Memorandum in Support of Cross-Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


______________________________________

CENTER FOR NATIONAL SECURITY
STUDIES, et al.,

Plaintiffs, Civil Action No. 01-2500

v.

DEPARTMENT OF JUSTICE,

Defendant.

Judge Kessler
_____________________________________________

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

This Freedom of Information Act case seeks the disclosure of the identities of the hundreds of individuals who have been arrested and jailed in the wake of the September 11th terrorist attacks. The investigation to identify and apprehend the perpetrators of those terrible attacks and to prevent further attacks is obviously of the highest importance. It is not, however, an issue in this case. Rather, plaintiffs seek the identity of hundreds of individuals, who apparently have nothing to do with terrorism, but apparently do share either the ethnic background, religion or national origin of the September 11 hijackers and have accordingly landed in jail. The core purpose of the Freedom of Information Act-to inform the public about government activity and to prevent secrecy from shielding government misconduct-is implicated here. For perhaps the first time in our history, the government has refused to identify people arrested and jailed, and it has done so by executive fiat, without any court order finding that extraordinary circumstances exist to justify such an extraordinary act.

STATEMENT OF FACTS

On September 11, 2001, the United States suffered terrorist attacks in New York and Washington resulting in more than 3000 deaths. In the wake of these attacks, Attorney General Ashcroft announced that hundreds of individuals had been “arrested” or “detained” in the ensuing investigation. In the first few days after the attacks, some 75 individuals were picked up and detained. The Attorney General announced that 480 individuals had been detained as of September 28, ten days later another 135 had been picked up, and in a single week in October, some 150 individuals were arrested. On October 25, the Attorney General announced that, “[t]o date, our anti-terrorism offensive has arrested or detained nearly 1,000 individuals as part of the September 11 terrorism investigation.” As of November 5, 1,182 people had been detained.

While trumpeting the numbers of arrests in an apparent effort to reassure the public, the Department refused to provide the most basic information about who had been arrested and on what basis. The government announced no indictments charging anyone as a terrorist. It provided no information about how many individuals had been released.
As the number of secret detentions increased, press reports began to appear raising serious questions as to whether the rights of the detainees were being violated.

On October 29, nearly forty civil liberties, human rights, legal, and public access organizations demanded release of the detainees’ names and the charges against them under the Freedom of Information Act. Separate requests were sent to the Department of Justice, the FBI and the Immigration and Naturalization Service seeking the following information on those individuals “arrested or detained” in the investigation into the attacks of September 11:

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 being 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 witness 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 orders sealing any proceeding 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 immigration proceedings.

Letter to Melanie Ann Pustay, Office of Information and Privacy, Department of Justice, Oct. 29, 2001 (attached as Ex. 10).

There was widespread media coverage of the filing of the FOIA requests, and several newspapers wrote editorials urging the government to release the names of the detainees, as did several ranking Members of Congress.

On November 8, the Department of Justice announced that it would no longer provide a running total of all individuals detained in connection with the investigation, but only of those charged with federal crimes or immigration violations, and that it would only release information on the number of detainees currently in custody, not the total number detained in the course of the investigation.

The next day, following the public announcement that the Justice Department intended to monitor the attorney-client conversations of some detainees without a warrant, Senator Leahy again wrote the Attorney General reiterating his concerns and stating: “no one has explained to me how national security compels withholding from Congress and the public-with appropriate protections, if warranted-basic information regarding people who have been detained, arrested and imprisoned.” As chair of the Senate Judiciary Committee, he informed the Attorney General that he expected the Committee would be holding prompt hearings on these matters.

On November 16, 2001, the Assistant Attorney General replied to the October 31 request from Members of Congress and provided limited information about some of the detainees. The Justice Department sent copies of some federal criminal complaints and INS charging documents, but deleted the names of individuals from the INS documents. It also provided one document in response to the request for policy guidance.

On November 27, 2001, the day before the Judiciary Committee began its oversight hearings on these issues, the Attorney General held a press conference and released a list of 93 individuals who had been charged under federal criminal laws and a document entitled “INS Custody List” which contained 548 cases with no names provided.

Although the Justice Department had agreed to expedite plaintiffs’ FOI requests because the requests involved “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” as of November 27, plaintiffs had received no information in response to their requests. On December 5, plaintiffs filed this action.

On December 19, the Department of Justice announced that there were 460 individuals still in custody on immigration charges.

On January 11, 2002, the Department filed a motion for summary judgment and also released certain additional information about the detainees. The Department again released additional information on February 5, with its response to plaintiff’s Rule 56(f) motion. See Supplemental Declaration of James Reynolds (Reynolds Supp. Decl.). On February 15, 2002, the Department of Justice stated that 327 individuals were still in custody on immigration charges.

The Government’s Withholdings and Disclosures

In response to this lawsuit, the government has provided the names of only 108 individuals, all of whom have been charged with federal criminal offenses.

It has refused to provide the names of any individuals detained for immigration violations, on material witness warrants, or on state or local charges, or the names of any attorneys representing any of these individuals. Instead, it released a document showing, for 718 unnamed individuals, only the date of arrest, place of birth, code citation of INS charge and date of service of charging documents.

The government has refused to disclose even the number of individuals detained on material witness warrants, the identity of the judicial districts entering sealing orders in those cases, or the sealing orders themselves. It has withheld all information concerning an additional nine criminal cases, including even the identity of the judicial districts that allegedly entered sealing orders in those cases and the sealing orders themselves. It has never even addressed plaintiffs’ specific request for documents containing the legal authorities invoked by the government in seeking such sealing orders. And it has provided no information regarding individuals detained on state and local charges, who were included in the Justice Department’s announcements of the number of detainees prior to November 8, 2001. Its filings only account for a maximum of 835 individuals, when even as of November 5, 2001, it had stated that 1,182 people had been detained. It has thus failed to provide any accounting of at least 347 individuals not included in the categories outlined above.

Additionally, the government has implausibly released only one draft of a document in response to plaintiffs’ request for directives issued about making public statements, and only one document in response to the request for directives or guidance about the sealing of judicial or immigration proceedings. It provided no Vaughn affidavit describing any additional documents covered by these requests.

Questions raised about government misconduct.

For almost six months, there have been extensive, varied and credible reports of government misconduct and rights violations in connection with these secret arrests and detentions.

It appears that virtually all the detainees are either Arabs or Muslims, or believed by the government to be such. For example, all but 12 of the publicly released names of the criminal defendants are Arabic names. At the same time, there is extensive evidence that the government has no facts or information reasonably indicating any involvement in or knowledge of terrorism by the vast majority of the detainees. Only one individual has been criminally charged in the attacks, and he was detained before September 11. Less than five of the 718 immigration charges detailed by the government relate to terrorism. See Def. Ex. 6. The government admits that “many [of the detainees] have [been] or may be cleared of any wrongdoing.” Def. Mem. at 21. Its own affidavits notably fail to allege that any of the detained individuals are involved in terrorism. There are, however, extensive reports of serious violations of the rights of the detained individuals, including denial of access to counsel, denial of consular notification, physical and mental abuse, imprisonment without probable cause and denial of reasonable bail. (See reports detailed in section I.B infra.)

The available evidence suggests that the government is engaged in religious and ethnic discrimination in jailing these individuals, and is violating their rights under the Fourth, Fifth and Eighth Amendments. Plaintiffs seek the names and other information about the jailed individuals to shed light on whether, instead of conducting a focused law enforcement investigation targeting individuals involved in terrorism, the Department is conducting an unconstitutional and discriminatory dragnet.

