Oral Argument before Judge Gladys Kessler

0001
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLUMBIA
3 CENTER FOR NATIONAL .
4 SECURITY STUDIES, ET AL . DOCKET NUMBER: CA 01-2500
5 .
6 Plaintiffs, .
7 .
8 vs. . Washington, D.C.
9 . May 29,2002
10 U.S. DEPARTMENT OF . 10:00 a.m.
11 JUSTICE .
12 Defendant. .
13 .. . . . . . . . . . . . .
14 TRANSCRIPT OF MOTIONS HEARING
15 BEFORE THE HONORABLE GLADYS KESSLER
16 A UNITED STATES DISTRICT JUDGE
17 APPEARANCES:
18 FOR THE PLAINTIFF: ARTHUR B. SPITZER, ESQUIRE
19 American Civil Liberties Union
20 Of the National Capital Area
21 1400 -20th Street, N.W.
22 #119
23 Washington, D.C. 20036
24 (202) 457-0800
25 (202) 452-1868 (Fax)
26 KATE MARTIN, ESQUIRE
27 Center for National Security
28 Studies
29 1120 19th Street, N.W.
30 8th Floor
31 Washington, D.C. 20036
32 (202) 721-5650
33 (202) 530-0128 (Fax)
34 kamartin@gwu.edu
0002
1 ELLIOTT M. MINCBERG, ESQUIRE
2 General Counsel & Legal Director
3 2000 M Street, N.W.
4 Suite 400
5 Washington, D.C. 20036
6 (202) 467-4999
7 (202) 293-2672(Fax)
8 emincberg@pfaw.org
9 DAVID L. SOBEL, ESQUIRE
10 Electronic Privacy Information
11 Center
12 1718 Connecticut Avenue, N.W.
13 Suite 200
14 Washington, D.C. 20009
15 (202) 483-1140
16 (202) 483-1248 (Fax)
17 sobel@epic.org
18
19 FOR THE DEFENDANT: ANNE L. WEISMANN, ESQUIRE
20 Assistant Director
21 Civil Division
22 LISA A. OLSON, ESQUIRE
23 Senior Counsel
24 CAROL FEDERIGHI, ESQUIRE
25 Trial Attorney
26 U.S. Department of Justice
27 Room 1034
28 901 E Street, N.W.
29 Washington, D.C. 20530
30 (202) 514-3395
31 (202) 368-3393 (Fax)
32 anne.we@usdoj.gov
33 ROBERT D. McCALLUM, JR., ESQUIRE
34 Assistant Attorney General
35 SHANNEN W. COFFIN, ESQUIRE
36 Deputy Assistant Attorney General
37 U.S. Department of Justice
38 Robert F. Kennedy Justice Building
39 Room 3137
40 950 Pennsylvania Avenue, N.W.
41 Washington, D.C. 20530
42 (202) 514-3301
43 (202) 514-8071 (Fax)
0003
1
2 THE COURT REPORTER: SUSAN PAGE TYNER, CVR-CM
3 Official Court Reporter
4 United States District Court
5 333 Constitution Avenue, N.W.
6 Room 6824
7 Washington, D.C. 20001
8 (202) 371-2230
9 (202) 371-1892 (Fax)d
10 mtyner@erols.com
11 Computer aided transcript prepared with the aid of
12 SpeechCAT.
13 3
14 SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
0004
1 P R O C E E D I N G S
2 THE COURT: Good morning, ladies and gentlemen. I
3 guess I expected some people at this hearing, but perhaps
4 not quite this many.
5 This is the case of the Center for National
6 Security Studies, et al, versus the U.S. Department of
7 Justice, CA 01–2500. Would counsel identify themselves,
8 and in particular I want to know who is going to be arguing
9 for plaintiff and defendant, and we will start with
10 plaintiff, please.
11 MS. MARTIN: Good morning, Your Honor. I am Kate
12 Martin, and I would be arguing for the plaintiffs.
13 THE COURT: All right. And who are you with, Ms.
14 Martin?
15 MS. MARTIN: I am with the Center for National
16 Securities.
17 MR. SPITZER: Arthur Spitzer with the American
18 Civil Liberties Union.
19 MR. MINCEBERG: Elliott Mincberg, People of
20 American Way Foundation.
21 MR. SOBEL: David Sobel, Electronic Privacy
22 Information Center.
23 MR. McCALLUM: Your Honor, I am Robert McCallum,
24 the Assistant Attorney General for the Civil Division, and I
25 will be splitting the argument with Ms. Anne Weismann of
0005
1 the Department of Justice, if that is acceptable to the
2 court.
3 THE COURT: That is fine. Ms. Weismann has argued
4 many, many cases in front of me.
5 MR. McCALLUM: We have with us at counsel table
6 Ms. Shannen Coffin, Ms. Carol Federighi and Ms. Lisa Olson,
7 all with the Department of Justice.
8 THE COURT: All right. Thank you.
9 This matter is before the court on cross motions
10 for summary judgment. Of course I have read the papers
11 everybody. I have read many, maybe not every single one,
12 but many of the cases that you have cited.
13 Let me give my standard disclaimer when I have a
14 motions hearing on a major matter, which clearly this is.
15 No one should make the mistake of drawing any assumptions
16 from the questions that I raise.
17 Sometimes I am playing devil’s advocate.
18 Sometimes I am not. I know counsel are certainly
19 sophisticated enough to know that. But I want to make that
20 very clear to everybody.
21 I will be asking a lot of questions, and again, I
22 want counsel to understand that those questions and
23 interruptions are not designed to throw anybody off course
24 in their argument, or to deflect them, but obviously I have
25 many concerns and issues that I want clarification on, and
0006
1 of course your purpose should be to give me the
2 clarification that you think will advance your particular
3 side.
4 I know as a former advocate that it is sometimes
5 disconcerting when a judge keeps interrupting, but I am
6 going to have to do that this morning everyone, so everyone
7 is on notice about that.
8 I am going to start with the government. Their
9 brief was submitted first, and I believe that the government
10 can at least start out by addressing some factual issues
11 that I want clear on the record, and the government will be
12 able to give me the most current answers to some of those
13 questions, because obviously the briefs were filed over a
14 period of many, many months, and I would imagine that some
15 of the facts have changed.
16 So Mr. McCallum, do you want to begin.
17 MR. McCALLUM: May it please the court. As I
18 indicated, I am Robert McCallum, and I serve as the
19 Assistant Attorney General for the Civil Division. Along
20 with Ms. Anne Weismann, I will be representing and arguing
21 on behalf of the Department of Justice.
22 Ms. Weismann will present the detailed argument on
23 the controlling and established FOIA case law that is before
24 the court today.
25 But before she begins, with the court’s
0007
1 permission, I would like to take perhaps three or four
2 minutes to place in context the factual background which I
3 believe to be unique, against which the established
4 exemptions of FOIA are going to be applied, and that is
5 7(a), the law-enforcement exemption, 7(c), the privacy
6 exemption, and 7(f), the public safety exemption.
7 As the court is well aware, the investigation of
8 the September 11 terrorist attacks is the highest priority
9 within the Justice Department. That investigation is not
10 limited to the September 11 attacks, but is also focused on
11 the disruption and dismantling of future terrorist attacks
12 against the citizens of the United States.
13 It is not merely past events. It is future events
14 that we are concerned with, and the Attorney General has
15 assigned to me the responsibility to coordinate and oversee
16 the defense of civil litigation cases that are filed
17 relating to on-going investigation.
18 I submit to the court that vital interests of the
19 highest national import are involved, and I request the
20 court’s, and I am sure I will receive, and this case will
21 receive the court’s most serious consideration to those
22 issues in which I would categorize them in three particular
23 areas, and they are, in effect, public safety, law-
24 enforcement, if you will, and privacy.
25 This factual background is reflected in many of
0008
1 the filings that we have made and the numerous
2 declarations, but two in particular I think merit the
3 court’s attention.
4 Number one, the declaration of James Reynolds,
5 who is the Chief of the Terrorism and Violent Crimes
6 Section of the Criminal Division of the Department of
7 Justice, and Mr. Dale Watson, who is the Executive Assistant
8 Director for Counterterrorism and Counterintelligence with
9 the FBI.
10 Both are career public servants with specific
11 experience, expertise and responsibilities for the
12 terrorist-related investigations that are going to be the
13 controlling facts in this particular case.
14 Of these declarations I would point the court’s
15 attention to paragraphs 13 through 20 of the Reynolds
16 declaration, and paragraphs 11 through 20 of the Watson
17 declaration. And both of those reflect the potential harm
18 and damage to our national interest that disclosure of the
19 information sought in this case would cause.
20 With respect to public safety, those declarations
21 indicate that the disclosure of the information, the
22 significance of which may not be apparent in isolation, can
23 create serious risks.
24 THE COURT: That is the government’s so-called
25 mosaic theory?
0009
1 MR. McCALLUM: It is, Your Honor. Isolated bits
2 and pieces of information can be critical to the
3 sophisticated intelligence analysts as indicated in those
4 declarations.
5 For instance, information sought on the arrest
6 dates, on the arrest locations, on the common connections
7 between multiple detainees. Those would allow a
8 sophisticated intelligence analyst to identify the thrust,
9 the scope, if you will, the direction of the on-going
10 investigation.
11 In the mosaic theory, Your Honor, we suggest that
12 that would disclose the pattern, and the intelligence
13 analysts would then know what we know, or at least be able
14 to gauge reasonably what we know. They would be able to
15 gauge reasonably who might be the sources of information for
16 the investigation.
17 More importantly, they might be able to gauge
18 reasonably what we don’t know, where we have not gone, what
19 we have not done yet because we are not aware of it. And
20 therefore they would be able to reprogram, re-adjust their
21 plans going forward.
22 It creates a real and not insignificant danger to
23 individuals and to groups of individuals which I phrase as
24 the public safety.
25 In the second area it clearly compromises an on-
0010
1 going law-enforcement investigation. As indicated, we are
2 not just concerned with September 11 and the criminal
3 prosecution of those that might be somehow implicated in it.
4 We are also concerned, and the goal is to prevent future
5 attacks.
6 If the disclosure occurs as requested by the
7 plaintiff, it would deter the cooperation of the detainees.
8 It would deter the cooperation of others who are associated
9 with the detainees. It might allow terrorists to intimidate
10 witnesses and potential witnesses.
11 It would allow the destruction of existing
12 evidence as indicated in the declarations, and it would also
13 allow the fabrication of false evidence to mislead and
14 disrupt the on-going investigation.
15 Thirdly is the privacy interest. The established
16 case law indicates that an association with an on-going
17 investigation can create a significant stigma for those
18 whose relationship with the investigation is revealed even
19 if they are not targets or subjects.
20 This is the most horrific attack in American
21 history. It exposes the detainees and others related to
22 this investigation to risks of retaliation by those who
23 are misguided but incensed against terrorists, assuming,
24 of course, that everyone who is a detainee must somehow
25 be guilty of terrorist acts or terrorism support. And
0011
1 this risk exists both home here in the United States and
2 abroad.
3 I would also suggest that the reverse is also
4 true. That disclosure of the identity of the detainees
5 would expose them to risks from those who support terrorism,
6 and allow the detainee’s public safety to be at issue, to
7 allow that of their families to be at issue, to allow that
8 of their associates to be at issue, and to even allow the
9 safety of detention facilities and detention personnel to be
10 at issue.
11 These are serious risks and concerns, Your Honor,
12 and I think —
13 THE COURT: Given all those risks, Mr. McCallum,
14 my understanding is that there is no bar to the detainees
15 themselves informing either their families, their attorneys
16 if they are lucky enough to have them, their advocates, the
17 media, of the facts of their detection. I am not clear on
18 how much more they are allowed to say.
19 So all of these concerns that you are raising
20 about what may flow from the dissemination of this
21 information, these concerns seem to be very much undermined
22 or challenged by the fact that detainees themselves are
23 perfectly free to talk, and in fact have, I gather, based
24 upon the footnotes in at least the plaintiffs’ briefs, and
25 Federal Judges do read the newspapers, and I gather there
0012
1 was a big story on Sunday.
2 We all know that Amnesty has just released a
3 report. So there is a lot of information, quote unquote, on
4 the street already about detainees and at least their
5 versions of what has happened and the treatment that they
6 believe they are being subjected to.
7 MR. McCALLUM: Yes, ma’am. Let me respond to
8 that.
