0001
\n1 UNITED STATES DISTRICT COURT
\n2 FOR THE DISTRICT OF COLUMBIA
\n3 CENTER FOR NATIONAL .
\n4 SECURITY STUDIES, ET AL . DOCKET NUMBER: CA 01-2500
\n5 .
\n6 Plaintiffs, .
\n7 .
\n8 vs. . Washington, D.C.
\n9 . May 29,2002
\n10 U.S. DEPARTMENT OF . 10:00 a.m.
\n11 JUSTICE .
\n12 Defendant. .
\n13 .. . . . . . . . . . . . .
\n14 TRANSCRIPT OF MOTIONS HEARING
\n15 BEFORE THE HONORABLE GLADYS KESSLER
\n16 A UNITED STATES DISTRICT JUDGE
\n17 APPEARANCES:
\n18 FOR THE PLAINTIFF: ARTHUR B. SPITZER, ESQUIRE
\n19 American Civil Liberties Union
\n20 Of the National Capital Area
\n21 1400 -20th Street, N.W.
\n22 #119
\n23 Washington, D.C. 20036
\n24 (202) 457-0800
\n25 (202) 452-1868 (Fax)
\n26 KATE MARTIN, ESQUIRE
\n27 Center for National Security
\n28 Studies
\n29 1120 19th Street, N.W.
\n30 8th Floor
\n31 Washington, D.C. 20036
\n32 (202) 721-5650
\n33 (202) 530-0128 (Fax)
\n34 kamartin@gwu.edu
\n0002
\n1 ELLIOTT M. MINCBERG, ESQUIRE
\n2 General Counsel & Legal Director
\n3 2000 M Street, N.W.
\n4 Suite 400
\n5 Washington, D.C. 20036
\n6 (202) 467-4999
\n7 (202) 293-2672(Fax)
\n8 emincberg@pfaw.org
\n9 DAVID L. SOBEL, ESQUIRE
\n10 Electronic Privacy Information
\n11 Center
\n12 1718 Connecticut Avenue, N.W.
\n13 Suite 200
\n14 Washington, D.C. 20009
\n15 (202) 483-1140
\n16 (202) 483-1248 (Fax)
\n17 sobel@epic.org
\n18
\n19 FOR THE DEFENDANT: ANNE L. WEISMANN, ESQUIRE
\n20 Assistant Director
\n21 Civil Division
\n22 LISA A. OLSON, ESQUIRE
\n23 Senior Counsel
\n24 CAROL FEDERIGHI, ESQUIRE
\n25 Trial Attorney
\n26 U.S. Department of Justice
\n27 Room 1034
\n28 901 E Street, N.W.
\n29 Washington, D.C. 20530
\n30 (202) 514-3395
\n31 (202) 368-3393 (Fax)
\n32 anne.we@usdoj.gov
\n33 ROBERT D. McCALLUM, JR., ESQUIRE
\n34 Assistant Attorney General
\n35 SHANNEN W. COFFIN, ESQUIRE
\n36 Deputy Assistant Attorney General
\n37 U.S. Department of Justice
\n38 Robert F. Kennedy Justice Building
\n39 Room 3137
\n40 950 Pennsylvania Avenue, N.W.
\n41 Washington, D.C. 20530
\n42 (202) 514-3301
\n43 (202) 514-8071 (Fax)
\n0003
\n1
\n2 THE COURT REPORTER: SUSAN PAGE TYNER, CVR-CM
\n3 Official Court Reporter
\n4 United States District Court
\n5 333 Constitution Avenue, N.W.
\n6 Room 6824
\n7 Washington, D.C. 20001
\n8 (202) 371-2230
\n9 (202) 371-1892 (Fax)d
\n10 mtyner@erols.com
\n11 Computer aided transcript prepared with the aid of
\n12 SpeechCAT.
\n13 3
\n14 SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
\n0004
\n1 P R O C E E D I N G S
\n2 THE COURT: Good morning, ladies and gentlemen. I
\n3 guess I expected some people at this hearing, but perhaps
\n4 not quite this many.
\n5 This is the case of the Center for National
\n6 Security Studies, et al, versus the U.S. Department of
\n7 Justice, CA 01–2500. Would counsel identify themselves,
\n8 and in particular I want to know who is going to be arguing
\n9 for plaintiff and defendant, and we will start with
\n10 plaintiff, please.
\n11 MS. MARTIN: Good morning, Your Honor. I am Kate
\n12 Martin, and I would be arguing for the plaintiffs.
\n13 THE COURT: All right. And who are you with, Ms.
\n14 Martin?
\n15 MS. MARTIN: I am with the Center for National
\n16 Securities.
\n17 MR. SPITZER: Arthur Spitzer with the American
\n18 Civil Liberties Union.
\n19 MR. MINCEBERG: Elliott Mincberg, People of
\n20 American Way Foundation.
\n21 MR. SOBEL: David Sobel, Electronic Privacy
\n22 Information Center.
\n23 MR. McCALLUM: Your Honor, I am Robert McCallum,
\n24 the Assistant Attorney General for the Civil Division, and I
\n25 will be splitting the argument with Ms. Anne Weismann of
\n0005
\n1 the Department of Justice, if that is acceptable to the
\n2 court.
\n3 THE COURT: That is fine. Ms. Weismann has argued
\n4 many, many cases in front of me.
\n5 MR. McCALLUM: We have with us at counsel table
\n6 Ms. Shannen Coffin, Ms. Carol Federighi and Ms. Lisa Olson,
\n7 all with the Department of Justice.
\n8 THE COURT: All right. Thank you.
\n9 This matter is before the court on cross motions
\n10 for summary judgment. Of course I have read the papers
\n11 everybody. I have read many, maybe not every single one,
\n12 but many of the cases that you have cited.
\n13 Let me give my standard disclaimer when I have a
\n14 motions hearing on a major matter, which clearly this is.
\n15 No one should make the mistake of drawing any assumptions
\n16 from the questions that I raise.
\n17 Sometimes I am playing devil’s advocate.
\n18 Sometimes I am not. I know counsel are certainly
\n19 sophisticated enough to know that. But I want to make that
\n20 very clear to everybody.
\n21 I will be asking a lot of questions, and again, I
\n22 want counsel to understand that those questions and
\n23 interruptions are not designed to throw anybody off course
\n24 in their argument, or to deflect them, but obviously I have
\n25 many concerns and issues that I want clarification on, and
\n0006
\n1 of course your purpose should be to give me the
\n2 clarification that you think will advance your particular
\n3 side.
\n4 I know as a former advocate that it is sometimes
\n5 disconcerting when a judge keeps interrupting, but I am
\n6 going to have to do that this morning everyone, so everyone
\n7 is on notice about that.
\n8 I am going to start with the government. Their
\n9 brief was submitted first, and I believe that the government
\n10 can at least start out by addressing some factual issues
\n11 that I want clear on the record, and the government will be
\n12 able to give me the most current answers to some of those
\n13 questions, because obviously the briefs were filed over a
\n14 period of many, many months, and I would imagine that some
\n15 of the facts have changed.
\n16 So Mr. McCallum, do you want to begin.
\n17 MR. McCALLUM: May it please the court. As I
\n18 indicated, I am Robert McCallum, and I serve as the
\n19 Assistant Attorney General for the Civil Division. Along
\n20 with Ms. Anne Weismann, I will be representing and arguing
\n21 on behalf of the Department of Justice.
\n22 Ms. Weismann will present the detailed argument on
\n23 the controlling and established FOIA case law that is before
\n24 the court today.
\n25 But before she begins, with the court’s
\n0007
\n1 permission, I would like to take perhaps three or four
\n2 minutes to place in context the factual background which I
\n3 believe to be unique, against which the established
\n4 exemptions of FOIA are going to be applied, and that is
\n5 7(a), the law-enforcement exemption, 7(c), the privacy
\n6 exemption, and 7(f), the public safety exemption.
\n7 As the court is well aware, the investigation of
\n8 the September 11 terrorist attacks is the highest priority
\n9 within the Justice Department. That investigation is not
\n10 limited to the September 11 attacks, but is also focused on
\n11 the disruption and dismantling of future terrorist attacks
\n12 against the citizens of the United States.
\n13 It is not merely past events. It is future events
\n14 that we are concerned with, and the Attorney General has
\n15 assigned to me the responsibility to coordinate and oversee
\n16 the defense of civil litigation cases that are filed
\n17 relating to on-going investigation.
\n18 I submit to the court that vital interests of the
\n19 highest national import are involved, and I request the
\n20 court’s, and I am sure I will receive, and this case will
\n21 receive the court’s most serious consideration to those
\n22 issues in which I would categorize them in three particular
\n23 areas, and they are, in effect, public safety, law-
\n24 enforcement, if you will, and privacy.
\n25 This factual background is reflected in many of
\n0008
\n1 the filings that we have made and the numerous
\n2 declarations, but two in particular I think merit the
\n3 court’s attention.
\n4 Number one, the declaration of James Reynolds,
\n5 who is the Chief of the Terrorism and Violent Crimes
\n6 Section of the Criminal Division of the Department of
\n7 Justice, and Mr. Dale Watson, who is the Executive Assistant
\n8 Director for Counterterrorism and Counterintelligence with
\n9 the FBI.
\n10 Both are career public servants with specific
\n11 experience, expertise and responsibilities for the
\n12 terrorist-related investigations that are going to be the
\n13 controlling facts in this particular case.
\n14 Of these declarations I would point the court’s
\n15 attention to paragraphs 13 through 20 of the Reynolds
\n16 declaration, and paragraphs 11 through 20 of the Watson
\n17 declaration. And both of those reflect the potential harm
\n18 and damage to our national interest that disclosure of the
\n19 information sought in this case would cause.
\n20 With respect to public safety, those declarations
\n21 indicate that the disclosure of the information, the
\n22 significance of which may not be apparent in isolation, can
\n23 create serious risks.
\n24 THE COURT: That is the government’s so-called
\n25 mosaic theory?
\n0009
\n1 MR. McCALLUM: It is, Your Honor. Isolated bits
\n2 and pieces of information can be critical to the
\n3 sophisticated intelligence analysts as indicated in those
\n4 declarations.
\n5 For instance, information sought on the arrest
\n6 dates, on the arrest locations, on the common connections
\n7 between multiple detainees. Those would allow a
\n8 sophisticated intelligence analyst to identify the thrust,
\n9 the scope, if you will, the direction of the on-going
\n10 investigation.
\n11 In the mosaic theory, Your Honor, we suggest that
\n12 that would disclose the pattern, and the intelligence
\n13 analysts would then know what we know, or at least be able
\n14 to gauge reasonably what we know. They would be able to
\n15 gauge reasonably who might be the sources of information for
\n16 the investigation.
\n17 More importantly, they might be able to gauge
\n18 reasonably what we don’t know, where we have not gone, what
\n19 we have not done yet because we are not aware of it. And
\n20 therefore they would be able to reprogram, re-adjust their
\n21 plans going forward.
\n22 It creates a real and not insignificant danger to
\n23 individuals and to groups of individuals which I phrase as
\n24 the public safety.
\n25 In the second area it clearly compromises an on-
\n0010
\n1 going law-enforcement investigation. As indicated, we are
\n2 not just concerned with September 11 and the criminal
\n3 prosecution of those that might be somehow implicated in it.
\n4 We are also concerned, and the goal is to prevent future
\n5 attacks.
\n6 If the disclosure occurs as requested by the
\n7 plaintiff, it would deter the cooperation of the detainees.
\n8 It would deter the cooperation of others who are associated
\n9 with the detainees. It might allow terrorists to intimidate
\n10 witnesses and potential witnesses.
\n11 It would allow the destruction of existing
\n12 evidence as indicated in the declarations, and it would also
\n13 allow the fabrication of false evidence to mislead and
\n14 disrupt the on-going investigation.
\n15 Thirdly is the privacy interest. The established
\n16 case law indicates that an association with an on-going
\n17 investigation can create a significant stigma for those
\n18 whose relationship with the investigation is revealed even
\n19 if they are not targets or subjects.
\n20 This is the most horrific attack in American
\n21 history. It exposes the detainees and others related to
\n22 this investigation to risks of retaliation by those who
\n23 are misguided but incensed against terrorists, assuming,
\n24 of course, that everyone who is a detainee must somehow
\n25 be guilty of terrorist acts or terrorism support. And
\n0011
\n1 this risk exists both home here in the United States and
\n2 abroad.
\n3 I would also suggest that the reverse is also
\n4 true. That disclosure of the identity of the detainees
\n5 would expose them to risks from those who support terrorism,
\n6 and allow the detainee’s public safety to be at issue, to
\n7 allow that of their families to be at issue, to allow that
\n8 of their associates to be at issue, and to even allow the
\n9 safety of detention facilities and detention personnel to be
\n10 at issue.
\n11 These are serious risks and concerns, Your Honor,
\n12 and I think —
\n13 THE COURT: Given all those risks, Mr. McCallum,
\n14 my understanding is that there is no bar to the detainees
\n15 themselves informing either their families, their attorneys
\n16 if they are lucky enough to have them, their advocates, the
\n17 media, of the facts of their detection. I am not clear on
\n18 how much more they are allowed to say.
\n19 So all of these concerns that you are raising
\n20 about what may flow from the dissemination of this
\n21 information, these concerns seem to be very much undermined
\n22 or challenged by the fact that detainees themselves are
\n23 perfectly free to talk, and in fact have, I gather, based
\n24 upon the footnotes in at least the plaintiffs’ briefs, and
\n25 Federal Judges do read the newspapers, and I gather there
\n0012
\n1 was a big story on Sunday.
\n2 We all know that Amnesty has just released a
\n3 report. So there is a lot of information, quote unquote, on
\n4 the street already about detainees and at least their
\n5 versions of what has happened and the treatment that they
\n6 believe they are being subjected to.
\n7 MR. McCALLUM: Yes, ma’am. Let me respond to
\n8 that.
\n9 Number one, there is a categorical difference
\n10 between the piecemeal and sporadic disclosure of an
\n11 individual to family, or friends, or relatives and the like,
\n12 with the wholesale en masse disclosure by the government to
\n13 the world at-large.
