes the significance of that carefully-hedged statement.

In order to resolve issues of fact material to the government’s predictions of harm, plaintiffs are entitled to discovery of information that would shed light on the government’s own determinations that most of the detainees have no connection to terrorism. That discovery would include the following:

— Discovery about the meaning of the legend “INACTIVE CASES” on the list of INS detainees provided to plaintiffs by the government. If, as we believe, this legend means that these individuals have been cleared of any link to terrorism, that would be material evidence contradicting the government’s assertions.

— Discovery about the number of INS detainees that have been cleared for voluntary departure. Some number of detainees have apparently been granted voluntary departure under the immigration laws yet those laws prohibit such approval in any case in which the individual is involved in terrorist activity, see 8 U.S.C. § 1229c(a)(1) & (b)(1)(C). Terrorist activity, in turn, is very broadly defined, see 8 U.S.C. § 1182(a)(3)(B)(iii).

— Discovery of the number of detainees who have been cleared for voluntary departure will therefore identify a group that the government has itself found will not present the problems postulated in the Reynolds declaration.

— Discovery about the number of INS detainees who have been released from custody, whether on bond or not. Presumably the government would not release any suspected terrorists from custody. Accordingly, discovery of the number of detainees who have been released will, once again, provide material information to refute the government’s assertions.

— Discovery about the number of INS detainees as to whom the Attorney General has certified that he has “reasonable grounds to believe” they have “engaged in any . . . activity that endangers the national security of the United States.” Pub. L. 107-56, § 412, 115 Stat. 272, 351 (October 26, 2001) (to be codified at 8 U.S.C. § 1226a). Discovery of the number of detainees who have or have not been certified under the Act will also provide useful information about how many of the detainees are actually believed to be connected to terrorism.

This discovery would not require the identification of any named individuals or otherwise compel the government to disclose any of the withheld information at issue.

III. Plaintiffs are Entitled to Discovery to Show that Defendant’s FOIA Response was Inaccurate and Incomplete

There are also reasons to believe that defendant’s FOIA response is not even complete, as the government’s response gives no accounting whatsoever of hundreds of people whom the Justice Department has announced have been detained as part of the September 11 investigation.

On November 5, 2001, the Department announced that 1,182 people had been detained since September 11. See Dan Eggen and Susan Schmidt, Count on Released Detainees is Hard to Pin Down, The Washington Post, November 6, 2001, page A10.

However, in its FOIA response, defendant lists only 725 INS detainees and states that 117 detainees are being held on federal criminal charges and some number on material witness warrants; the Justice Department has stated that the latter is a “small number.” Neil A. Lewis, A Nation Challenged: The Detainees, New York Times, October 30, 2001, page B1. Accordingly, the government’s response at a minimum fails to account for more than 300 individuals who have been detained.

In addition, it appears that the number of unaccounted-for individuals may be even larger than that, as Justice Department releases show that more than 100 individuals have been detained since November 6, when the Justice Department last announced a total number. Compare arrest dates on INS Custody List released November 27, 2001 (available at <http://www.nytimes.com/library/ national/0111127.ins.2.pdf>), with arrest dates on List of INS detainees released January 11, 2002 (Exhibit 6 to defendant’s sumary judgment motion).

The list of detainees who have been charged with federal crimes (Exhibit 5 to defendant’s motion) likewise appears to be incomplete. That list contains the names of 92 individuals. But on November 27, 2001, Attorney General Ashcroft named 93 criminal defendants who were said to be part of the post-September 11 investigation. Moreover, the Reynolds declaration states that there are “117 individuals who have been held on federal criminal charges.” Reynolds Decl. 27 (emphasis added). Thus, 25 individuals in this category seem to have been omitted altogether, without any explanation in Defendant’s declarations or memorandum.