9 Number one, there is a categorical difference
10 between the piecemeal and sporadic disclosure of an
11 individual to family, or friends, or relatives and the like,
12 with the wholesale en masse disclosure by the government to
13 the world at-large.
14 I think, Your Honor, the most eloquent statement
15 of the risks involved is the fact that relatively few —
16 relatively few of the detainees themselves have chosen to
17 self-disclose to the world en masse.
18 There are some, but neither the vast, vast
19 majority of the detainees, nor the detainees’ attorneys have
20 determined to self-disclose, because they recognize the
21 risk, and that is perhaps the most eloquent statement
22 involved.
23 THE COURT: Well, that gets me to some facts that
24 I certainly want to get too.
25 Do you have any figures on how many of the
0013
1 detainees are actually represented by counsel?
2 MR. McCALLUM: I do not have those figures. I do
3 not know if Ms. Weismann has them, but we can get those
4 figures.
5 The point that I would make with that, Your
6 Honor, is that if there is any — well let me state it this
7 way.
8 The United States takes very seriously its
9 obligations and the administrative proceedings related to
10 the INS detainees. The United States provides them with
11 information regarding counsel, with a list of pro bono
12 counsel that are available to them, and we have established
13 this in the declaration.
14 The Immigration Judge asks them at their hearings
15 if they have counsel, and Your Honor will note that all of
16 the self-disclosures that have been involved in the news
17 media have counsel and are represented.
18 This is a distinctly different case. This is not
19 a case of deprivation of individual rights for detainees.
20 This is an information case. If anyone wants to bring a
21 case, and some detainees have wanted to bring cases, they
22 can do so.
23 And the remedy for that particular type of issue
24 in that case — not in this case, but in that case, is to
25 obtain counsel for the individuals, or to remedy the
0014
1 specific deprivation that is alleged.
2 None of the information that the court has is
3 evidence. And none — you know, it is the news media
4 reports.
5 THE COURT: I understand.
6 MR. McCALLUM: And of course the court needs to
7 take cognizance of that. But that needs to be compared to
8 the sworn declarations of those with experience and
9 expertise in the area of terrorism.
10 And the issue in this case is if the disclosure of
11 that information would create public safety problems, would
12 allow terrorists perhaps to attack in another place at
13 another time in the future, is the release of that
14 information the remedy that is appropriate even if the
15 allegations in some newspaper article are in fact true, that
16 could be vindicated in another case and could be remedied
17 with a much smaller remedy?
18 So I would suggest to the court that those
19 particular issues are not relevant to the issue of the
20 Freedom of Information Act and what the disclosures
21 exemptions allow under 7(a), 7(c) and 7(f).
22 I would also point out to the court that AMNI
23 International in its report declined to identify
24 particular detainees. Why did they do that? The answer is
25 obvious. And they so stated. That these detainees are at
0015
1 risk.
2 They are at risk for retaliation here. They are
3 at risk for retaliation abroad, and they are at risk from
4 both ends of the political spectrum, those that are
5 vigilantes and want revenge, and those that are terrorist
6 supporters and want to prohibit cooperation with an on-going
7 investigation.
8 THE COURT: Is the government prepared to indicate
9 at this point the total number of individuals who have been
10 detained in the course of this investigation?
11 MR. McCALLUM: We have, in fact, provided
12 information in a broad and general nature regarding the
13 number of detainees and things of that —
14 THE COURT: That was back in November?
15 MR. McCALLUM: It was back in November.
16 THE COURT: Do we have any current figures? It is
17 a long way from November to now.
18 MR. McCALLUM: I do not have current figures.
19 Perhaps Ms. Weismann has them. If we do not have them and
20 the court wishes to have them, then we will do our best to
21 obtain them. But it is the same sort of general information
22 that supports —
23 THE COURT: Do you know how many individuals are
24 currently detained? I have seen news reports that you have
25 released people, but do you know how many are currently
0016
1 detained?
2 MR. McCALLUM: I do not have that information at
3 this time, Your Honor. But again that is the sort of
4 information if the court wishes that we certainly could get
5 for you.
6 THE COURT: I do.
7 MR. McCALLUM: We can obtain that for the court.
8 THE COURT: I do.
9 Let me ask you a few other basic fact questions,
10 because again the information that I have is dated from the
11 briefs as they were submitted.
12 As of now, do we know how many people are detained
13 on federal criminal charges?
14 MR. McCALLUM: Those indictments that are not
15 under seal are matters of public record. So I do not have
16 the precise number for Your Honor that I can provide at this
17 time. But it is a matter of public record, and we can
18 obtain that information.
19 There may be indictments that are under seal of
20 which I am unaware, but other than sealed indictments — but
21 Your Honor, even with those particular indictments, the
22 dates that the individuals were detained, the locations at
23 which they were arrested, things of that nature, we have not
24 provided, because that is information that would fit into
25 the mosaic, that would allow terrorists in a wholesale en
0017
1 masse disclosure by the government with its imprimatur of
2 legitimacy to all of the world that would be harmful to the
3 public safety, law enforcement and privacy interests of the
4 individual detainees.
5 THE COURT: On the criminal charges, I believe
6 that your papers indicate that nine are sealed. Is that
7 right?
8 MR. McCALLUM: At one time, Your Honor. I cannot
9 tell you that that is, in fact, the case today. It is my
10 recollection, and of course I will defer to Ms. Weismann
11 with her superior knowledge of the details of the factual
12 record, but it was my recollection that we originally had
13 one number.
14 There was a supplemental declaration from Mr.
15 Reynolds, which corrected that particular number, and then
16 there may be changes. The point being that we were in a
17 fluid situation, Your Honor.
18 THE COURT: I understand that.
19 MR. McCALLUM: A very fluid situation.
20 THE COURT: In terms of the criminal charges,
21 other than those that have been sealed, has the government
22 released the names of all individuals?
23 MR. McCALLUM: They are a matter of public
24 record because of a criminal — an unsealed criminal
25 indictment.
0018
1 Now whether or not particular news media or others
2 have connected the particular indictments to a September 11
3 investigation, I cannot state that. But I can state that in
4 terms of the unsealed criminal indictments and criminal
5 proceedings, they are matters of public record.
6 THE COURT: Can you, and I think this will be the
7 final factual question I am going to ask you, although I am
8 not sure.
9 Can you give numbers that differentiate in terms
10 of the individuals who are being held on immigration
11 charges, or immigration violations I should say, can you
12 differentiate between those who are still of interest to the
13 government’s investigation, and then again, relying on your
14 papers, a substantial number, who I gather you have already
15 determined are not of interest to the government’s
16 investigation?
17 MR. McCALLUM: Again, that is a fluid number
18 that changes from day to day. It is certainly possible,
19 and to my understanding has happened, that a detainee will
20 be of special interest become not of special interest,
21 because the investigation of particular areas indicates no
22 involvement, and yet later become of special interest again
23 when another line of investigation reveals other connections
24 and links.
25 And therefore, it is certainly possible that
0019
1 someone who currently is not of special interest and who is
2 an INS detainee may tomorrow, or this afternoon, or three
3 weeks from now, become very significantly of special-
4 interest.
5 I would also point out that with respect to the
6 special interest detainees, the hypothetical group of them
7 who will never in this fluid situation return to special
8 interest, the disclosure of information concerning those no
9 longer and never will be special interest detainees, even if
10 we could hypothetically predicted who that might be, that
11 even the disclosure of that information would provide the
12 exact factual basis that the skilled intelligence analyst
13 would use to utilize to piece together what we know, where
14 we are going, what we do not know, who our sources are
15 likely to be, and how they can revamp, and reorganize, and
16 readjust their plans in areas that we have not yet thought
17 of.
18 So even in the area of special interest detainees,
19 who hypothetically will never be involved, there is still
20 the mosaic. There is still their personal safety and
21 privacy interest, and there is still the potential for
22 intimidation of them when they might, in the future, be
23 willing to cooperate with us and provide information that
24 would protect the public safety within the United States of
25 our citizens.
0020
1 So for all of those reasons, even those, quote,
2 special interest detainees who are no longer, quote, of
3 special-interest, the disclosure of that information, as
4 indicated in the Reynolds declaration and the Watson
5 declaration, would be most harmful to the interests of the
6 United States.
7 THE COURT: Mr. McCallum, let me interrupt you a
8 minute, because I see that there may not be enough seats.
9 There are some seats up front for the people in the back,
10 and if people sitting would just raise their hand if there
11 are empty seats next to them. Individuals could sit there
12 more comfortably.
13 All right. Why don’t you proceed, and I think you
14 had better move on if we are going to have time for Ms.
15 Weismann.
16 MR. McCALLUM: Your Honor, it took a little bit
17 more than three or four minutes.
18 THE COURT: It did, and I noticed that Mr.
19 McCallum.
20 MR. McCALLUM: And I apologize to the court.
21 My point in this factual context, Your Honor, is
22 that we would suggest those declarations are entitled to
23 some deference from this court based upon the experience,
24 responsibilities and expertise of Mr. Reynolds and Mr.
25 Watson.
0021
1 And we would further suggest that this court is
2 faced with the responsibility of applying what I term to be
3 established FOIA law to these unique facts.
4 We are not asking this court to make special
5 exemptions under FOIA because of the factual background.
6 What we are asking this court to do is to apply existing law
7 to unique facts. We are not proposing secrecy for secrecy’s
8 sake.
9 We, in fact, suggest to the court that on these
10 most compelling facts the normal, customary and established
11 FOIA law precludes the disclosure, and that it is, in fact,
12 the plaintiffs who are requesting this court to change FOIA
13 law, to apply different standards from the customary FOIA
14 case law.
15 THE COURT: Mr. McCallum, are you seriously
16 suggesting that the secret detention of over 1,000 people, I
17 think totally male, and mostly Muslim, is something that
18 ordinarily happens in the course of our American political
19 experience?
20 MR. McCALLUM: No. Those are unique facts, Your
21 Honor, and I would not — I would respectfully dissent from
22 the court’s characterization of it as secret detention.
23 There is nothing secret about it. We have disclosed the
24 number of —
25 THE COURT: Isn’t that what this case is all
0022
1 about?
2 MR. McCALLUM: No, Your Honor.
3 THE COURT: Maybe I am reading different papers
4 than everybody else.
5 MR. McCALLUM: Your Honor, I would characterize it
6 as the disclosure of certain information, but there is no
7 secret that certain individuals are being detained. There
8 is no secret, and it is in the Reynolds’ declaration, as to
9 how many.
10 There is no secret as to the on-going
11 investigation and the providing of information in general
12 terms that allows the supervision of government
13 activities.
14 But there is only the refusal to disclose
15 information that would endanger the public safety, that
16 would impede an on-going investigation, and that would
17 prevent — present privacy violations and personal safety
18 risks for detainees.
19 All of those are traditional. All of those are
20 consistent with the established case law. What they are
21 asking you to do, Your Honor, is to say, this is an
22 unprecedented investigation. And therefore, we should apply
23 different laws here. We should not apply normal FOIA law.
24 We should apply something different, because it is so
25 massive, it is so extreme.
0023
1 I suggest to Your Honor that catastrophic
2 measures, or catastrophic damage in this case supports the
3 FOIA exemptions on the established case law, not destroys
4 them.
5 And that is — there are issues in which Your
6 Honor has expressed concern regarding representation by
7 counsel, regarding whether these people have access to
8 phones, whether or not these individuals are being
9 represented in the immigration courts.
10 All of those can be solved by methods other than
11 the wholesale massive distribution of information to the
12 world at large, which would damage the interests of the
13 United States and place its citizens at risk.
14 Let me cede the lectern to Ms. Weismann for the
15 details of the established FOIA case law, and I appreciate
16 the patience of the court, and I apologize for my estimate
17 of three or four minutes.
18 THE COURT: That is fine. This is an important
19 case. I am going to hear from everybody.
20 Ms. Weismann.
21 MS. WEISMANN: Good morning, Your Honor, Anne
22 Weismann.
23 Let me at the outset, before I turn to the details
24 of the specific exemptions that have been invoked here, let
25 me stress a couple of additional things if I may.
0024
1 First, the central question in this case —
2 excuse me, I want to make sure that I can be heard — is
3 whether the government should be compelled to produce to
4 the public information it acquired as part of its
5 investigation into the events of September 11th and
6 afterwards.
7 The critical thing here, Your Honor, is that each
8 of these detainees has a link to the pending investigation.
9 Each was initially determined to have either a connection to
10 or some information about the atrocities of September 11th,
11 and that is the key here, Your Honor.