\n14 I think, Your Honor, the most eloquent statement
\n15 of the risks involved is the fact that relatively few —
\n16 relatively few of the detainees themselves have chosen to
\n17 self-disclose to the world en masse.
\n18 There are some, but neither the vast, vast
\n19 majority of the detainees, nor the detainees’ attorneys have
\n20 determined to self-disclose, because they recognize the
\n21 risk, and that is perhaps the most eloquent statement
\n22 involved.
\n23 THE COURT: Well, that gets me to some facts that
\n24 I certainly want to get too.
\n25 Do you have any figures on how many of the
\n0013
\n1 detainees are actually represented by counsel?
\n2 MR. McCALLUM: I do not have those figures. I do
\n3 not know if Ms. Weismann has them, but we can get those
\n4 figures.
\n5 The point that I would make with that, Your
\n6 Honor, is that if there is any — well let me state it this
\n7 way.
\n8 The United States takes very seriously its
\n9 obligations and the administrative proceedings related to
\n10 the INS detainees. The United States provides them with
\n11 information regarding counsel, with a list of pro bono
\n12 counsel that are available to them, and we have established
\n13 this in the declaration.
\n14 The Immigration Judge asks them at their hearings
\n15 if they have counsel, and Your Honor will note that all of
\n16 the self-disclosures that have been involved in the news
\n17 media have counsel and are represented.
\n18 This is a distinctly different case. This is not
\n19 a case of deprivation of individual rights for detainees.
\n20 This is an information case. If anyone wants to bring a
\n21 case, and some detainees have wanted to bring cases, they
\n22 can do so.
\n23 And the remedy for that particular type of issue
\n24 in that case — not in this case, but in that case, is to
\n25 obtain counsel for the individuals, or to remedy the
\n0014
\n1 specific deprivation that is alleged.
\n2 None of the information that the court has is
\n3 evidence. And none — you know, it is the news media
\n4 reports.
\n5 THE COURT: I understand.
\n6 MR. McCALLUM: And of course the court needs to
\n7 take cognizance of that. But that needs to be compared to
\n8 the sworn declarations of those with experience and
\n9 expertise in the area of terrorism.
\n10 And the issue in this case is if the disclosure of
\n11 that information would create public safety problems, would
\n12 allow terrorists perhaps to attack in another place at
\n13 another time in the future, is the release of that
\n14 information the remedy that is appropriate even if the
\n15 allegations in some newspaper article are in fact true, that
\n16 could be vindicated in another case and could be remedied
\n17 with a much smaller remedy?
\n18 So I would suggest to the court that those
\n19 particular issues are not relevant to the issue of the
\n20 Freedom of Information Act and what the disclosures
\n21 exemptions allow under 7(a), 7(c) and 7(f).
\n22 I would also point out to the court that AMNI
\n23 International in its report declined to identify
\n24 particular detainees. Why did they do that? The answer is
\n25 obvious. And they so stated. That these detainees are at
\n0015
\n1 risk.
\n2 They are at risk for retaliation here. They are
\n3 at risk for retaliation abroad, and they are at risk from
\n4 both ends of the political spectrum, those that are
\n5 vigilantes and want revenge, and those that are terrorist
\n6 supporters and want to prohibit cooperation with an on-going
\n7 investigation.
\n8 THE COURT: Is the government prepared to indicate
\n9 at this point the total number of individuals who have been
\n10 detained in the course of this investigation?
\n11 MR. McCALLUM: We have, in fact, provided
\n12 information in a broad and general nature regarding the
\n13 number of detainees and things of that —
\n14 THE COURT: That was back in November?
\n15 MR. McCALLUM: It was back in November.
\n16 THE COURT: Do we have any current figures? It is
\n17 a long way from November to now.
\n18 MR. McCALLUM: I do not have current figures.
\n19 Perhaps Ms. Weismann has them. If we do not have them and
\n20 the court wishes to have them, then we will do our best to
\n21 obtain them. But it is the same sort of general information
\n22 that supports —
\n23 THE COURT: Do you know how many individuals are
\n24 currently detained? I have seen news reports that you have
\n25 released people, but do you know how many are currently
\n0016
\n1 detained?
\n2 MR. McCALLUM: I do not have that information at
\n3 this time, Your Honor. But again that is the sort of
\n4 information if the court wishes that we certainly could get
\n5 for you.
\n6 THE COURT: I do.
\n7 MR. McCALLUM: We can obtain that for the court.
\n8 THE COURT: I do.
\n9 Let me ask you a few other basic fact questions,
\n10 because again the information that I have is dated from the
\n11 briefs as they were submitted.
\n12 As of now, do we know how many people are detained
\n13 on federal criminal charges?
\n14 MR. McCALLUM: Those indictments that are not
\n15 under seal are matters of public record. So I do not have
\n16 the precise number for Your Honor that I can provide at this
\n17 time. But it is a matter of public record, and we can
\n18 obtain that information.
\n19 There may be indictments that are under seal of
\n20 which I am unaware, but other than sealed indictments — but
\n21 Your Honor, even with those particular indictments, the
\n22 dates that the individuals were detained, the locations at
\n23 which they were arrested, things of that nature, we have not
\n24 provided, because that is information that would fit into
\n25 the mosaic, that would allow terrorists in a wholesale en
\n0017
\n1 masse disclosure by the government with its imprimatur of
\n2 legitimacy to all of the world that would be harmful to the
\n3 public safety, law enforcement and privacy interests of the
\n4 individual detainees.
\n5 THE COURT: On the criminal charges, I believe
\n6 that your papers indicate that nine are sealed. Is that
\n7 right?
\n8 MR. McCALLUM: At one time, Your Honor. I cannot
\n9 tell you that that is, in fact, the case today. It is my
\n10 recollection, and of course I will defer to Ms. Weismann
\n11 with her superior knowledge of the details of the factual
\n12 record, but it was my recollection that we originally had
\n13 one number.
\n14 There was a supplemental declaration from Mr.
\n15 Reynolds, which corrected that particular number, and then
\n16 there may be changes. The point being that we were in a
\n17 fluid situation, Your Honor.
\n18 THE COURT: I understand that.
\n19 MR. McCALLUM: A very fluid situation.
\n20 THE COURT: In terms of the criminal charges,
\n21 other than those that have been sealed, has the government
\n22 released the names of all individuals?
\n23 MR. McCALLUM: They are a matter of public
\n24 record because of a criminal — an unsealed criminal
\n25 indictment.
\n0018
\n1 Now whether or not particular news media or others
\n2 have connected the particular indictments to a September 11
\n3 investigation, I cannot state that. But I can state that in
\n4 terms of the unsealed criminal indictments and criminal
\n5 proceedings, they are matters of public record.
\n6 THE COURT: Can you, and I think this will be the
\n7 final factual question I am going to ask you, although I am
\n8 not sure.
\n9 Can you give numbers that differentiate in terms
\n10 of the individuals who are being held on immigration
\n11 charges, or immigration violations I should say, can you
\n12 differentiate between those who are still of interest to the
\n13 government’s investigation, and then again, relying on your
\n14 papers, a substantial number, who I gather you have already
\n15 determined are not of interest to the government’s
\n16 investigation?
\n17 MR. McCALLUM: Again, that is a fluid number
\n18 that changes from day to day. It is certainly possible,
\n19 and to my understanding has happened, that a detainee will
\n20 be of special interest become not of special interest,
\n21 because the investigation of particular areas indicates no
\n22 involvement, and yet later become of special interest again
\n23 when another line of investigation reveals other connections
\n24 and links.
\n25 And therefore, it is certainly possible that
\n0019
\n1 someone who currently is not of special interest and who is
\n2 an INS detainee may tomorrow, or this afternoon, or three
\n3 weeks from now, become very significantly of special-
\n4 interest.
\n5 I would also point out that with respect to the
\n6 special interest detainees, the hypothetical group of them
\n7 who will never in this fluid situation return to special
\n8 interest, the disclosure of information concerning those no
\n9 longer and never will be special interest detainees, even if
\n10 we could hypothetically predicted who that might be, that
\n11 even the disclosure of that information would provide the
\n12 exact factual basis that the skilled intelligence analyst
\n13 would use to utilize to piece together what we know, where
\n14 we are going, what we do not know, who our sources are
\n15 likely to be, and how they can revamp, and reorganize, and
\n16 readjust their plans in areas that we have not yet thought
\n17 of.
\n18 So even in the area of special interest detainees,
\n19 who hypothetically will never be involved, there is still
\n20 the mosaic. There is still their personal safety and
\n21 privacy interest, and there is still the potential for
\n22 intimidation of them when they might, in the future, be
\n23 willing to cooperate with us and provide information that
\n24 would protect the public safety within the United States of
\n25 our citizens.
\n0020
\n1 So for all of those reasons, even those, quote,
\n2 special interest detainees who are no longer, quote, of
\n3 special-interest, the disclosure of that information, as
\n4 indicated in the Reynolds declaration and the Watson
\n5 declaration, would be most harmful to the interests of the
\n6 United States.
\n7 THE COURT: Mr. McCallum, let me interrupt you a
\n8 minute, because I see that there may not be enough seats.
\n9 There are some seats up front for the people in the back,
\n10 and if people sitting would just raise their hand if there
\n11 are empty seats next to them. Individuals could sit there
\n12 more comfortably.
\n13 All right. Why don’t you proceed, and I think you
\n14 had better move on if we are going to have time for Ms.
\n15 Weismann.
\n16 MR. McCALLUM: Your Honor, it took a little bit
\n17 more than three or four minutes.
\n18 THE COURT: It did, and I noticed that Mr.
\n19 McCallum.
\n20 MR. McCALLUM: And I apologize to the court.
\n21 My point in this factual context, Your Honor, is
\n22 that we would suggest those declarations are entitled to
\n23 some deference from this court based upon the experience,
\n24 responsibilities and expertise of Mr. Reynolds and Mr.
\n25 Watson.
\n0021
\n1 And we would further suggest that this court is
\n2 faced with the responsibility of applying what I term to be
\n3 established FOIA law to these unique facts.
\n4 We are not asking this court to make special
\n5 exemptions under FOIA because of the factual background.
\n6 What we are asking this court to do is to apply existing law
\n7 to unique facts. We are not proposing secrecy for secrecy’s
\n8 sake.
\n9 We, in fact, suggest to the court that on these
\n10 most compelling facts the normal, customary and established
\n11 FOIA law precludes the disclosure, and that it is, in fact,
\n12 the plaintiffs who are requesting this court to change FOIA
\n13 law, to apply different standards from the customary FOIA
\n14 case law.
\n15 THE COURT: Mr. McCallum, are you seriously
\n16 suggesting that the secret detention of over 1,000 people, I
\n17 think totally male, and mostly Muslim, is something that
\n18 ordinarily happens in the course of our American political
\n19 experience?
\n20 MR. McCALLUM: No. Those are unique facts, Your
\n21 Honor, and I would not — I would respectfully dissent from
\n22 the court’s characterization of it as secret detention.
\n23 There is nothing secret about it. We have disclosed the
\n24 number of —
\n25 THE COURT: Isn’t that what this case is all
\n0022
\n1 about?
\n2 MR. McCALLUM: No, Your Honor.
\n3 THE COURT: Maybe I am reading different papers
\n4 than everybody else.
\n5 MR. McCALLUM: Your Honor, I would characterize it
\n6 as the disclosure of certain information, but there is no
\n7 secret that certain individuals are being detained. There
\n8 is no secret, and it is in the Reynolds’ declaration, as to
\n9 how many.
\n10 There is no secret as to the on-going
\n11 investigation and the providing of information in general
\n12 terms that allows the supervision of government
\n13 activities.
\n14 But there is only the refusal to disclose
\n15 information that would endanger the public safety, that
\n16 would impede an on-going investigation, and that would
\n17 prevent — present privacy violations and personal safety
\n18 risks for detainees.
\n19 All of those are traditional. All of those are
\n20 consistent with the established case law. What they are
\n21 asking you to do, Your Honor, is to say, this is an
\n22 unprecedented investigation. And therefore, we should apply
\n23 different laws here. We should not apply normal FOIA law.
\n24 We should apply something different, because it is so
\n25 massive, it is so extreme.
\n0023
\n1 I suggest to Your Honor that catastrophic
\n2 measures, or catastrophic damage in this case supports the
\n3 FOIA exemptions on the established case law, not destroys
\n4 them.
\n5 And that is — there are issues in which Your
\n6 Honor has expressed concern regarding representation by
\n7 counsel, regarding whether these people have access to
\n8 phones, whether or not these individuals are being
\n9 represented in the immigration courts.
\n10 All of those can be solved by methods other than
\n11 the wholesale massive distribution of information to the
\n12 world at large, which would damage the interests of the
\n13 United States and place its citizens at risk.
\n14 Let me cede the lectern to Ms. Weismann for the
\n15 details of the established FOIA case law, and I appreciate
\n16 the patience of the court, and I apologize for my estimate
\n17 of three or four minutes.
\n18 THE COURT: That is fine. This is an important
\n19 case. I am going to hear from everybody.
\n20 Ms. Weismann.
\n21 MS. WEISMANN: Good morning, Your Honor, Anne
\n22 Weismann.
\n23 Let me at the outset, before I turn to the details
\n24 of the specific exemptions that have been invoked here, let
\n25 me stress a couple of additional things if I may.
\n0024
\n1 First, the central question in this case —
\n2 excuse me, I want to make sure that I can be heard — is
\n3 whether the government should be compelled to produce to
\n4 the public information it acquired as part of its
\n5 investigation into the events of September 11th and
\n6 afterwards.
\n7 The critical thing here, Your Honor, is that each
\n8 of these detainees has a link to the pending investigation.
\n9 Each was initially determined to have either a connection to
\n10 or some information about the atrocities of September 11th,
\n11 and that is the key here, Your Honor.
\n12 THE COURT: The standard, by the way, that the
\n13 government used — you certainly didn’t use probable cause,
\n14 is that right? What was the standard that was used in
\n15 detaining people who allegedly had some kind of link to the
\n16 investigation?
