Statement of Material Facts

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

PLAINTIFFS’ STATEMENT OF MATERIAL FACTS

1. On September 11, 2001, the United States suffered terrorist attacks in New York and Washington resulting in more than 3000 deaths. Hundreds of individuals have been “arrested” or “detained” in the ensuing investigation. In the first few days after the attacks, some 75 individuals were picked up and detained. Attorney General Ashcroft, Press Briefing, Sept. 18, 2001 (attached as Ex. 1). As of September 28, the Attorney General announced that 480 individuals had been detained (Attorney General Ashcroft, Press Briefing, Sept. 28, 2001 (attached as Ex. 2), ten days later another 135 had been picked up (Attorney General Ashcroft, News Briefing, Oct. 18, 2001 (attached as Ex. 3), and in a single week in October, some 150 individuals were arrested, (see Christopher Drew, Jo Thomas, and Don Van Natta, Jr., Hundreds of Arrests, but Promising Leads Unravel, N.Y.Times, Oct. 21, 2001, at B1 (attached as Ex. 4).

2. 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.” Amended Complaint 28 (admitted in defendant’s Answer). As of November 5, the government announced that 1,182 people had been detained. Dan Eggen and Susan Schmidt, Count of Released Detainees Is Hard to Pin Down, Wash. Post, Nov. 6, 2001 (attached as Ex. 7).

3. Prior to October 29, the Justice Department refused to provide the names of the individuals who had been arrested or the charges against them. Attorney General Ashcroft and FBI Director Mueller, News Conference, Oct. 16, 2001 (attached as Ex. 8). It provided no information about how many individuals had been released.

4. 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. William Glaberson, Detainees Accounts Are At Odds With Official Reports of an Orderly Investigation, N.Y. Times, Sept. 24, 2001, at B2 (attached as Ex. 40); Lois Romano and David S. Fallis, Questions Swirl Around Men Held in Terror Probe, Wash. Post, Oct. 15, 2001, at A1 (attached as Ex. 34); Richard A. Serrano, Many Held in Terror Probe Report Rights Being Abused, L.A. Times, Oct. 15, 2001, at A1 (attached as Ex. 35); Judy Peres, Concerns Rise of Civil Rights Being Ignored, Chic. Trib., Oct. 16, 2001 (attached as Ex. 44); Alison Leigh Cowen, Detainees’ Lawyers Complain of Unfair Treatment, N.Y. Times, Oct. 21, 2001, at B1 (attached as Ex. 39).

5. 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.

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

6. 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. Why Not Disclose?, Wash. Post, Oct. 31, 2001, at A26 (attached as Ex. 11); Arrests, Secrecy, Detroit Free Press, Nov. 2, 2001 (attached as Ex. 12); Secrecy, Security, And Justice, St. Louis Post-Dispatch, Nov. 4, 2001, at B2 (attached as Ex. 13); Fully Satisfied How?, Wash. Post, Nov. 7, 2001, at A28 (attached as Ex. 14); Disappearing in America, N.Y. Times, Nov. 10, 2001, at A22 (attached as Ex. 15); Government Too Secretive About Jailing Immigrants, Atlanta Journal-Constitution, Nov. 12, 2001, at A11 (attached as Ex. 16).

7. On October 31, 2001, seven members of Congress including Senator Leahy, chair of the Judiciary Committee, Senator Feingold, chair of the Subcommittee on the Constitution, Senator Kennedy, chair of the Subcommittee on Immigration, and Rep. Conyers, ranking member of the House Judiciary Committee, wrote Attorney General Ashcroft similarly asking for the identities of and charges against the detained individuals. See Letter to Attorney General Ashcroft, Oct. 31, 2001 (attached as Ex. 17). On November 7, 2001, Senator Leahy sent a follow-up letter stating that “[r]ecent reports have prompted additional questions regarding the Justice Department’s handling of the ongoing investigation.” Letter from Senator Patrick Leahy to Attorney General Ashcroft, Nov. 7, 2001 (attached as Ex. 18).