12 THE COURT: The standard, by the way, that the
13 government used — you certainly didn’t use probable cause,
14 is that right? What was the standard that was used in
15 detaining people who allegedly had some kind of link to the
16 investigation?
17 MS. WEISMANN: Your Honor, I don’t have that
18 information, but one thing that we do know is that we have
19 the sworn declarations of two high-ranking and long-term
20 Department of Justice officials who have been involved from
21 the outset in this investigation, and they —
22 THE COURT: They certainly didn’t address that
23 issue in any detail.
24 MS. WEISMANN: Well, no. But Mr. Reynolds did
25 say, Your Honor —
0025
1 THE COURT: In some instances, isn’t it true, Ms.
2 Weismann, and again, I can’t help but refer to things that I
3 have read, because obviously we don’t have a record here,
4 and I know that these are not proven.
5 But isn’t it true that in some instances people
6 were detained simply because they had some passing — either
7 acquaintenceship or — I guess acquaintanceship is a good
8 word, with someone who was certainly under suspicion,
9 serious suspicion?
10 MS. WEISMANN: Your Honor, with all due respect,
11 for me to answer that question I would have to do what the
12 court has just done, which is to speculate.
13 There is not that kind of evidence in this record,
14 because this case is not about the bona fides of the
15 detention of these individuals. It is a Freedom of
16 Information Act case that seeks information that we submit,
17 if released, would disclose the three enumerated harms that
18 Mr. McCallum referred to.
19 The point is that each of these individuals did
20 have some connection to the investigation, and that is why,
21 Your Honor, we dispute the characterization of this case as
22 about secret detentions.
23 The government here is not seeking to keep secret
24 the fact of any detention. What the government is seeking
25 —
0026
1 THE COURT: We all know that at this point.
2 MS. WEISMANN: Well, Your Honor, what the
3 government is actually seeking to protect here is again the
4 connection that each of these detainees has with the
5 investigation, because as Mr. Reynolds in particular spells
6 out, to reveal that connection for each category of
7 detainees would place into the public, and therefore into
8 the hands of terrorist organizations, information that would
9 pose one of the three enumerated harms that we have
10 outlined.
11 And I think that is critical, Your Honor. I think
12 that is a critical flaw in plaintiff’s argument, to suggest
13 that what this case is all about is a lawless roundup of
14 thousands of detainees, and the government is now trying to
15 cover up by somehow keeping the fact of their detention
16 secret.
17 That is not what Mr. Reynolds’ declaration speaks
18 to at all. It talks about the fact that if you reveal, for
19 example, not just the identities of detainees, but their
20 place of arrest, the current place of location, the date of
21 the arrest, that kind of information can be very useful to
22 sophisticated terrorists.
23 Let me just give you an example, and this is
24 totally a hypothetical example, but I think it is properly
25 drawn from the background that Mr. Reynolds has provided.
0027
1 And this would be, even for those people who are
2 subsequently found not to be of an investigative
3 interest.
4 Let us assume that on September 20th in Tulsa the
5 government arrested fifty individuals because it believed —
6 or detained, excuse me, I misspoke. Let us assume that the
7 government detained fifty separate individuals.
8 THE COURT: Arrest requiring probable cause as we
9 all know.
10 MS. WEISMANN: Yes. We are not talking simply
11 about those who have been arrested, Your Honor. As we said
12 there are three categories of people.
13 But in any event, the point I wanted to make, Your
14 Honor, is that revealing that in a certain city, on a
15 certain date, a certain number of people were detained,
16 could be extremely useful information to terrorist
17 organizations.
18 THE COURT: Well, assuming you are right about
19 that for a moment, what is the government’s position or
20 response to the suggestion that the harms that are
21 spelled out in the Reynolds — the two Reynolds
22 declarations and the Watson one, would be either diminished
23 or completely obliterated if the only thing to be released
24 in this case were the names of the individuals who had been
25 detained?
0028
1 MS. WEISMANN: Well, I do not know how we could
2 credibly assume that releasing the names would not in any
3 way cause harm, because Mr. Reynolds and Mr. Watson have
4 both explained that the specific identification of certain
5 detainees will, in fact, cause harm.
6 It will compromise them —
7 THE COURT: Don’t you think that — and this, of
8 course, is one of plaintiff’s major arguments — don’t you
9 think that after all these months, and most of the people, I
10 believe, were detained or arrested — detained, way back in
11 November, don’t you think that after all of these months if
12 individuals were connected to terrorists, either cells or
13 organizations, that those cells or organizations know that
14 they are in custody?
15 MS. WEISMANN: Your Honor, again with all due
16 respect to the court, like the court I can only speculate on
17 that, because we do not have any evidence of that before
18 this court. All we have is the plaintiffs’ and journalists’
19 speculation, and that is not —
20 THE COURT: But isn’t it true that what we have in
21 the Reynolds and Watson declarations is also a lot of
22 speculation?
23 MS. WEISMANN: Well, if I may, Your Honor, and I
24 very much want to address that question, but let me at least
25 finish addressing —
0029
1 THE COURT: And I don’t mean to diminish that.
2 MS. WEISMANN: No, no. I understand that, Your
3 Honor. I just wanted to finish — I think there were a
4 couple of points to make to your first question about, isn’t
5 it obvious — I am rephrasing the court’s point or question,
6 but don’t we think that they already know?
7 Not only do I think that that is unbridled
8 speculation on which there is no evidence here, but also I
9 don’t know if there is even a good faith basis as to make
10 that kind speculation, Your Honor.
11 I mean after all we have had thousands of law
12 enforcement investigators hard at work since September 11.
13 We can presume that they may have been successful, for
14 example, in either infiltrating cells or disrupting
15 communications, and so I do not think it is reasonable to
16 necessarily presume that there has been — that the
17 terrorist organizations have had ready access to this
18 information.
19 And I think there is also a critical difference,
20 Your Honor, and this is a difference that Mr. McCallum
21 eluded to, between piecemeal disclosures of information,
22 piecemeal speculation on the part of someone about what may
23 or may not have happened, and the government confirming en
24 masse a large amount of information and confirming that, in
25 fact, it is accurate.
0030
1 I mean let me go back to the example I gave, the
2 hypothetical example I gave for Your Honor a few moments ago
3 about fifty individuals being detained on a date certain in
4 a place certain, and let us assume further that not only
5 could terrorist organizations discern from that where law
6 enforcement effort has chosen to focus its efforts, how
7 potentially successful they have been, but it might also
8 reveal, for example, also hypothetically to a terrorist
9 organization that any communications they have had with
10 cells in Tulsa may have been compromised from the date
11 forward.
12 Maybe they have been fed misinformation. I mean
13 there are any number of ways in which the government — we
14 as part of our lawful war on terrorism seek to disrupt
15 terrorists.
16 And I think that there are just any number of
17 ways which counter any number of ways — let me rephrase
18 that. There are any number of facts which counter the
19 court’s and the plaintiffs’ speculation here about what it
20 is that the terrorists do and do not know.
21 And now I would like to turn to your second
22 question, because again I think that this is the
23 characterization that the plaintiffs have attempted to give
24 to the declarations of Mr. Reynolds and Mr. Watson. And it
25 is one that we dispute.
0031
1 And even if — because I think there is
2 necessarily, in assessing the harm under the Freedom of
3 Information Act and exemption 7, there is necessarily a
4 predictive nature to it.
5 After all, what we are talking about is harm that
6 will occur in the future, and I think here that that is a
7 particularly compelling fact given that what the
8 investigation is about is not simply bringing to justice
9 those perpetrators of the acts of September 11, but
10 preventing future acts of terrorist as well.
11 So I think there is a special force in that
12 concept here, given the duel purposes of the pending
13 investigations. But it is necessarily predictive, and that
14 is why in 1986 Congress amended the FOIA to change, would
15 reasonably be expected, to could reasonably be expected,
16 recognizing the predictive nature of what the government
17 must assess in this area.
18 THE COURT: Well, your argument is certainly a
19 fair one, Ms. Weismann, but you have probably read almost
20 every FOIA case ever decided I have a feeling, and you know
21 that most of those cases deal with — the overwhelming
22 number of them deal with very the specific, discrete,
23 threats to people.
24 An informant’s identity cannot be released because
25 obviously they would be retaliation by, let’s say, drug
0032
1 gangs. Or — I guess that is the standard one that is used
2 most of the time.
3 Can you think of any FOIA case offhand, because I
4 cannot, and I don’t think I saw any cited in your papers,
5 that suggests future harm and endangerment to the safety and
6 welfare of the public on a magnitude that is predicted in
7 the two — or the three, rather, declarations submitted in
8 this case?
9 MS. WEISMANN: I cannot, Your Honor. But what I
10 think that speaks to is not a lack of legal authority for
11 what the government is asserting here, but the very, very
12 painfully changed reality in which we live.
13 And I would submit to this court, with all due
14 respect, that if the government had come in here prior to
15 September 11 and suggested that there was even the
16 possibility that hijackers would hijack plans and fly them
17 in to and destroy the World Trade Center and part of the
18 Pentagon, we would have been accused of the grossest kind of
19 speculation and hyperbole.
20 And I don’t mean to — I don’t think you can
21 overstate this situation, Your Honor, because we live in a
22 reality where almost on a daily we are informed by the CIA,
23 the FBI, the President, that the likelihood — not just the
24 risk, but that there is a significant likelihood of future
25 attacks.
0033
1 I think the court cannot ignore that context when
2 evaluating the harms that Mr. Reynolds and Mr. Watson lay
3 out. I think it is fair to say that Mr. Reynolds and Mr.
4 Watson don’t ignore that context.
5 And I agree with you that there may not be a case
6 in the FOIA books, however comprehensive that that FOIA
7 guide is that the Department puts out, that talks about harm
8 of this magnitude, because I don’t think in my lifetime, and
9 in current history, there has ever been this level of threat
10 to the public safety, to the American public safety, as
11 currently exists.
12 And that is why I think that we really can’t be
13 accused of overstating the harm. It is the reality. It is
14 the changed lens through which we must view the harms in the
15 world. And I think that that is the reality that both Mr.
16 Watson and Mr. Reynolds address.
17 As I said, the critical issue here is that each of
18 these detainees does have that link to the investigation,
19 and it is that link that forms the core of both the harms
20 that would flow from disclosure and the reason why the
21 government is not disclosing certain information.
22 I just want to remind the court, and I know that
23 you are well aware of this, but we are talking about three
24 different categories of information here.
25 There are those people — individuals who were
0034
1 detained as a result — who are being detained as a result
2 of immigration violations, and for those people the
3 government has withheld their names, the location where
4 they are currently being detained and were initially
5 detained, their date of arrests and their lawyers’
6 identity.
7 There is a second group of people who have been
8 charged with federal crimes.
9 THE COURT: And do you have some of the
10 particular data on those groups that Mr. McCallum did not
11 have?
12 MS. WEISMANN: I do know, Your Honor. The only —
13 the only additional data I have for this court — Your Honor
14 asked a question it was originally ten, and then in the last
15 declaration we submitted Mr. Reynolds spoke of nine sealed
16 indictments and other cases.
17 My understanding is that number is currently down
18 to number three, because as the indictments are presented
19 the seal is lifted, and that number is likely to change as
20 well.
21 For the most part, many of the information — or
22 much of the information that the court acquired — inquired
23 about we could provide. There is — I must say there is at
24 least one category, however, which I think would pose
25 serious concerns in terms of providing it on the public
0035
1 record, and that is the difference — the number — the
2 difference between those individuals being held on
3 immigration charges and those who are no longer of
4 interest.
5 Again, that is the kind of information that in the
6 wrong hands and in the public domain —
7 THE COURT: Well, wait a minute. I do not think
8 that those are two completely separate categories, and
9 correct me if I am wrong.
10 Isn’t it true that many people who were detained
11 because of perceived connections to the investigation were
12 then held for immigration violations?
13 MS. WEISMANN: Yes.
14 THE COURT: And will be processed on those, i.e.,
15 deported, even though there are they are no longer of
16 special interest to the investigation?
17 MS. WEISMANN: No. That is true, Your Honor.
18 And I think in our original filing we gave that number. But
19 I think Your Honor asked whether we could break that out
20 further. And that is what I was responding to.
21 I think that there would be — there would be
22 concerns that that kind of information would be too
23 revealing.
24 And again, like Mr. McCallum, of course if the
25 court wants this other additional information, we would be
0036
1 happy to provide it. But let me just suggest to the court
2 that aside from that, I don’t think that these numbers are
3 in any way going to materially change the issues that are
4 before this court.