\n17 MS. WEISMANN: Your Honor, I don’t have that
\n18 information, but one thing that we do know is that we have
\n19 the sworn declarations of two high-ranking and long-term
\n20 Department of Justice officials who have been involved from
\n21 the outset in this investigation, and they —
\n22 THE COURT: They certainly didn’t address that
\n23 issue in any detail.
\n24 MS. WEISMANN: Well, no. But Mr. Reynolds did
\n25 say, Your Honor —
\n0025
\n1 THE COURT: In some instances, isn’t it true, Ms.
\n2 Weismann, and again, I can’t help but refer to things that I
\n3 have read, because obviously we don’t have a record here,
\n4 and I know that these are not proven.
\n5 But isn’t it true that in some instances people
\n6 were detained simply because they had some passing — either
\n7 acquaintenceship or — I guess acquaintanceship is a good
\n8 word, with someone who was certainly under suspicion,
\n9 serious suspicion?
\n10 MS. WEISMANN: Your Honor, with all due respect,
\n11 for me to answer that question I would have to do what the
\n12 court has just done, which is to speculate.
\n13 There is not that kind of evidence in this record,
\n14 because this case is not about the bona fides of the
\n15 detention of these individuals. It is a Freedom of
\n16 Information Act case that seeks information that we submit,
\n17 if released, would disclose the three enumerated harms that
\n18 Mr. McCallum referred to.
\n19 The point is that each of these individuals did
\n20 have some connection to the investigation, and that is why,
\n21 Your Honor, we dispute the characterization of this case as
\n22 about secret detentions.
\n23 The government here is not seeking to keep secret
\n24 the fact of any detention. What the government is seeking
\n25 —
\n0026
\n1 THE COURT: We all know that at this point.
\n2 MS. WEISMANN: Well, Your Honor, what the
\n3 government is actually seeking to protect here is again the
\n4 connection that each of these detainees has with the
\n5 investigation, because as Mr. Reynolds in particular spells
\n6 out, to reveal that connection for each category of
\n7 detainees would place into the public, and therefore into
\n8 the hands of terrorist organizations, information that would
\n9 pose one of the three enumerated harms that we have
\n10 outlined.
\n11 And I think that is critical, Your Honor. I think
\n12 that is a critical flaw in plaintiff’s argument, to suggest
\n13 that what this case is all about is a lawless roundup of
\n14 thousands of detainees, and the government is now trying to
\n15 cover up by somehow keeping the fact of their detention
\n16 secret.
\n17 That is not what Mr. Reynolds’ declaration speaks
\n18 to at all. It talks about the fact that if you reveal, for
\n19 example, not just the identities of detainees, but their
\n20 place of arrest, the current place of location, the date of
\n21 the arrest, that kind of information can be very useful to
\n22 sophisticated terrorists.
\n23 Let me just give you an example, and this is
\n24 totally a hypothetical example, but I think it is properly
\n25 drawn from the background that Mr. Reynolds has provided.
\n0027
\n1 And this would be, even for those people who are
\n2 subsequently found not to be of an investigative
\n3 interest.
\n4 Let us assume that on September 20th in Tulsa the
\n5 government arrested fifty individuals because it believed —
\n6 or detained, excuse me, I misspoke. Let us assume that the
\n7 government detained fifty separate individuals.
\n8 THE COURT: Arrest requiring probable cause as we
\n9 all know.
\n10 MS. WEISMANN: Yes. We are not talking simply
\n11 about those who have been arrested, Your Honor. As we said
\n12 there are three categories of people.
\n13 But in any event, the point I wanted to make, Your
\n14 Honor, is that revealing that in a certain city, on a
\n15 certain date, a certain number of people were detained,
\n16 could be extremely useful information to terrorist
\n17 organizations.
\n18 THE COURT: Well, assuming you are right about
\n19 that for a moment, what is the government’s position or
\n20 response to the suggestion that the harms that are
\n21 spelled out in the Reynolds — the two Reynolds
\n22 declarations and the Watson one, would be either diminished
\n23 or completely obliterated if the only thing to be released
\n24 in this case were the names of the individuals who had been
\n25 detained?
\n0028
\n1 MS. WEISMANN: Well, I do not know how we could
\n2 credibly assume that releasing the names would not in any
\n3 way cause harm, because Mr. Reynolds and Mr. Watson have
\n4 both explained that the specific identification of certain
\n5 detainees will, in fact, cause harm.
\n6 It will compromise them —
\n7 THE COURT: Don’t you think that — and this, of
\n8 course, is one of plaintiff’s major arguments — don’t you
\n9 think that after all these months, and most of the people, I
\n10 believe, were detained or arrested — detained, way back in
\n11 November, don’t you think that after all of these months if
\n12 individuals were connected to terrorists, either cells or
\n13 organizations, that those cells or organizations know that
\n14 they are in custody?
\n15 MS. WEISMANN: Your Honor, again with all due
\n16 respect to the court, like the court I can only speculate on
\n17 that, because we do not have any evidence of that before
\n18 this court. All we have is the plaintiffs’ and journalists’
\n19 speculation, and that is not —
\n20 THE COURT: But isn’t it true that what we have in
\n21 the Reynolds and Watson declarations is also a lot of
\n22 speculation?
\n23 MS. WEISMANN: Well, if I may, Your Honor, and I
\n24 very much want to address that question, but let me at least
\n25 finish addressing —
\n0029
\n1 THE COURT: And I don’t mean to diminish that.
\n2 MS. WEISMANN: No, no. I understand that, Your
\n3 Honor. I just wanted to finish — I think there were a
\n4 couple of points to make to your first question about, isn’t
\n5 it obvious — I am rephrasing the court’s point or question,
\n6 but don’t we think that they already know?
\n7 Not only do I think that that is unbridled
\n8 speculation on which there is no evidence here, but also I
\n9 don’t know if there is even a good faith basis as to make
\n10 that kind speculation, Your Honor.
\n11 I mean after all we have had thousands of law
\n12 enforcement investigators hard at work since September 11.
\n13 We can presume that they may have been successful, for
\n14 example, in either infiltrating cells or disrupting
\n15 communications, and so I do not think it is reasonable to
\n16 necessarily presume that there has been — that the
\n17 terrorist organizations have had ready access to this
\n18 information.
\n19 And I think there is also a critical difference,
\n20 Your Honor, and this is a difference that Mr. McCallum
\n21 eluded to, between piecemeal disclosures of information,
\n22 piecemeal speculation on the part of someone about what may
\n23 or may not have happened, and the government confirming en
\n24 masse a large amount of information and confirming that, in
\n25 fact, it is accurate.
\n0030
\n1 I mean let me go back to the example I gave, the
\n2 hypothetical example I gave for Your Honor a few moments ago
\n3 about fifty individuals being detained on a date certain in
\n4 a place certain, and let us assume further that not only
\n5 could terrorist organizations discern from that where law
\n6 enforcement effort has chosen to focus its efforts, how
\n7 potentially successful they have been, but it might also
\n8 reveal, for example, also hypothetically to a terrorist
\n9 organization that any communications they have had with
\n10 cells in Tulsa may have been compromised from the date
\n11 forward.
\n12 Maybe they have been fed misinformation. I mean
\n13 there are any number of ways in which the government — we
\n14 as part of our lawful war on terrorism seek to disrupt
\n15 terrorists.
\n16 And I think that there are just any number of
\n17 ways which counter any number of ways — let me rephrase
\n18 that. There are any number of facts which counter the
\n19 court’s and the plaintiffs’ speculation here about what it
\n20 is that the terrorists do and do not know.
\n21 And now I would like to turn to your second
\n22 question, because again I think that this is the
\n23 characterization that the plaintiffs have attempted to give
\n24 to the declarations of Mr. Reynolds and Mr. Watson. And it
\n25 is one that we dispute.
\n0031
\n1 And even if — because I think there is
\n2 necessarily, in assessing the harm under the Freedom of
\n3 Information Act and exemption 7, there is necessarily a
\n4 predictive nature to it.
\n5 After all, what we are talking about is harm that
\n6 will occur in the future, and I think here that that is a
\n7 particularly compelling fact given that what the
\n8 investigation is about is not simply bringing to justice
\n9 those perpetrators of the acts of September 11, but
\n10 preventing future acts of terrorist as well.
\n11 So I think there is a special force in that
\n12 concept here, given the duel purposes of the pending
\n13 investigations. But it is necessarily predictive, and that
\n14 is why in 1986 Congress amended the FOIA to change, would
\n15 reasonably be expected, to could reasonably be expected,
\n16 recognizing the predictive nature of what the government
\n17 must assess in this area.
\n18 THE COURT: Well, your argument is certainly a
\n19 fair one, Ms. Weismann, but you have probably read almost
\n20 every FOIA case ever decided I have a feeling, and you know
\n21 that most of those cases deal with — the overwhelming
\n22 number of them deal with very the specific, discrete,
\n23 threats to people.
\n24 An informant’s identity cannot be released because
\n25 obviously they would be retaliation by, let’s say, drug
\n0032
\n1 gangs. Or — I guess that is the standard one that is used
\n2 most of the time.
\n3 Can you think of any FOIA case offhand, because I
\n4 cannot, and I don’t think I saw any cited in your papers,
\n5 that suggests future harm and endangerment to the safety and
\n6 welfare of the public on a magnitude that is predicted in
\n7 the two — or the three, rather, declarations submitted in
\n8 this case?
\n9 MS. WEISMANN: I cannot, Your Honor. But what I
\n10 think that speaks to is not a lack of legal authority for
\n11 what the government is asserting here, but the very, very
\n12 painfully changed reality in which we live.
\n13 And I would submit to this court, with all due
\n14 respect, that if the government had come in here prior to
\n15 September 11 and suggested that there was even the
\n16 possibility that hijackers would hijack plans and fly them
\n17 in to and destroy the World Trade Center and part of the
\n18 Pentagon, we would have been accused of the grossest kind of
\n19 speculation and hyperbole.
\n20 And I don’t mean to — I don’t think you can
\n21 overstate this situation, Your Honor, because we live in a
\n22 reality where almost on a daily we are informed by the CIA,
\n23 the FBI, the President, that the likelihood — not just the
\n24 risk, but that there is a significant likelihood of future
\n25 attacks.
\n0033
\n1 I think the court cannot ignore that context when
\n2 evaluating the harms that Mr. Reynolds and Mr. Watson lay
\n3 out. I think it is fair to say that Mr. Reynolds and Mr.
\n4 Watson don’t ignore that context.
\n5 And I agree with you that there may not be a case
\n6 in the FOIA books, however comprehensive that that FOIA
\n7 guide is that the Department puts out, that talks about harm
\n8 of this magnitude, because I don’t think in my lifetime, and
\n9 in current history, there has ever been this level of threat
\n10 to the public safety, to the American public safety, as
\n11 currently exists.
\n12 And that is why I think that we really can’t be
\n13 accused of overstating the harm. It is the reality. It is
\n14 the changed lens through which we must view the harms in the
\n15 world. And I think that that is the reality that both Mr.
\n16 Watson and Mr. Reynolds address.
\n17 As I said, the critical issue here is that each of
\n18 these detainees does have that link to the investigation,
\n19 and it is that link that forms the core of both the harms
\n20 that would flow from disclosure and the reason why the
\n21 government is not disclosing certain information.
\n22 I just want to remind the court, and I know that
\n23 you are well aware of this, but we are talking about three
\n24 different categories of information here.
\n25 There are those people — individuals who were
\n0034
\n1 detained as a result — who are being detained as a result
\n2 of immigration violations, and for those people the
\n3 government has withheld their names, the location where
\n4 they are currently being detained and were initially
\n5 detained, their date of arrests and their lawyers’
\n6 identity.
\n7 There is a second group of people who have been
\n8 charged with federal crimes.
\n9 THE COURT: And do you have some of the
\n10 particular data on those groups that Mr. McCallum did not
\n11 have?
\n12 MS. WEISMANN: I do know, Your Honor. The only —
\n13 the only additional data I have for this court — Your Honor
\n14 asked a question it was originally ten, and then in the last
\n15 declaration we submitted Mr. Reynolds spoke of nine sealed
\n16 indictments and other cases.
\n17 My understanding is that number is currently down
\n18 to number three, because as the indictments are presented
\n19 the seal is lifted, and that number is likely to change as
\n20 well.
\n21 For the most part, many of the information — or
\n22 much of the information that the court acquired — inquired
\n23 about we could provide. There is — I must say there is at
\n24 least one category, however, which I think would pose
\n25 serious concerns in terms of providing it on the public
\n0035
\n1 record, and that is the difference — the number — the
\n2 difference between those individuals being held on
\n3 immigration charges and those who are no longer of
\n4 interest.
\n5 Again, that is the kind of information that in the
\n6 wrong hands and in the public domain —
\n7 THE COURT: Well, wait a minute. I do not think
\n8 that those are two completely separate categories, and
\n9 correct me if I am wrong.
\n10 Isn’t it true that many people who were detained
\n11 because of perceived connections to the investigation were
\n12 then held for immigration violations?
\n13 MS. WEISMANN: Yes.
\n14 THE COURT: And will be processed on those, i.e.,
\n15 deported, even though there are they are no longer of
\n16 special interest to the investigation?
\n17 MS. WEISMANN: No. That is true, Your Honor.
\n18 And I think in our original filing we gave that number. But
\n19 I think Your Honor asked whether we could break that out
\n20 further. And that is what I was responding to.
\n21 I think that there would be — there would be
\n22 concerns that that kind of information would be too
\n23 revealing.
\n24 And again, like Mr. McCallum, of course if the
\n25 court wants this other additional information, we would be
\n0036
\n1 happy to provide it. But let me just suggest to the court
\n2 that aside from that, I don’t think that these numbers are
\n3 in any way going to materially change the issues that are
\n4 before this court.
\n5 And of course, in your typical FOIA case, we are
\n6 talking about information at a specified point in time when
\n7 the FOIA request was processed. I mean I think the fact
\n8 that the timeliness of that information may be, you know, in
\n9 some question is because it is the nature of the
\n10 investigation.