In addition, there appears to be an unspecified number of federal criminal defendants whose cases are under seal. Defendant’s declarant notes, just in passing, that “for those persons being held on federal criminal charges whose cases are not under seal, DOJ has already disclosed [certain information] to plaintiffs.” Reynolds Decl. 8. Nothing further is ever said about cases that are under seal (these are not the sealed “material witness” cases discussed by Mr. Reynolds at 31-36 of his declaration), and no information has been released as to them — not even the number. But government officials have stated that there were eleven such defendants as of late November, and there may well be more by now. Plaintiffs’ FOIA request required a response regarding these individuals, but there has been none.

Defendant also states that it has previously released to the public the identity of the federal judicial district in which “the complaint or indictment was filed” against each criminally charged defendant. Reynolds Decl. 8. But that is only partially true. That category of information was released on November 27, 2001, in connection with the release of information about the 93 defendants then disclosed. But there are 10 detainees listed in Exhibit 5 who were not named on November 27, and as to them the district in which they are charged has not been disclosed. And, as noted above, there appear to be 25 charged individuals as to whom no information — including district in which charged — has been provided.

Further, on the list of INS detainees (Exhibit 6 to defendant’s motion), eleven individuals are shown as being charged under federal criminal law (Title 18 U.S. Code) rather than under provisions of the Immigration Act. Because of the absence of names, it is impossible to ascertain whether any of those individuals are also listed in Exhibit 5 (the criminally-charged detainees). However, it appears certain that at least six of those eleven individuals do not appear in Exhibit 5, because the charges (or combination of charges) shown against them on Exhibit 6 do not appear on Exhibit 5.

Plaintiffs are entitled to take discovery to explore these apparent discrepancies, inconsistencies or omissions, and to assure the completeness and accuracy of defendant’s responses.

IV. Discovery is Appropriate under the Circumstances Here

The D.C. Circuit has long recognized that where, as here, “[f]acts respecting the [exemption claim] in question are solely in the control of the [agency],” the FOIA requester “should be allowed to undertake discovery for the purpose of uncovering facts which might prove his right of access to the documents which he seeks.” Schaffer v. Kissinger, 505 F.2d 389, 391 (D.C. Cir. 1974) (citing Rule 56(f); other citation omitted). As this Court has noted,

Courts in this Circuit have stressed the importance of permitting FOIA plaintiffs to take depositions under Rule 56(f) where the relevant factors are in the control of the moving party and the affidavits are inaccurate or incomplete. Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164 (D.C. Cir. 1981); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (per curiam).
American Broadcasting Companies, Inc. v. United States Information Agency, 599 F. Supp. 765, 768 (D.D.C. 1984).
In authorizing discovery of the sort plaintiffs seek here, the court cited the “substantial authority supporting the proposition that ‘Rule 56(f) motions should be liberally granted . . . especially where all of the allegedly material facts are within the exclusive knowledge of the opposing party.’” Id. (citation omitted). The court permitted discovery upon the plaintiff’s assertion that it could “provide important evidence that is missing from [the agency’s] declarations, and in the exclusive control of the defendants.” Id. at 769.

As the D.C. Circuit found in Londrigan, 670 F.2d at 1175 n.63, “[d]iscovery is especially important in cases, such as this, where a person requesting access to agency records under the . . . FOIA is entitled to as complete and accurate an explanation of the reasons for nondisclosure of sought-after information as the agency is able to provide.” The court further recognized that “discovery benefits not only the requester but also the court, which must review an agency decision not to release.” Id. (citing Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 833 & n.75 (1979)). See also Porter v. Department of Justice, 717 F.2d 787, 793 (3d Cir. 1983) (“Congress did not intend to leave a requester ‘helpless to contradict the government’s description of information or effectively assist the trial judge’”) (citation omitted).

Plaintiffs’ claim for discovery in this case is more than adequate. As this court has held, under Rule 56(f) plaintiffs “need not even present the proof creating the minimal doubt on the issue of fact which entitles [them] to a full trial; it is enough if [they] show[] the circumstances which hamstring [them] in presenting that proof by affidavit in opposition to the motion.” American Broadcasting Companies, Inc., 599 F. Supp. at 769 (citing 10A Wright, Miller & Kane, Federal Practice and Procedure, Civil § 2740 at 520 (2d ed. 1983)). See also Carney v. Department of Justice, 19 F.3d 807, 813 (2d Cir. 1994) (“in support of his Rule 56(f) affidavit, [plaintiff] was not required to present evidence that would be admissible at a trial”) (citation omitted).