5 And of course, in your typical FOIA case, we are
6 talking about information at a specified point in time when
7 the FOIA request was processed. I mean I think the fact
8 that the timeliness of that information may be, you know, in
9 some question is because it is the nature of the
10 investigation.
11 As Mr. Reynolds explained more specifically, I
12 think it was in his first supplemental declaration, this is
13 a very fluid investigation, and some of the differences in
14 the numbers, for example, are accounted for by the fact that
15 we were — you know, initially certain groups were included,
16 you know, that are no longer included.
17 The numbers changed all the time. People moved
18 from one category to another. And I think because of that,
19 whatever the numbers are today, I am not sure that it is
20 going to change what we believe are the proper legal issues
21 for this court to focus on.
22 And again, of course, from a strict FOIA
23 perspective, just in terms of responding to the plaintiffs,
24 we have no obligation to continually update the information,
25 and I know that the court is aware of fact. But, of
0037
1 course, if the court wants these numbers we can get them for
2 you.
3 Let me just to backup on this, and make sure we
4 are talking about the same thing. I mentioned that there
5 were those who are being charged on federal crimes that were
6 detained, and the information that is being withheld for
7 them is their citizenship status, the location of their
8 initial arrest or detention, their current location of
9 detention —
10 THE COURT: I think that is all in your papers
11 though.
12 MS. WEISMANN: Yes, it is.
13 THE COURT: All right. Let’s go on.
14 MS. WEISMANN: Then I will just turn specifically
15 to the exemptions. But I think it is important to stress,
16 because one of the things that the plaintiffs do in their
17 papers is to blur all of these and suggest that it is one
18 large group, and they are not.
19 And as Your Honor knows from our papers, we
20 have withheld and disclosed different information
21 depending on the category. So for example for those people
22 who were federally charged, their identities, the lawyers,
23 their charges have been disclosed because of the
24 constitutional requirements that apply to that group of
25 people.
0038
1 So I think it is important in the big scheme to
2 recognize that there are differences in information, but
3 there is a commonality as well. And all of the exemptions
4 that we have asserted have been asserted for all of the
5 information that we have withheld.
6 Let me turn first to exemptions 7(f), which
7 permits withholding of information where its disclosure
8 could reasonably be expected to endanger life or physical
9 safety.
10 The threshold for section 7(f), as with all — as
11 with exemptions 7(a) and 7(c), is that the information be
12 compiled for law-enforcement purposes.
13 We think that under any standard, objective or not
14 —
15 THE COURT: Well, I know that the plaintiffs
16 argue that point, and I will certainly give them a chance
17 to argue it if they want to. I do not think it is one of
18 their strong arguments, though, so why don’t you skip over
19 that.
20 MS. WEISMANN: Yes. I would agree with you, Your
21 Honor.
22 So we think there is no question that we have met
23 the threshold, but this is information compiled for law-
24 enforcement purposes, and the issue then becomes, could it
25 reasonably be expected to endanger life or physical
0039
1 safety?
2 And I emphasize again the could, because this
3 is another point of contention between us and the
4 plaintiffs.
5 I would submit, you know, that no matter how they
6 phrase it, in effect when you read their pleadings, their
7 argument is that we must prove almost to a certainty that
8 the harms would occur.
9 THE COURT: They deny that very strongly. You
10 made that argument in, I guess, the first of your papers.
11 They have vigorously denied it. They also say that they are
12 not guilty of citing pre-amendment cases, that North was
13 decided after FOIA was loosened, if you will, and I think
14 that that is not a fair argument.
15 They are not claiming that you have to show it to
16 a certainty. I am not quite sure what their standard is,
17 and I will explore that with them.
18 What is your answer, though, as to what your
19 standard is?
20 MS. WEISMANN: The standard is —
21 THE COURT: Could is a word that could mean almost
22 anything. And indeed, if one wanted to interpret it very
23 loosely, I would think, and I do not think this is what
24 Congress intended at all, but that one could interpret 7(f)
25 to cover almost any situation.
0040
1 And surely that is not the government’s position.
2 So what standard do you use in determining what falls under
3 7(f)?
4 MS. WEISMANN: Well, we do start with the
5 statutory language, which is could reasonably be expected.
6 So clearly there is a standard of reasonableness built in.
7 Again, I think it is also equally as clear that
8 there is a predictive nature. It does not have to happen to
9 a certainty, and the case law reveals that there just needs
10 to be some nexus between the exemption that is being claimed
11 and the harm alleged.
12 And I think that that is met here by the
13 declarations of Mr. Reynolds and Mr. Watson. And I think a
14 starting point for this court’s analysis has to be to
15 consider who these individuals are and what their background
16 is.
17 Both Mr. McCallum and I also have already talked
18 about that. But as Your Honor knows full well from the
19 many, many FOIA cases that you have had before you, in
20 general the government’s declarations are entitled to
21 substantial deference.
22 And I think that deference should especially be
23 accorded here. In fact the courts recognize for purposes of
24 exemption 7 in the law-enforcement context, the government’s
25 declarations are especially entitled to deference.
0041
1 There is simply no reason — the plaintiffs have
2 come forward with no evidence to dispute anything that is in
3 the Reynolds and Watson declarations. And if we look at
4 what they say —
5 THE COURT: Of course they cannot really. They
6 do not have access to the investigation. They do not have
7 access to any details. All they can say is, we think that
8 the predictions are too alarming, if you will — that is
9 not their word now, and we don’t want you to be swayed by
10 them.
11 MS. WEISMANN: Well, but I think that they are
12 situated no differently than any FOIA requestor typically
13 is.
14 Often a FOIA requestor is making a request for
15 information, and they have no — on their end they have no
16 information, and the courts recognize that. But at the same
17 time, absent some evidence of bad faith, or direct and
18 explicit contradictory evidence, the courts nevertheless
19 accord the declarations and affidavits of the government
20 substantial deference. And there is no reason to deviate
21 from that analysis here, Your Honor.
22 Turning then to what specifically is in those
23 declarations. Mr. Reynolds makes clear as far as the public
24 safety — and I think there are a number of categories of
25 harm here that are covered by exemption 7.
0042
1 I would start with the broadest category, which is
2 the category that Mr. McCallum also discussed, which is harm
3 to the American public, and I think there is, as we believe
4 it, and as stated in our declarations, that harm certainly –
5 – the possibility of that harm is very real.
6 As Mr. Reynolds explains, terrorists may be able
7 to map the progress of the investigation and develop a means
8 to impede it, and also their plans, in a way that poses an
9 even greater threat to the United States.
10 They may, for example, switch to an alternative
11 cell if they know that one has been compromised, thereby
12 retaining the ability to mount future attacks. Future
13 attacks unquestionably equates to harm to the American
14 public here.
15 Mr. Watson in his declaration similarly says that
16 discovery that any particular individual has been detained
17 may cause a terrorist group to accelerate the planning of a
18 timed attack.
19 He points out that official verification that a
20 member has been detained may enable a terrorist
21 organization to find a substitute who can more effectively
22 achieve their goals, which is the demise of the American way
23 of life.
24 So I don’t — you know, these — I think these
25 address — these have the requisite connection between the
0043
1 exemption that we are claiming 7(f) and the harm. I think
2 that the language that they use meets the standard that
3 could reasonably be expected.
4 Mr. Reynolds goes on to explain that there are
5 also harms that would flow to the detainees themselves. He
6 explains that they could be subjected to physical harm,
7 either here, or if they are deported in their home
8 countries, simply because of a perceived — the connection
9 that perceives between them and the investigation.
10 Indeed he goes on to say that friends of theirs,
11 family members, could also face physical threats of
12 violence, because detainees may want to — because
13 terrorists may want to deter detainees from cooperating.
14 He goes on to explain that if we reveal the
15 detention places — because they have asked for where these
16 people are being detained — that that may place both those
17 facilities and their employees at risk. And the attorneys
18 are at risk as well, because they could be perceived as
19 working against the interests of the United States, leading
20 to their retaliation.
21 In addition, Mr. Reynolds explains that terrorists
22 may fear that the detainees have told their attorneys too
23 much, and lacking access directly to the detainees may go
24 after their attorneys.
25 THE COURT: Of course this would not be the first
0044
1 time that people are either charged or associated with in
2 some way hideous crimes. And whether they are personally
3 guilty or not, that they suffer the oblique, if you will, of
4 the public.
5 I mean I am thinking of something in a different
6 context, but rapists, child molesters, the whole statutory
7 development of Megan’s laws, and of course the Megan’s laws
8 concern people who have been convicted, not just associated
9 with.
10 But my real point is that many times simply being
11 ensnared in the criminal justice system before guilt or
12 innocence is determined exposes individuals to great either
13 isolation, physical harm, damage to their reputation if we
14 are talking about white-collar crime.
15 Again, I understand full well that the magnitude
16 of September 11th far, far, far outstrips anything we are
17 talking about. But this is not in-kind a new or different
18 problem.
19 MS. WEISMANN: I think it is different in this
20 respect, Your Honor — in a number of respects. But one way
21 I would suggest is aside from the magnitude, which I think
22 this court clearly appreciates and which has to be part of
23 the calculus here, it is different because we are dealing
24 not simply with an investigation that is aimed at finding
25 those who perpetrated acts in the past, we are trying to
0045
1 prevent — the very investigation is aimed at finding
2 terrorists and weeding them out so that they will not commit
3 future acts, because we know that they are committed to
4 doing so.
5 And I think that that is a different calculus that
6 is not probably at play in any of the situations that Your
7 Honor mentioned. And I do think the sheer magnitude of this
8 changes the picture considerably.
9 You know, plaintiffs argue — on attorneys, for
10 example. They suggest that, well, attorneys make public
11 appearances.
12 But again, I think there is a world of difference
13 between an isolated — isolated instances of individual
14 attorneys individually making an appearance and the
15 government releasing collectively all of this information en
16 masse to the public, you know, and the publicity and the
17 dissemination that that information would get in that
18 format.
19 So I think that there is a difference of degree,
20 and that — it’s that difference of degree that enhances the
21 possibility that some of these harms may, in fact, happen.
22 So I do think that that is something that the court, as a
23 legal matter, can properly take cognizance of.
24 With respect to exemptions 7(f), we do believe as
25 we have stated that we have made the requisite showing. The
0046
1 declarations of Mr. Reynolds and Mr. Watson are reasonably
2 specific, and they outline harms to the public safety and
3 harms to individual that could happen if this information is
4 disclosed.
5 THE COURT: Let me ask you a minor question. The
6 detainees can voluntarily disclosed their names, and of
7 course the fact of their detention. Are they also allowed
8 to voluntarily disclose their location?
9 MS. WEISMANN: There is no prohibition of which
10 I am aware that would prohibit them from disclosing
11 anything.
12 THE COURT: Again, I must say that I do not
13 understand the government’s reasoning. I certainly
14 understand — whether I would say that it is legal or not is
15 a different issue, but I would certainly understand your
16 taking the position that disclosure of location could
17 subject everybody in that prison facility to danger, and so
18 therefore I must say that I thought it was a mistake when I
19 saw that you do allow release of that information as to
20 where an individual is located.
21 MS. WEISMANN: Well, I think what Mr. McCallum
22 explained to you earlier remains — would be my response as
23 well.
24 THE COURT: That it is not part of the mosaic. I
25 mean if someone —
0047
1 MS. WEISMANN: No, no, no. Is not the mosaic,
2 Your Honor. But I think that there are two critical facts.
3 One is the difference between the wholesale disclosure of
4 this information and what individuals might choose to do,
5 and the second — and I agree with him.
6 I think this is the most eloquent statement of
7 all, is the fact that so few have chosen to self-select —
8 to self-disclose, and that the public record on that
9 communal, is not very considerable.
10 And I think that is, you know, not very
11 considerable, and I think that is out of recognition that
12 making that kind of disclosure would place them and those
13 around them in jeopardy.
14 And I don’t know Your Honor, I am not a criminal –
15 – I deal exclusively in the realm of civil litigation. And
16 whether or not there would be a basis for the government to
17 prohibit them from disclosing that information, I don’t
18 know.
19 But I would say that the constitutional
20 implications that apply, for example, to those who are being
21 detained on criminal charges that require that the
22 government disclose their identities, for example, the
23 nature of those charges —
24 THE COURT: That is a small number.
25 MS. WEISMANN: That is a small number. And also I
0048
1 think, Your Honor, more analytically that that represents a
2 balance that the framers of the Constitution struck. They
3 are competing interests, and they determined that that was a
4 critical interest that needed to be addressed and needed to
5 be accommodated.