\n11 As Mr. Reynolds explained more specifically, I
\n12 think it was in his first supplemental declaration, this is
\n13 a very fluid investigation, and some of the differences in
\n14 the numbers, for example, are accounted for by the fact that
\n15 we were — you know, initially certain groups were included,
\n16 you know, that are no longer included.
\n17 The numbers changed all the time. People moved
\n18 from one category to another. And I think because of that,
\n19 whatever the numbers are today, I am not sure that it is
\n20 going to change what we believe are the proper legal issues
\n21 for this court to focus on.
\n22 And again, of course, from a strict FOIA
\n23 perspective, just in terms of responding to the plaintiffs,
\n24 we have no obligation to continually update the information,
\n25 and I know that the court is aware of fact. But, of
\n0037
\n1 course, if the court wants these numbers we can get them for
\n2 you.
\n3 Let me just to backup on this, and make sure we
\n4 are talking about the same thing. I mentioned that there
\n5 were those who are being charged on federal crimes that were
\n6 detained, and the information that is being withheld for
\n7 them is their citizenship status, the location of their
\n8 initial arrest or detention, their current location of
\n9 detention —
\n10 THE COURT: I think that is all in your papers
\n11 though.
\n12 MS. WEISMANN: Yes, it is.
\n13 THE COURT: All right. Let’s go on.
\n14 MS. WEISMANN: Then I will just turn specifically
\n15 to the exemptions. But I think it is important to stress,
\n16 because one of the things that the plaintiffs do in their
\n17 papers is to blur all of these and suggest that it is one
\n18 large group, and they are not.
\n19 And as Your Honor knows from our papers, we
\n20 have withheld and disclosed different information
\n21 depending on the category. So for example for those people
\n22 who were federally charged, their identities, the lawyers,
\n23 their charges have been disclosed because of the
\n24 constitutional requirements that apply to that group of
\n25 people.
\n0038
\n1 So I think it is important in the big scheme to
\n2 recognize that there are differences in information, but
\n3 there is a commonality as well. And all of the exemptions
\n4 that we have asserted have been asserted for all of the
\n5 information that we have withheld.
\n6 Let me turn first to exemptions 7(f), which
\n7 permits withholding of information where its disclosure
\n8 could reasonably be expected to endanger life or physical
\n9 safety.
\n10 The threshold for section 7(f), as with all — as
\n11 with exemptions 7(a) and 7(c), is that the information be
\n12 compiled for law-enforcement purposes.
\n13 We think that under any standard, objective or not
\n14 —
\n15 THE COURT: Well, I know that the plaintiffs
\n16 argue that point, and I will certainly give them a chance
\n17 to argue it if they want to. I do not think it is one of
\n18 their strong arguments, though, so why don’t you skip over
\n19 that.
\n20 MS. WEISMANN: Yes. I would agree with you, Your
\n21 Honor.
\n22 So we think there is no question that we have met
\n23 the threshold, but this is information compiled for law-
\n24 enforcement purposes, and the issue then becomes, could it
\n25 reasonably be expected to endanger life or physical
\n0039
\n1 safety?
\n2 And I emphasize again the could, because this
\n3 is another point of contention between us and the
\n4 plaintiffs.
\n5 I would submit, you know, that no matter how they
\n6 phrase it, in effect when you read their pleadings, their
\n7 argument is that we must prove almost to a certainty that
\n8 the harms would occur.
\n9 THE COURT: They deny that very strongly. You
\n10 made that argument in, I guess, the first of your papers.
\n11 They have vigorously denied it. They also say that they are
\n12 not guilty of citing pre-amendment cases, that North was
\n13 decided after FOIA was loosened, if you will, and I think
\n14 that that is not a fair argument.
\n15 They are not claiming that you have to show it to
\n16 a certainty. I am not quite sure what their standard is,
\n17 and I will explore that with them.
\n18 What is your answer, though, as to what your
\n19 standard is?
\n20 MS. WEISMANN: The standard is —
\n21 THE COURT: Could is a word that could mean almost
\n22 anything. And indeed, if one wanted to interpret it very
\n23 loosely, I would think, and I do not think this is what
\n24 Congress intended at all, but that one could interpret 7(f)
\n25 to cover almost any situation.
\n0040
\n1 And surely that is not the government’s position.
\n2 So what standard do you use in determining what falls under
\n3 7(f)?
\n4 MS. WEISMANN: Well, we do start with the
\n5 statutory language, which is could reasonably be expected.
\n6 So clearly there is a standard of reasonableness built in.
\n7 Again, I think it is also equally as clear that
\n8 there is a predictive nature. It does not have to happen to
\n9 a certainty, and the case law reveals that there just needs
\n10 to be some nexus between the exemption that is being claimed
\n11 and the harm alleged.
\n12 And I think that that is met here by the
\n13 declarations of Mr. Reynolds and Mr. Watson. And I think a
\n14 starting point for this court’s analysis has to be to
\n15 consider who these individuals are and what their background
\n16 is.
\n17 Both Mr. McCallum and I also have already talked
\n18 about that. But as Your Honor knows full well from the
\n19 many, many FOIA cases that you have had before you, in
\n20 general the government’s declarations are entitled to
\n21 substantial deference.
\n22 And I think that deference should especially be
\n23 accorded here. In fact the courts recognize for purposes of
\n24 exemption 7 in the law-enforcement context, the government’s
\n25 declarations are especially entitled to deference.
\n0041
\n1 There is simply no reason — the plaintiffs have
\n2 come forward with no evidence to dispute anything that is in
\n3 the Reynolds and Watson declarations. And if we look at
\n4 what they say —
\n5 THE COURT: Of course they cannot really. They
\n6 do not have access to the investigation. They do not have
\n7 access to any details. All they can say is, we think that
\n8 the predictions are too alarming, if you will — that is
\n9 not their word now, and we don’t want you to be swayed by
\n10 them.
\n11 MS. WEISMANN: Well, but I think that they are
\n12 situated no differently than any FOIA requestor typically
\n13 is.
\n14 Often a FOIA requestor is making a request for
\n15 information, and they have no — on their end they have no
\n16 information, and the courts recognize that. But at the same
\n17 time, absent some evidence of bad faith, or direct and
\n18 explicit contradictory evidence, the courts nevertheless
\n19 accord the declarations and affidavits of the government
\n20 substantial deference. And there is no reason to deviate
\n21 from that analysis here, Your Honor.
\n22 Turning then to what specifically is in those
\n23 declarations. Mr. Reynolds makes clear as far as the public
\n24 safety — and I think there are a number of categories of
\n25 harm here that are covered by exemption 7.
\n0042
\n1 I would start with the broadest category, which is
\n2 the category that Mr. McCallum also discussed, which is harm
\n3 to the American public, and I think there is, as we believe
\n4 it, and as stated in our declarations, that harm certainly –
\n5 – the possibility of that harm is very real.
\n6 As Mr. Reynolds explains, terrorists may be able
\n7 to map the progress of the investigation and develop a means
\n8 to impede it, and also their plans, in a way that poses an
\n9 even greater threat to the United States.
\n10 They may, for example, switch to an alternative
\n11 cell if they know that one has been compromised, thereby
\n12 retaining the ability to mount future attacks. Future
\n13 attacks unquestionably equates to harm to the American
\n14 public here.
\n15 Mr. Watson in his declaration similarly says that
\n16 discovery that any particular individual has been detained
\n17 may cause a terrorist group to accelerate the planning of a
\n18 timed attack.
\n19 He points out that official verification that a
\n20 member has been detained may enable a terrorist
\n21 organization to find a substitute who can more effectively
\n22 achieve their goals, which is the demise of the American way
\n23 of life.
\n24 So I don’t — you know, these — I think these
\n25 address — these have the requisite connection between the
\n0043
\n1 exemption that we are claiming 7(f) and the harm. I think
\n2 that the language that they use meets the standard that
\n3 could reasonably be expected.
\n4 Mr. Reynolds goes on to explain that there are
\n5 also harms that would flow to the detainees themselves. He
\n6 explains that they could be subjected to physical harm,
\n7 either here, or if they are deported in their home
\n8 countries, simply because of a perceived — the connection
\n9 that perceives between them and the investigation.
\n10 Indeed he goes on to say that friends of theirs,
\n11 family members, could also face physical threats of
\n12 violence, because detainees may want to — because
\n13 terrorists may want to deter detainees from cooperating.
\n14 He goes on to explain that if we reveal the
\n15 detention places — because they have asked for where these
\n16 people are being detained — that that may place both those
\n17 facilities and their employees at risk. And the attorneys
\n18 are at risk as well, because they could be perceived as
\n19 working against the interests of the United States, leading
\n20 to their retaliation.
\n21 In addition, Mr. Reynolds explains that terrorists
\n22 may fear that the detainees have told their attorneys too
\n23 much, and lacking access directly to the detainees may go
\n24 after their attorneys.
\n25 THE COURT: Of course this would not be the first
\n0044
\n1 time that people are either charged or associated with in
\n2 some way hideous crimes. And whether they are personally
\n3 guilty or not, that they suffer the oblique, if you will, of
\n4 the public.
\n5 I mean I am thinking of something in a different
\n6 context, but rapists, child molesters, the whole statutory
\n7 development of Megan’s laws, and of course the Megan’s laws
\n8 concern people who have been convicted, not just associated
\n9 with.
\n10 But my real point is that many times simply being
\n11 ensnared in the criminal justice system before guilt or
\n12 innocence is determined exposes individuals to great either
\n13 isolation, physical harm, damage to their reputation if we
\n14 are talking about white-collar crime.
\n15 Again, I understand full well that the magnitude
\n16 of September 11th far, far, far outstrips anything we are
\n17 talking about. But this is not in-kind a new or different
\n18 problem.
\n19 MS. WEISMANN: I think it is different in this
\n20 respect, Your Honor — in a number of respects. But one way
\n21 I would suggest is aside from the magnitude, which I think
\n22 this court clearly appreciates and which has to be part of
\n23 the calculus here, it is different because we are dealing
\n24 not simply with an investigation that is aimed at finding
\n25 those who perpetrated acts in the past, we are trying to
\n0045
\n1 prevent — the very investigation is aimed at finding
\n2 terrorists and weeding them out so that they will not commit
\n3 future acts, because we know that they are committed to
\n4 doing so.
\n5 And I think that that is a different calculus that
\n6 is not probably at play in any of the situations that Your
\n7 Honor mentioned. And I do think the sheer magnitude of this
\n8 changes the picture considerably.
\n9 You know, plaintiffs argue — on attorneys, for
\n10 example. They suggest that, well, attorneys make public
\n11 appearances.
\n12 But again, I think there is a world of difference
\n13 between an isolated — isolated instances of individual
\n14 attorneys individually making an appearance and the
\n15 government releasing collectively all of this information en
\n16 masse to the public, you know, and the publicity and the
\n17 dissemination that that information would get in that
\n18 format.
\n19 So I think that there is a difference of degree,
\n20 and that — it’s that difference of degree that enhances the
\n21 possibility that some of these harms may, in fact, happen.
\n22 So I do think that that is something that the court, as a
\n23 legal matter, can properly take cognizance of.
\n24 With respect to exemptions 7(f), we do believe as
\n25 we have stated that we have made the requisite showing. The
\n0046
\n1 declarations of Mr. Reynolds and Mr. Watson are reasonably
\n2 specific, and they outline harms to the public safety and
\n3 harms to individual that could happen if this information is
\n4 disclosed.
\n5 THE COURT: Let me ask you a minor question. The
\n6 detainees can voluntarily disclosed their names, and of
\n7 course the fact of their detention. Are they also allowed
\n8 to voluntarily disclose their location?
\n9 MS. WEISMANN: There is no prohibition of which
\n10 I am aware that would prohibit them from disclosing
\n11 anything.
\n12 THE COURT: Again, I must say that I do not
\n13 understand the government’s reasoning. I certainly
\n14 understand — whether I would say that it is legal or not is
\n15 a different issue, but I would certainly understand your
\n16 taking the position that disclosure of location could
\n17 subject everybody in that prison facility to danger, and so
\n18 therefore I must say that I thought it was a mistake when I
\n19 saw that you do allow release of that information as to
\n20 where an individual is located.
\n21 MS. WEISMANN: Well, I think what Mr. McCallum
\n22 explained to you earlier remains — would be my response as
\n23 well.
\n24 THE COURT: That it is not part of the mosaic. I
\n25 mean if someone —
\n0047
\n1 MS. WEISMANN: No, no, no. Is not the mosaic,
\n2 Your Honor. But I think that there are two critical facts.
\n3 One is the difference between the wholesale disclosure of
\n4 this information and what individuals might choose to do,
\n5 and the second — and I agree with him.
\n6 I think this is the most eloquent statement of
\n7 all, is the fact that so few have chosen to self-select —
\n8 to self-disclose, and that the public record on that
\n9 communal, is not very considerable.
\n10 And I think that is, you know, not very
\n11 considerable, and I think that is out of recognition that
\n12 making that kind of disclosure would place them and those
\n13 around them in jeopardy.
\n14 And I don’t know Your Honor, I am not a criminal –
\n15 – I deal exclusively in the realm of civil litigation. And
\n16 whether or not there would be a basis for the government to
\n17 prohibit them from disclosing that information, I don’t
\n18 know.
\n19 But I would say that the constitutional
\n20 implications that apply, for example, to those who are being
\n21 detained on criminal charges that require that the
\n22 government disclose their identities, for example, the
\n23 nature of those charges —
\n24 THE COURT: That is a small number.
\n25 MS. WEISMANN: That is a small number. And also I
\n0048
\n1 think, Your Honor, more analytically that that represents a
\n2 balance that the framers of the Constitution struck. They
\n3 are competing interests, and they determined that that was a
\n4 critical interest that needed to be addressed and needed to
\n5 be accommodated.
\n6 Similarly, I think that the FOIA itself
\n7 represents a certain balancing of interests by Congress
\n8 and recognizes that in any given equation there may be
\n9 interests that outweigh others, and there is a balance that
\n10 goes on.
