Response to Defendant’s Statement of Material Facts

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


CENTER FOR NATIONAL SECURITY STUDIES, )
et al., )
)
Plaintiffs, )
)
v. )
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )

Judge Kessler Civil Action No. 01-2500
____________________________________________ )

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATEMENT OF
MATERIAL FACTS NOT IN DISPUTE

Many of the assertions in defendant’s Statements of Material Facts are not facts at all, but arguments that go to the ultimate issue in the case.

1. Defendant’s Statement of Material Facts (“Def. Statement”) 2. Defendant contends that in response to plaintiffs’ FOIA request, the INS requested that plaintiffs narrow the scope of their request and that “[p]laintiffs failed to respond or to narrow their request and instead filed this lawsuit.” Re. Whether plaintiffs failed to respond before filing suit is not material to the issues in this case, but in addition, it is not true. Before filing suit, undersigned counsel informed the FOI office in the Department of Justice that plaintiffs were seeking the information described in their request, rather than every document covered by their request and that the government could respond with a list or other summary if it wished.

2. Def. Statement 4. Defendant contends that “[b]ecause of the enormity of the investigation and the vast FBI resources it is consuming, the FBI could not spare the personnel necessary to comb through the thousands of pages of documents responsive to plaintiffs’ FOIA request without harming the progress of the investigation.” That assertion is not detailed enough to support defendant’s burden that it has conducted an adequate search for the policy directives and guidances not released or identified by the government, especially in light of the plaintiffs’ agreement that they only wished the information and not every document covered by the request. It is immaterial to any other issue in the case.

3. Def. Statement 8. Defendant’s statement that “those who have violated immigration laws have been detained by INS for immigration violations” is unsupported by the record, which shows only that those who have been charged with immigration violations have been detained by the INS. See Def. Ex. 6.

4. Def. Statement 9. Defendant’s description of where the information sought by plaintiffs may be found omits that the information is contained in the 718 charging documents referred to in defendant’s list of the INS detainees. See Def. Ex. 6, Bretz Declaration, 2, Exhibit A to Plaintiffs’ Memorandum in Support of Summary Judgment.

5. Def. Statement 11. Defendant’s statement that all of the information released regarding the INS detainees “was broadly disseminated to the general public prior to the filing of this lawsuit” although immaterial, is disputed. In response to the lawsuit, defendant has released certain information regarding 718 INS detainees, Def. Ex. 6, while prior to the lawsuit, defendant had released information concerning only 548 INS Detainees. (Attorney General Ashcroft, Press Briefing, November 27, 2001, Attached as Plaintiffs’ Exhibit 22)

6. Def. Statement 13. Defendant contends that “the scope of the withheld information has been narrowly tailored to protect the integrity and efficacy of the ongoing investigations, to ensure the safety of the detainees and U.S. citizens, and to prevent the invasion of the personal privacy of the detainees and other individuals associated with them.” This is not a statement of fact but an argument that goes to the ultimate issue to be decided by the Court. To the extent that it reflects the government’s view of its withholdings, it is simply immaterial.

7. Def. Statement 14. Defendant’s assertions concerning the government’s questioning of the INS detainees are immaterial under the applicable legal standards of the Freedom of Information Act. See Pl. Memorandum at section I.A. They are also incomplete. See exhibits outlined in Plaintiffs’ Statement of Material Facts Not in Dispute (“Pl. Statement”), 34-36.

8. Def. Statement 17-21. The government’s contentions in its Vaughn Declarations that disclosing the requested information about the INS detainees could be harmful and that accordingly the information is exempt from disclosure under FOIA Exemption 7(A) are not statements of facts, but arguments that go to the ultimate issue in the case.

9. Def. Statement 22. The government’s contentions in its Vaughn Declarations that releasing the names of the attorneys of the INS detainees could be harmful and that accordingly this information is exempt from disclosure under FOIA Exemption 7(A). are not statements of facts, but arguments that go to the ultimate issue in the case.