6 Similarly, I think that the FOIA itself
7 represents a certain balancing of interests by Congress
8 and recognizes that in any given equation there may be
9 interests that outweigh others, and there is a balance that
10 goes on.
11 So the fact that, you know, that because of other
12 overriding concerns, individual or isolated pieces of
13 information are required to be disclosed, I don’t think in
14 anyway undermines our ability on the whole to withhold this
15 information under the FOIA.
16 THE COURT: Let me turn to a different topic for a
17 minute, and I know I am cutting you off, but your papers
18 certainly covered basic law.
19 I want to talk about people who are being held as
20 material witnesses, and I just want to make sure that issue
21 does not get lost in this oral argument and discussion, and
22 I have a number of questions.
23 First of all as you know under that statute the
24 statute provides that an individual may be held as a
25 material witness, and this is not the exact wording of
0049
1 the statute, but basically until their deposition can be
2 taken.
3 Why haven’t you taken the depositions of the
4 individuals who are being held as material witnesses?
5 MS. WEISMANN: Your Honor, I don’t know the
6 answer to that. I don’t even know who those individuals
7 are.
8 THE COURT: No. I know you don’t know who they
9 are.
10 MS. WEISMANN: I don’t know the particular facts
11 of any of those situations.
12 THE COURT: But if you are holding people, and
13 detaining them and depriving them of their precious liberty
14 under a statute that says they should only be held until
15 their deposition can be obtained, and you have got them
16 under your custody, I think it is pretty fundamental to know
17 why their depositions have not been taken when more than six
18 months have past.
19 MS. WEISMANN: Well, Your Honor, your question,
20 and forgive me if I misconstrued it, seems to be directed in
21 the direction that — that Judge Scheindlin went in the
22 Southern District of New York in concluding — that was the
23 Awadallah case.
24 THE COURT: I am going to get to her case in a
25 minute.
0050
1 MS. WEISMANN: But I would submit —
2 THE COURT: That case raises another issue, but
3 no, I am not at this moment asking you about that. As you
4 know her case went to whether that statute can even be used
5 for grand jury proceedings.
6 I am assuming for the moment you have used the
7 statute properly, and you have properly detained the people.
8 But even once you have done that, under the statute you are
9 supposed to depose them.
10 MS. WEISMANN: Well, Your Honor, I am not sure
11 that I would necessarily agree that that is what the statute
12 mandates, and I am getting far a field from my area of
13 expertise.
14 I think it gets back to a point that I think must
15 be made at this — here again, to reiterate something that
16 Mr. McCallum said.
17 If there are an individuals who are being detained
18 because of a material witness warrant, and they believe that
19 some aspect of their detention is unlawful, they have a
20 forum to challenge that.
21 I think the Awadallah case illustrates that very
22 vividly.
23 This is not the proper forum to raise and resolve
24 those substantive issues that deal with whether or not they
25 have been properly detained, whether or not a material
0051
1 witness warrant is the proper vehicle to use for their
2 detention, et cetera.
3 This is a Freedom of Information Act case, and in
4 the sworn declaration of Mr. Reynolds, and in particular he
5 submitted a second supplemental declaration explaining that
6 the government’s use of the material witness warrants with
7 respect to these detainees is consistent with its long-
8 standing practice. And I think that his declaration is
9 entitled to deference.
10 THE COURT: Did he say that?
11 MS. WEISMANN: Well, let me get the specific
12 language that he used, Your Honor.
13 THE COURT: I don’t think so, because I don’t
14 think that I remember that.
15 MS. WEISMANN: What I am referring to, Your Honor,
16 is what has been labeled the second supplemental declaration
17 of James Reynolds. It is dated April 15th.
18 And what he said is in paragraph 5. He said:
19 “They are governed by court
20 orders prohibiting the government
21 from releasing any information
22 about these proceedings. The
23 exact language of these orders
24 varies, but the Department of
25 Justice interprets such orders
0052
1 to protect from disclosure
2 not only the contents.”
3 And I may have misstated, and I did not mean
4 to mislead the court, and I apologize for that, Your
5 Honor.
6 THE COURT: I think so. I think so. I did not
7 think he said that.
8 What is the Department’s position as to how
9 Awadallah effects or impacts your FOIA argument in this
10 case?
11 MS. WEISMANN: We do not thing that it should have
12 any effect whatsoever, and the reason for that is that we
13 believe that opinion is simply wrong. It is contrary to
14 other courts that have found otherwise.
15 THE COURT: One court, right? The Ninth Circuit.
16 MS. WEISMANN: Well, it is contrary to that court.
17 It is contrary — it is contrary, and on this I think I am
18 properly representing what Mr. Reynolds said in his
19 declaration, it is contrary to what the Justice Department’s
20 position has been about the effect of material witness
21 warrants and sealing orders.
22 We think it is wrong, and it is not binding on
23 this court. And it is certainly — I don’t think at this
24 point, in this Freedom of Information Act case, that it
25 provides any basis for this court to challenge or ignore the
0053
1 declarations that we have put in the evidence — that we
2 have put in the record before the court, and what has been,
3 I think —
4 THE COURT: Well, I think some of those
5 declarations may have been before Judge Scheindlin, but I do
6 not think that was part of her analysis if I remember it
7 correctly.
8 MS. WEISMANN: Again, I would simply say that the
9 government – that the Department of Justice takes the
10 position that her analysis is just flat wrong, and therefore
11 should not provided a basis. But I think again that
12 illustrates —
13 THE COURT: Have you sought a stay from the Second
14 Circuit in that case?
15 MS. WEISMANN: I would need to check. I am not
16 quite sure of the exact status. I know that the decision of
17 whether or not to seek an appeal from that is under review
18 by the Solicitor General’s Office.
19 THE COURT: I know, but I am not asking about
20 appeals, which I am assuming you’ll take.
21 MS. WEISMANN: I would have to check on that and
22 get back with you. But again I think — I think this is
23 precisely — and with all due respect to the court, this is
24 precisely what the plaintiffs are trying to use this
25 litigation four.
0054
1 They are trying to use it for a forum to address
2 and resolve other more substantive issues dealing with
3 things like conditions of detention, right to counsel, right
4 to consular notification.
5 As Mr. McCallum noted earlier, there is — there
6 is a regime of federal laws and regulations and
7 international treaty obligations that governs the
8 government’s treatment of detainees here. The government
9 takes those obligations very seriously.
10 THE COURT: Have we signed on to any of those
11 treaties? We signed on to some others.
12 MS. WEISMANN: It was my understanding that there
13 was at least one treaty obligation, Your Honor. I don’t
14 want to get too far a field, again, from my limited
15 expertise in that area, and I do not want to mislead the
16 court. I do know —
17 THE COURT: One thing I can promise you is that
18 however I come out in this case, and I think I am pretty
19 safe in promising you this, that it is not going to involve
20 a discussion of international law.
21 Why don’t you take maybe three minutes to sum up.
22 I mean I know that I have interrupted you a lot, and I know
23 that your papers are very comprehensive.
24 MS. WEISMANN: Your Honor, actually I appreciate
25 the court’s questions, because I think it is important for
0055
1 us to know and help the court resolve what questions it does
2 have.
3 I have talked about exemption 7(f). I think our
4 briefs are fairly comprehensive on exemption 7(a). I think
5 that the declarations are perhaps at their most powerful in
6 outlining for the court the harm to the investigation from
7 the disclosure of this information.
8 As Mr. McCallum said earlier, that harm flows
9 even from those individuals who are determined subsequently
10 not to be of investigative interest because it can be
11 revealing in the direction, and focus, and scope of the
12 investigation.
13 It can tell the terrorists not just what evidence
14 we do have, but just as importantly what evidence we do not
15 have. And this is a very fluid process.
16 As Mr. Reynolds identified in his supplemental
17 declaration, there is at least one instance of an individual
18 who was initially thought not to be of active interest and
19 subsequently found to have information that made him of
20 active interest.
21 So it is wrong to pigeonhole individuals in one
22 category and assume that they will stay in that category.
23 And again, that is part of the calculus that Mr. Reynolds
24 took into account in assessing the harms here, and we
25 submit that that assessment is entitled to substantial
0056
1 deference.
2 The only thing that I would like to stress with
3 respect to exemption 7(c) is that this is the only exemption
4 we have invoked that requires a balancing.
5 So, you know, the plaintiffs have tried to inject
6 the public interest I think throughout here. That may have
7 a part with respect to the court’s analysis, and must have a
8 part with respect to the court’s analysis of exemption 7(c),
9 but exemption 7(f) and 7(a) do not require a balancing
10 between the lawful interests of the government on the one
11 hand and any interests that is claimed on behalf of the
12 public interest.
13 I think that the plaintiffs’ arguments with
14 respect to the non-existent of any privacy interests that
15 these individuals has is contrary to the very, very well-
16 established case law in this area, Your Honor, which I know
17 Your Honor has cited again and again in your opinions, and
18 which recognizes that the mere association with an
19 investigation can have a stigmatizing effect.
20 THE COURT: That is the general case law, and of
21 course the dispositive cases safeguard. But again the
22 exception is made for instances when it is argued that the
23 government is doing something illegal. And of course that
24 is the plaintiffs’ argument.
25 MS. WEISMANN: Well, Your Honor, that is
0057
1 speculation. And I think that is critical. Because the
2 case law also makes clear that they need to come forward
3 with compelling evidence. That is what the Circuit has
4 said. You need compelling evidence.
5 Where is their evidence? It is not in the record
6 before this court. We have offered you admissible evidence
7 in the form of the declarations of Jim Reynolds and Dale
8 Watson, and they have put forth newspaper accounts, which in
9 and of themselves under the Federal Rules of Evidence are
10 hearsay. They do not constitute admissible evidence. They
11 have not come forward with evidence, much less compelling
12 evidence.
13 And I think the other point to keep in mind is
14 that even if they had, that revealing, for example, the
15 names of the detainees is not going to disclose whether or
16 not the government has done anything illegal here. There is
17 not that direct link between the information they seek and
18 what it would show.
19 And I think if you look at the rare case, and it
20 is a rare case in the FOIA, where the court or the
21 government finds that the public interests outweighs the
22 privacy interests, those are cases where the information
23 in question provides a direct link between what the
24 plaintiffs have been able to demonstrate by compelling
25 evidence of wrongdoing and wrongdoing itself. That link is
0058
1 not here.
2 It is too attenuated. And that is yet another
3 reason, we submit, why the balance is struck in favor of
4 withholding the information.
5 We have already talked about material witness
6 warrants. I am sorry if I have not been sufficiently clear.
7 Perhaps when I sit back down I will get some additional
8 information that I will be able to provide the court that
9 might be helpful in your analysis.
10 But you know, of course, that we have withheld
11 that information not only under exemption three because of
12 the operation of Rule 6(c) of the Federal Rules of
13 Criminal Procedure, but also under exemptions 7(f), 7(a) and
14 7(c).
15 THE COURT: I understand that.
16 MS. WEISMANN: Unless the court has any questions
17 I will not get into the issue of adequacy of search, and the
18 common law theories that the plaintiffs advance. I think we
19 covered those in our papers.
20 With respect to the common law theory, it is also
21 covered in the amicus brief, and I think that they do a good
22 job of explaining how it is that FOIA displaces any common
23 law right, even if it existed vis-a-vis the federal
24 government, and even if sovereign immunity were not a bar to
25 that.
0059
1 So let me just conclude, Your Honor. by saying —
2 THE COURT: You have to conclude, Ms. Weismann.
3 You have to conclude.
4 MS. WEISMANN: And I am, Your Honor.
5 The government, we submit, has demonstrated
6 through detailed and compelling evidence that disclosure
7 here risks numerous and serious harms, harms to public
8 safety, harms to the pending law enforcement investigation,
9 and harms to the privacy of the detainees and their
10 attorneys.
11 Plaintiffs have offered no admissible evidence to
12 rebut this showing. Instead they are attempting to convert
13 this FOIA action into a forum to address other substantive
14 issues regarding the detainees.
15 The government, as we said, takes its obligations,
16 however, under the governing regulations law, and treaties
17 if they exist, very seriously, and even more to the point,
18 there is simply no evidence here that the government has
19 violated any of its legal obligations with respect to any
20 individual detainee.