\n11 So the fact that, you know, that because of other
\n12 overriding concerns, individual or isolated pieces of
\n13 information are required to be disclosed, I don’t think in
\n14 anyway undermines our ability on the whole to withhold this
\n15 information under the FOIA.
\n16 THE COURT: Let me turn to a different topic for a
\n17 minute, and I know I am cutting you off, but your papers
\n18 certainly covered basic law.
\n19 I want to talk about people who are being held as
\n20 material witnesses, and I just want to make sure that issue
\n21 does not get lost in this oral argument and discussion, and
\n22 I have a number of questions.
\n23 First of all as you know under that statute the
\n24 statute provides that an individual may be held as a
\n25 material witness, and this is not the exact wording of
\n0049
\n1 the statute, but basically until their deposition can be
\n2 taken.
\n3 Why haven’t you taken the depositions of the
\n4 individuals who are being held as material witnesses?
\n5 MS. WEISMANN: Your Honor, I don’t know the
\n6 answer to that. I don’t even know who those individuals
\n7 are.
\n8 THE COURT: No. I know you don’t know who they
\n9 are.
\n10 MS. WEISMANN: I don’t know the particular facts
\n11 of any of those situations.
\n12 THE COURT: But if you are holding people, and
\n13 detaining them and depriving them of their precious liberty
\n14 under a statute that says they should only be held until
\n15 their deposition can be obtained, and you have got them
\n16 under your custody, I think it is pretty fundamental to know
\n17 why their depositions have not been taken when more than six
\n18 months have past.
\n19 MS. WEISMANN: Well, Your Honor, your question,
\n20 and forgive me if I misconstrued it, seems to be directed in
\n21 the direction that — that Judge Scheindlin went in the
\n22 Southern District of New York in concluding — that was the
\n23 Awadallah case.
\n24 THE COURT: I am going to get to her case in a
\n25 minute.
\n0050
\n1 MS. WEISMANN: But I would submit —
\n2 THE COURT: That case raises another issue, but
\n3 no, I am not at this moment asking you about that. As you
\n4 know her case went to whether that statute can even be used
\n5 for grand jury proceedings.
\n6 I am assuming for the moment you have used the
\n7 statute properly, and you have properly detained the people.
\n8 But even once you have done that, under the statute you are
\n9 supposed to depose them.
\n10 MS. WEISMANN: Well, Your Honor, I am not sure
\n11 that I would necessarily agree that that is what the statute
\n12 mandates, and I am getting far a field from my area of
\n13 expertise.
\n14 I think it gets back to a point that I think must
\n15 be made at this — here again, to reiterate something that
\n16 Mr. McCallum said.
\n17 If there are an individuals who are being detained
\n18 because of a material witness warrant, and they believe that
\n19 some aspect of their detention is unlawful, they have a
\n20 forum to challenge that.
\n21 I think the Awadallah case illustrates that very
\n22 vividly.
\n23 This is not the proper forum to raise and resolve
\n24 those substantive issues that deal with whether or not they
\n25 have been properly detained, whether or not a material
\n0051
\n1 witness warrant is the proper vehicle to use for their
\n2 detention, et cetera.
\n3 This is a Freedom of Information Act case, and in
\n4 the sworn declaration of Mr. Reynolds, and in particular he
\n5 submitted a second supplemental declaration explaining that
\n6 the government’s use of the material witness warrants with
\n7 respect to these detainees is consistent with its long-
\n8 standing practice. And I think that his declaration is
\n9 entitled to deference.
\n10 THE COURT: Did he say that?
\n11 MS. WEISMANN: Well, let me get the specific
\n12 language that he used, Your Honor.
\n13 THE COURT: I don’t think so, because I don’t
\n14 think that I remember that.
\n15 MS. WEISMANN: What I am referring to, Your Honor,
\n16 is what has been labeled the second supplemental declaration
\n17 of James Reynolds. It is dated April 15th.
\n18 And what he said is in paragraph 5. He said:
\n19 “They are governed by court
\n20 orders prohibiting the government
\n21 from releasing any information
\n22 about these proceedings. The
\n23 exact language of these orders
\n24 varies, but the Department of
\n25 Justice interprets such orders
\n0052
\n1 to protect from disclosure
\n2 not only the contents.”
\n3 And I may have misstated, and I did not mean
\n4 to mislead the court, and I apologize for that, Your
\n5 Honor.
\n6 THE COURT: I think so. I think so. I did not
\n7 think he said that.
\n8 What is the Department’s position as to how
\n9 Awadallah effects or impacts your FOIA argument in this
\n10 case?
\n11 MS. WEISMANN: We do not thing that it should have
\n12 any effect whatsoever, and the reason for that is that we
\n13 believe that opinion is simply wrong. It is contrary to
\n14 other courts that have found otherwise.
\n15 THE COURT: One court, right? The Ninth Circuit.
\n16 MS. WEISMANN: Well, it is contrary to that court.
\n17 It is contrary — it is contrary, and on this I think I am
\n18 properly representing what Mr. Reynolds said in his
\n19 declaration, it is contrary to what the Justice Department’s
\n20 position has been about the effect of material witness
\n21 warrants and sealing orders.
\n22 We think it is wrong, and it is not binding on
\n23 this court. And it is certainly — I don’t think at this
\n24 point, in this Freedom of Information Act case, that it
\n25 provides any basis for this court to challenge or ignore the
\n0053
\n1 declarations that we have put in the evidence — that we
\n2 have put in the record before the court, and what has been,
\n3 I think —
\n4 THE COURT: Well, I think some of those
\n5 declarations may have been before Judge Scheindlin, but I do
\n6 not think that was part of her analysis if I remember it
\n7 correctly.
\n8 MS. WEISMANN: Again, I would simply say that the
\n9 government – that the Department of Justice takes the
\n10 position that her analysis is just flat wrong, and therefore
\n11 should not provided a basis. But I think again that
\n12 illustrates —
\n13 THE COURT: Have you sought a stay from the Second
\n14 Circuit in that case?
\n15 MS. WEISMANN: I would need to check. I am not
\n16 quite sure of the exact status. I know that the decision of
\n17 whether or not to seek an appeal from that is under review
\n18 by the Solicitor General’s Office.
\n19 THE COURT: I know, but I am not asking about
\n20 appeals, which I am assuming you’ll take.
\n21 MS. WEISMANN: I would have to check on that and
\n22 get back with you. But again I think — I think this is
\n23 precisely — and with all due respect to the court, this is
\n24 precisely what the plaintiffs are trying to use this
\n25 litigation four.
\n0054
\n1 They are trying to use it for a forum to address
\n2 and resolve other more substantive issues dealing with
\n3 things like conditions of detention, right to counsel, right
\n4 to consular notification.
\n5 As Mr. McCallum noted earlier, there is — there
\n6 is a regime of federal laws and regulations and
\n7 international treaty obligations that governs the
\n8 government’s treatment of detainees here. The government
\n9 takes those obligations very seriously.
\n10 THE COURT: Have we signed on to any of those
\n11 treaties? We signed on to some others.
\n12 MS. WEISMANN: It was my understanding that there
\n13 was at least one treaty obligation, Your Honor. I don’t
\n14 want to get too far a field, again, from my limited
\n15 expertise in that area, and I do not want to mislead the
\n16 court. I do know —
\n17 THE COURT: One thing I can promise you is that
\n18 however I come out in this case, and I think I am pretty
\n19 safe in promising you this, that it is not going to involve
\n20 a discussion of international law.
\n21 Why don’t you take maybe three minutes to sum up.
\n22 I mean I know that I have interrupted you a lot, and I know
\n23 that your papers are very comprehensive.
\n24 MS. WEISMANN: Your Honor, actually I appreciate
\n25 the court’s questions, because I think it is important for
\n0055
\n1 us to know and help the court resolve what questions it does
\n2 have.
\n3 I have talked about exemption 7(f). I think our
\n4 briefs are fairly comprehensive on exemption 7(a). I think
\n5 that the declarations are perhaps at their most powerful in
\n6 outlining for the court the harm to the investigation from
\n7 the disclosure of this information.
\n8 As Mr. McCallum said earlier, that harm flows
\n9 even from those individuals who are determined subsequently
\n10 not to be of investigative interest because it can be
\n11 revealing in the direction, and focus, and scope of the
\n12 investigation.
\n13 It can tell the terrorists not just what evidence
\n14 we do have, but just as importantly what evidence we do not
\n15 have. And this is a very fluid process.
\n16 As Mr. Reynolds identified in his supplemental
\n17 declaration, there is at least one instance of an individual
\n18 who was initially thought not to be of active interest and
\n19 subsequently found to have information that made him of
\n20 active interest.
\n21 So it is wrong to pigeonhole individuals in one
\n22 category and assume that they will stay in that category.
\n23 And again, that is part of the calculus that Mr. Reynolds
\n24 took into account in assessing the harms here, and we
\n25 submit that that assessment is entitled to substantial
\n0056
\n1 deference.
\n2 The only thing that I would like to stress with
\n3 respect to exemption 7(c) is that this is the only exemption
\n4 we have invoked that requires a balancing.
\n5 So, you know, the plaintiffs have tried to inject
\n6 the public interest I think throughout here. That may have
\n7 a part with respect to the court’s analysis, and must have a
\n8 part with respect to the court’s analysis of exemption 7(c),
\n9 but exemption 7(f) and 7(a) do not require a balancing
\n10 between the lawful interests of the government on the one
\n11 hand and any interests that is claimed on behalf of the
\n12 public interest.
\n13 I think that the plaintiffs’ arguments with
\n14 respect to the non-existent of any privacy interests that
\n15 these individuals has is contrary to the very, very well-
\n16 established case law in this area, Your Honor, which I know
\n17 Your Honor has cited again and again in your opinions, and
\n18 which recognizes that the mere association with an
\n19 investigation can have a stigmatizing effect.
\n20 THE COURT: That is the general case law, and of
\n21 course the dispositive cases safeguard. But again the
\n22 exception is made for instances when it is argued that the
\n23 government is doing something illegal. And of course that
\n24 is the plaintiffs’ argument.
\n25 MS. WEISMANN: Well, Your Honor, that is
\n0057
\n1 speculation. And I think that is critical. Because the
\n2 case law also makes clear that they need to come forward
\n3 with compelling evidence. That is what the Circuit has
\n4 said. You need compelling evidence.
\n5 Where is their evidence? It is not in the record
\n6 before this court. We have offered you admissible evidence
\n7 in the form of the declarations of Jim Reynolds and Dale
\n8 Watson, and they have put forth newspaper accounts, which in
\n9 and of themselves under the Federal Rules of Evidence are
\n10 hearsay. They do not constitute admissible evidence. They
\n11 have not come forward with evidence, much less compelling
\n12 evidence.
\n13 And I think the other point to keep in mind is
\n14 that even if they had, that revealing, for example, the
\n15 names of the detainees is not going to disclose whether or
\n16 not the government has done anything illegal here. There is
\n17 not that direct link between the information they seek and
\n18 what it would show.
\n19 And I think if you look at the rare case, and it
\n20 is a rare case in the FOIA, where the court or the
\n21 government finds that the public interests outweighs the
\n22 privacy interests, those are cases where the information
\n23 in question provides a direct link between what the
\n24 plaintiffs have been able to demonstrate by compelling
\n25 evidence of wrongdoing and wrongdoing itself. That link is
\n0058
\n1 not here.
\n2 It is too attenuated. And that is yet another
\n3 reason, we submit, why the balance is struck in favor of
\n4 withholding the information.
\n5 We have already talked about material witness
\n6 warrants. I am sorry if I have not been sufficiently clear.
\n7 Perhaps when I sit back down I will get some additional
\n8 information that I will be able to provide the court that
\n9 might be helpful in your analysis.
\n10 But you know, of course, that we have withheld
\n11 that information not only under exemption three because of
\n12 the operation of Rule 6(c) of the Federal Rules of
\n13 Criminal Procedure, but also under exemptions 7(f), 7(a) and
\n14 7(c).
\n15 THE COURT: I understand that.
\n16 MS. WEISMANN: Unless the court has any questions
\n17 I will not get into the issue of adequacy of search, and the
\n18 common law theories that the plaintiffs advance. I think we
\n19 covered those in our papers.
\n20 With respect to the common law theory, it is also
\n21 covered in the amicus brief, and I think that they do a good
\n22 job of explaining how it is that FOIA displaces any common
\n23 law right, even if it existed vis-a-vis the federal
\n24 government, and even if sovereign immunity were not a bar to
\n25 that.
\n0059
\n1 So let me just conclude, Your Honor. by saying —
\n2 THE COURT: You have to conclude, Ms. Weismann.
\n3 You have to conclude.
\n4 MS. WEISMANN: And I am, Your Honor.
\n5 The government, we submit, has demonstrated
\n6 through detailed and compelling evidence that disclosure
\n7 here risks numerous and serious harms, harms to public
\n8 safety, harms to the pending law enforcement investigation,
\n9 and harms to the privacy of the detainees and their
\n10 attorneys.
\n11 Plaintiffs have offered no admissible evidence to
\n12 rebut this showing. Instead they are attempting to convert
\n13 this FOIA action into a forum to address other substantive
\n14 issues regarding the detainees.
\n15 The government, as we said, takes its obligations,
\n16 however, under the governing regulations law, and treaties
\n17 if they exist, very seriously, and even more to the point,
\n18 there is simply no evidence here that the government has
\n19 violated any of its legal obligations with respect to any
\n20 individual detainee.
\n21 This case then is not about the issues that the
\n22 plaintiffs attempt to make it about. It is not about
\n23 conditions of detention, and it is not about some allegedly
\n24 round — you know, illegal roundup of thousands of detainees
\n25 and an effort by the government to cover that up by keeping
\n0060
\n1 the fact of their detention secret. It is about the
\n2 harms that would flow from disclosing the requested
\n3 information.
\n4 The plaintiffs have essentially accused the
\n5 government of hyperbolic rhetoric, but I submit to the court
\n6 that the risks here are not mere hyperbole.