10. Def. Statement 23-24. The government’s contentions in its Vaughn Declarations that “the privacy interests in protection [of the names of the INS detainees] outweigh any perceived public interest in release” are not statements of facts, but arguments that go to the ultimate issue in the case. The facts material to the alleged privacy of the INS detainees and the public interest in disclosing their names are set out in Pl. Statement, 18-38.

11. Def. Statement 25. The government’s contention that “no one has been denied their right to talk to an attorney” is disputed. The government’s affiant to this assertion offers no basis that he has personal knowledge or is otherwise competent to testify to this hearsay statement. See Reynolds Declaration 21. As set forth in Pl. Statement, 22-27 there is significant evidence, set forth in reports by individuals and attorneys to the Congress and the media that this is not the case. Moreover, disclosure of these individuals’ identities is necessary to determine the truth of this assertion.

12. Def. Statement 27. The government’s contention that “[i]f the detainees wish to disclose their names they may do so” is immaterial, but also disputed. The government’s affiant to this assertion offers no basis that he has personal knowledge or is otherwise competent to testify to this hearsay statement. See Reynolds Declaration 23. As set forth in Pl. Statement, 22-28, 38 there is significant evidence, set forth in reports by individuals and attorneys to the Congress and the media that this is not the case. Moreover, disclosure of these individuals’ identities is necessary to determine the truth of this assertion.

13. Def. Statement 28-30. The government’s contentions in its Vaughn Declarations that releasing the names of the attorneys of the INS detainees could violate their privacy and that accordingly this information is exempt from disclosure under FOIA Exemption 7(C) are not statements of facts, but arguments that go to the ultimate issue in the case.

14. Def. Statement 32 -34. The government’ contentions in its Vaughn Declarations that releasing the date of arrest of those charged with federal crimes could be harmful and that accordingly this information is exempt from disclosure under FOIA Exemption 7(A) are not statements of facts, but arguments that go to the ultimate issue in the case. The government’s remaining contentions about information about the federal criminal defendants are not material because plaintiffs do not challenge the withholding of the other information concerning these individuals, whose names have already been released.

15. Def. Statement 36. The statement that “the United States District Courts before which the material witnesses have appeared have issued sealing orders prohibiting the government from releasing any information about these proceedings,” is disputed. The government’s affiant to this assertion offers no evidence supporting this conclusion, see Reynolds Declaration 32, and the government has refused discovery on the facts necessary for plaintiff to offer evidence contradicting this assertion, i.e., the language of the sealing orders.

16. Def. Statement 37-40. The government’ contentions in its Vaughn Declarations that releasing information about the individuals detained on material witness warrants is exempt under Exemptions 3, 7(A) and 7(C) are not statements of facts, but arguments that go to the ultimate issue in the case.

17. Def. Statement 41-42. The government’s contentions in its Vaughn Declarations that releasing the “identities of the INS detainees, the identities of those being held on material witness warrants, [ ], and the identities of the detainees’ lawyers” could be harmful and accordingly is exempt from disclosure under FOIA Exemption 7(F) are not statements of facts, but arguments that go to the ultimate issue in the case.

18. Def. Statement 43. The statement that the requested secrecy orders “have been sealed by the relevant United States District Courts and prohibit the government from releasing any information” is disputed. The government’s affiant to this assertion offers no evidence supporting this conclusion, see Reynolds Declaration 39, and the government has refused discovery on the facts necessary for plaintiff to offer evidence contradicting this assertion, i.e., the language of the sealing orders.

19. Def. Statement 44. The government’s contentions in its Vaughn Declarations that releasing the identity of the courts could be harmful and accordingly is exempt from disclosure under FOIA Exemption 7(A) are not statements of facts, but arguments that go to the ultimate issue in the case.

20. Def. Statement 45. The government’s contentions in its Vaughn Declarations that it has “made every effort to segregate and release all non-exempt information requested by plaintiffs” and that “[t]he information defendant continues to withhold cannot be disclosed without causing or risking the serious and substantial harms outlined above” are not statements of fact but argument that goes to the ultimate issue in the case.

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
March 18, 2002

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