21 This case then is not about the issues that the
22 plaintiffs attempt to make it about. It is not about
23 conditions of detention, and it is not about some allegedly
24 round — you know, illegal roundup of thousands of detainees
25 and an effort by the government to cover that up by keeping
0060
1 the fact of their detention secret. It is about the
2 harms that would flow from disclosing the requested
3 information.
4 The plaintiffs have essentially accused the
5 government of hyperbolic rhetoric, but I submit to the court
6 that the risks here are not mere hyperbole.
7 The events of September 11th and the subsequent
8 events have made it all too painfully clear that we live
9 in a changed world, and that has to be part of this
10 court’s calculus just as it had to be part, and was a part,
11 of both Mr. Reynolds’ calculus Mr. Watson’s calculus when
12 they gave their considered and educated assessment of the
13 risks.
14 Simply stated, the information that plaintiffs
15 seek, if put in the wrong hands, would place our security at
16 risk. We therefore request that the court grant our motion
17 for summary judgment.
18 Thank you.
19 THE COURT: Thank you.
20 Ms. Martin, please. And Ms. Martin, let me start
21 with the question, and it is the question that the
22 government has raised repeatedly in its oral argument.
23 Given the fact that the government is allowing
24 voluntary disclosures, why have so few people come
25 forward?
0061
1 I have no idea of the numbers, but I am sure they
2 are right that it is a relatively small number. What do you
3 think that so few people have disclosed?
4 MS. MARTIN: Well, Your Honor, I think first of
5 all that the record is totally unclear that so few people
6 have disclosed.
7 What the record shows is some number of people
8 who have had lawyers have contacted the press. We have
9 nothing in the record about how many people who allegedly
10 might have some connection to al Qaeda have called their
11 associates to send the message to al Qaeda that they have
12 been in jail.
13 There is no reason why they would do that
14 publicly, and there is nothing in the record that so few
15 people have disclosed to their associates that they have
16 been detained. It is only in the record that few people
17 have been identified by the press publicly as having been
18 detained.
19 In any event, I think it is — I am not sure what
20 point the government makes. The government’s allegation
21 here, and they have, of course, the burden of proof to show
22 that these disclosures could reasonably be expected to be
23 harmful, and by their logic, al Qaeda, or the terrorist
24 organizations associated with al Qaeda would have a great
25 interest in learning who has been detained.
0062
1 The government has made no case that the fact of
2 the detention of the people that al Qaeda might be
3 interested in is still a secret to al Qaeda. And in fact,
4 Your Honor, it would be relevant, I submit, not only whether
5 or not the persons were able to self-disclose, but they have
6 disappeared.
7 It has been months. The Attorney General has
8 announced that hundreds of individuals, mostly Arabs and
9 Muslims we believe, have been taken into custody. Al Qaeda
10 could reasonably surmise that if it cannot find any of its
11 associates that they are in custody.
12 The government has the burden to show that
13 disclosing the information requested in this case, in
14 light of the information that is already either available
15 to al Qaeda, or on the front page of the newspaper, could
16 reasonably be expected to cause the harm. And that is the
17 burden that we submit that they do not meet here.
18 If I might beg the court’s indulgence for one
19 moment and read from the Federalist Papers a quotation which
20 was not included in our briefs, but I think which is at the
21 core of this case, in which — in the Federalist number 84
22 Hamilton quotes Blackstone’s Commentaries on the Laws of
23 England and says:
24 “To bereave a man of life
25 without accusation or trial
0063
1 would be so gross and a
2 notorious act of despotism
3 as must at once convey the
4 alarm of tyranny throughout
5 the whole nation. But
6 confinement of the person
7 by secretly hurrying him to
8 jail where his sufferings
9 are unknown or forgotten
10 is a less public, a less
11 striking, and therefore a
12 more dangerous engine of
13 arbitrary government.”
14 I think it is clear and we do not dispute that we
15 live in an extraordinary time. We certainly would agree
16 that the investigation of the attacks and the prevention of
17 future attacks is of extreme importance to the American
18 public.
19 At the same time, we live in a time when the role
20 of this court in upholding the rule of law and protecting
21 individual rights is equally important, and perhaps more
22 important than at other times of our history.
23 And I think the first question that this court
24 needs to ask is where, if anywhere, is the Congressional
25 statutory authorization for the Attorney General’s
0064
1 announced policy of secretly detaining hundreds of non-
2 citizens, not charged with any crime, before being
3 adjudicated in violation of the immigration laws, as part of
4 his investigation into terrorism?
5 And on that question I think —
6 THE COURT: Ms. Martin, I think that by posing the
7 question that way that you are just virtually conceding the
8 government’s argument — the accuracy of the government’s
9 argument.
10 That is not what this case is about. Those may —
11 that is clearly a profound legal and moral issue. But
12 this case is about FOIA — not usually the most
13 interesting statute in the world, but that is what the case
14 is about.
15 MS. MARTIN: Well, Your Honor, I would submit that
16 what the government —
17 THE COURT: I understand the background, Ms.
18 Martin. That is why all of those people are here. That is
19 why everybody is taking the case so seriously. But bottom
20 line is that I have to focus on what is legally relevant,
21 and you have brought your case under FOIA, and I want to ask
22 you later whether you still have a First Amendment argument,
23 because it wasn’t briefed. But basically, that is what I
24 have to decide in this case.
25 MS. MARTIN: And the common law. We brought our
0065
1 case under both FOIA and the common law.
2 THE COURT: Correct. Although I think that got
3 about this much in everybody’s briefs. But anyway, go
4 ahead.
5 MS. MARTIN: Well, let me outline what it is that
6 we are challenging and what we are seeking here, because I
7 find the government’s contention that the case does not
8 involve secret detentions to be quite puzzling and
9 extraordinary.
10 What happened, as we all know, is that the
11 Attorney General announced that hundreds of individuals
12 had been detained as part of their terrorism
13 investigation.
14 At the same time the Justice Department
15 instituted the policy that the detentions for immigration
16 violations would be secret. They sent a memo out making
17 the fact of the arrest of a particular individual a
18 secret.
19 And it is that which this case seeks to
20 challenge, and it is that information which this case
21 seeks, namely the identities of individuals who have been
22 secretly arrested and secretly jailed before a trial on
23 immigration violations, as well as material witnesses.
24 The government asserts that the Freedom of
25 Information Act allows it to keep secret the fact that it
0066
1 has arrested and jailed an individual on immigration
2 charges, and it is that question, Your Honor, I believe that
3 the court has to decide first, and it is that question which
4 I believe there is no support in the law for, and would be
5 an extraordinary reading of the Freedom of Information Act
6 which was passed as a disclosures statute against a
7 background and an understanding by Congress that arrests
8 were public.
9 As the District of Columbia has said, secret
10 arrests are a concept odious to a democratic society. There
11 is no case law and no instance in which the government can
12 point to in which a court has held that the Freedom of
13 Information Act, or any other law, allows the government to
14 withhold the fact that an individual has been arrested and
15 to take steps to keep secret the fact that that individual
16 has been jailed.
17 It is that question that I believe is the first
18 question in this case that must be answered by this court
19 before looking at the specific exemptions claimed by the
20 government under exemption seven.
21 And in that connection, I think that it is
22 illustrative to look at the way that the government has
23 treated the arrests of individuals on federal criminal
24 charges.
25 Because those individuals — the connections of
0067
1 those individuals to the terrorism investigation are the
2 same, or perhaps more connected to the terrorism
3 investigation as the individuals who are being held on
4 immigration violations.
5 And the record is clear that the government has
6 not only released and never sought to keep secret the
7 arrests and the indictments on federal criminal charges, but
8 the government has gone much further here.
9 The government has, in fact, and it is an exhibit
10 before the court, compiled and released a list of 108
11 individuals who have been charged under the federal criminal
12 laws and who were, according to the government, detained and
13 jailed pretrial in connection with and as part of their
14 September 11th terrorism investigation.
15 And the government did that when I submit to the
16 court that there was no need for the government to do that.
17 The government —
18 THE COURT: Wait a minute. You are talking about
19 after criminal charges were brought.
20 MS. MARTIN: Yes.
21 THE COURT: And the government released the fact
22 that X was not only arrested, but was also formally
23 charged.
24 MS. MARTIN: Yes.
25 THE COURT: Why is the government not required to
0068
1 do that?
2 MS. MARTIN: The government is required to do
3 that, but the government went one step further which it was
4 not required to do, and said, although this individual was
5 charged on these counts, having nothing to do with September
6 11 or terrorism, we will announce to the world that this
7 individual was arrested and detained as part of our
8 terrorism investigation.
9 And it did so at a press conference held by the
10 Attorney General before this lawsuit was filed but after the
11 Freedom of Information Act request was made in which he
12 released a list of individuals who had been part of, and
13 questioned, and were suspects or linked to the terrorism
14 investigation, and at the same time had been charged on
15 federal criminal charges.
16 We submit that the government’s volunteering that
17 list, which is precisely the kind of list that it now says
18 will cause grave harm to its pending investigation,
19 undercuts its basic argument that giving us the names of
20 those who have been detained on immigration violations would
21 be harmful to its law enforcement proceedings.
22 I might add, and I think it is relevant in
23 determining the legal authority for the government’s
24 position, that it is somewhat an anomalous situation that
25 the government concedes that it is required to make public
0069
1 the fact that it has charged a particular individual under
2 the criminal laws when it asserts the right to jail an
3 individual secretly on immigration violations.
4 And that is because although the deprivation of
5 liberty when jailed on an immigration violation can be as
6 severe as the deprivation of liberty suffered by an
7 individual in the criminal proceeding.
8 The due process protections available to those
9 individuals in immigration proceedings are much fewer than
10 the due process protections available to criminal defendants
11 starting with, for example, no right to a court-appointed
12 attorney in the immigration proceedings.
13 There is also much less, and in some instances no
14 availability of an article three judicial review of the
15 detention of an individual on immigration violations in the
16 way that such article three judicial review exists of the
17 detention.
18 THE COURT: But where does that argument go? I
19 don’t understand. I mean we are talking about the Freedom
20 of Information Act. I believe that the decision by the
21 Federal District Judge in Michigan, which I read — I think
22 it was the first case squarely holding that deportation
23 proceedings had to be opened. But again, that is not the
24 issue here as to whether deportation hearings should be
25 open.
0070
1 MS. MARTIN: Well, Your Honor, that is not the
2 issue here. But we believe that if you were to decide that
3 the Freedom of Information Act did not require the
4 disclosure of this information, you would then have to reach
5 the constitutional and common law claims which are addressed
6 in the Michigan case.
7 And specifically, the government has conceded that
8 since the First Amendment requires criminal proceedings to
9 be open, it may not secretly arrest individuals on criminal
10 charges.
11 That if the Michigan court is correct that the
12 First Amendment also requires deportation proceedings to
13 be open, then by the government’s own analysis, the
14 government may not arrest individuals secretly on
15 immigration charges.
16 And that is an issue that is inescapably, I
17 believe, before the court, except that the Freedom of
18 Information Act initially requires the government to release
19 this information to us we believe.
20 I now want to turn, Your Honor, to the specific
21 exemption claims made by the government.
22 THE COURT: By the way, let me just clarify one
23 thing since you just referred to it.
24 In your initial complaint, and I think you filed
25 an amended complaint as well, you based you claim on FOIA,
0071
1 of course, on federal common law and on the First
2 Amendment.
3 Are you still maintaining the applicability of all
4 of those three theories?
5 MS. MARTIN: We are, Your Honor. We did not brief
6 the First Amendment in any detail, partly because we thought
7 it was unnecessary, but partly because the strength of that
8 position became more clear to us when the government finally
9 explained the distinction they were making between secretly
10 arresting people on immigration violations and conceding
11 that they may not secretly arrest people on criminal
12 charges.
13 We think it is clear, Your Honor, that even if
14 arrests come within the scope of the Freedom of Information
15 Act analysis, the government has not met its burden of
16 showing that disclosure of the names of those who have been
17 arrested could reasonably be expected to cause the alleged
18 harm.
19 It is true, and it has in many cases where
20 challenging government secrecy, especially perhaps where
21 there is, as here, a real threat, that the government offers
22 apocalyptic descriptions of the consequences of disclosures
23 without any real analysis of whether those consequences are,
24 in fact, reasonably likely to follow from the disclosure.
25 And that is the analysis that the Freedom of Information Act
0072
1 requires.