ARGUMENT

“The requirement that arrest books be open to the public is to prevent any ‘secret arrests,’ a concept odious to a democratic society.” Morrow v. District of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969).

MATTERS AT ISSUE

Defendant has withheld the following information, claiming the following exemptions: The identities of those arrested for immigration violations and of their attorneys (Exemptions 7(A), 7(C), and 7(F)) and where they are detained (Exemptions 7(A) and 7(C));
The identity of courts that have issued sealing orders, the sealing orders, and the legal authorities relied upon in seeking the orders (court orders and Exemption 7(A)); and

The identities of those being held pursuant to material witness warrants and of their attorneys (Exemption 3, 7(A), 7(C) and 7(F) and court orders), as well as the detention location and release date, if any, of these individuals (Exemptions 3, 7(A), 7(C), 7(F) and court orders). Defendant has also failed to account for all detainees covered by plaintiffs’ FOIA requests and failed to conduct an adequate search for policy directives and guidance.

As shown below, none of this information is exempt from disclosure under FOIA. In addition, plaintiffs are entitled to this information under the common law.

I. THE FOIA REQUIRES DISCLOSURE OF THE NAMES AND OTHER INFORMATION ABOUT ARRESTED AND JAILED INDIVIDUALS.

“[D]isclosure, not secrecy, is the dominant objective of [FOIA].” Department of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). The Act requires disclosure of all information unless it comes within a specific exemption, Rose, 425 U.S. at 360-361, and those exemptions must be narrowly construed, Klamath Water Users, 532 U.S. at 7. The basic purpose of FOIA is to open agency action to the light of public scrutiny. Rose, 425 U.S. at 372. Thus, when an agency withholds documents, the burden is on the agency to prove that the claimed exemption applies. 5 U.S.C. § 552(a)(4)(B); Campbell v. Department of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). The courts must review de novo an agency’s refusal to disclose requested information, 5 U.S.C. § 552(a)(4)(B), and as a general rule, agency affidavits are not entitled to any special deference, Alyeska Pipeline Service Co. v. Environmental Protection Agency, 856 F.2d 309, 315 (D.C. Cir. 1988).

In this case, for the first time in at least recent history, the United States government has arrested and jailed hundreds of individuals and kept their identities secret. While the government invokes the importance of the anti-terrorism investigation to justify its refusal, it cites no case under FOIA, or any other authority, authorizing the government to keep secret the names of those whom it arrests or incarcerates. To the contrary, the government’s refusal to release the names of the more than 750 detainees is a stark departure from the bedrock principle that the government must disclose the identity of people whom it forcibly deprives of liberty.

Indeed, after plaintiffs and Members of Congress objected, the government finally released the names of those who have been held on federal criminal charges, presumably recognizing the clear authority requiring openness in criminal proceedings. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).

The government has suggested no basis under FOIA for distinguishing between criminal defendants and those jailed on immigration charges. Nor is there any. Just as in criminal proceedings, the time-honored practice of the INS has been to publicly disclose the names of individuals detained for violating the immigration laws. And INS regulations require that deportation hearings be open to the public except under limited circumstances. 8 C.F.R. § 240.10(b). Moreover, while those jailed on immigration charges are not charged with a crime, they face equally serious deprivations of liberty. Many of the INS detainees have already been imprisoned for significant periods of time, and most, if not all, face the possibility of deportation, a punishment that can have grave consequences. See Bridges v. Wixon, 326 U.S 135, 154 (1945) (in deportation proceedings “the liberty of an individual is at stake” ).

Nothing in the Freedom of Information Act creates some new rule allowing the government to keep secret the identities of those whom it arrests or jails; such an interpretation would stand FOIA on its head. FOIA was enacted to assure the public access to information that it had previously been denied. See Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973) (FOIA enacted to “permit access to official information long shielded unnecessarily from public view”). The Act’s carefully structured exemptions were not meant to provide the government with authority to withhold basic information about the operations of government that had traditionally been public.

Nevertheless, the government claims that the names and other requested information about arrested and jailed individuals is exempt from disclosure under Exemptions 7(A), 7(C) and 7(F). However, Exemption 7 applies only to information “compiled for law enforcement purposes.” As the D.C. Circuit has explained, it

“was intended to apply ‘whenever the Government’s case in court-a concrete prospective law enforcement proceeding-would be harmed by the premature release of evidence or information not in the possession of known or potential defendants. This would apply also where the agency could show that the disclosure of such information would substantially harm such proceedings by impeding any necessary investigation before the proceeding.’”

North v. Walsh, 881 F.2d 1088, 1098 (D.C. Cir. 1989) (quoting 120 Cong. Rec. S17,033 (May 30, 1974) (emphasis omitted)). This appears to be the first time that the government has invoked Exemption 7 to withhold information contained in the INS charging documents served on a defendant-i.e., the defendant’s own name-rather than information, like the names of witnesses, contained in the records of an investigation that are not available to the defendant. The government’s claim that it can withhold the INS charging documents, which are covered by the plaintiffs’ request and have presumably been served on the detainees (see Declaration of Kerry Bretz 2 (attached as Ex. A)), is no less extraordinary than a claim that it could withhold unsealed indictments under Exemption 7.

In addition to showing that the requested information was “compiled for law enforcement purposes,” to justify withholding pursuant to Exemption 7, the government must prove that release of the information (A) “could reasonably be expected to interfere with enforcement proceedings,” or (C) “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” or (F) “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(A), (C), (F) (emphasis added). As shown below, the government has failed to establish that disclosing the information plaintiffs requested could reasonably be expected to result in any of these statutory harms.

The government also claims that it may withhold the identities of the courts that have entered sealing orders in connection with jailed individuals, the sealing orders themselves, and any legal authority supporting those orders, and that it may withhold the identity of persons held on material witness warrants, pursuant to Federal Rule of Criminal Procedure 6(e) and court order. Again, it has failed to meet its burden to establish that this information is exempt under those authorities. Accordingly, this Court should grant summary judgment to the plaintiffs and order the government to release the requested information under the FOIA.

A. The Government Has Failed To Establish That The Information Requested Is Exempt Under 7(A) or 7(F).

The government has failed to meet its burden under Exemptions 7(A) and 7(F) because it has not established that disclosure of the names of the detainees or their attorneys could reasonably be expected to interfere with enforcement proceedings or endanger the life or physical safety of an individual. With respect to those jailed for immigration violations, the government simply has not established the requisite link between disclosure of their names and the harms it asserts will ensue from such disclosure. Moreover, the government’s argument proves far too much. If accepted, it would authorize secret jailing in connection with any serious criminal investigation.

1. The government has failed to show a nexus between releasing the identities and locations of the individuals jailed on immigration charges and the alleged law enforcement harms.

The government has the burden of establishing a connection between disclosure of the information that has been withheld and the harms it alleges will ensue from such disclosure. See, e.g., North, 881 F.2d at 1097 (“the government must show that disclosure of those documents would, in some particular, discernable way, disrupt, impede, or otherwise harm the enforcement proceeding”); Putnam v. Department of Justice, 873 F. Supp. 705, 713 (D.D.C. 1995) (“The government has the burden of demonstrating the ways in which disclosure of the information would interfere with prospective law enforcement proceedings”) (citing Campbell v. Department of Health and Human Services, 682 F.2d 256 (D.C. Cir. 1982)). Even a showing of a “direct relationship between an active investigation and withheld information” does not carry the government’s burden, because it does not prove that disclosure can reasonably be expected to cause the alleged harms. Campbell, 682 F.2d at 263-264. Rather, the government must demonstrate a “rational link between the nature of the document and the alleged likely interference.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986) (emphasis added).