\n7 The events of September 11th and the subsequent
\n8 events have made it all too painfully clear that we live
\n9 in a changed world, and that has to be part of this
\n10 court’s calculus just as it had to be part, and was a part,
\n11 of both Mr. Reynolds’ calculus Mr. Watson’s calculus when
\n12 they gave their considered and educated assessment of the
\n13 risks.
\n14 Simply stated, the information that plaintiffs
\n15 seek, if put in the wrong hands, would place our security at
\n16 risk. We therefore request that the court grant our motion
\n17 for summary judgment.
\n18 Thank you.
\n19 THE COURT: Thank you.
\n20 Ms. Martin, please. And Ms. Martin, let me start
\n21 with the question, and it is the question that the
\n22 government has raised repeatedly in its oral argument.
\n23 Given the fact that the government is allowing
\n24 voluntary disclosures, why have so few people come
\n25 forward?
\n0061
\n1 I have no idea of the numbers, but I am sure they
\n2 are right that it is a relatively small number. What do you
\n3 think that so few people have disclosed?
\n4 MS. MARTIN: Well, Your Honor, I think first of
\n5 all that the record is totally unclear that so few people
\n6 have disclosed.
\n7 What the record shows is some number of people
\n8 who have had lawyers have contacted the press. We have
\n9 nothing in the record about how many people who allegedly
\n10 might have some connection to al Qaeda have called their
\n11 associates to send the message to al Qaeda that they have
\n12 been in jail.
\n13 There is no reason why they would do that
\n14 publicly, and there is nothing in the record that so few
\n15 people have disclosed to their associates that they have
\n16 been detained. It is only in the record that few people
\n17 have been identified by the press publicly as having been
\n18 detained.
\n19 In any event, I think it is — I am not sure what
\n20 point the government makes. The government’s allegation
\n21 here, and they have, of course, the burden of proof to show
\n22 that these disclosures could reasonably be expected to be
\n23 harmful, and by their logic, al Qaeda, or the terrorist
\n24 organizations associated with al Qaeda would have a great
\n25 interest in learning who has been detained.
\n0062
\n1 The government has made no case that the fact of
\n2 the detention of the people that al Qaeda might be
\n3 interested in is still a secret to al Qaeda. And in fact,
\n4 Your Honor, it would be relevant, I submit, not only whether
\n5 or not the persons were able to self-disclose, but they have
\n6 disappeared.
\n7 It has been months. The Attorney General has
\n8 announced that hundreds of individuals, mostly Arabs and
\n9 Muslims we believe, have been taken into custody. Al Qaeda
\n10 could reasonably surmise that if it cannot find any of its
\n11 associates that they are in custody.
\n12 The government has the burden to show that
\n13 disclosing the information requested in this case, in
\n14 light of the information that is already either available
\n15 to al Qaeda, or on the front page of the newspaper, could
\n16 reasonably be expected to cause the harm. And that is the
\n17 burden that we submit that they do not meet here.
\n18 If I might beg the court’s indulgence for one
\n19 moment and read from the Federalist Papers a quotation which
\n20 was not included in our briefs, but I think which is at the
\n21 core of this case, in which — in the Federalist number 84
\n22 Hamilton quotes Blackstone’s Commentaries on the Laws of
\n23 England and says:
\n24 “To bereave a man of life
\n25 without accusation or trial
\n0063
\n1 would be so gross and a
\n2 notorious act of despotism
\n3 as must at once convey the
\n4 alarm of tyranny throughout
\n5 the whole nation. But
\n6 confinement of the person
\n7 by secretly hurrying him to
\n8 jail where his sufferings
\n9 are unknown or forgotten
\n10 is a less public, a less
\n11 striking, and therefore a
\n12 more dangerous engine of
\n13 arbitrary government.”
\n14 I think it is clear and we do not dispute that we
\n15 live in an extraordinary time. We certainly would agree
\n16 that the investigation of the attacks and the prevention of
\n17 future attacks is of extreme importance to the American
\n18 public.
\n19 At the same time, we live in a time when the role
\n20 of this court in upholding the rule of law and protecting
\n21 individual rights is equally important, and perhaps more
\n22 important than at other times of our history.
\n23 And I think the first question that this court
\n24 needs to ask is where, if anywhere, is the Congressional
\n25 statutory authorization for the Attorney General’s
\n0064
\n1 announced policy of secretly detaining hundreds of non-
\n2 citizens, not charged with any crime, before being
\n3 adjudicated in violation of the immigration laws, as part of
\n4 his investigation into terrorism?
\n5 And on that question I think —
\n6 THE COURT: Ms. Martin, I think that by posing the
\n7 question that way that you are just virtually conceding the
\n8 government’s argument — the accuracy of the government’s
\n9 argument.
\n10 That is not what this case is about. Those may —
\n11 that is clearly a profound legal and moral issue. But
\n12 this case is about FOIA — not usually the most
\n13 interesting statute in the world, but that is what the case
\n14 is about.
\n15 MS. MARTIN: Well, Your Honor, I would submit that
\n16 what the government —
\n17 THE COURT: I understand the background, Ms.
\n18 Martin. That is why all of those people are here. That is
\n19 why everybody is taking the case so seriously. But bottom
\n20 line is that I have to focus on what is legally relevant,
\n21 and you have brought your case under FOIA, and I want to ask
\n22 you later whether you still have a First Amendment argument,
\n23 because it wasn’t briefed. But basically, that is what I
\n24 have to decide in this case.
\n25 MS. MARTIN: And the common law. We brought our
\n0065
\n1 case under both FOIA and the common law.
\n2 THE COURT: Correct. Although I think that got
\n3 about this much in everybody’s briefs. But anyway, go
\n4 ahead.
\n5 MS. MARTIN: Well, let me outline what it is that
\n6 we are challenging and what we are seeking here, because I
\n7 find the government’s contention that the case does not
\n8 involve secret detentions to be quite puzzling and
\n9 extraordinary.
\n10 What happened, as we all know, is that the
\n11 Attorney General announced that hundreds of individuals
\n12 had been detained as part of their terrorism
\n13 investigation.
\n14 At the same time the Justice Department
\n15 instituted the policy that the detentions for immigration
\n16 violations would be secret. They sent a memo out making
\n17 the fact of the arrest of a particular individual a
\n18 secret.
\n19 And it is that which this case seeks to
\n20 challenge, and it is that information which this case
\n21 seeks, namely the identities of individuals who have been
\n22 secretly arrested and secretly jailed before a trial on
\n23 immigration violations, as well as material witnesses.
\n24 The government asserts that the Freedom of
\n25 Information Act allows it to keep secret the fact that it
\n0066
\n1 has arrested and jailed an individual on immigration
\n2 charges, and it is that question, Your Honor, I believe that
\n3 the court has to decide first, and it is that question which
\n4 I believe there is no support in the law for, and would be
\n5 an extraordinary reading of the Freedom of Information Act
\n6 which was passed as a disclosures statute against a
\n7 background and an understanding by Congress that arrests
\n8 were public.
\n9 As the District of Columbia has said, secret
\n10 arrests are a concept odious to a democratic society. There
\n11 is no case law and no instance in which the government can
\n12 point to in which a court has held that the Freedom of
\n13 Information Act, or any other law, allows the government to
\n14 withhold the fact that an individual has been arrested and
\n15 to take steps to keep secret the fact that that individual
\n16 has been jailed.
\n17 It is that question that I believe is the first
\n18 question in this case that must be answered by this court
\n19 before looking at the specific exemptions claimed by the
\n20 government under exemption seven.
\n21 And in that connection, I think that it is
\n22 illustrative to look at the way that the government has
\n23 treated the arrests of individuals on federal criminal
\n24 charges.
\n25 Because those individuals — the connections of
\n0067
\n1 those individuals to the terrorism investigation are the
\n2 same, or perhaps more connected to the terrorism
\n3 investigation as the individuals who are being held on
\n4 immigration violations.
\n5 And the record is clear that the government has
\n6 not only released and never sought to keep secret the
\n7 arrests and the indictments on federal criminal charges, but
\n8 the government has gone much further here.
\n9 The government has, in fact, and it is an exhibit
\n10 before the court, compiled and released a list of 108
\n11 individuals who have been charged under the federal criminal
\n12 laws and who were, according to the government, detained and
\n13 jailed pretrial in connection with and as part of their
\n14 September 11th terrorism investigation.
\n15 And the government did that when I submit to the
\n16 court that there was no need for the government to do that.
\n17 The government —
\n18 THE COURT: Wait a minute. You are talking about
\n19 after criminal charges were brought.
\n20 MS. MARTIN: Yes.
\n21 THE COURT: And the government released the fact
\n22 that X was not only arrested, but was also formally
\n23 charged.
\n24 MS. MARTIN: Yes.
\n25 THE COURT: Why is the government not required to
\n0068
\n1 do that?
\n2 MS. MARTIN: The government is required to do
\n3 that, but the government went one step further which it was
\n4 not required to do, and said, although this individual was
\n5 charged on these counts, having nothing to do with September
\n6 11 or terrorism, we will announce to the world that this
\n7 individual was arrested and detained as part of our
\n8 terrorism investigation.
\n9 And it did so at a press conference held by the
\n10 Attorney General before this lawsuit was filed but after the
\n11 Freedom of Information Act request was made in which he
\n12 released a list of individuals who had been part of, and
\n13 questioned, and were suspects or linked to the terrorism
\n14 investigation, and at the same time had been charged on
\n15 federal criminal charges.
\n16 We submit that the government’s volunteering that
\n17 list, which is precisely the kind of list that it now says
\n18 will cause grave harm to its pending investigation,
\n19 undercuts its basic argument that giving us the names of
\n20 those who have been detained on immigration violations would
\n21 be harmful to its law enforcement proceedings.
\n22 I might add, and I think it is relevant in
\n23 determining the legal authority for the government’s
\n24 position, that it is somewhat an anomalous situation that
\n25 the government concedes that it is required to make public
\n0069
\n1 the fact that it has charged a particular individual under
\n2 the criminal laws when it asserts the right to jail an
\n3 individual secretly on immigration violations.
\n4 And that is because although the deprivation of
\n5 liberty when jailed on an immigration violation can be as
\n6 severe as the deprivation of liberty suffered by an
\n7 individual in the criminal proceeding.
\n8 The due process protections available to those
\n9 individuals in immigration proceedings are much fewer than
\n10 the due process protections available to criminal defendants
\n11 starting with, for example, no right to a court-appointed
\n12 attorney in the immigration proceedings.
\n13 There is also much less, and in some instances no
\n14 availability of an article three judicial review of the
\n15 detention of an individual on immigration violations in the
\n16 way that such article three judicial review exists of the
\n17 detention.
\n18 THE COURT: But where does that argument go? I
\n19 don’t understand. I mean we are talking about the Freedom
\n20 of Information Act. I believe that the decision by the
\n21 Federal District Judge in Michigan, which I read — I think
\n22 it was the first case squarely holding that deportation
\n23 proceedings had to be opened. But again, that is not the
\n24 issue here as to whether deportation hearings should be
\n25 open.
\n0070
\n1 MS. MARTIN: Well, Your Honor, that is not the
\n2 issue here. But we believe that if you were to decide that
\n3 the Freedom of Information Act did not require the
\n4 disclosure of this information, you would then have to reach
\n5 the constitutional and common law claims which are addressed
\n6 in the Michigan case.
\n7 And specifically, the government has conceded that
\n8 since the First Amendment requires criminal proceedings to
\n9 be open, it may not secretly arrest individuals on criminal
\n10 charges.
\n11 That if the Michigan court is correct that the
\n12 First Amendment also requires deportation proceedings to
\n13 be open, then by the government’s own analysis, the
\n14 government may not arrest individuals secretly on
\n15 immigration charges.
\n16 And that is an issue that is inescapably, I
\n17 believe, before the court, except that the Freedom of
\n18 Information Act initially requires the government to release
\n19 this information to us we believe.
\n20 I now want to turn, Your Honor, to the specific
\n21 exemption claims made by the government.
\n22 THE COURT: By the way, let me just clarify one
\n23 thing since you just referred to it.
\n24 In your initial complaint, and I think you filed
\n25 an amended complaint as well, you based you claim on FOIA,
\n0071
\n1 of course, on federal common law and on the First
\n2 Amendment.
\n3 Are you still maintaining the applicability of all
\n4 of those three theories?
\n5 MS. MARTIN: We are, Your Honor. We did not brief
\n6 the First Amendment in any detail, partly because we thought
\n7 it was unnecessary, but partly because the strength of that
\n8 position became more clear to us when the government finally
\n9 explained the distinction they were making between secretly
\n10 arresting people on immigration violations and conceding
\n11 that they may not secretly arrest people on criminal
\n12 charges.
\n13 We think it is clear, Your Honor, that even if
\n14 arrests come within the scope of the Freedom of Information
\n15 Act analysis, the government has not met its burden of
\n16 showing that disclosure of the names of those who have been
\n17 arrested could reasonably be expected to cause the alleged
\n18 harm.
\n19 It is true, and it has in many cases where
\n20 challenging government secrecy, especially perhaps where
\n21 there is, as here, a real threat, that the government offers
\n22 apocalyptic descriptions of the consequences of disclosures
\n23 without any real analysis of whether those consequences are,
\n24 in fact, reasonably likely to follow from the disclosure.
\n25 And that is the analysis that the Freedom of Information Act
\n0072
\n1 requires.
\n2 There are, I believe, four separate reasons why
\n3 the government fails to meet its burden here to show that
\n4 there is a necessary link between disclosing the identities
\n5 of those secretly jailed on immigration violations and harm
\n6 to its terrorism investigation.
\n7 First, I want to make clear that this case does
\n8 not seek information about the terrorism investigation. We
\n9 only seek the identities of those who have been jailed.
\n10 Nor are we seeking in this case to challenge or to
\n11 make some point about whether or not those detentions have
\n12 been proper, legal, or constitutional.
\n13 We need the information we have requested under
\n14 the Freedom of Information Act so that the plaintiff
\n15 organizations and others can make that determination.