8. 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. Amy Goldstein and Dan Eggen, U.S. to Stop Issuing Detention Tallies, Wash. Post, Nov. 9, 2001 (attached as Ex. 19).

9. The next day, 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.” Letter from Senator Patrick Leahy to Attorney General Ashcroft, Nov. 9, 2001 (attached as Ex. 20). 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. Id.

10. 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 Congress 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. Letter from Daniel J. Bryant to Sen. Feingold, Nov. 16, 2001 (attached as Ex. 21).

11. 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 documents entitled “INS Custody List” which contained 548 cases with no names provided. Attorney General Ashcroft, Press Briefing, Nov. 27, 2001 (attached as Ex. 22).

12. The Justice Department 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” (Exhibit B to Declaration of Melanie Ann Pustay (attached to Defendant’s Motion for Summary Judgment)). As of November 27, plaintiffs had received no information in response to their requests. On December 5, plaintiffs filed this action.

13. On December 19, the Department of Justice announced that there were 460 individuals still in custody on immigration charges. Brooke A. Masters and Patricia Davis, Moussaoui Has Va. Hearing; Terror Suspect Ordered Held; Alexandria Jail Tightens Security, Wash. Post, Dec, 20, 2001, at A32 (attached as Ex. 23). On February 15, 2002, the Department of Justice stated that 327 individuals were still in custody on immigration charges. Steve Fainaru, Detainee Consented to Search, Wash. Post, Feb. 16, 2002, at A17 (attached as Ex. 24).

14. 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. Def. Amended Ex. 5.

15. Defendant 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. Def. Ex. 6, “INS Special Interest List: Joint Terrorism Task Force Working Group.”

16. 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 not addressed plaintiffs’ specific request for documents containing the legal authorities invoked by the government in seeking such sealing orders. See Reynolds Declaration. 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. See Reynolds Declaration. Its filings only account for a maximum of 835 individuals. See Def Ex. 5, 108 federally charged detainees, Supp. Dec. of James Reynolds, nine federally charged detainees under seal and Def. Ex. 6, 718 INS detainees. More than 150 additional people have been detained since November 5, see Def. Ex 6, List of INS Detainees.

17. The government has 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. See Declarations filed in support of Defendant’s Motion for Summary Judgment.

18. Virtually all of the detainees appear to be either Arabs or Muslims. All but 12 of the publicly released names of the criminal defendants are Arabic names. See Nos. 32, 35-37, 51-53, 56m, 63, 64, 90, and 106 on Def. Amended Ex. 5.

19. Less than five of the 718 immigration charges detailed by the government relate to terrorism. See Def. Ex. 6.

20. Only one individual has been criminally charged in the attacks, and he was detained before September 11 (Reynolds Decl 27). Attorney General Ashcroft had announced at one point that the government had apprehended suspects who were believed to have had advance knowledge of the September 11 attacks and outlined evidence against them, see Philip Shenon and Don Van Natta, U.S. Says 3 Detainees May Be Tied to Hijackings, N.Y. Times, Nov. 1, 2001, at A1 (attached as Ex. 31). The government states that “many [of the detainees] have [been] or may be cleared of any wrongdoing.” Def. Mem. at 21. The government’s affidavits fail to allege that any of the detained individuals are involved in terrorism. See Reynolds Declaration and Supplemental Declaration.

21. 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 as set forth below.

22. There have been credible reports about the severe obstacles that the government has placed in the way of those arrested or detained seeking to contact legal counsel. For example, Gerald H. Goldstein testified before the Senate Judiciary Committee that his client, Dr. Al-Badr Al Hazmi, was 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, and that during that time, he was repeatedly interrogated despite his requests to speak with counsel. Id. at 3. Testimony of Gerald H. Goldstein, Esq., before the Committee on the Judiciary of the United States Senate, Dec. 4, 2001, pp. 1-3 (Goldstein Test.) (attached as Ex. 56).