With respect to Exemptions 7(A) and 7(F), the government claims that releasing the names and places of detention of the INS detainees could compromise its investigation and put the safety of these individuals and the public at risk. But the affidavits submitted in support of these contentions do not meet the government’s burden of proof because, on their face, they fail to establish any link between disclosure of the names of the detainees and the alleged harms.

While the government’s declarations describe in ominous terms the harms it alleges could follow from identifying the INS detainees, none of these alleged harms could reasonably be expected to result from disclosing a name, unless the individual whose name was disclosed was involved in the terrorist conspiracy related to the September 11 attacks, or in terrorist organizations involved in the attacks, or had material knowledge concerning the attacks or these terrorist organizations. But the government nowhere even asserts, much less offers any evidence, that the hundreds of individuals secretly jailed on immigration charges fall into any of these categories.

The government’s own submissions show that its predictions of harm depend on each of the detainees being involved in, or having material knowledge about, terrorism. The government posits four alleged harms under Exemption 7(A). 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.” Declaration of James S. Reynolds (“Reynolds Decl.”) 14 (emphasis added). 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 investigation” because “terrorist organizations with whom they have a connection could refuse to deal further with them” and a detainee “may be deterred from cooperating . . . for fear of retaliation by terrorist organizations against him or his family and associates.” Id. 15 (emphasis added). 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.” Id. 16 (emphasis added). 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.” Id. 17 (emphasis added).

The alleged harms to the public and individual safety under Exemption 7(F) likewise depend upon the individual’s connection to terrorism. With respect to the public’s safety, the government alleges that “[i]f terrorist organizations learn that their associates have been detained, or even people who know their associates have been detained, they may alter their plans in a way that presents an even greater danger to the United States.” Def. Mem. at 20-21 (citing Reynolds Decl. 16) (emphasis added). With respect to the safety of the detainees, the government claims that “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.” Reynolds Decl. 37. Also, “the detainees’ family members and friends could face threats of physical violence by terrorists to deter the detainees from cooperating.” Id. Finally, “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.” Id.

Even though the government’s allegations of harm necessarily rest on an assumption that every detainee whose name is withheld is involved in or has material knowledge about the terrorist conspiracy or terrorist organizations, the government does not even claim that this assumption is a fact. Indeed, only one paragraph of the government’s declarations even addresses the connection between the alleged harms and the requested information. In that paragraph the government states that the detainees

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. 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. Reynolds Decl. 10 (emphasis added).

Glaringly, the government fails to state that any of these original suspicions were confirmed about even one of the individuals on the list of 718. Instead, it states only that “in the course of questioning [these individuals], 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.

The government’s assertion that “some” of the detainees have “links” to “facets” of the investigation is entirely inadequate to meet its burden of showing how disclosure of the information will lead to the alleged harms.

First, “some” clearly does not mean “all,” and an allegation about some detainees can not support the government’s refusal to disclose the identity of all the detainees. Second, the assertion that there are some detainees with “links” to “other facets of the investigation” is much too attenuated to sustain the government’s burden of establishing that the alleged harms could reasonably be expected to follow from disclosure of even those detainees’ identities. See Campbell, 164 F.3d at 30 (vague agency affidavits will not support summary judgment). In order for the government to establish the requisite nexus between the information being withheld and its alleged harms, at a minimum, it must show that it has facts or information that reasonably indicate that these detainees are involved in or have material knowledge about the terrorist conspiracy or terrorist organizations. It has not even come close to doing that here.

2. The government’s claims of harm are contradicted by its admission that almost half of the INS detainees are not “of current interest to the investigation.”

In response to plaintiffs’ discovery motion, the government admitted that 338 individuals listed as “INACTIVE CASES” on its list of INS detainees are “persons believed not to be of current interest regarding the investigations emanating from the September 11th attacks” and that these individuals “may have been released or deported.” Reynolds Supp. Decl. 3. As to these individuals, the government has therefore admitted that it has no evidence linking them to terrorism. On that ground alone, the government’s exemption claims as to these individuals must be denied. See Crooker, 789 F.2d at 67 (government must demonstrate a “rational link” between the withholding and the alleged likely injury).

The government’s suggestion that “[e]ven though such detainees may not themselves be of current investigative interest, the same harms . . . could occur if their names are disclosed,” Id. 5, is without support in logic or in fact. Nothing in the government’s papers supports such a conclusion. The government further hypothesizes that “because the investigation is fluid and evolving, the significance of a given detainee may change over time.” Reynolds Supp. Decl. 7. In other words, although the government has no evidence linking these individuals to terrorism, perhaps someday it will. That mere possibility, however, is not sufficient to meet the requirements of Exemptions 7(A) and (F) that disclosure “could reasonably be expected to” cause the alleged harms. And that reasoning would permit the government to secretly jail any person, for it can be said of any person that perhaps, someday, the government will discover evidence linking him to terrorism.

3. Even if the government had established the requisite nexus, according to the government’s reasoning, the alleged harms would follow from the jailing of terrorist suspects, not from disclosing their names.

While the government outlines a litany of feared harms from identifying the detainees as a result of Al Qaeda learning which of its associates are jailed, it can reasonably be expected that Al Qaeda already knows which (if any) of its associates have been detained. The names are being kept secret from the American people, not from the terrorists.

Indeed, the government claims that the detainees are free to self-identify: “If [they] wish to disclose their names they may do so.” Reynolds Decl. 23. If this is so, then any detainees who are in fact members of terrorist organizations have been able to alert their associates to their detention. The terrorist’s ability to tip off his associates, not public identification, will cause the alleged harms. The government alleges that “official verification that a member has been detained . . . may enable the organization to find a substitute who can achieve its goals more effectively,” id., but a detainee’s own report will serve the same purpose. It is not the “public identification” that could cause the alleged harms, but the simple fact that the information is known.

Even if detainees are prevented from self-identifying, once an individual has been jailed for a period of time, a terrorist organization with which he is associated will become aware of his disappearance and can surmise that he is among the hundreds who have been detained by the government. Accordingly, all of the government’s parade of horribles could reasonably be expected to occur merely from the passage of time.

Moreover, the government’s own disclosures, by its own account, have been the most significant source of information about its investigation. It has released the names of those individuals being held on federal criminal charges who, according to the government, “remain a potential source of relevant or probative information.” Reynolds Decl. 27. In addition, the Attorney General himself announced that the government had apprehended suspects who were believed to have had advance knowledge of the September 11 attacks and outlined the evidence against them. Logically, the same harms would flow from identifying these individuals as those jailed on immigration charges, severely undermining the government’s arguments for withholding the names of the INS detainees.

