February 12, 2002 Plaintiff's Motion to Require Expedited Responses to Discovery

October 29, 2001

By Hand.

Melanie Ann Pustay, Deputy Director
Office of Information and Privacy
Department of Justice
Suite 570, Flag Building
Washington, D.C. 20530-0001

John M. Kelso, Jr., Chief
FOIPA Section
Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, DC 20535

Magda Ortiz, Director
Freedom of Information Act/Privacy Act Program
Immigration and Naturalization Service
425 I Street, NW, 2nd Floor
Washington, DC 20536

We hereby request disclosure of the following information concerning the individuals "arrested or detained" in the words of Attorney General Ashcroft, in the wake of the September 11 attack and referred to by the President, the Attorney General and the FBI Director in various public statements.

1. The identities of each such individual, the circumstances of their detention or arrest, and any charges brought against them. In particular, please provide: (1) their names and citizenship status; (2) the location where each individual was arrested or detained initially and the location where they are currently held; (3) the dates they were detained or arrested, the dates any charges were filed, and the dates they were released, if they have been released; and (4) the nature of any criminal or immigration charges filed against them or other basis for detaining them, including material witness warrants and the disposition of any such charges or warrants.

2. The identity of any lawyers representing any of these individuals, including their names and addresses.

3. The identities of any courts, which have been requested to enter orders sealing any proceedings in connection with any of these individuals, any such orders which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders.

4. All policy directives or guidance issued to officials about making public statements or disclosures about these individuals or about the sealing of judicial or immigration proceedings.

Much, if not all, of this information is contained in public records to which there is a constitutional and common law right of access. In addition, please release documents containing this information pursuant to the Freedom of Information Act.

We do not believe that any of the requested information is exempt from disclosure under the Freedom of Information Act. We do not believe that the requested information - who has been arrested, the names of their lawyers or what charges have been filed -- properly could be classified for national security reasons and withheld on that ground. Nevertheless, to the extent that any of this information is marked classified, we request that you delete or redact such information and immediately provide us the remaining information. If you believe the identities of any of the detainees should be withheld on privacy grounds, please immediately provide information concerning whether the individual has requested that his or her name be withheld, and the legal basis for withholding the names of persons detained or arrested. In this connection, we note that there is an overriding public interest in knowing the activities of the government in detaining people in connection with the September 11 attack, as reflected in the statements by the highest government officials and that the identities of some of them have already been made known.

We make this request on behalf of the following list of organizations that work to protect the public's right to know, civil liberties and human rights.

Request for expedited processing.

We request that you provide this information as soon as possible as it meets all the criteria for expedited processing under the Act: The "information is urgently needed to inform the public concerning some actual or alleged government activity;" the requesting organizations are primarily engaged in disseminating information to the public; the subject of the detainees "is of widespread and exceptional media interest and the information sought involves possible questions about the government's integrity which affect public confidence," and the information is needed immediately to prevent "the loss of substantial due process rights" to individuals and "threats to their physical safety."

The exceptional interest in the government's activities in detaining several hundred people since the September 11 attacks is incontrovertibly evidenced by the multiple statements made by the highest government officials, beginning with the President, as well as the numerous media articles, a small selection of which are attached hereto. As public officials themselves have made clear, the arrests of individuals responsible for the terrible attacks last month and subsequent incidents is of the highest priority for the government.

At the same time, the unprecedented secrecy surrounding the detention of several hundred individuals, which has now lasted for several weeks, in itself raises questions about the detentions and creates the utmost urgency to inform the public. The curtain of official silence prevents any democratic oversight of the government's response to the attacks.

In addition, there have been a growing number of reports which, if accurate, raise serious questions about deprivations of fundamental due process, including imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury. See attached articles. Immediate disclosure of the requested information is necessary so that the public can be informed about the basis of these reports and in order to protect individuals against potential abuses.

In sum, this request is about federal government activity, it concerns a matter of current exigency to the American public, and the consequences of delaying a response would be to compromise a significant recognized interest. See Al-Fayed v. CIA, D.C. Cir. 2001.