23. Likewise, Michael Boyle testified before the same committee that Tarek Mohamed Fayed was arrested on September 13 and held incommunicado from his lawyer for more than a month. Testimony of Michael Boyle, Esq. before the Committee on the Judiciary of the United States Senate, Dec. 4, 2001, pp. 4-5 (“Boyle Test.”) (attached as Ex. 32). Mr. Boyle further testified that a group of Israelis arrested on October 31, 2001 were told by federal law enforcement officials that “things would be more ‘complicated’ and their detention would be ‘longer’ if counsel was retained in their defense.” Id. at 3.

24. Numerous press accounts report instances of individuals being denied counsel. On October 15, 2001, a story appeared in the The Washington Post reporting that “an unknown number of men with Middle Eastern names are being held in solitary confinement” in Manhattan’s Metropolitan Correctional Center with “limited access to their lawyers.” Lois Romano & David S. Fallis, Questions Swirl Around Men Held In Terror Probe, Wash. Post, October 15, 2001, at A1 (attached as Ex. 34). The article stated that “one federal law enforcement official involved in the investigation” said 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.” Id.

25. On November 1, 2001, the Wall Street Journal also reported that a number of people detained on immigration violations were being held in solitary confinement in the Metropolitan Detention Center. Laurie P. Cohen and Jess Bravin, Denied Access to Attorneys: Some Detainees Are Jailed Without Charges on INS Offenses, Wall St. J., Nov. 1, 2001, at A8 (attached as Ex. 37). That report stated that according to Janet Sabel of New York’s Legal Aid Society, these individuals “are being held in isolation, treated as security risks and interviewed by the FBI with almost no opportunity to first get counsel.” Id. Ms. Sabel further stated that “her clients have been permitted only ‘one phone call a week’ to a lawyer and if the line is busy, they must wait another week. It has taken many of them several weeks to contact Legal Aid.” Id.

26. On December 20, 2001, The New York Times reported that Shakir Ali Baloch, a Canadian citizen of Pakistani origin being detained by federal authorities for immigration violations, requested but was denied access to legal counsel. Barbara Crossette, Diplomats Protest Lack of Information, N.Y. Times, Dec. 20, 2001, at B5 (attached as Ex. 36). On January 18, 2002, the New York Times reported that Abdallah Higazy was released after 31 days in detention when the government admitted that it had no evidence linking him to terrorism. Jane Fritsch, Grateful Egyptian is Freed as U.S. Terror Case Fizzles, N.Y. Times, Jan. 18, 2002, at A11 (attached as Ex. 38). He told the New York Times that during most of that time “he had not been allowed to speak to anyone or use the telephone,” and although he had retained counsel, his attorney was excluded from his interrogation by FBI agents. Id.

27. On October 21, 2001, The New York Times reported that Michael J. Wildes, an immigration lawyer, had been consulted on six cases of individuals detained on immigration violations, but was blocked from trying to find hearing dates on these individuals. Alison Leigh Cowan, Detainees’ Lawyers Complain of Unfair Treatment, N.Y. Times, Oct. 21, 2001, at B1 (attached as Ex. 39). According to Mr. Wildes, he was told by the court administrator that “they were under instructions to neither confirm nor deny that any of these individuals are in the court system.” Id. On November 19, 2001, ABC News reported that Martin Stolar, the attorney for Egyptian Ahmed Abou El-Khier, had also been blocked from finding out the deportation hearing date on his client. Josh Gerstein, Cases Closed: Information on Immigration Hearings, Records Restricted, ABCNews.com, Nov.19, 2001 (attached as Ex. 38). According to Mr. Stolar, he called the INS for five straight days to find out when his client’s deportation hearing would be held. On the fifth day, he was told by an INS official that the hearing had been held already and that Mr. El-Khier had waived his right to counsel and agreed to voluntary deportation. Id.