4. The government’s argument, if accepted, would have no bounds.

In the end, the government’s argument for withholding the identities of the detainees fails because it simply proves too much. If accepted, it would allow the government to secretly jail anyone on the mere allegation that it was being done in connection with a terrorism investigation-or an investigation of organized crime or drug dealing. Under the government’s analysis, it would not even have to make a showing that it had facts or information reasonably indicating that the person was part of or had material knowledge about a criminal conspiracy, much less that there was sufficient evidence to charge him with criminal offenses. Contrary to the government’s implication (Reynolds Decl 13, Reynolds Supp. Decl. 4), it is not entitled to keep secret the names of all the detainees simply because it has an active terrorism investigation underway. See Campbell, 682 F.2d at 261 (“government must show something more than a direct relationship between agency records and a pending investigation in order to demonstrate that disclosure would interfere with enforcement proceedings”). The government’s claim to the contrary is a frightening proposition that is antithetical to the American system of justice and for which there is no basis in the law.

5. The government has failed to demonstrate that it is entitled to withhold the names of the attorneys for the INS detainees.

The government argues that the rationale for withholding the names of the INS detainees under Exemptions 7(A) and 7(F) also supports withholding the names of their attorneys. Reynolds Decl. 18. Specifically, the government claims that releasing the attorneys’ names may facilitate identification of the detainees, which could then cause all of the government’s alleged harms to ensue. Id.

However, just as the government has not met its burden of proving that disclosing the names of the detainees could reasonably be expected to harm its investigation or the safety of the detainees and the public, it also has not met its burden for withholding the names of their attorneys.

The government also asserts that if the attorneys’ identities were revealed, they themselves could be subject to physical harm (either from angry citizens or from terrorist organizations) and thus this information is exempt from disclosure under 7(F). Reynolds Decl. 38. It is undeniable, however, that when an attorney agrees to take on a case he or she has no expectation of remaining anonymous. To the contrary, a lawyer knows that the more notorious the case, the more likely it is that his or her identity will become publicly known.

There is no suggestion that any lawyer who signed up for an INS detainee case was unaware of this or unwilling to accept it. And, of course, the lawyers representing the detainees who have been charged publicly with federal crimes-presumably more subject to these hypothesized harms than those representing INS detainees-have all been publicly identified. Accordingly, there is no legitimate basis for the government’s refusal to disclose the identities of the detainees’ attorneys.

B. The Government Has Failed to Demonstrate That The Information Requested Is Exempt From Disclosure Under 7(C).

“Exemption 7(C), by its terms, permits an agency to withhold a document only when revelation ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy.’” Reporters Committee, 489 U.S. at 771 (1989) (emphasis by the Court). It follows, as the Supreme Court has explained, that whether disclosure under Exemption 7(C) “is warranted must turn on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny.” Id. at 772 (emphasis added; internal quotation marks omitted).

These criteria mandate disclosure here. The requested documents are not private papers that have come into the government’s possession or records that would only shed light on an individual. Rather, they are official arrest records and charging papers-items that have been traditional public documents since long before the Freedom of Information Act ever existed, and in which there is no recognized privacy interest at all. And disclosure will directly serve “the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny” by making it possible for plaintiffs and others (such as the news media) to probe whether the government has been engaging in serious misconduct against a class of individuals defined by religion and/or ethnicity. As the Supreme Court has explained: “[FOIA’s] basic policy of full agency disclosure . . . focuses on the citizens’ right to be informed about what their government is up to. Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose.” Reporters Committee, 489 U.S. at 773 (internal quotation and citations omitted).

Here, the public interest in obtaining traditionally public information about the detainees serves the core purpose of the Freedom of Information Act because it shows “what the government is up to.” Moreover, compelling evidence suggests that the government has engaged in unlawful-indeed, unconstitutional-conduct, and the information being withheld is “necessary in order to confirm or refute” that evidence. SafeCard Serv., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). By contrast, any privacy interest in the fact of being arrested and detained for violating the immigration laws is minimal, as the government recognizes by routinely making that information public in thousands of cases every year.

1. The public interest in disclosure could not be greater.

Disclosure of the information requested here serves the core purpose of the Freedom of Information Act. The American public is entitled to know who their government is rounding up and jailing. Moreover, there is already compelling evidence that the government has engaged in serious and repeated violations of the rights of these individuals. Disclosure of their identities is necessary to determine whether this is, in fact, the case.

The existence of a substantial public interest here is confirmed by the massive media attention to this question and the requests by several Members of Congress, including Senator Leahy, chair of the Judiciary Committee, to the Justice Department for the detainees’ names and other information. See pages 3-4, supra. The Department of Justice has itself recognized that there are questions that need to be answered about potential governmental impropriety. In granting plaintiffs’ request 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.” Ex. B to Declaration of Melanie Ann Pustay (Ex. 4 to Defendant’s Motion for Summary Judgment).

There have been numerous reports to the Congress and in the press which raise critical questions about whether the rights of those jailed have been seriously violated. These violations include: (1) denial of the right to counsel; (2) violation of the right to consular notification; (3) abusive treatment while in custody; (4) unlawful use of material witness authority; and (5) imprisonment without probable cause and in violation of the right to bail and the right to equal protection.

Denial of the right to counsel. Contrary to the government’s unsupported assertion that “no one has been denied their right to talk to an attorney,” Reynolds Decl. 21, there have been credible reports about the severe obstacles the government has placed in the way of those arrested seeking to contact legal counsel. For example, Gerald H. Goldstein testified before the Senate Judiciary Committee that his client had been arrested on September 12 and held incommunicado from his lawyers until September 19, despite both his and his lawyers’ repeated requests for access to each other. During that time, he was repeatedly interrogated despite his requests to speak with counsel. Likewise, Michael Boyle, a member of the American Immigration Lawyers Association, testified before the same committee that Tarek Mohammed Fayad was arrested on September 13 and held incommunicado from his lawyer for more than one month. Mr. Boyle further testified that a group of Israelis arrested on October 31, 2001, were told that “things would be more ‘complicated’ and their detention ‘longer’ if counsel was retained in their defense.”

Numerous press accounts report instances of individuals being denied counsel. The Washington Post quoted a “federal law enforcement official involved in the investigation” as saying that some material witnesses “are being detained based on circumstantial evidence and held for a week or longer without legal representation or permission to contact family members.” Other articles report that those detained on immigration violations have asked for and been denied counsel, and that because many inmates are only allowed one phone call per week, it has taken several weeks to contact potential counsel. In addition, there have been several news reports that attorneys have been blocked from finding out about or attending the deportation hearings of their clients. For example, ABC News reported that Martin Stolar, the attorney for an Egyptian detainee, called the INS for five consecutive days to find out when his client’s deportation hearing would be held, and on the fifth day was told that the hearing had been held already and that his client had waived his right to counsel and agreed to voluntary deportation.

The government’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, because of government interference, continue to be without counsel after weeks or months in custody, how difficult the government has made it for currently-represented detainees to obtain counsel, or how often the government has blocked a detainees’ access to his counsel, and vice versa.

Denial of the right to consular notification. There have also been highly credible reports about detainees being refused or hindered in exercising their legal right to contact consular officials from their country of citizenship. For example, The New York Times reported that the Canadian government has protested the treatment of a Canadian citizen of Pakistani descent who “disappeared” on September 20 and whose detention in federal custody was not disclosed for nearly three months, despite his own request for consular help and despite inquiries by the Canadian authorities. The same article quoted the Pakistani vice consul as reporting that many detained Pakistanis were told that if they sought to contact their consulate “their cases would be delayed.” Without knowing the identity of the detainees, it is impossible to find out how many of these individuals have been denied their right to consular notification.