Here, plaintiffs have shown that, in apparent contradiction to defendant’s overbroad assertions of harm resulting from the disclosure of information concerning any of the detainees, credible information contained in published reports indicates that the government itself has concluded that hundreds of detainees have no connection to, or knowledge of, terrorism. Plaintiffs are entitled to discovery about this in order effectively to oppose defendant’s claims of exemption.

In Washington Post Co. v. Department of State, 840 F.2d 26 (D.C. Cir. 1988), vacated on other grounds, 898 F.2d 793 (D.C. Cir. 1990), the agency sought to withhold information concerning the U.S. citizenship of an Iranian official. At issue was the agency claim that the individual would suffer significant harm if the information was disclosed. The plaintiff challenged the agency’s assertion, as plaintiffs do here, with information contained in published news reports. See, e.g., 840 F.2d at 28 (plaintiff “pointed to several press accounts of events in Iran, and to books published . . . that had referred to [the official’s] reputed ties to the United States”). Noting that “[m]uch of the content of the Department’s affidavits is contradicted by concrete evidence identified by the Post,” id. at 36, and that published information “pointedly controvert[s] the Department’s prediction of harm from disclosure,” id. at 37, the court held that discovery was appropriate. Likewise, plaintiffs here have identified information that contradicts the government’s assertions of harm. As in Washington Post and the other cases cited herein, plaintiffs are entitled to discovery.

CONCLUSION

Pursuant to Rule 56(f), proceedings on defendant’s motion for summary judgment should be temporarily stayed pending defendant’s response to plaintiffs’ discovery.

A proposed order is attached.

Respectfully submitted,

_____________________________________
David L. Sobel
D.C. Bar No. 360418
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009
tel. 202-483-1140
fax 202-483-1248

_____________________________________
Arthur B. Spitzer
D.C. Bar. No. 235960
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
tel. 202-457-0800
fax 202-452-1868

Kate Martin
D.C. Bar No. 949115
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037
202-994-7060

Steven R. Shapiro
Lucas Guttentag
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
212-549-2500

Elliot M. Mincberg
D.C. Bar No. 941575
People For the American Way Foundation
2000 M Street N.W., Suite 400
Washington, D.C. 20036
tel. 202-467-4999
fax 202-293-2672

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing PLAINTIFFS’ MOTION TO STAY PROCEEDINGS ON DEFENDANT’S SUMMARY JUDGMENT MOTION PENDING DISCOVERY was served by first-class mail and by fax upon:

David J. Anderson, Esq.
Anne L. Weismann, Esq.
Lisa A. Olson, Esq.
United States Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, DC 20530

fax: 202-616-8470

this 22d day of January 2002.

________________________
Arthur B. Spitzer

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CENTER FOR NATIONAL SECURITY STUDIES, )
et al., )
)
Plaintiffs, )
) Civil Action
v. ) No. 01-2500
)
DEPARTMENT OF JUSTICE, ) Judge Kessler
)
Defendant. )
______________________________________)

ORDER
Upon consideration of plaintiffs’ Motion to Stay Proceedings on Defendant’s Summary Judgment Motion Pending Discovery, it appearing to the court that plaintiffs are entitled to discovery before the Court rules on the motion for summary judgment, it is, this _____ day of January, 2002, hereby
ORDERED, that the motion is granted and proceedings on defendant’s motion for summary judgment shall be stayed pending further order of the court.

___________________________
Gladys Kessler
United States District Judge

Copies of the foregoing order shall be served upon:

David L. Sobel
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009

Arthur B. Spitzer
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036

Kate Martin
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037

Steven R. Shapiro
Lucas Guttentag
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004

Elliot M. Mincberg
People For the American Way Foundation
2000 M Street N.W., Suite 400
Washington, D.C. 20036

David J. Anderson
Anne L. Weismann
Lisa A. Olson
United States Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, DC 20530

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