28. There have been reports about detainees being refused or hindered in exercising their legal right to contact consular officials from their country of citizenship, and of consular officials not being informed that their nationals have been detained. A story in The New York Times reported that “[i]n protests to the State Department, diplomats in New York are accusing the authorities of violating international conventions governing access to detainees.” Crossette, Diplomats Protest Lack of Information, at B5. For example, according to this news story, the Canadian government recently sent a formal diplomatic note to the U.S. State Department protesting the treatment of Mr. Baloch whose detention in federal custody was not disclosed for nearly three months, despite inquiries by the Canadian authorities. Id. The report stated that Mr. Baloch “told consular officials that he had been turned down when he asked for . . . consular help.” Id. This same article quoted the Pakistani vice consul in New York as reporting that many of his detained citizens were told that if they sought to contact their consulate “their cases would be delayed.” Id.

29. There are also reports about detainees being abused or treated improperly while in federal custody. For example, Osama Awadallah, a Jordanian citizen, has alleged, inter alia, that he was forced to strip naked in front of a female guard (United States v. Awadallah, 2002 U.S. Dist. LEXIS 1430, No. 01-CR-1026, at *16-17 (S.D.N.Y. Jan. 31, 2002), he was placed in a cell so cold his body turned blue (id. at 17), an officer twisted his arm, forced him to bow, and pushed his face to the floor (id. at 17), a guard caused his hand to bleed by pushing him into a door and a wall while he was handcuffed (id.at 18), a guard kicked his leg shackles and pulled him by the hair to force him to face an American flag (id.), and marshals made his left foot bleed by kicking it (id. at 13). Mr. Awadallah has also alleged that for the first five days of his incarceration he was served food that did not comport with his Muslim dietary restrictions, he was not given toilet paper or soap for two days, and for three to four days he was not allowed to shower (id. at 14).

30. News reports in the Washington Post stated that Tony Oulai was beaten by guards and handcuffed and shackled during 4 1/2 hours of questioning by the FBI. Amy Goldstein, I Want To Go Home: Detainee Tony Oulai Awaits End of 4-Month Legal Limbo, Wash. Post, Jan. 26, 2002, at A1 (attached as Ex. 41). An article in the Los Angeles Times reported that Mohammed Maddy alleged that guards at the Metropolitan Detention Center assaulted him, causing bruising on his arm. Richard A. Serrano, Many Held in Terror Probe Report Being Abused, L.A. Times, Oct. 15, 2001, at A1(attached as Ex. 35). That same article reported that a Pakistani student being held in a Mississippi jail said that he was stripped and beaten in his cell by inmates while jail guards did nothing, that the Israeli consulate is looking into allegations by five Israelis that they were blindfolded, handcuffed in their cells and forced to take polygraph tests, and that a Saudi Arabian man detained in Texas “was deprived of a mattress, a blanket, a drinking cup and a clock to let him know when to recite his Muslim prayers.” Id.

31. In his testimony before the Senate Judiciary Committee, Michael Boyle stated that “[t]wo . . . female detainees were subjected to a degrading and humiliating ‘pat down’ search by a male INS officer as a prerequisite to using the restroom.” Boyle Test. at 3. In addition, Mr. Boyle testified that guards at the Metropolitan Detention Center (“MDC”) in New York, where Tarek Mohamed Fayad was being held, “would frequently taunt him by calling him a terrorist” and “[a]t night, they woke him every half an hour” (id.), and that Mr. Fayad was being held in solitary confinement, having to remain in his cell 24 hours a day. Id. Mr. Boyle testified that although Mr. Fayad was moved to the MDC on September 20, it was not until the end of October that he was allowed to go outside, at 7 am, for one hour. Ibid

32. In his testimony before the Senate Judiciary Committee, Ali Al-Maqtari recounted how he was held in prison for two months while federal law enforcement authorities interrogated and threatened him. Testimony of Ali Al-Maqtari before the Committee on the Judiciary of the United States Senate, December 4, 2001 (attached as Ex. 42). According to Mr. Al-Maqtari, he was held in a segregated unit with prisoners who had been convicted of serious crimes and he was threatened and taunted by fellow inmates after the guard told them he was a terrorist. Id. at 4.