Abuses in detention. There are also many reports about detainees being abused or treated improperly while in federal custody. Detainees have alleged that they have been beaten by guards. The Los Angeles Times reported that a Pakistani detainee was stripped and beaten in his cell by inmates while guards did nothing; that five Israelis were blindfolded during questioning, handcuffed in their cells and forced to take polygraph tests; and that a Saudi Arabian man “was deprived of a mattress, a blanket, a drinking cup and a clock to let him know when to recite his Muslim prayers.”

According to The New York Times, Pakistani detainees have said “that they are left in the cold without blankets for 24 hours after being picked up, apparently to weaken their resistance,” and that they have been housed with convicted criminals “and are beaten or live in constant fear of physical assaults.” There have also been numerous reports of detainees being held in solitary confinement, sometimes for 23 or 24 hours a day, and of detainees being shackled in chains or wrist irons in their cells. Without the identity of the detainees and their attorneys, it is impossible to know just how widespread this abuse is and what, if anything, the government has done to put a stop to it.

Unlawful use of material witness warrants. There is also compelling evidence that the government is using the material witness statute not to secure testimony, but to secure the detention of individuals it cannot detain by any lawful means. For example, news stories have reported that Tarek Abdelhamed Albasti-a U.S. citizen of Egyptian origin-and eight Egyptian men, some of whom worked for him, were arrested on material witness warrants and held for one week, without ever testifying before a grand jury. According to Mr. Albasti, he was never even questioned by investigators while in custody. According to The New York Times, a law enforcement official said that “[f]ederal authorities had learned that one of the men had recently taken flying lessons and that they lived together in Indiana and sent money home to Egypt.”

Serious questions are also raised by the case of Osama Awadallah as to whether the government is misusing the material witness authority to detain individuals when it could secure their testimony by deposition. As the district court stated in its opinion granting Awadallah’s request for a suppression hearing, although Awadallah was detained for twenty days as a material witness, there was “no indication that the government had attempted to take Awadallah’s deposition or offered to explain why it would not have been feasible-even though Awadallah’s counsel made the offer to have Awadallah deposed.” Awadallah, 2002 U.S. Dist. LEXIS 1430, at *96.

All of these reports raise considerable concerns about whether the Department of Justice is using the material witness statute to incarcerate people even when it has no information that they have material knowledge about the attacks, much less any basis for establishing that they will be unavailable to testify. Without disclosure of the identity of the jailed individuals, and importantly, their attorneys, it is impossible to determine whether, and to what extent, the government is abusing the material witness statute.

Imprisonment without probable cause and in violation of the right to bail and the right to equal protection. There is also significant evidence of an unconstitutional practice, if not policy, of locking-up men of Middle Eastern origin by using charges of minor immigration violations and petty offenses or the material witness authority, despite the fact that the government has no evidence that these individuals have any knowledge of or involvement in terrorism or terrorist organizations. As a general matter, preventive detention is only constitutional when the government can demonstrate either that an individual poses a flight risk or that the individual is particularly dangerous and thus poses a threat to the community or to national security. Zadvydas v. Davis, 533 U.S. 678, 2498-99 (2001); United States v. Salerno, 481 U.S. 739, 751 (1987). Nevertheless, news reports indicate that individuals are being denied bail, sometimes for the most petty offense, at the insistence of the government, even when there is no credible evidence connecting them with the September 11 attacks or terrorist organizations involved in the attacks.

For example, The New York Times reported that a father and son, both U.S. citizens of Palestinian origin with Arabic names, were arrested as they returned from a business trip in Mexico because their passports looked suspicious. The father was released after ten days and sent home wearing a leg monitor, but the son spent two more months in jail until a federal judge determined that the only thing wrong with his passport was that the plastic covering had split, Tamar Lewin, Cleared After Terror Sweep, Trying to Get His Life Back, N.Y. Times, Dec. 28, 2001, at A1 (attached as Ex. 49). News stories have also reported that the government is producing the same form affidavit in multiple cases to persuade judges to deny bail to those charged with immigration violations. See, e.g., Goldstein, A Deliberate Strategy of Disruption, at A1. That affidavit, signed by Michael E. Rolince, chief of the FBI counterterrorism division’s international terrorism section (“Rolince Aff.”), recounts the terrible events of September 11 and then goes on to state that the government “has been unable to rule out the possibility that [the detainee] is somehow linked to or possesses knowledge of, the terrorist attacks on the World Trade Center and the Pentagon.” Rolince Aff. 13 (attached as Ex. 50). This affidavit contains no facts about the particular individual evidencing some connection to terrorism, or some other reason why he might be a danger to the community; it simply states that the government wishes to make further inquiries. Accordingly, rather than demonstrating that an individual’s release would pose a threat to the community, the government is simply asserting that it has no evidence that he wouldn’t pose a threat to the community.

According to news reports, that affidavit was used to deny bail to Mohammed Mubeen, a 28-year old Pakistani gas station attendant, who was arrested on immigration charges after it was discovered that he got his driver’s license renewed in Florida shortly after terrorist plot leader Mohammed Atta acquired his driver’s license at the same DMV office. Goldstein, A Deliberate Strategy of Disruption, at A1. Given the government’s detention of hundreds of individuals and the dearth of any allegations that these individuals are connected to terrorism, there is a substantial probability that constitutional standards for depriving individuals of their liberty are not being met. The identities of the detainees and their attorneys are necessary to determine whether this is the case.
In that regard, this case is much like Rosenfeld v. Dep’t of Justice, 57 F.3d 803 (9th Cir. 1995), in which the court rejected the government’s argument that there was no public interest in knowing the identities of the individuals investigated by the FBI as part of the Berkeley Free Speech Movement (FSM). The Court rejected the government’s Exemption 7(C) claim concluding that the “public interest in this case is knowing whether and to what extent the FBI investigated individuals for participating in political protests, not federal criminal activity” and “the public interest in this case may not be served without disclosing the names of the investigation subjects.” Id. at 812.

Here, as in Rosenfeld, releasing the identity of (and other information about) the detainees is the only way for the American people to find out “what their government is up to” here.

2. The substantial public interest in disclosure outweighs any privacy interests of the detainees.

a. The INS detainees

While there is an overwhelming public interest in ascertaining whether the government has engaged in misconduct with respect to those detained in connection with the September 11 attacks, disclosing the names (and other information) of the detainees does not raise equivalent privacy concerns. Indeed, the government points to no authority holding that individuals have a recognized privacy interest in the fact that they have been arrested and jailed. Rather, all of the cases involve the privacy interest of individuals concerning the fact that their names are contained in law enforcement files, as suspects, witnesses, investigators or informants. See Def. Mem. at 24-30.

Here, by contrast, plaintiffs do not seek the names of individuals who are being investigated by law enforcement authorities, but of individuals who have been arrested, charged and held against their will for violating the immigration laws. See Tennessean Newspaper, Inc. v. Levi, 403 F. Supp. 1318, 1321 (M.D. Tenn. 1975) (disclosing “information about persons arrested or indicted for federal criminal offenses does not involve substantial privacy concerns”).

In claiming concern about the privacy of the detainees, the government argues that they have an interest in not being associated with the September 11 attacks. But it is the government who jailed these individuals on unrelated immigration charges and then announced to the world that they had been detained in connection with the September 11 attacks. Its assertion of concern for their privacy is nothing more than an effort to shield from public view the information necessary to determine whether it has violated their rights.

The government’s claim that the detainees “are free to release [their identities] voluntarily,” Def. Mem. at 23, is beside the point, even if true. As detailed above, there are many credible reports that detainees are being prevented from communicating with those outside the jail. But in any event, whether an individual may inform the world of his jailing is quite irrelevant to whether the government has met its burden of keeping that fact secret.