\n16 I find the government’s argument striking that
\n17 there would be no direct link between having the
\n18 identities of those who have been secretly jailed and
\n19 being able to find out whether or not those individuals’
\n20 rights were, in fact, violated in connection with the
\n21 jailing.
\n22 It is obvious that you need the name in order
\n23 to learn that information, and that is what this case seeks,
\n24 Your Honor.
\n25 The first reason that the government —
\n0073
\n1 THE COURT: Does that not give you — and this is
\n2 a question I did ask Ms. Weismann, doesn’t that alone, in
\n3 other words the names of the individuals who were detained,
\n4 doesn’t that information alone suffice to give you the basis
\n5 for your investigations?
\n6 Why do you need to know, for example, and I know
\n7 this is not a requirement under FOIA, but I still don’t
\n8 really understand the breadth of your request. Why do you
\n9 need to know where the individual was detained, presumably
\n10 on the day you made your FOIA request, and I think people
\n11 have been moved around. Again, based on newspaper articles
\n12 I believe that.
\n13 Why do you need to know the dates of their
\n14 detention? The dates of their release, if any? And I know
\n15 you asked for a couple of other categories as well. Aren’t
\n16 names alone sufficient for you?
\n17 MS. MARTIN: Well, the names are not sufficient if
\n18 we cannot find the individuals. And I think there is
\n19 evidence in the record that the government has been taking
\n20 steps to make individuals very difficult to locate.
\n21 The arrests — the dates of the arrests and the
\n22 dates of the release, whether or not we need to know them, I
\n23 think they are the kind of core public information that has
\n24 always been public.
\n25 It is the kind of public record about who the
\n0074
\n1 government has in custody. And it is also, as more
\n2 information has been made public, become more and more clear
\n3 that there are a lot of, at a minimum, irregularities with
\n4 regard to the dates on which individuals were arrested and
\n5 the dates on which they were charged under various different
\n6 kind to statutes.
\n7 And those dates are important to be able to
\n8 determine whether or not individuals were, in fact, properly
\n9 detained.
\n10 THE COURT: Given the government’s analysis in the
\n11 Watson declaration and the Reynolds declarations, and their
\n12 presentation of the mosaic theory, isn’t it true that by
\n13 getting the names of individuals you would have the core
\n14 information in terms of starting your investigation, and
\n15 very significantly, the government’s grave concerns about
\n16 outsiders, by which I mean those associated with terrorist
\n17 organizations, would be able, if they have all of this
\n18 additional information, might well be able to piece together
\n19 a lot more information about the investigation and about
\n20 what is going on, whereas if they only had the names, if
\n21 they were made public, it would be a lot more difficult for
\n22 them, maybe not impossible, but a lot more difficult to
\n23 figure out the course, the direction, and the slant of the
\n24 government’s investigations.
\n25 MS. MARTIN: Certainly the names would go a long
\n0075
\n1 ways to giving us the information that we need. And
\n2 certainly the location of where an individual was
\n3 arrested is not important in the same way that the names
\n4 are.
\n5 At the same time, we reject the government’s
\n6 assertion that the mosaic theory has any real relevance
\n7 here, or that the disclosures that we seek would, in fact,
\n8 be harmful.
\n9 The mosaic theory, which has been accepted by the
\n10 courts in this circuit, is an intelligence concept and has
\n11 been accepted in intelligence cases and covers the
\n12 situation where — virtually all intelligence, of course,
\n13 is usually secret, and the issue facing the courts is
\n14 whether or not one small piece of information, if it were
\n15 to be made public, what would be the effect given the fact
\n16 that intelligence is, in large measure, conducted in
\n17 secret?
\n18 Here, and I think the key point before this court
\n19 is the massive number of disclosures that have already been
\n20 made, many of them by the government, about its
\n21 investigation of terrorism.
\n22 And if I might for a moment just outline those
\n23 disclosures. Those disclosures do not exist in the cases
\n24 where the mosaic theory has been accepted in the
\n25 intelligence context.
\n0076
\n1 Those disclosures include, of course, the daily
\n2 revelations on the front page of the papers about
\n3 particular aspects of the terrorism investigation. They
\n4 include the Department of Justice’s own description of the
\n5 investigation as including the detentions of hundreds of
\n6 individuals.
\n7 They include the fact that can be readily gleaned
\n8 from the newspaper accounts that a large number of Arabs
\n9 and Muslims who attended flight school or had flight
\n10 training have been detained as a part of the terrorism
\n11 investigation.
\n12 That obviously shows the scope of the
\n13 investigation, and of course the newspapers have now
\n14 reported the precise FBI memo, and the basis for the FBI’s
\n15 interest in Arabs and Muslims attending flight school. All
\n16 of that is already known.
\n17 They include the names of all of the individuals
\n18 who have been detained on federal criminal charges. The
\n19 disclosures —
\n20 THE COURT: Are you telling me what the government
\n21 has made public, which I assume is something you approve of,
\n22 but of course what we don’t know is all of the additional
\n23 investigatory data, if you will, that the government has not
\n24 made public that they think would endanger the public’s
\n25 safety.
\n0077
\n1 MS. MARTIN: Right. And we do not seek any of
\n2 that investigatory data. The only thing that we seek is the
\n3 names of the individuals who have been arrested. And those
\n4 additional disclosures, evaluated in the light of what is
\n5 already known, cannot be reasonably expected to cause the
\n6 alleged harms. I do not believe that the government has met
\n7 their burden to show that.
\n8 And the disclosures include not only the broad
\n9 outlines and the specific outlines of much of the
\n10 investigation. But the government itself, on numerous
\n11 occasions, has identified particular individuals of interest
\n12 to the investigation, and even outlined the evidence that it
\n13 has against them.
\n14 For example, while the court mentioned the fact
\n15 that many of the individuals seem to have been picked up
\n16 because there was some remote connection — or some kind of
\n17 connection with the hijackers, the media reports go even
\n18 further and detail what those connections were. Who was a
\n19 roommate of whom? Who shared a telephone number at some
\n20 point?
\n21 All of that has been disclosed. The Attorney
\n22 General himself in October talked about suspects that they
\n23 had arrested and information and evidence that they had
\n24 against those suspects.
\n25 Six weeks before the only man to be indicted on
\n0078
\n1 terrorism charges, Zechariah Mowssaoui was indicted, the
\n2 New York Times reported that federal investigators had
\n3 informed it — had informed the paper that Mowssaoui was in
\n4 custody and that they suspected him of being the twentieth
\n5 hijacker.
\n6 At the moment that the federal government told the
\n7 public about Mowssaoui, he was in jail, either as a material
\n8 witness or on immigration violations. He had not yet been
\n9 charged.
\n10 Now the government comes to this court and says,
\n11 we cannot tell you who has been jailed on immigration
\n12 violations. And the striking and troubling thing about
\n13 that, Your Honor, is that when pressed in this case to
\n14 outline the links or the evidence that the government has
\n15 connecting the individuals who have been jailed with
\n16 terrorism, they come up with nothing.
\n17 And so we have the situation where the names of
\n18 the suspects and the names of those linked to terrorism have
\n19 been made public. The evidence against them has been made
\n20 public.
\n21 In the situation where those — some 300 of whom
\n22 the government admits have been cleared are being kept
\n23 secret. And I submit that it undercuts the government’s
\n24 allegations of harm.
\n25 THE COURT: Cleared of connection to terrorism,
\n0079
\n1 but being held on immigration charges, right?
\n2 MS. MARTIN: Exactly. And there is no basis, Your
\n3 Honor, under the Freedom of Information Act to withhold the
\n4 names of individuals who are jailed for immigration
\n5 violations.
\n6 I might just add to the list of disclosures that
\n7 the government has made is that in the one situation where
\n8 the government —
\n9 THE COURT: Is your response to the government’s
\n10 argument that — how should I phrase this? Involuntary
\n11 release by the government of detainee’s names, meaning the
\n12 release by the government in the absence of request by the
\n13 detainees, could pose some real threats to them personally.
\n14 Whether they are connected with the terrorist organizations,
\n15 or whether they are not, that there could be real harm that
\n16 might come to these people to.
\n17 MS. MARTIN: Well, Your Honor, that argument of
\n18 course depends on and was created by the government’s own
\n19 statements linking those individuals with terrorism.
\n20 And the government having claimed that it had — that it
\n21 has jailed hundreds of individuals who have links to
\n22 terrorism.
\n23 When forced to actually file affidavits in this
\n24 court, the most the government came up with is that the
\n25 individuals were originally questioned as part of their
\n0080
\n1 terrorism investigation.
\n2 It is within the power of the government to make
\n3 clear what the record in this case now shows which is that
\n4 it has no evidence establishing that these detainees are
\n5 involved in terrorism. And that statement would go a long
\n6 way towards curing any of the potential harms that the
\n7 government had talks about here.
\n8 We would submit that a decision by this court
\n9 could have the same effect. A decision by the court
\n10 summarizing the state of the record and the lack of evidence
\n11 presented by the government that it has information linking
\n12 these particular individuals to terrorism would clear those
\n13 individuals’ reputations.
\n14 At the same time we think that it is clear that
\n15 individuals have no privacy interests in the fact ob being
\n16 arrested on immigration violations. There is no case law so
\n17 holding, and it would be extraordinary — extraordinary to
\n18 so hold.
\n19 THE COURT: They certainly have a privacy interest
\n20 under the Freedom of Information Act.
\n21 MS. WEISMANN: They have no privacy — they have
\n22 no privacy interest in the fact of being arrested, Your
\n23 Honor, we would submit under the Freedom of Information
\n24 Act.
\n25 The Tennessee Newspaper case that we cited in our
\n0081
\n1 brief holds that there is no cognizable privacy interest
\n2 in the fact of having been arrested when what the
\n3 question is posed to the government is, who have you
\n4 arrested?
\n5 The Reporters Committee case, which is the only
\n6 case dealing with this question, holds that the compilation
\n7 of otherwise difficult to obtain facts in a computerized
\n8 collection in one clearinghouse of information significantly
\n9 alters the privacy interests.
\n10 It is the difference, Your Honor, between asking
\n11 for the rap sheet on an individual, the criminal history on
\n12 an individual, and asking the government, who did you arrest
\n13 last month?
\n14 This case is about the question of, who did you
\n15 arrest last month? And it does not raise any privacy
\n16 interest on behalf of an individual.
\n17 In any event, Your Honor, we believe that the
\n18 public interest here vastly outweighs any such privacy
\n19 interests.
\n20 But if I might return for a moment to the 70(a)
\n21 7(f) argument and point out that the other fatal defect we
\n22 believe in the government’s position is that the
\n23 government’s argument, if accepted, proves too much.
\n24 The government’s argument would allow the secret
\n25 jailing of individuals on immigration charges whenever the
\n0082
\n1 government contends that those individuals might turn out to
\n2 have some possible link to some pending criminal
\n3 investigation. And that is simply too broad of a
\n4 proposition to find any support in the law.
\n5 It is particularly noteworthy here if you look at
\n6 the specific allegations made by the government to support
\n7 its claim that releasing the identities of these particular
\n8 individuals would be harmful.
\n9 As the court noted, the declarations submitted by
\n10 the government from Mr. Reynolds and Mr. Watson are quite
\n11 vague and totally insufficient to establish that the
\n12 government has any information suggesting that these
\n13 individuals are, in fact, involved in terrorism.
\n14 And to be clear, we do not suggest here, and we
\n15 are not arguing that the government must prove to this court
\n16 that the detainees are involved in terrorism. The
\n17 government here fails to even allege that it has information
\n18 that would establish a connection between the detainees and
\n19 terrorism.
\n20 THE COURT: That is not their theory. They do not
\n21 purport to rest their argument on that. Their theory is
\n22 that — and I may or may not do a perfect job on stating it,
\n23 that it is the accretion of all of these different facts
\n24 that can tell a significant story to an outsider with a
\n25 substantial understanding of what is really going on.
\n0083
\n1 MS. MARTIN: But we would submit that there are
\n2 two – that there are at least two fundamental problems with
\n3 that theory.
\n4 One is that theory holds no water if the people
\n5 who have been secretly jailed have no connection to
\n6 terrorism. What if the government has picked up 718
\n7 people, all of whom happen to be Arabs and Muslims, many
\n8 of whom might have some connection to flight schools, none
\n9 of whom have any connection to any terrorist
\n10 organizations.
\n11 It shows what to al Qaeda? It would interfere
\n12 with what law enforcement investigation? True, it would
\n13 show the American people something very crucial and very
\n14 critical about how the Department of Justice is
\n15 undertaking its crucial task of protecting us, but how
\n16 would it interfere with their law enforcement
\n17 investigation?
\n18 And that burden they have failed to meet, Your
\n19 Honor.
\n20 THE COURT: Go-ahead.
\n21 MS. MARTIN: If you pardon me, I have lost my
\n22 second point about that theory.
\n23 The second point about that theory is that it does
\n24 authorize the secret jailing of unlimited numbers, maybe
\n25 only of Arabs and Muslims, on immigration violations as long
\n0084
\n1 as the government asserts that it is done in connection with
\n2 the terrorism investigation.
\n3 We would submit that that is an extraordinary
\n4 claim for the government to make, and there is no basis in
\n5 the Freedom of Information Act for doing that.
\n6 Now if I might address the public interest
\n7 standard on the 7(c) claim, Your Honor, and briefly
\n8 addressed the government’s point that there is no evidence
\n9 here of government misconduct.
\n10 I want to first say that I think that the public
\n11 interest in knowing the names of people who have been
\n12 secretly arrested here could not be greater. And the public
\n13 interest resides not only in public scrutiny of whether or
\n14 not individual rights have been violated, and in this
\n15 connection I note that the fact that an individual who is
\n16 unrepresented — may well be represented by counsel may or
\n17 may not have an independent civil action to redress any
\n18 individual rights, is basically irrelevant to the purpose of
\n19 the Freedom of Information Act, which is to assure public
\n20 scrutiny of government actions in part to prevent violations
\n21 of individual rights.
