Supplemental Affidavit of James S. Reynolds, Chief, Terrorism and Violent Crime Section


ET AL., )
Plaintiffs, )
v. ) Civil Action
) No. 01-2500
) Judge Kessler
Defendant. )


I, James S. Reynolds, declare as follows:

1. This Declaration supplements and is a continuation of my previous Declaration dated January 11, 2002. I have read Plaintiffs’ Motion to Stay Proceedings on Defendant’s Summary Judgment Motion Pending Discovery.

2. Since September 11, 2001, many individuals were questioned by federal, state, and local law enforcement agencies about the terrorist attacks but not formally taken into custody. While DOJ attempted at one time to keep and publicly release a count of all persons contacted by law enforcement in connection with the attacks, even if they were just briefly stopped, it became clear that this was impractical. Eventually, DOJ concluded that it was better to focus on the individuals who were formally taken into custody because they were believed to have violated federal criminal law or the immigration laws, or were believed to have information material to grand jury investigations emanating from the events of September 11.

3. The total number of individuals detained pursuant to the investigation is fluid. On any given day since September 11 the FBI has followed leads which may have resulted in the apprehension of additional individuals suspected of connections to terrorism. By the same token, persons believed not to be of current interest regarding the investigations emanating from the September 11th attacks are placed in an “inactive” status and may have been released from custody or deported. For these reasons, and because public officials have used different sets of numbers and different definitions of the term “detainee” over time, comparisons of public statements by various officials about the total number of detainees is bound to produce different, and imprecise, numbers.

4. As with the INS detainees, the total number of persons charged with federal crimes in the aftermath of the September 11th attacks will change over time, sometimes from day to day, so that comparisons of public statements on the total number of charged defendants will vary as well.

5. Because the investigation is active and ongoing, disclosing the identities of detainees who have been placed in inactive status, whether released from custody or not, could still harm the investigation. Even though such detainees may not themselves be of current investigative interest, the same harms described in my prior declaration at paragraphs 14-16 could occur if their names are disclosed.

6. Specifically, disclosure could inform terrorist organizations about what evidence law enforcement has obtained, or, just as importantly, has not obtained. Disclosure could reveal investigative methods, sources, and witnesses. The individuals involved could be subjected to intimidation or harm, thereby discouraging or preventing them from supplying valuable information or leads in the future. Disclosure could deter these individuals from cooperating with the Department of Justice after they are released from custody for fear of retaliation by terrorist organizations against them or their family members and associates. Disclosure could reveal important information about the direction, progress, focus and scope of the investigation, and thereby assist terrorist organizations in counteracting our investigative efforts. For example, disclosing information about persons who are not currently the subject of investigative interest may inform terrorist organizations of routes of investigation that were followed but eventually abandoned. Such information could provide insights into the past and current strategies and tactics of law enforcement agencies conducting the investigation.

7. Moreover, because the investigation is fluid and evolving, the significance of a given detainee may change over time. For example, a particular detainee who had been determined to be of no investigative interest in November 2001was returned to the active interest category later that month after a reevaluation by law enforcement components involved in the investigation.

8. Exhibit 5 of the Government’s motion for summary judgment is a list of persons charged with federal crimes in the aftermath of the September 11th attacks. The names of sixteen individuals were inadvertently omitted from that list. The Government is submitting with its response to plaintiff’s motion to stay proceedings an amended Exhibit 5 which contains the pertinent information about those individuals.

9. Paragraph 39 of my prior declaration states that there are ten orders by courts “sealing proceedings in connection with individuals arrested or detained in the wake of the September 11 attack. . . . ” Although the intended meaning should be apparent upon close scrutiny, I want to make explicit that paragraph 39 refers to cases in which a defendant had been charged with a federal crime, and not to cases in which an individual had been taken into custody under a material witness warrant. Also, the total number of sealed criminal cases on January 11, 2002 was nine, rather than ten. The tenth defendant’s case was originally sealed, but was unsealed on or before January 11th . The identity and other pertinent information about this defendant was included in Exhibit 5 of the Government’s motion for summary judgment. As with the number of persons charged with federal crimes and the number of INS detainees, the number of criminal cases under seal changes from time to time as the courts enter unsealing orders, and as new cases are charged which are placed under seal by the courts after a request from the prosecutors.

I declare under penalty of perjury that the foregoing is true and correct.

________________ ______________________________

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