Defendant’s Objections and Responses to Plaintiffs’ Statement of Material Facts

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

Civil Action No. 01-2500

DEFENDANT’S OBJECTIONS AND RESPONSES TO
PLAINTIFFS’ STATEMENT OF MATERIAL FACTS

OBJECTIONS

Defendant objects to Plaintiffs’ Statement of Material Facts (“SMF”) on the following grounds.

1. Defendant objects to paragraphs 1, 2, 4, 6, 8, 13, and 20-38 of Plaintiffs’ SMF to the extent that the statements in these paragraphs refer to, rely on, are supported by, or paraphrase newspaper articles, letters, or prepared testimony. The assertions plaintiffs make based on these documents are not “facts” that can properly substantiate plaintiffs’ motion for summary judgment. Under Federal Rule of Civil Procedure 56(c), plaintiffs’ motion for summary judgment may be based only on “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” and under Local Rule 56.1, plaintiffs’ statement of facts must include “references to the record” to support the statement. None of the categories of documents set forth in Fed. R. Civ. P. 56(c) that can properly support a summary judgment motion includes newspaper articles, letters, or prepared testimony. It is inappropriate for plaintiffs to rely on such documents because they contain hearsay statements rather than facts. Fed. R. Evid. 801(c) (hearsay defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). As hearsay, the documents are not admissible evidence of the truthfulness of their contents. See Fed. R. Evid. 802 (hearsay not admissible except in circumstances not applicable here); Carter v. District of Columbia, 795 F.2d 116, 128 (D.C. Cir. 1986) (“The specific accounts of allegations contained in newspaper articles were themselves of no probative value”). Because the assertions in these paragraphs do not constitute statements of “fact,” no response to them by defendant is required. See Fed. R. Civ. P. 56(c) (requiring defendant to identify controverted material “facts”). Moreover, no response regarding the truth of the matters asserted in these documents is required, and none will therefore be offered.

2. Defendant objects to paragraphs 2, 4, 6-9, 13, 18, 19, 20, 21-39 and 41 of Plaintiffs’ SMF on the ground that the alleged facts in these paragraphs, whether or not true, are not material to the resolution of plaintiffs’ motion for summary judgment in this Freedom of Information Act case. See Local Rule 56.1 (requiring a statement of “material” facts). “Material facts” are those facts which, under the governing substantive law, “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 492 (D.C. Cir. 1998); see also Fed. R. Evid. 401 (defining “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable”). None of the purported facts in these paragraphs has any bearing on the outcome of this suit under applicable law. Since defendant must identify genuine issues only with respect to “material” facts, Fed. R. Civ. P. 56(c), (f); Local Rule 56.1, no response to those paragraphs by defendant is required.

3. Defendant objects to paragraphs 1-13 and 20-38 of Plaintiffs’ SMF to the extent that these paragraphs contain plaintiffs’ characterization and description of the cited documents (such as newspaper articles, press releases, letters), which speak for themselves and to which no response is necessary. The Court is respectfully referred to the cited documents for a true and accurate statement of their contents.

RESPONSES

Defendant responds to the individually numbered paragraphs of Plaintiffs’ Statement of Material Facts, to the extent that defendant has not already objected to such paragraphs, as follows:

1. The first two sentences are undisputed. To the extent that a response to the third sentence is deemed required, it is undisputed. To the extent that a response to the fourth sentence is deemed required, the first part of this sentence (describing Exh. 2) is undisputed but defendant disputes that the remainder of this sentence accurately describes the cited Exhs. 3 and 4.

2. This paragraph is undisputed.

3. To the extent a response is deemed required to this paragraph, the first sentence is disputed. Defendant disputes that it “refused” to provide the names, since it had no obligation to do so because they are protected from disclosure by FOIA, and prior to October 29 defendant did release the names of individuals who had been charged with criminal offenses as well as the charges against them. The second sentence is undisputed.

4. To the extent a response is deemed required to this paragraph, defendant disputes that the detentions were “secret,” and disputes the characterization of the reports as raising “serious questions.”

5. Defendant disputes the characterizations contained in the first sentence of this paragraph but does not dispute that thirty-nine organizations submitted FOIA requests to the Department of Justice seeking the information described. The rest of this paragraph is undisputed.

6-7. To the extent a response to these paragraphs is deemed required, they are undisputed.
8. This paragraph is undisputed.

9-10. To the extent a response to these paragraphs is deemed required, they are undisputed.