\n22 And that is at the core of what this case is
\n23 about. But there are two other public interests at stake in
\n24 this case, and one of the is to know whether or not when the
\n25 Attorney General announces that 1,000, or more than a 1,000
\n0085
\n1 noncitizens have been arrested as part of their efforts to
\n2 prevent future attacks on the United States, are we facing
\n3 the situation where the government has, in fact, found 1,000
\n4 potential terrorists?
\n5 Because if we are, Your Honor, it has enormous
\n6 public policy consequences about how to deal with terrorism.
\n7 And that issue the public has the right and the need to
\n8 know.
\n9 It is related to the third aspect of the public
\n10 interest which is implicated here, which is the question
\n11 of whether or not the Department of Justice has been
\n12 carrying out an effective and focused law enforcement
\n13 investigation targeted on terrorists likely to prevent
\n14 future attacks, or whether it has been simply rounding up
\n15 people who may have been Arabs and Muslims and may have
\n16 attended flight school.
\n17 We do not know the answer to that question, but
\n18 the public interest requires that information to be made
\n19 public so that we can find out the answer to that
\n20 question.
\n21 The government claims that there is no evidence of
\n22 government wrongdoing here, and I think — I am not sure
\n23 what kind of evidence they would like. Presumably an
\n24 affidavit by one of the secretly detained individuals about
\n25 how they were treated.
\n0086
\n1 That obviously is not within the possibility of
\n2 our presenting to the court, and the reason why it is not is
\n3 because of the government’s refusal to release the name of
\n4 those individuals.
\n5 But we do have extensive evidence of government
\n6 misconduct beginning, perhaps, with the Department of
\n7 Justice’s own decision to initiate an investigation on the
\n8 part of the Inspector General into the reports of abuses of
\n9 detainees while being confined.
\n10 There has also been a lawsuit filed by three of
\n11 the detainees alleging rights violations. There has been
\n12 testimony before the Congress alleging rights violations.
\n13 There has been a decision in the Southern District of New
\n14 York finding that the rights of the detainees were
\n15 violated, and finally, there have been numerous firsthand
\n16 accounts of violations of rights recorded in dozens of
\n17 articles.
\n18 All of this is more evidence of government
\n19 misconduct than I have seen outlined in any of the cases
\n20 addressing this issue.
\n21 THE COURT: What is your argument — I know the
\n22 government did not get a chance to get to this, but it was
\n23 certainly addressed in their brief.
\n24 What is your argument about the adequacy of the
\n25 search for basic documents on how members of the Department
\n0087
\n1 are to handle public release of this information?
\n2 MS. MARTIN: Our argument is that the affidavits
\n3 are not sufficiently detailed to establish — to meet their
\n4 burden that they adequately searched. And that is
\n5 especially true given what the documents that they did give
\n6 us says.
\n7 The memorandum from the Chief Immigration Judge
\n8 refers to the fact that as you already know, the Attorney
\n9 General has instituted certain procedures.
\n10 It is almost impossible to believe that that
\n11 information had been communicated other than in writing or
\n12 that there was no memorandum reflecting such communication
\n13 if it was not done in writing.
\n14 Similarly, the government has come up with no
\n15 explanation as to how, at some point, it was communicated to
\n16 all of the United States Attorney’s Offices, and all of the
\n17 FBI offices across the country that these matters were to be
\n18 kept secret.
\n19 In light of that, Your Honor, we do not believe
\n20 that the government has met its burden to show an adequate
\n21 search.
\n22 In that connection I want to say that I also do
\n23 not believe that the government has met its burden to
\n24 adequately describes the detainees. All of the questions
\n25 the court asks the government about the number of detainees
\n0088
\n1 are, we submit, required to be answered in response to our
\n2 Freedom of Information Act request.
\n3 And in that connection I want to mention that
\n4 — the question of how many detainees are still in
\n5 custody, were ever in custody, is quite unclear and quite
\n6 important.
\n7 The Department of Justice in the last couple —
\n8 in the last month maybe was quoted in the newspaper as
\n9 saying that there were only 100 and so people left in
\n10 custody out of the people detained in connection with the
\n11 investigation.
\n12 But there is evidence in a case involving the
\n13 names of the inmates being held in the New Jersey jails that
\n14 that is not true. In that case it appears that as of
\n15 sometime in April the INS had housed more than 100 inmates
\n16 in New Jersey state jails alone.
\n17 Now while we don’t know whether those inmates come
\n18 within this category of people detained in connection with
\n19 the September 11 investigation, what we do know is that the
\n20 Department of Justice has told the New Jersey state
\n21 authorities that they may not release the names of any of
\n22 those inmates.
\n23 In fact it is actually quite important in
\n24 analyzing the government’s claim here is that what they have
\n25 done in New Jersey, where the ACLU of New Jersey, as Your
\n0089
\n1 Honor knows, requested the names of inmates being held in
\n2 the New Jersey state facilities under the New Jersey Right-
\n3 to-know Law. Their request made no reference to this
\n4 terrorism investigation.
\n5 The federal government intervened, promulgated a
\n6 new regulation directing that the New Jersey state jails
\n7 refused to release the names of any INS inmates being held
\n8 in those jails.
\n9 That leaves this court with the decision about
\n10 whether or not those names will be released under the
\n11 federal Freedom of Information Act. But it shows the
\n12 importance of a complete —
\n13 THE COURT: But that state court judge made his
\n14 decision under the state right-to-know statute which was
\n15 extremely broad, isn’t that right?
\n16 MS. MARTIN: The right-to-know statute required
\n17 the release of inmates’ names. It was not broad. It simply
\n18 had no exception to the proposition that the names of
\n19 inmates in jails must be released.
\n20 And I would submit that that proposition is the
\n21 proposition that has been recognized at common law, in the
\n22 Freedom of Information Act, and under the Constitution as
\n23 basic to our democratic system, that the government may not
\n24 keep it a secret as to who it has in jail.
\n25 The government has now intervened in that case and
\n0090
\n1 asserted that New Jersey state law should not govern the
\n2 decision in that case.
\n3 THE COURT: And is that going up to the New Jersey
\n4 Supreme Court?
\n5 MS. MARTIN: It was just argued last week, Your
\n6 Honor, before the New Jersey Appellate Court, which I
\n7 believe is the intermediate court. The government
\n8 intervened and argued.
\n9 THE COURT: Ms. Martin I am going to ask you to
\n10 summarize at this point. I do have a 12:00 o’clock matter
\n11 set.
\n12 MS. MARTIN: Your Honor, if I might quickly make
\n13 one or two points about material witnesses.
\n14 The government claims that the names of the
\n15 material witnesses are exempt under exemption three citing
\n16 rule 6(e).
\n17 Before this court could accept the government’s
\n18 contention, it would have to find that the government’s
\n19 reading of the material witness statute, as authorizing the
\n20 jailing of individuals in connection with grand juries was
\n21 correct.
\n22 It would then secondly have to find — because the
\n23 government’s exemption claim depends on its reading of rule
\n24 6(e), which is grand jury rule requiring the government to
\n25 keep secret the names of grand jury witnesses.
\n0091
\n1 le 6(e) would authorize —
\n2 THE COURT: I thought the government said there
\n3 were only four of those cases left. Ms. Weismann, am I
\n4 wrong about that? Four sealed cases.
\n5 MS. WEISMANN: I think I said that there are
\n6 three, and that, of course, is a separate group. I want to
\n7 make clear that in Mr. Reynolds’ declaration, that is a
\n8 separate group than the people being held on material
\n9 witness warrants.
\n10 There is a separate group that was referenced in
\n11 his initial declaration, and then in his supplemental
\n12 declaration a group of sealed indictments, and that was a
\n13 group of nine, and as I told you earlier, it has now been
\n14 reduced to three.
\n15 THE COURT: Okay. Thank you.
\n16 MS. MARTIN: Your Honor, I think the distinction
\n17 between sealed criminal indictments and material witnesses
\n18 is crucial. We have no idea how many individuals have been
\n19 arrested on material witnesses warrants. The government has
\n20 refused to say that.
\n21 On May 7th Wall Street Journal reported that the
\n22 government had given a list of 1,000 individuals to the
\n23 General Accounting Office. If that is true, there are some
\n24 — perhaps 300 individuals, the difference between a 718
\n25 individuals listed as INS detainees and the individuals
\n0092
\n1 being held on material witnesses.
\n2 We are entitled to know how many individuals are
\n3 being held on material witness warrants.
\n4 The government’s reading of rule 6(e) governing
\n5 grand jury secrecy and the material witnesses warrant to
\n6 authorize secret detentions of individuals for the purpose
\n7 of giving testimony before the grand jury is novel. It is
\n8 unsupported we submit, and the only issue —
\n9 THE COURT: I don’t understand why you are
\n10 making the argument that essentially I have to decide and
\n11 carefully examine the same issue that was litigated in
\n12 Awadallah.
\n13 Obviously that opinion, and I am not expressing
\n14 any view at all on the merits of it, except it was very long
\n15 to read, and certainly very thorough, but it does not bind
\n16 me, of course, and I do not understand why you think or why
\n17 you are arguing that to make a determination under the
\n18 Freedom of Information Act that I have to decide whether the
\n19 government was authorized to use the material witness
\n20 statute in a grand jury context.
\n21 MS. MARTIN: You would only have to decide that in
\n22 order to accept the government’s exemption three claim as to
\n23 the identity of the material witnesses, because its
\n24 exemption three claim depends upon an interpretation of rule
\n25 6(e) and the material witness statute.
\n0093
\n1 So in order to accept that claim, you would then
\n2 have to decide that. Otherwise it does not have to be
\n3 decided.
\n4 I think the crucial thing that we do not know
\n5 about the material witnesses, and the only conceivable
\n6 basis in this record for withholding the names of the
\n7 material witnesses, are if there are other court orders
\n8 sealing the identities of those individuals. We do not know
\n9 that.
\n10 The government has not even identified how many
\n11 such orders there might be, which courts have issued such
\n12 orders, and it has not given us the language of the orders
\n13 upon which it relies to say that it can tell us nothing
\n14 about that.
\n15 In that connection, as to both the material
\n16 witnesses and the attorneys, I also went to make — I am
\n17 sorry, as to the attorneys for both the material witnesses
\n18 and the detainees, I want to make to make clear that the
\n19 government’s harm arguments with regard to releasing the
\n20 identities of the detainees and the material witnesses apply
\n21 in no way to releasing the identities of lawyers for the
\n22 material witnesses.
\n23 And there is —
\n24 THE COURT: You do not have to explain about that.
\n25 I mean there is obviously a very long, and in my view a very
\n0094
\n1 noble history in this country, of lawyers taking on
\n2 difficult controversial causes. It goes back to colonial
\n3 times.
\n4 We have certainly seen it in our lifetime in terms
\n5 of the McCarthy era, in terms of Civil Rights cases in the
\n6 South, in terms of defending Vietnam demonstrators. I would
\n7 like to think lawyers are a pretty hardy band, and they can
\n8 take care of themselves.
\n9 Although again, I don’t want to be misunderstood
\n10 about that. There are always dangers, and the government is
\n11 not being frivolous in putting forth concern that people who
\n12 are perceived in the public eye as giving any kind of help
\n13 to those associated with September 11th, that those people
\n14 could be exposed to some harm.
\n15 I want to be clear I understand that there are
\n16 always irrational and dangerous people who misperceive a
\n17 situation. But in general, it is overwhelmingly clear that
\n18 lawyers have understood their obligation to represent
\n19 unpopular causes in this country’s history.
\n20 They have always done so, and their privacy
\n21 interests and the concern for their welfare is probably not
\n22 going to be found by me to outweigh other concerns and
\n23 interests.
\n24 But go ahead, please. You were summarizing.
\n25 MS. MARTIN: Finally, Your Honor, in conclusion
\n0095
\n1 we would say that while this is an extraordinary time, we
\n2 do not believe that any authority exists for the
\n3 government to adopt an extraordinary policy of secretly
\n4 jailing hundreds of individuals on the theory that it is
\n5 necessary to do so in connection with their terrorism
\n6 investigation.
\n7 The Freedom of Information Act, the core
\n8 disclosure law in this country was not enacted to overturn
\n9 the long tradition and practice recognized in both common-
\n10 law and constitutional considerations we contend.
\n11 The government must make public the identities of
\n12 those who it arrests in order to both protect the rights of
\n13 those who are arrested and to enable there to be public
\n14 scrutiny of what the government is up to.
\n15 Thank you.
\n16 THE COURT: Thank you.
\n17 Obviously I have taken a very long time for the
\n18 arguments today, and I knew counsel would have a great deal
\n19 to contribute, and they have, and I appreciate the quality
\n20 of the arguments, and of course I will be the working to get
\n21 out an opinion as soon as I can, everybody.
\n22 I will leave it at that. There are no estimates
\n23 except that I know that people are anxious to get a
\n24 decision.
\n25 Parties may be excused at this time. Thank you
\n0096
\n1 very much. We are going to take a very brief recess, and
\n2 then I have a 12:00 o’clock matter.
\n3 (Whereupon, the proceedings were adjourned.)
\n4 – – – – –
\n5 CERTIFICATE OF COURT REPORTER
\n6 I certify that the foregoing is a correct transcript of
\n7 the proceedings in the above-captioned case.
\n8 ___________________________
\n9 SUSAN PAGE TYNER, CVR-CM
\n10 OFFICIAL COURT REPORTER
\n11<\/p>\n","protected":false},"excerpt":{"rendered":"
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 ....<\/p>\n","protected":false},"author":1,"featured_media":4169,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[68],"tags":[],"class_list":["post-6214","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-freedom-of-information-act-lawsuit"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/multiracial.com\/wp-content\/uploads\/2016\/12\/Advocacy-Work.png","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p89tuq-1Ce","_links":{"self":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/6214","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/comments?post=6214"}],"version-history":[{"count":1,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/6214\/revisions"}],"predecessor-version":[{"id":6215,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/6214\/revisions\/6215"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media\/4169"}],"wp:attachment":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media?parent=6214"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/categories?post=6214"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/tags?post=6214"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}