33. According to an article in the New York Times, Pakistani detainees have said “that they were left in the cold without blankets for 24 hours after being picked up, apparently to weaken their resistance.” Crossette, Diplomats Protest Lack of Information, at B5. The article reported that the vice consul for Pakistan, these detainees have been housed with convicted criminals “and are beaten or live in constant fear of physical assaults.” Id. Likewise, an article in the Los Angeles Times stated that detainees have complained that “they are held in solitary confinement, in chains or wrist irons, and are not receiving such basic amenities as blankets.” Richard A. Serrano, Isolation, Secrecy Veil Most Jailed in Roundup, L.A. Times, Nov. 4, 2001, at 1(attached as Ex. 43). Another news article indicated that a detainee had “abrasions on his wrists and ankles from being constantly shackled.” Kareem Fahim, INS Detainee Among Longest-Held Makes Plea For Release, Village Voice, Mar. 6-12, 2002 (attached as Ex. 26). News reports also stated that Yazeed Al-Salmi of Yemen, who was questioned as a material witness and then released, “said he was confined to a dirty, high security cell in New York and deprived of a shower and toothbrush for nine days.” Judy Peres, Concerns rise of civil rights being ignored, Chic. Trib., Oct. 16, 2001, at 8 (attached as Ex. 44).

34. There are also reports that the government is misusing the material witness authority. For example, news stories have reported that Tarek Abdelhamed Albasti-a U.S. citizen of Egyptian origin, with an American wife, a 2-year old daughter and a father who is a former foreign service officer-and eight Egyptian men, some of whom worked for him, were arrested on material witness warrants and held for a week, without ever testifying before a grand jury. Amy Goldstein, A Deliberate Strategy of Disruption: Massive, Secret Detention Effort Aimed Mainly At Preventing More Terror, Wash. Post, Nov. 4, 2001, at A1 (attached as Ex. 29); Indiana men ordered to testify return to Evansville, Associated Press, October 25, 2001 (attached as Ex. 45). According to Mr. Albasti, he was never even questioned by investigators while in custody. Evansville Man Says He Was Questioned About Flying Lessons, Assoc. Press, Oct. 20, 2001 (attached as Ex. 46). The New York Times reported that 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. Van Natta, Hundreds of Arrests, but Promising Leads Unravel, at B1; see also reports regarding the case of Tony Oulai in Goldstein, I Want To Go Home: Detainee Tony Oulai Awaits End of 4-Month Legal Limbo, at A1; Amy Goldstein, No Evidence in Pilot’s Case, Wash. Post, Feb. 2, 2002, at A20 (attached as Ex. 47); and Amy Goldstein, No Longer Material Witness, West African Still Detained, Wash. Post, Feb. 15, 2002, at A17 (attached as Ex. 48). Serious questions have also been raised in the case of Osama Awadallah. In the opinion and order granting Mr. Awadallah’s request for a suppression hearing, the district court stated that although Mr. Awadallah was detained for twenty days as a material witness, there was “no indication that the government 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.

35. There are reports of locking up men of Middle Eastern origin, which raise questions of unconstitutional imprisonment and denial of bail. 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 article reported that 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)

36. News stories have reported that individuals are being denied bail, sometimes for the most petty offenses, at the insistence of the government, when there is no credible evidence connecting them with the September 11 attacks or terrorist organizations involved in the attacks. For example, news stories have 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 it “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). The FBI 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 it wants to make further inquiries. See Rolince Aff. 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 motor vehicles’ branch. Goldstein, A Deliberate Strategy of Disruption, at A1. Likewise, that same story reported that the Rolince Affidavit was also used to block the bond of Osama Elfar, an aviation mechanic for Trans State Airlines, who was arrested for overstaying his student visa. Id. According to this report, Mr. Elfar took and passed a polygraph test, and allowed the FBI agents to search his apartment and computer and to look at his phone bills. Id. He was reportedly held in detention for 10 weeks before being deported. Four detainees – and how they got caught up in terrorist probe, Assoc. Press, Dec. 9, 2001 (attached as Ex. 27). The Washington Post also reported that the Rolince Affidavit was used to block the bond of Tony Oulai, who was arrested on September 14th for immigration violations. Goldstein, I Want to Go Home: Detainee Tony Oulai, at A1. That same news story reported that Hady Omar Jr., an Egyptian antiques dealer, was being denied bail on immigration charges, the principal evidence against him being that he made a plane reservation from the same Kinko’s computer in South Florida as one of the hijackers. Id. Michael Boyle testified before the Senate Judiciary Committee that although a bond was set for Mr. Omar and despite the weakness of the case, the government obtained a stay of the judge’s bond order. Boyle Test. at 7. According to Mr. Boyle, Mr. Omar was not released on bond until a month later. Id.