2 There are, I believe, four separate reasons why
3 the government fails to meet its burden here to show that
4 there is a necessary link between disclosing the identities
5 of those secretly jailed on immigration violations and harm
6 to its terrorism investigation.
7 First, I want to make clear that this case does
8 not seek information about the terrorism investigation. We
9 only seek the identities of those who have been jailed.
10 Nor are we seeking in this case to challenge or to
11 make some point about whether or not those detentions have
12 been proper, legal, or constitutional.
13 We need the information we have requested under
14 the Freedom of Information Act so that the plaintiff
15 organizations and others can make that determination.
16 I find the government’s argument striking that
17 there would be no direct link between having the
18 identities of those who have been secretly jailed and
19 being able to find out whether or not those individuals’
20 rights were, in fact, violated in connection with the
21 jailing.
22 It is obvious that you need the name in order
23 to learn that information, and that is what this case seeks,
24 Your Honor.
25 The first reason that the government —
0073
1 THE COURT: Does that not give you — and this is
2 a question I did ask Ms. Weismann, doesn’t that alone, in
3 other words the names of the individuals who were detained,
4 doesn’t that information alone suffice to give you the basis
5 for your investigations?
6 Why do you need to know, for example, and I know
7 this is not a requirement under FOIA, but I still don’t
8 really understand the breadth of your request. Why do you
9 need to know where the individual was detained, presumably
10 on the day you made your FOIA request, and I think people
11 have been moved around. Again, based on newspaper articles
12 I believe that.
13 Why do you need to know the dates of their
14 detention? The dates of their release, if any? And I know
15 you asked for a couple of other categories as well. Aren’t
16 names alone sufficient for you?
17 MS. MARTIN: Well, the names are not sufficient if
18 we cannot find the individuals. And I think there is
19 evidence in the record that the government has been taking
20 steps to make individuals very difficult to locate.
21 The arrests — the dates of the arrests and the
22 dates of the release, whether or not we need to know them, I
23 think they are the kind of core public information that has
24 always been public.
25 It is the kind of public record about who the
0074
1 government has in custody. And it is also, as more
2 information has been made public, become more and more clear
3 that there are a lot of, at a minimum, irregularities with
4 regard to the dates on which individuals were arrested and
5 the dates on which they were charged under various different
6 kind to statutes.
7 And those dates are important to be able to
8 determine whether or not individuals were, in fact, properly
9 detained.
10 THE COURT: Given the government’s analysis in the
11 Watson declaration and the Reynolds declarations, and their
12 presentation of the mosaic theory, isn’t it true that by
13 getting the names of individuals you would have the core
14 information in terms of starting your investigation, and
15 very significantly, the government’s grave concerns about
16 outsiders, by which I mean those associated with terrorist
17 organizations, would be able, if they have all of this
18 additional information, might well be able to piece together
19 a lot more information about the investigation and about
20 what is going on, whereas if they only had the names, if
21 they were made public, it would be a lot more difficult for
22 them, maybe not impossible, but a lot more difficult to
23 figure out the course, the direction, and the slant of the
24 government’s investigations.
25 MS. MARTIN: Certainly the names would go a long
0075
1 ways to giving us the information that we need. And
2 certainly the location of where an individual was
3 arrested is not important in the same way that the names
4 are.
5 At the same time, we reject the government’s
6 assertion that the mosaic theory has any real relevance
7 here, or that the disclosures that we seek would, in fact,
8 be harmful.
9 The mosaic theory, which has been accepted by the
10 courts in this circuit, is an intelligence concept and has
11 been accepted in intelligence cases and covers the
12 situation where — virtually all intelligence, of course,
13 is usually secret, and the issue facing the courts is
14 whether or not one small piece of information, if it were
15 to be made public, what would be the effect given the fact
16 that intelligence is, in large measure, conducted in
17 secret?
18 Here, and I think the key point before this court
19 is the massive number of disclosures that have already been
20 made, many of them by the government, about its
21 investigation of terrorism.
22 And if I might for a moment just outline those
23 disclosures. Those disclosures do not exist in the cases
24 where the mosaic theory has been accepted in the
25 intelligence context.
0076
1 Those disclosures include, of course, the daily
2 revelations on the front page of the papers about
3 particular aspects of the terrorism investigation. They
4 include the Department of Justice’s own description of the
5 investigation as including the detentions of hundreds of
6 individuals.
7 They include the fact that can be readily gleaned
8 from the newspaper accounts that a large number of Arabs
9 and Muslims who attended flight school or had flight
10 training have been detained as a part of the terrorism
11 investigation.
12 That obviously shows the scope of the
13 investigation, and of course the newspapers have now
14 reported the precise FBI memo, and the basis for the FBI’s
15 interest in Arabs and Muslims attending flight school. All
16 of that is already known.
17 They include the names of all of the individuals
18 who have been detained on federal criminal charges. The
19 disclosures —
20 THE COURT: Are you telling me what the government
21 has made public, which I assume is something you approve of,
22 but of course what we don’t know is all of the additional
23 investigatory data, if you will, that the government has not
24 made public that they think would endanger the public’s
25 safety.
0077
1 MS. MARTIN: Right. And we do not seek any of
2 that investigatory data. The only thing that we seek is the
3 names of the individuals who have been arrested. And those
4 additional disclosures, evaluated in the light of what is
5 already known, cannot be reasonably expected to cause the
6 alleged harms. I do not believe that the government has met
7 their burden to show that.
8 And the disclosures include not only the broad
9 outlines and the specific outlines of much of the
10 investigation. But the government itself, on numerous
11 occasions, has identified particular individuals of interest
12 to the investigation, and even outlined the evidence that it
13 has against them.
14 For example, while the court mentioned the fact
15 that many of the individuals seem to have been picked up
16 because there was some remote connection — or some kind of
17 connection with the hijackers, the media reports go even
18 further and detail what those connections were. Who was a
19 roommate of whom? Who shared a telephone number at some
20 point?
21 All of that has been disclosed. The Attorney
22 General himself in October talked about suspects that they
23 had arrested and information and evidence that they had
24 against those suspects.
25 Six weeks before the only man to be indicted on
0078
1 terrorism charges, Zechariah Mowssaoui was indicted, the
2 New York Times reported that federal investigators had
3 informed it — had informed the paper that Mowssaoui was in
4 custody and that they suspected him of being the twentieth
5 hijacker.
6 At the moment that the federal government told the
7 public about Mowssaoui, he was in jail, either as a material
8 witness or on immigration violations. He had not yet been
9 charged.
10 Now the government comes to this court and says,
11 we cannot tell you who has been jailed on immigration
12 violations. And the striking and troubling thing about
13 that, Your Honor, is that when pressed in this case to
14 outline the links or the evidence that the government has
15 connecting the individuals who have been jailed with
16 terrorism, they come up with nothing.
17 And so we have the situation where the names of
18 the suspects and the names of those linked to terrorism have
19 been made public. The evidence against them has been made
20 public.
21 In the situation where those — some 300 of whom
22 the government admits have been cleared are being kept
23 secret. And I submit that it undercuts the government’s
24 allegations of harm.
25 THE COURT: Cleared of connection to terrorism,
0079
1 but being held on immigration charges, right?
2 MS. MARTIN: Exactly. And there is no basis, Your
3 Honor, under the Freedom of Information Act to withhold the
4 names of individuals who are jailed for immigration
5 violations.
6 I might just add to the list of disclosures that
7 the government has made is that in the one situation where
8 the government —
9 THE COURT: Is your response to the government’s
10 argument that — how should I phrase this? Involuntary
11 release by the government of detainee’s names, meaning the
12 release by the government in the absence of request by the
13 detainees, could pose some real threats to them personally.
14 Whether they are connected with the terrorist organizations,
15 or whether they are not, that there could be real harm that
16 might come to these people to.
17 MS. MARTIN: Well, Your Honor, that argument of
18 course depends on and was created by the government’s own
19 statements linking those individuals with terrorism.
20 And the government having claimed that it had — that it
21 has jailed hundreds of individuals who have links to
22 terrorism.
23 When forced to actually file affidavits in this
24 court, the most the government came up with is that the
25 individuals were originally questioned as part of their
0080
1 terrorism investigation.
2 It is within the power of the government to make
3 clear what the record in this case now shows which is that
4 it has no evidence establishing that these detainees are
5 involved in terrorism. And that statement would go a long
6 way towards curing any of the potential harms that the
7 government had talks about here.
8 We would submit that a decision by this court
9 could have the same effect. A decision by the court
10 summarizing the state of the record and the lack of evidence
11 presented by the government that it has information linking
12 these particular individuals to terrorism would clear those
13 individuals’ reputations.
14 At the same time we think that it is clear that
15 individuals have no privacy interests in the fact ob being
16 arrested on immigration violations. There is no case law so
17 holding, and it would be extraordinary — extraordinary to
18 so hold.
19 THE COURT: They certainly have a privacy interest
20 under the Freedom of Information Act.
21 MS. WEISMANN: They have no privacy — they have
22 no privacy interest in the fact of being arrested, Your
23 Honor, we would submit under the Freedom of Information
24 Act.
25 The Tennessee Newspaper case that we cited in our
0081
1 brief holds that there is no cognizable privacy interest
2 in the fact of having been arrested when what the
3 question is posed to the government is, who have you
4 arrested?
5 The Reporters Committee case, which is the only
6 case dealing with this question, holds that the compilation
7 of otherwise difficult to obtain facts in a computerized
8 collection in one clearinghouse of information significantly
9 alters the privacy interests.
10 It is the difference, Your Honor, between asking
11 for the rap sheet on an individual, the criminal history on
12 an individual, and asking the government, who did you arrest
13 last month?
14 This case is about the question of, who did you
15 arrest last month? And it does not raise any privacy
16 interest on behalf of an individual.
17 In any event, Your Honor, we believe that the
18 public interest here vastly outweighs any such privacy
19 interests.
20 But if I might return for a moment to the 70(a)
21 7(f) argument and point out that the other fatal defect we
22 believe in the government’s position is that the
23 government’s argument, if accepted, proves too much.
24 The government’s argument would allow the secret
25 jailing of individuals on immigration charges whenever the
0082
1 government contends that those individuals might turn out to
2 have some possible link to some pending criminal
3 investigation. And that is simply too broad of a
4 proposition to find any support in the law.
5 It is particularly noteworthy here if you look at
6 the specific allegations made by the government to support
7 its claim that releasing the identities of these particular
8 individuals would be harmful.
9 As the court noted, the declarations submitted by
10 the government from Mr. Reynolds and Mr. Watson are quite
11 vague and totally insufficient to establish that the
12 government has any information suggesting that these
13 individuals are, in fact, involved in terrorism.
14 And to be clear, we do not suggest here, and we
15 are not arguing that the government must prove to this court
16 that the detainees are involved in terrorism. The
17 government here fails to even allege that it has information
18 that would establish a connection between the detainees and
19 terrorism.
20 THE COURT: That is not their theory. They do not
21 purport to rest their argument on that. Their theory is
22 that — and I may or may not do a perfect job on stating it,
23 that it is the accretion of all of these different facts
24 that can tell a significant story to an outsider with a
25 substantial understanding of what is really going on.
0083
1 MS. MARTIN: But we would submit that there are
2 two – that there are at least two fundamental problems with
3 that theory.
4 One is that theory holds no water if the people
5 who have been secretly jailed have no connection to
6 terrorism. What if the government has picked up 718
7 people, all of whom happen to be Arabs and Muslims, many
8 of whom might have some connection to flight schools, none
9 of whom have any connection to any terrorist
10 organizations.
11 It shows what to al Qaeda? It would interfere
12 with what law enforcement investigation? True, it would
13 show the American people something very crucial and very
14 critical about how the Department of Justice is
15 undertaking its crucial task of protecting us, but how
16 would it interfere with their law enforcement
17 investigation?
18 And that burden they have failed to meet, Your
19 Honor.
20 THE COURT: Go-ahead.
21 MS. MARTIN: If you pardon me, I have lost my
22 second point about that theory.
23 The second point about that theory is that it does
24 authorize the secret jailing of unlimited numbers, maybe
25 only of Arabs and Muslims, on immigration violations as long
0084
1 as the government asserts that it is done in connection with
2 the terrorism investigation.
3 We would submit that that is an extraordinary
4 claim for the government to make, and there is no basis in
5 the Freedom of Information Act for doing that.
6 Now if I might address the public interest
7 standard on the 7(c) claim, Your Honor, and briefly
8 addressed the government’s point that there is no evidence
9 here of government misconduct.