11. This paragraph is undisputed.

12. To the extent a response to this paragraph is deemed required, the first sentence is undisputed, but defendant further avers that the Department of Justice expedited processing of plaintiffs’ request pursuant to the standard in 28 C.F.R. § 16.5 which permits expedition for requests involving “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity, which affect public confidence.” The second sentence is disputed because although plaintiffs did not receive information from defendant in response to their requests, much of the information requested about the detainees was available to them in the public record. See Reynolds Dec. 7-8. Defendant also disputes any inference that defendant did not in fact expedite the processing of plaintiffs’ FOIA requests. The third sentence is undisputed.

13. This paragraph is undisputed.

14. Defendant does not dispute that the government has publicly provided the names of at least 108 individuals charged with federal criminal offenses, but defendant disputes that the names were provided “in response to this lawsuit.”

15. The first sentence is undisputed, except that defendant disputes that it has “refused” to provide this information, since it had no obligation to do so because the information is protected from disclosure by FOIA. The second sentence is undisputed, except that defendant disputes the use of the term “instead” as an inaccurate characterization.

16. The first sentence is undisputed, except that defendant disputes that it has “refused” to disclose “even” this information, since it had no obligation to do so because the information is protected from disclosure by FOIA. The second sentence is undisputed, except that defendant disputes the use of the term “even.” The third sentence is disputed. See Declaration of James S. Reynolds 39; Memorandum in Support of Defendant’s Motion for Summary Judgment at 30-32. The fourth sentence is undisputed. The fifth sentence is undisputed, except that defendant disputes that defendant’s filings “only” account for the stated number of individuals, since the filings were accurate. See Supp. Reynolds Dec. 3-4. The sixth sentence is undisputed.

17. The first sentence is undisputed, except that defendant disputes the characterization that it released “only” one draft and “only” one document because no additional document exists. The second sentence is undisputed, but defendant further avers that no additional documents exist that are covered by the requests.

18. Defendant objects to the first sentence on grounds that it is immaterial, vague, and speculative, and no response is required. To the extent that a response is deemed required, it is disputed. Defendant objects to the second sentence on grounds that it is immaterial, and that the term “Arabic names” is undefined and hence vague, and no response is therefore required. To the extent a response is deemed required, it is disputed.

19. This paragraph is undisputed.

20. The first, second, and third sentences are undisputed. The fourth sentence is undisputed, except that defendant disputes that it “failed” to allege that any of the detained individuals are involved in terrorism, since such involvement is not required in order for the information in question to be exempt from disclosure under FOIA. See Reply in Support of Defendant’s Motion for Summary Judgment, and Opposition to Plaintiffs’ Motion for Summary Judgment.

21. Defendant objects to plaintiffs’ assertion that reports are “credible” on the ground that the issue of credibility is a legal issue, to which no response is required. Notwithstanding this objection, defendant disputes that the cited newspaper articles and hearsay testimony are “extensive,” “varied,” or “credible,” or that they report government misconduct, rights violations, or secret arrests or detentions. See Defendant’s Responses to 22-38 below.

22. Defendant objects to the first sentence on the ground that whether reports are “credible” is a legal issue to which no response is required. Notwithstanding this objection, defendant disputes that there are “credible” reports about “severe” obstacles the government has placed in the way of detainees seeking counsel. The hearsay newspaper articles and testimony plaintiffs cite are not “credible” reports and the incidents described are not “severe.” Defendant does not dispute that the second sentence generally describes portions of the cited testimony.

23. With regard to the first sentence, defendant objects to the use of the word “incommunicado” on the ground that it is undefined and hence vague. Subject to this objection, defendant does not dispute that this paragraph otherwise generally summarizes portions of the cited document, which is prepared testimony, not necessarily actual testimony before the Senate Judiciary Committee, as plaintiffs assert. Pl. Exh. 32.

24. Defendant disputes the first sentence on the ground that the one newspaper article cited by plaintiffs does not constitute “numerous press accounts” and that the article describes “limited access” to counsel, not a complete denial of counsel. Defendant does not dispute that the second and third sentences generally summarize portions of the cited article.

25. Defendant does not dispute that this paragraph generally describes portions of the cited newspaper article.

26. Defendant disputes the first and third sentences in this paragraph on the ground that they do not accurately summarize the cited newspaper articles. With regard to the first sentence, Pl. Exh. 36 does not report that Mr. Baloch was “denied access to legal counsel,” but rather that he “had been turned down when he asked for . . . legal help.” With regard to the third sentence, plaintiffs failed to mention that Mr. Higazy is reported as also stating that “I’ve got no complaints” and “wanted it known that he thanks the United States government, the F.B.I., . . . and the jail guards who were his keepers.” Pl. Exh. 33 [miscited by plaintiffs as Exh. 38]. Defendant does not dispute that the second sentence generally summarizes part of Pl. Exh. 33.

27-28. Defendant does not dispute that these paragraphs generally summarize the cited newspaper articles.