Even if there were some privacy interest in the fact of being jailed, it is far outweighed by the substantial public interest in determining whether the government has violated the rights of those whose privacy it now invokes. Indeed, the INS’ own rules recognize that any privacy interest of non-citizens in their immigration status must give way where “disclosure would reflect agency performance.” In a Justice Department interpretation of the effect of the Reporter’s Committee decision on FOIA requests for information about the immigration status of individuals-puzzlingly cited by the Attorney General in support of refusing the detainees names -the Department specifically directs that such information be withheld on privacy grounds, unless it “would reflect agency performance.” Third Party Requests for INS File Information, Memorandum for the Attorney General from Richard L. Huff and Daniel J. Metcalfe, May 10, 1996 (attached as Ex. 54). That is exactly the case here. The government’s Exemption 7(C) claim must be rejected. See Stern v. Federal Bureau of Investigation, 737 F.2d 84, 93-94 (D.C. Cir. 1984) (ordering disclosure of name of senior FBI agent censured for misconduct because privacy interest outweighed by public interest in disclosure).

b. Attorneys

The government states that it can “discern no public interest cognizable under FOIA in the identities of the individual private attorneys that have been retained” by the detainees. Reynolds Decl. 24. However, as we explained above, the names of the attorneys, like the names of the detainees, are needed to determine whether the government has engaged in misconduct in jailing these individuals. Accordingly, contrary to the government’s assertion, the public interest in disclosure of their names is substantial.

By contrast, the attorneys have minimal privacy interests here, if any. As explained earlier, attorneys have no expectation of anonymity when they take on a case, particularly a controversial one. And while the government speculates that “some attorneys may have been dissuaded form representing individuals in this context,” it provides absolutely no support for that assertion (which, in any event, would have no bearing on the privacy interests of the hardier attorneys who were not dissuaded). Accordingly, any privacy interest the attorneys may have is greatly outweighed by the public interest in determining whether the government has violated the rights of these detainees.

C. The Government’s Argument that it is Precluded from Releasing the Identities of Those Courts that have Entered Sealing Orders, and other Information is Not Supported by the Evidence.

Plaintiffs also requested (1) the identity of those courts that entered orders sealing proceedings in connection with detained individuals; (2) the sealing orders themselves; and (3) the legal authority the government relied on in obtaining the sealing orders. The government claims that there are nine such sealing orders in effect, Reynolds Supp. Decl. 9, but that disclosure of all of the requested information, including the judicial districts in which the sealing orders were entered and the actual sealing orders themselves, is prohibited by court order. Id. 39. The Reynolds Declaration does not quote the relevant language of these court orders, however, and thus does not meet the government’s burden to establish a basis for withholding all of this requested information.

As noted previously, the defendant has the burden of proving that it is entitled to withhold documents under FOIA. See Campbell, 164 F.3d at 30. Here, without the specific language from these court orders, the Reynolds Affidavit is far too conclusory to support the government’s claim that it is prohibited from releasing any of the information requested. See, e.g., Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (agency affidavits that are too conclusory will not support summary judgment). Accordingly, the government has not met its burden of proof and summary judgment on this point is inappropriate.

In order to determine whether disclosure of the requested information is prohibited, this court may conduct an in camera review of the court orders. See Quinon, 86 F.3d at 1228 (“in camera review may be particularly appropriate when . . . the agency affidavits are insufficiently detailed to permit meaningful review of exemption claims”). Before resorting to an in camera review, however, the court should require the government to submit a more detailed affidavit that sets out the language of the court orders on which it relies. See Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998) (“this court has repeatedly observed that a district court should not undertake in camera review of withheld documents as a substitute for requiring an agency’s explanation of its claimed exemptions”); Quinon, 86 F.3d at 1228 (conducting an in camera review of withheld documents rather than requiring a more detailed agency affidavit “deprives the FOIA requester of an opportunity to present his interpretation of the withheld documents”).

D. The Government Has Failed To Establish That the Information about Individuals Held on Material Witness Warrants is Exempt Under FOIA Exemptions 3, 7(A) or 7(F) or Covered by Sealing Orders.

1. The government is not entitled to withhold information on the individuals held on material witness warrants under FOIA Exemption 3 or any sealing orders.

Exemption 3 of FOIA permits an agency to withhold information “specifically exempted from disclosure by [another] statute.” 5 U.S.C. § 552(b)(3). Here, the government argues that it is prohibited from releasing the names of the individuals held on material witness warrants pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, which prohibits disclosure of “matters occurring before [a] grand jury.” However, Rule 6(e) does not prohibit identifying these individuals, and thus Exemption 3 is inapplicable.

This Circuit has repeatedly stressed that Rule 6(e) should not be read so literally “as to draw ‘a veil of secrecy . . . over all matters occurring in the world that happen to be investigated by a grand jury.’” Senate of Puerto Rico v. Department of Justice, 823 F.2d 574, 583 (D.C. Cir. 1987) (quoting SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)). “There is no per se rule against disclosure of any and all information which has reached the grand jury chambers.” Id. Rather, the relevant inquiry is whether disclosure would tend to “reveal the inner workings of the grand jury.” Washington Post Co. v. Department of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988). “The disclosure of information coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury’ is not prohibited.” Senate of Puerto Rico, 823 F.2d at 583 (quoting Fund for Constitutional Government v. National Archives and Records Serv., 656 F.2d 856, 870 (D.C. Cir. 1981)). It is “the document itself [that] must reveal the inner workings; the government cannot immunize a document by publicizing the link.” Washington Post Co., 863 F.2d at 100.

In Senate of Puerto Rico, the Department of Justice refused to turn over grand jury Exhibits in response to a FOIA request, citing Rule 6(e) and FOIA Exemption 3. But the court held that the government had not met its burden of establishing that disclosure of the information would undermine the secrecy of the grand jury proceedings, explaining that material submitted to the grand jury was not exempt from disclosure absent “some affirmative demonstration of a nexus between disclosure and revelation of a protected aspect of the grand jury’s investigation.” 823 F.2d at 584. The court noted that although the FOIA request specifically asked for grand jury materials,

had the DOJ released these Exhibits, along with the over 1,000 pages of non-grand jury material it did release, there is nothing in this record to suggest that the Senate, or any third party, would have been able to determine which documents had been submitted to the grand jury. Absent that identifying information, it is difficult to see how disclosure would reveal anything concerning the inner workings of the grand jury.
Id. at 583 (emphasis added).

Likewise, in Washington Post Co., the Department of Justice invoked FOIA Exemption 3 and Rule 6(e) to shield from disclosure a report prepared by a pharmaceutical company that had been subpoenaed by a grand jury in connection with DOJ’s investigation of the company. 863 F.2d at 98. In ruling that Exemption 3 did not apply, the court noted that by itself, the report would not have

revealed anything whatsoever about the grand jury’s deliberations had the government not disclosed the report’s role in those deliberations. When the Post first requested disclosure of the report, it was not yet before the grand jury. That the grand jury subpoenaed it five months later and that it used the report to question witnesses would not be known by the Post today had the Department not recounted the report’s grand jury role in this litigation.