10 I want to first say that I think that the public
11 interest in knowing the names of people who have been
12 secretly arrested here could not be greater. And the public
13 interest resides not only in public scrutiny of whether or
14 not individual rights have been violated, and in this
15 connection I note that the fact that an individual who is
16 unrepresented — may well be represented by counsel may or
17 may not have an independent civil action to redress any
18 individual rights, is basically irrelevant to the purpose of
19 the Freedom of Information Act, which is to assure public
20 scrutiny of government actions in part to prevent violations
21 of individual rights.
22 And that is at the core of what this case is
23 about. But there are two other public interests at stake in
24 this case, and one of the is to know whether or not when the
25 Attorney General announces that 1,000, or more than a 1,000
0085
1 noncitizens have been arrested as part of their efforts to
2 prevent future attacks on the United States, are we facing
3 the situation where the government has, in fact, found 1,000
4 potential terrorists?
5 Because if we are, Your Honor, it has enormous
6 public policy consequences about how to deal with terrorism.
7 And that issue the public has the right and the need to
8 know.
9 It is related to the third aspect of the public
10 interest which is implicated here, which is the question
11 of whether or not the Department of Justice has been
12 carrying out an effective and focused law enforcement
13 investigation targeted on terrorists likely to prevent
14 future attacks, or whether it has been simply rounding up
15 people who may have been Arabs and Muslims and may have
16 attended flight school.
17 We do not know the answer to that question, but
18 the public interest requires that information to be made
19 public so that we can find out the answer to that
20 question.
21 The government claims that there is no evidence of
22 government wrongdoing here, and I think — I am not sure
23 what kind of evidence they would like. Presumably an
24 affidavit by one of the secretly detained individuals about
25 how they were treated.
0086
1 That obviously is not within the possibility of
2 our presenting to the court, and the reason why it is not is
3 because of the government’s refusal to release the name of
4 those individuals.
5 But we do have extensive evidence of government
6 misconduct beginning, perhaps, with the Department of
7 Justice’s own decision to initiate an investigation on the
8 part of the Inspector General into the reports of abuses of
9 detainees while being confined.
10 There has also been a lawsuit filed by three of
11 the detainees alleging rights violations. There has been
12 testimony before the Congress alleging rights violations.
13 There has been a decision in the Southern District of New
14 York finding that the rights of the detainees were
15 violated, and finally, there have been numerous firsthand
16 accounts of violations of rights recorded in dozens of
17 articles.
18 All of this is more evidence of government
19 misconduct than I have seen outlined in any of the cases
20 addressing this issue.
21 THE COURT: What is your argument — I know the
22 government did not get a chance to get to this, but it was
23 certainly addressed in their brief.
24 What is your argument about the adequacy of the
25 search for basic documents on how members of the Department
0087
1 are to handle public release of this information?
2 MS. MARTIN: Our argument is that the affidavits
3 are not sufficiently detailed to establish — to meet their
4 burden that they adequately searched. And that is
5 especially true given what the documents that they did give
6 us says.
7 The memorandum from the Chief Immigration Judge
8 refers to the fact that as you already know, the Attorney
9 General has instituted certain procedures.
10 It is almost impossible to believe that that
11 information had been communicated other than in writing or
12 that there was no memorandum reflecting such communication
13 if it was not done in writing.
14 Similarly, the government has come up with no
15 explanation as to how, at some point, it was communicated to
16 all of the United States Attorney’s Offices, and all of the
17 FBI offices across the country that these matters were to be
18 kept secret.
19 In light of that, Your Honor, we do not believe
20 that the government has met its burden to show an adequate
21 search.
22 In that connection I want to say that I also do
23 not believe that the government has met its burden to
24 adequately describes the detainees. All of the questions
25 the court asks the government about the number of detainees
0088
1 are, we submit, required to be answered in response to our
2 Freedom of Information Act request.
3 And in that connection I want to mention that
4 — the question of how many detainees are still in
5 custody, were ever in custody, is quite unclear and quite
6 important.
7 The Department of Justice in the last couple —
8 in the last month maybe was quoted in the newspaper as
9 saying that there were only 100 and so people left in
10 custody out of the people detained in connection with the
11 investigation.
12 But there is evidence in a case involving the
13 names of the inmates being held in the New Jersey jails that
14 that is not true. In that case it appears that as of
15 sometime in April the INS had housed more than 100 inmates
16 in New Jersey state jails alone.
17 Now while we don’t know whether those inmates come
18 within this category of people detained in connection with
19 the September 11 investigation, what we do know is that the
20 Department of Justice has told the New Jersey state
21 authorities that they may not release the names of any of
22 those inmates.
23 In fact it is actually quite important in
24 analyzing the government’s claim here is that what they have
25 done in New Jersey, where the ACLU of New Jersey, as Your
0089
1 Honor knows, requested the names of inmates being held in
2 the New Jersey state facilities under the New Jersey Right-
3 to-know Law. Their request made no reference to this
4 terrorism investigation.
5 The federal government intervened, promulgated a
6 new regulation directing that the New Jersey state jails
7 refused to release the names of any INS inmates being held
8 in those jails.
9 That leaves this court with the decision about
10 whether or not those names will be released under the
11 federal Freedom of Information Act. But it shows the
12 importance of a complete —
13 THE COURT: But that state court judge made his
14 decision under the state right-to-know statute which was
15 extremely broad, isn’t that right?
16 MS. MARTIN: The right-to-know statute required
17 the release of inmates’ names. It was not broad. It simply
18 had no exception to the proposition that the names of
19 inmates in jails must be released.
20 And I would submit that that proposition is the
21 proposition that has been recognized at common law, in the
22 Freedom of Information Act, and under the Constitution as
23 basic to our democratic system, that the government may not
24 keep it a secret as to who it has in jail.
25 The government has now intervened in that case and
0090
1 asserted that New Jersey state law should not govern the
2 decision in that case.
3 THE COURT: And is that going up to the New Jersey
4 Supreme Court?
5 MS. MARTIN: It was just argued last week, Your
6 Honor, before the New Jersey Appellate Court, which I
7 believe is the intermediate court. The government
8 intervened and argued.
9 THE COURT: Ms. Martin I am going to ask you to
10 summarize at this point. I do have a 12:00 o’clock matter
11 set.
12 MS. MARTIN: Your Honor, if I might quickly make
13 one or two points about material witnesses.
14 The government claims that the names of the
15 material witnesses are exempt under exemption three citing
16 rule 6(e).
17 Before this court could accept the government’s
18 contention, it would have to find that the government’s
19 reading of the material witness statute, as authorizing the
20 jailing of individuals in connection with grand juries was
21 correct.
22 It would then secondly have to find — because the
23 government’s exemption claim depends on its reading of rule
24 6(e), which is grand jury rule requiring the government to
25 keep secret the names of grand jury witnesses.
0091
1 le 6(e) would authorize —
2 THE COURT: I thought the government said there
3 were only four of those cases left. Ms. Weismann, am I
4 wrong about that? Four sealed cases.
5 MS. WEISMANN: I think I said that there are
6 three, and that, of course, is a separate group. I want to
7 make clear that in Mr. Reynolds’ declaration, that is a
8 separate group than the people being held on material
9 witness warrants.
10 There is a separate group that was referenced in
11 his initial declaration, and then in his supplemental
12 declaration a group of sealed indictments, and that was a
13 group of nine, and as I told you earlier, it has now been
14 reduced to three.
15 THE COURT: Okay. Thank you.
16 MS. MARTIN: Your Honor, I think the distinction
17 between sealed criminal indictments and material witnesses
18 is crucial. We have no idea how many individuals have been
19 arrested on material witnesses warrants. The government has
20 refused to say that.
21 On May 7th Wall Street Journal reported that the
22 government had given a list of 1,000 individuals to the
23 General Accounting Office. If that is true, there are some
24 — perhaps 300 individuals, the difference between a 718
25 individuals listed as INS detainees and the individuals
0092
1 being held on material witnesses.
2 We are entitled to know how many individuals are
3 being held on material witness warrants.
4 The government’s reading of rule 6(e) governing
5 grand jury secrecy and the material witnesses warrant to
6 authorize secret detentions of individuals for the purpose
7 of giving testimony before the grand jury is novel. It is
8 unsupported we submit, and the only issue —
9 THE COURT: I don’t understand why you are
10 making the argument that essentially I have to decide and
11 carefully examine the same issue that was litigated in
12 Awadallah.
13 Obviously that opinion, and I am not expressing
14 any view at all on the merits of it, except it was very long
15 to read, and certainly very thorough, but it does not bind
16 me, of course, and I do not understand why you think or why
17 you are arguing that to make a determination under the
18 Freedom of Information Act that I have to decide whether the
19 government was authorized to use the material witness
20 statute in a grand jury context.
21 MS. MARTIN: You would only have to decide that in
22 order to accept the government’s exemption three claim as to
23 the identity of the material witnesses, because its
24 exemption three claim depends upon an interpretation of rule
25 6(e) and the material witness statute.
0093
1 So in order to accept that claim, you would then
2 have to decide that. Otherwise it does not have to be
3 decided.
4 I think the crucial thing that we do not know
5 about the material witnesses, and the only conceivable
6 basis in this record for withholding the names of the
7 material witnesses, are if there are other court orders
8 sealing the identities of those individuals. We do not know
9 that.
10 The government has not even identified how many
11 such orders there might be, which courts have issued such
12 orders, and it has not given us the language of the orders
13 upon which it relies to say that it can tell us nothing
14 about that.
15 In that connection, as to both the material
16 witnesses and the attorneys, I also went to make — I am
17 sorry, as to the attorneys for both the material witnesses
18 and the detainees, I want to make to make clear that the
19 government’s harm arguments with regard to releasing the
20 identities of the detainees and the material witnesses apply
21 in no way to releasing the identities of lawyers for the
22 material witnesses.
23 And there is —
24 THE COURT: You do not have to explain about that.
25 I mean there is obviously a very long, and in my view a very
0094
1 noble history in this country, of lawyers taking on
2 difficult controversial causes. It goes back to colonial
3 times.
4 We have certainly seen it in our lifetime in terms
5 of the McCarthy era, in terms of Civil Rights cases in the
6 South, in terms of defending Vietnam demonstrators. I would
7 like to think lawyers are a pretty hardy band, and they can
8 take care of themselves.
9 Although again, I don’t want to be misunderstood
10 about that. There are always dangers, and the government is
11 not being frivolous in putting forth concern that people who
12 are perceived in the public eye as giving any kind of help
13 to those associated with September 11th, that those people
14 could be exposed to some harm.
15 I want to be clear I understand that there are
16 always irrational and dangerous people who misperceive a
17 situation. But in general, it is overwhelmingly clear that
18 lawyers have understood their obligation to represent
19 unpopular causes in this country’s history.
20 They have always done so, and their privacy
21 interests and the concern for their welfare is probably not
22 going to be found by me to outweigh other concerns and
23 interests.
24 But go ahead, please. You were summarizing.
25 MS. MARTIN: Finally, Your Honor, in conclusion
0095
1 we would say that while this is an extraordinary time, we
2 do not believe that any authority exists for the
3 government to adopt an extraordinary policy of secretly
4 jailing hundreds of individuals on the theory that it is
5 necessary to do so in connection with their terrorism
6 investigation.
7 The Freedom of Information Act, the core
8 disclosure law in this country was not enacted to overturn
9 the long tradition and practice recognized in both common-
10 law and constitutional considerations we contend.
11 The government must make public the identities of
12 those who it arrests in order to both protect the rights of
13 those who are arrested and to enable there to be public
14 scrutiny of what the government is up to.
15 Thank you.
16 THE COURT: Thank you.
17 Obviously I have taken a very long time for the
18 arguments today, and I knew counsel would have a great deal
19 to contribute, and they have, and I appreciate the quality
20 of the arguments, and of course I will be the working to get
21 out an opinion as soon as I can, everybody.
22 I will leave it at that. There are no estimates
23 except that I know that people are anxious to get a
24 decision.
25 Parties may be excused at this time. Thank you
0096
1 very much. We are going to take a very brief recess, and
2 then I have a 12:00 o’clock matter.
3 (Whereupon, the proceedings were adjourned.)
4 – – – – –
5 CERTIFICATE OF COURT REPORTER
6 I certify that the foregoing is a correct transcript of
7 the proceedings in the above-captioned case.
8 ___________________________
9 SUSAN PAGE TYNER, CVR-CM
10 OFFICIAL COURT REPORTER
11

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