37. News reports indicate that many detainees have been held in prison for significant periods of time. For example, the Village Voice reported that Shakir Baloch has been in solitary confinement for five months. Kareem Fahim, INS Detainee Among Longest-Held Makes Plea for Release, Village Voice, Mar. 6-12, 2002. The Associated Press reported that Mohammed Omar has been in prison for two and one-half months. Four detainees – and how they got caught up in terrorist probe, Assoc. Press, Dec. 9, 2001. The New York Times reported that Cheikh Melainen ould Belal, from Mauritania, spent six weeks in prison. David Firestone, Wide Ranging Federal Sweep Changes Attitudes of Immigrants About US, N.Y. Times, Dec. 5, 2001, at B6 (attached as Ex. 28).

38. There are many reports that during their stay in prison, detainees are being prevented from communicating with those outside the jail. For example, reports have indicated that many detainees are only allowed one phone call per week (See, e.g., Hundred held on immigration charges, USA Today, Jan. 3, 2002 (attached as Ex. 51), and are not allowed visits even from close family members (See Boyle Test. at 3; Christopher Lawton, Rally for Release of Detainees’ Names, Newsday, Jan. 27, 2002, at A14 (attached as Ex. 52); Richard A. Serrano, Response to Terror; Rights Being Abused, L.A. Times, Nov. 19, 2001, at A1 (attached as Ex. 35). A news report stated that that two days before one detainee was scheduled to speak with Amnesty International, he was transferred to another prison. Fahim, INS Detainee Among Longest-Held Makes Plea for Release, Village Voice, Mar 6-12. That article also reported that Martin Stolar raised concerns that his client, Shakir Baloch, who has been held in solitary confinement for five months, was prosecuted by the government for entering the country illegally and using a false Social Security card to obtain working papers because he publicly questioned the government’s policies. Id. The report stated that Attorney Regis Fernandez raised similar concerns that his client was charged with misuse of entry documents because he had spoken to Amnesty International about the conditions of his imprisonment. Id.

39. When the Immigration and Naturalization Service (“INS”) decides to initiate deportation proceedings against an alien, it issues a Notice to Appear and serves the Notice to Appear on the alien in question. Declaration of Kerry Bretz (Bretz Decl.) 2 (attached as Ex. A). The Notice to Appear is also filed with the immigration court. Id. That Notice to Appear contains the alien’s name, registration number (“A-number), address, telephone number, citizenship, the case number, the reason the INS has instituted the deportation proceedings, the date and time of the deportation hearing, and the immigration court and room where the hearing will take place. Id.

40. In general, deportation proceedings are open to the public pursuant to INS regulations. Id. 3 (citing 8 C.F.R. § 240.10). The government has ordered that all proceedings relating to individuals detained in connection with the post-September 11 investigation be closed. Reynolds Decl. 22. The government has refused to unseal the proceedings even when requested by the detainee. See Declaration of Ashraf Nubani, filed in the case of Haddad v. Ashcroft, No. 02-70605 (E.D. Mich.) (attached as Ex. 25).

41. Outside of each immigration courtroom, a docket sheet is posted that contains a list of all the cases being heard on that date in that courtroom. Bretz Declaration (attached as Ex. A). For each case, the docket sheet lists, inter alia, the alien’s name and A-number, the judge presiding, and the type of proceeding. Id. This practice has not been followed with respect to individuals detained in connection with the post-September 11 investigation. Reynolds Decl. 22.

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
tel: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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