Id. at 100; see also Dresser Industries, 628 F.2d at 1383 (no bar to disclosure of documents that had been subpoenaed by grand jury where documents themselves did not reveal what had occurred before the grand jury); Church of Scientology Intern. v. Department of Justice, 30 F.3d 224, 235 (1st Cir. 1994) (documents not exempt from disclosure where government did not offer “support for its claim that release of the sought-after documents would compromise the secrecy of the grand jury process”).

In this case, as in Senate of Puerto Rico and Washington Post Co., but for the government having “publiciz[ed] the link” between those jailed on material witness warrants and grand jury proceedings, that link would not be known. The statute authorizing the detention of material witnesses says nothing about grand juries, rather, it refers generically to persons whose “testimony . . . is material in a criminal proceeding.” 18 U.S.C. § 3144.

Rule 6(e) plainly protects from disclosure information identifying grand jury witnesses. See, e.g., Farese v. Department of Justice, 826 F.2d 129 (D.C. Cir. 1987). But in this case, disclosing the names of those being held on material witness warrants, without more, does not expose them as grand jury witnesses. And aside from its own identification of these individuals as grand jury witnesses, the government has drawn absolutely no nexus between disclosure of their names and “revelation of a protected aspect of the grand jury’s investigation.” Like Senate of Puerto Rico, this is a case where the government could have “revealed [information] in such a manner that its revelation would not elucidate the inner workings of the grand jury.” 823 F.2d at 583. It chose a less discrete course. But the government’s tactical ploy does not now exempt the information from disclosure. Id.

The government also claims that it is entitled to withhold information on the material witnesses pursuant to sealing orders entered by courts. Reynolds Decl. 32. But as we explained above, by failing to provide the actual language of those orders (despite plaintiffs’ specific request), the government has failed to meet its burden of proof.

2. The government’s assertions are too vague and conclusory to justify withholding information on the material witnesses under Exemptions 7(A) and 7(F).

The government also argues that all information about the individuals detained on material witness warrants may be withheld under Exemptions 7(A) and 7(F) because disclosure “could reveal the strategy or direction of the investigation” and “could reasonably be expected to endanger the life or physical safety” of them and others. Reynolds Decl. 35, 37. According to the government, these justifications are “particularly compelling for the material witnesses, as they are believed to have evidence directly relevant to acts of terrorism.” Id. 35. As with the INS detainees, these statements are far too vague and conclusory to support summary judgment. See Campbell, 164 F.3d at 30. The government’s failure to provide anything in support of its alleged “belief” is fatal. It never even claims that it has facts or information that would support such a conclusion about each detainee, it simply asserts a “belief.” This vacuum is especially significant given the credible reports of individuals being jailed on material witness warrants without any evidence that they knew anything about the attacks. The government has again failed to show “by more than conclusory statement, how the particular kinds of [information] requested would interfere with a pending law enforcement proceeding.” Campbell, 682 F.2d at 259.

3. The privacy interest of individuals detained on material witness warrants is outweighed by the public interest in disclosure.

This case differs materially from those cases cited by the government in which courts have found that witnesses in an investigation have a significant interest in keeping their involvement secret. See, e.g., Quinon v. FBI, 86 F.3d 1222, 1230 (D.C. Cir. 1996) (“Persons involved in FBI investigations-even if they are not the subject of the investigation-have a substantial interest in seeing that their participation remains secret”) (internal quotation marks omitted). Usually when the government conducts an investigation and interviews witnesses, the witnesses are not detained, and therefore can keep their involvement from becoming public. In this case, however, the individuals involved have been arrested and taken away from their homes and their jobs. Their families, friends, neighbors, employers and coworkers all know that they are gone. Their arrest is simply not a secret to the people that really matter, and thus the repercussions that the government argues could result from revealing their identities-“embarrassment, humiliation, risk of retaliation, harassment and possibly even physical harm” (Def. Mem. at 24)-already exist. Accordingly, these individuals have little if any privacy interest in not having their names disclosed.

But even if these individuals had a substantial privacy interest at stake, under the law of this Circuit the identities of witnesses in an investigation are not exempt from disclosure if access to those names “is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity.” SafeCard Services, 926 F.2d at 1206. As explained above, there is compelling evidence of government misconduct, including with respect to individuals held on material witness warrants, and disclosure is needed to determine whether this is in fact the case. See supra pp. 21-29. Accordingly, the public interest in disclosure of the identities of these individuals far outweighs any attenuated privacy concerns they may have.

4. The government has failed to establish that the names of attorneys for persons detained on material witness warrants are exempt.

All the reasons outlined above as to why the identities of individuals detained on material witness warrants must be disclosed apply equally to disclosure of the names of their attorneys. But in addition, even if the identities of the detained individuals could be withheld, there is no basis for withholding the identity of their lawyers, and the government suggests none. If there are court orders prohibiting those attorneys from publicly identifying their clients, then the clients’ names will be kept secret and none of the government’s alleged harms will occur. At the same time, these attorneys could provide important information about the government’s conduct, even if they must do so without identifying their clients.

E. The Government’s Search for Policy Directives and Guidances Was Inadequate.

“It is elementary that an agency responding to a FOIA request must ‘conduct[] a search reasonably calculated to uncover all relevant documents.’” Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (quoting Weisberg v. Department of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). “’If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.’” Campbell, 164 F.3d at 27 (quoting Truitt, 897 F.2d at 542). Furthermore, while the government may rely on agency affidavits to show the adequacy of its search, these affidavits must be reasonably detailed and nonconclusory in order to support summary judgment. See Oglesby v. Departmentt of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990).

Here, the government’s declarations do not demonstrate that it conducted a reasonable search with respect to plaintiffs’ request for “[a]ll policy directives or guidance issued to officials about making public statements or disclosures” or about “sealing []judicial or immigration proceedings.” The FBI admits that it did not even conduct any search, claiming harm to its investigation. Declaration of Scott A. Hodes, 9. It provides no justification for failing to carry out a narrow search for policy directives or guidance, presumably at FBI Headquarters or in the General Counsel’s office. In addition, the declarations say absolutely nothing about the search conducted at the Department of Justice for such documents. In fact, the Department released only one heavily redacted document, identified as “draft talking points.” Declaration of Melanie Ann Pustay 6. But somehow, all Justice Department and FBI offices around the country were informed that they must reveal no information about the detainees. How that notification was accomplished without the use of a single document is never addressed in the government’s declarations.

In addition, defendants released only one document regarding the sealing of judicial or immigration proceedings: a memorandum from Chief Immigration Judge Michael Creppy to “All Judges; Court Administrators,” dated September 21, 2001. (Attached as Ex. 57). That memorandum states that some of the recipients “already know” that the Attorney General “has implemented . . . procedures [that] require us . . . to close the hearing[s] to the public, and to avoid discussing the case or otherwise disclosing any information about the case to anyone outside the Immigration Court.” This document plainly indicates that there are other, undisclosed, documents setting forth procedures implemented by the Attorney General.

Again, however, the government’s declarations do not show that it made a search reasonably calculated to discover responsive documents. As noted above, the Pustay Declaration says nothing about the search conducted at the Department of Justice. The Declaration of Raymond Q. Holmes is almost equally unilluminating with respect to the search by the INS. It nowhere details whether searches were actually conducted in the offices most likely to have such procedures, e.g, the offices of the Director, the Chief Judge, or even the General Counsel, much less how any searches were actually conducted. This is insufficient. See Oglesby, 920 F.2d at 68 (“A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.”).