29. With regard to the first sentence, defendant does not dispute that there have been hearsay allegations of improper treatment, but disputes the truth of such allegations. Defendant does not dispute that the remainder of this paragraph generally characterizes the cited parts of the referenced judicial opinion.

30. Defendant does not dispute that the statements in this paragraph generally describe parts of the cited newspaper articles, except that defendant disputes that Mr. Maddy stated that guards at the Metropolitan Detention Center “assaulted” him, and defendant further notes that plaintiffs fail to state that the article reports that AUSA Andres said that Mr. Maddy’s allegations are “something obviously we are going to investigate.” Pl. Exh. 35.

31. Defendant does not dispute that the statements in this paragraph generally describe parts of the cited document, which is prepared testimony, not necessarily actual testimony, as plaintiffs state, Pl. Exh. 32, except that defendant disputes that the document states that Mr. Fayad was held in solitary confinement.

32. Defendant does not dispute that the statements in this paragraph generally describe parts of the cited document, which is prepared testimony, not necessarily actual testimony “before the Senate Judiciary Committee,” as plaintiffs state. Pl. Exh. 42.

33. Defendant does not dispute this paragraph generally characterizes the cited newspaper articles.

34. Defendant objects to the first sentence on the ground that whether the material witness authority has been misused is a legal question, to which no response is required. To the extent that a response is required, defendant disputes this sentence. Defendant does not dispute that the remainder of this paragraph generally characterizes the cited newspaper articles and judicial opinion except that defendant disputes the statement that Mr. Albasti “was never even questioned by investigators while in custody” and objects to the statement “[s]erious questions have also been raised in the case of Osama Awadallah.” Mr. Albasti is reported to have said that he was questioned about flying lessons while in custody. Pl. Exh. 46. Defendant objects to the use of the phrase “serious questions” on the grounds that the phrase is undefined and hence vague.

35. The first sentence of this paragraph contains a conclusion of law, to which no response is required, but to the extent that a response is deemed required, defendant disputes that the “reports of locking up men of Middle Eastern origin” “raise questions of constitutional imprisonment and denial of bail.” Defendant objects to plaintiffs’ use of the term “Arabic names” on the ground that this term is undefined and hence vague. Defendant does not dispute that the remaining statements in this paragraph generally summarize the cited newspaper article.

36. Defendant disputes the statements in this paragraph on the ground that they do not accurately summarize the cited newspaper articles. The cited newspaper articles do not report that individuals are being denied bail for “the most petty offenses” “when there is no credible evidence connecting them with the September 11 attacks,” but rather, that bail is being denied for a variety of immigration violations resulting in individuals being in the country illegally or because they are being held on material witness warrants. See Pl. Exhs. 27, 29, 41. The descriptions of the contents of the Affidavit of Michael Rolince and testimony of Michael Boyle are not disputed, but defendant disputes the characterization of the Affidavit as a “form affidavit.”

37. Defendant disputes the statements in this paragraph on the ground that they do not accurately summarize the cited newspaper articles. The cited newspaper articles identify only three detainees who were held in jails for periods of from six weeks to almost five months, not “many detainees . . . held in prison for significant periods of time.” See Pl. Exhs. 26-28.

38. Defendant disputes the statements in this paragraph on the ground that they do not accurately summarize the cited newspaper articles and testimony. The cited four newspaper articles and Mr. Boyle’s testimony do not constitute “many” reports, and report only that telephone calls and visits are limited, not that detainees are “being prevented from communicating with those outside the jail.” Pl. Exhs. 26, 32, 35, 51, & 52.

39. The first and second sentences of this paragraph are undisputed. The third sentence is disputed because the Notice to Appear does not necessarily list all of this information and can, for example, list certain information as “to be determined.”

40. This first sentence of this paragraph is undisputed. The second and third sentences are undisputed to the extent that they refer to proceedings involving individuals who are denoted as of “special interest.”

41. This paragraph is undisputed to the extent that it describes general practice.

Respectfully submitted,

ROBERT D. McCALLUM, JR.
Assistant Attorney General

ROSCOE C. HOWARD, JR.
United States Attorney

JOSEPH H. HUNT
ANNE L. WEISMANN (D.C. Bar No. 298190)
LISA A. OLSON (D.C. Bar No. 384266)
CAROL FEDERIGHI
U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-5633
Facsimile: (202) 616-8470
E-mail: lisa.olson@usdoj.gov

Dated: April 15, 2002 Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that, on April 15, 2002, copies of the foregoing Defendant’s Objections And Responses To Plaintiffs’ Statement Of Material Facts were scheduled for hand delivery on April 16, 2002, to the following:

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

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

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

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009

and further that copies of the foregoing were scheduled for delivery by Federal Express on April 17, 2002, to:

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

__________________________
CAROL FEDERIGHI

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