F. The Government’s Response Failed to Account for all Detainees.

The government’s listing of detainees failed to fully respond to plaintiffs’ request because it failed to account for a large number of individuals who have been detained. On November 5, 2001, the Department of Justice announced that 1,182 people had been detained since September 11. As outlined above in the Statement of Facts, the total number of detainees addressed in the government’s response is significantly less than the total number who have been detained. Accordingly, the government’s response at a minimum fails to account for 347 individuals. See page 7 supra. In addition, the government says absolutely nothing about individuals jailed on state and local charges, even though it included such individuals in the public counts that it released in October. The Court should order a complete accounting of the detained individuals.

II. THE COMMON LAW PROVIDES AN ENFORCEABLE RIGHT OF ACCESS TO BASIC ARREST INFORMATION.

Plaintiffs have an enforceable right of access under the common law to basic information about individuals who are arrested and taken into custody by the government. The Supreme Court recognized in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), that “the courts of this country recognize a general right to inspect and copy public records and documents.” Id. at 597. While that right has been most extensively litigated in the context of judicial records, it applies as well to other public records that, like court records, have been traditionally available to the public. With respect to such materials, this common law right gives rise to a “presumption . . . in favor of public access” that is enforceable in the courts. Id. at 602.

Thirty-two years ago, the D.C. Circuit recognized the deep roots and the importance of keeping basic arrest information public. Referring to an Act of Congress requiring the D.C. Metropolitan Police Department to maintain public arrest books, first enacted in the 19th Century, the court noted that “[t]he requirement that arrest books be open to the public is to prevent any ‘secret arrests,’ a concept odious to a democratic society.” Morrow v. District of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969).

Other courts, from Connecticut to Los Angeles and from Wisconsin to Texas, have recognized the historic nature of the common law right of access to records of arrests. For example, when in 1974 the police chief of Milwaukee began withholding from the public the records showing the charges on which particular persons had been arrested (while continuing to provide the name, date of birth, time of arrest and names of arresting officers of all persons taken into custody), the Minnesota Supreme Court ordered him to cease withholding the records of charges. Newspapers, Inc. v. Breier, 279 N.W.2d 179 (Wis. 1979). While that case was brought under the state public records statute, the court noted that “[w]e have interpreted the statute as a statement of the common law, leaving in place the limitations on the inspection of records that existed at common law.” Id. at 183, quoting UAW v. Gooding, 29 N.W.2d 730, 736 (Wis. 1947).

The court noted that the police chief was “not contending that the fact of an arrest may be kept secret or that the names of persons arrested should not be revealed. Accordingly, the serious constitutional due-process question which would be posed by secret arrests does not arise in this case.” Id. at 184.

Similar attempts to abandon the historic practice of keeping a public “police blotter” led to corrective legislation in Connecticut, Texas and California. In Connecticut, when certain police departments began to refuse to disclose booking information, a bill was introduced “to make sure when somebody was booked there would be no way that that could be hidden from the public. That everyone should know who’s, in fact, been booked and put under custody.” 26 H.R.Proc., Pt. 8, 1983 Sess., p. 2772 (remarks of Rep. Richard Tulisano) (quoted in Gifford v. Freedom of Information Com’n, 631 A.2d 252, 262 (Conn. 1993)). The result was the enactment of Conn. Gen. Stat. § 1-20b, which provides that “Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest.” The information that must be contained in that public record includes “the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested.” Gifford, 631 A.2d. at 260.

A similar scenario unfolded in Texas. “For as long as veteran newspaper editors and reporters could recall, the police department had routinely given access” to arrest records. Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177, 180 (Tex. Civ. App. 1975).

However, in January 1974 the City of Houston refused a media request for its 1993 airport security arrest records, and the state Attorney General opined that the newly-enacted Texas Open Records Act protected those records from disclosure. Id. at 181. As the court recounted, “[n]ot surprisingly, representatives of the news media were shocked to discover that legislation that was declared to be for the purpose of opening up to public scrutiny functions of government was being construed to deny access to reports previously available to the press.” Id. The Houston Chronicle filed suit, and the Court of Civil Appeals held that, in accordance with long practice and informed by state and federal constitutional considerations, the Open Records Act required public disclosure of the “Houston Police Blotter,” including an arrestee’s “name, alias, race, sex, age, occupation, address, ‘I.D.’ number, and physical condition. The Blotter also shows by whom the arrest was made, the date and time thereof, and booking information, as well as the charge made and the court in which it was filed.” Id. at 180.

Likewise in California, “’an aggressive attitude in reporting crime news’” by some media “’in some instances, resulted in the closing of all records of police activity in apparent retaliation for critical press accounts in some cities.’” County of Los Angeles v. Superior Court, 22 Cal.Rptr.2d 409, 415 (Cal. App. 1993) (quoting Report of the Senate Committee on the Judiciary on AB 909 (1981-1982 Reg. Sess.)).

The legislature quickly enacted corrective legislation the purpose of which, as the court explained, was “only to continue the common law tradition of contemporaneous disclosure of individualized arrest information in order to prevent secret arrests and to mandate the continued disclosure of customary and basic law enforcement information to the press. It seems clear that the Legislature and the Governor both understood that AB 277 would require no departure from, but simply mandate, what had been basic and customary at common law.” Id. at 416 (emphasis added).

The importance of maintaining contemporaneous public access to arrest records has also not been lost on the courts. Elaborating upon the D.C. Circuit’s understanding that “’secret arrests,’ [are] a concept odious to a democratic society,” Justice Corrigan of the Ohio Supreme Court explained:

If there is no official arrest record at the jail, except the private log of the jailer, how is it to be determined if there was unnecessary delay in according the person arrested his rights? How is his family or a friend going to learn of his arrest if, on inquiry, they are advised there is no official record? The constitutional foundation underlying these rights is the respect a state or city must accord to the dignity and worth of its citizens. It is an integral part of constitutional due process that a public record of such arrests be maintained.

Dayton Newspapers, Inc. v. City of Dayton, 341 N.E.2d 576, 579 (Ohio 1976) (Corrigan, J., concurring). And quoting Thomas Jefferson, the Wisconsin Supreme Court observed that

The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves, nor can they be safe with them without information.

Newspapers, Inc. v. Breier, 279 N.W.2d at 187 (quoting The Political Writings of Thomas Jefferson 93 (E. Dumbauld ed. 1955)).

Jefferson’s concerns translate directly into the Supreme Court’s teaching that a person need not have any special interest in particular information in order to to assert a common law right of access. Rather, “[t]he interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies.” Nixon v. Warner Communications, 435 U.S. at 597-98. That is, of course, precisely the interest of plaintiffs here.

The circumstances giving rise to this case demonstrate that Jefferson’s concerns were not hypothetical. In a dramatic break with our traditions, the government has incarcerated hundreds of men-all, or nearly all, belonging to a minority ethnic or religious group-and has refused, for up to six months (and with no end in sight) to release to the public even basic information about their identity or the circumstances of their arrests. Moreover, the government has admitted that the real reason for most of these detentions is simply preventive: these individuals are not accused or even suspected of having committed any crime. In these circumstances, plaintiffs’ “desire to keep a watchful eye” on the government is compelling, and the common law right of access should be enforced.

CONCLUSION

For the reasons given above, defendant’s motion for summary judgment should be denied and plaintiffs’ cross-motion for summary judgment should be granted.

Respectfully submitted,

_____________________________________
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
Marcia T. Maack, D.C. Bar. No. 467035
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037
Tel: 202-994-7060
Fax: 202-994-7005

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

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

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