We would appreciate your response as quickly as possible to our request. In view of the tremendous public interest in this issue, and the questions raised by the detention of hundreds of people without virtually any public information about them, we ask that you provide us responsive documents as soon as they are identified, and not wait until you have gathered all responsive documents. We would be happy to modify the request in order to limit the number of documents involved, as we are interested in obtaining the key information outlined above rather than all relevant documents.

Thank you for your consideration.

Please respond to Kate Martin, Director, Center for National Security Studies
2130 H St., N.W., Suite 701, Washington, D.C. 20037, telephone (202)-994-7060.

Signed by:
American Civil Liberties Union
American Friends Service Committee
American Immigration Law Foundation
American Immigration Lawyers Association
American Muslim Council
Amnesty International USA
Arab American Institute
Arab-American Anti-Discrimination Committee
Center for Constitutional Rights
Center for Democracy and Technology
Center for National Security Studies
Council on American Islamic Relations
Electronic Privacy Information Center
Federation of American Scientists
First Amendment Foundation
Human Rights Watch
Lawyers Committee for Human Rights
National Immigration Project of the National Lawyers Guild
OMB Watch
The Nation Magazine

Certification regarding Request
For Expedited Processing.

I hereby certify that the facts outlined in support of the request for expedited processing are true and correct, to the best of my knowledge and information.

______________________
Kate Martin, Esq.
Center for National Security Studies
2130 H St., N.W., Suite 701
Washington, D.C. 20037
(202)-994-7060.

PRESS RELEASE

MONDAY, OCTOBER 29, 2001

Civil Liberties, Public Access , and Other Groups
Condemn Secret Arrests, Demand INS Release
Identities of Jailed Individuals

Washington D.C. - On October 29, a group of civil liberties, human rights, Arab-American, public access and legal groups demanded the release of information on the hundreds of individuals who have been jailed since the September 11th terrorist attacks.

The groups objected to the curtain of official silence over the unprecedented detention of several hundred individuals for more than six weeks. They cited the growing number of reports that raise serious questions about deprivations of fundamental due process, including imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury. And they pointed out that democratic accountability requires the public be informed about the FBI's response to the attacks.

Kate Martin, Director of the Center for National Security Studies, stated: "While certain aspects of the FBI investigation into the terrorist attacks need to be secret, we do not live in a country where the government can keep secret who they arrest, where they are being held, or the charges against them. The secret detention of more than 800 people over the past few weeks is frighteningly close to the practice of 'disappearing' people in Latin America."

The groups demanded information from the FBI, the Justice Department and the INS under the Freedom of Information Act, and the constitutional and common law right of access to public records. They demanded release of the names and citizenship of the hundreds arrested since September 11th, the charges on which they've been detained, the names of their lawyers, and where they are being held. They also asked for the list of courts that have entered any gag orders.

The groups included: the ACLU, American Friends Service Committee, American Immigration Law Foundation, American Immigration Lawyers Association, American Muslim Council, Amnesty International USA, Arab American Institute, Arab-American Anti-Discrimination Committee, Center for Constitutional Rights, Center for Democracy and Technology, Center for National Security Studies, Electronic Privacy Information Center, Federation of American Scientists, First Amendment Foundation, Human Rights Watch, Lawyers Committee on Human Rights, National Immigration Project of the National Lawyers Guild, OMB Watch, and The Nation Magazine.

CONTACT: Kate Martin or Ken Gude 202-994-7060, Morton H. Halperin 202-518-3406.
###

November 2, 2001

VIA FACSIMILE

Melanie Ann Pustay, Deputy Director
Office of Information and Privacy
Department of Justice
Suite 570, Flag Building
Washington, D.C. 20530-0001

Re: Your Nos. AG/02-R0106
DAG/02-R0107
MAP:MM
Dear Ms. Pustay:

Thank you for your prompt reply of November 1, 2001 agreeing to expedite our request for information concerning the individuals arrested or detained in the wake of the September 11 attacks.

The following additional organizations are joining in that request.

The Asian American Legal Defense and Education Fund, Center for Economic and Social Rights, Center for Human Rights and Constitutional Law, Electronic Frontier Foundation, Freedom of Information Center at the Missouri School of Journalism, Fund for Constitutional Government, Lawyers Committee for Civil Rights, Libertarian Party, National Black Police Association, National Association of Criminal Defense Lawyers, Online Policy Group, Partnership for Civil Justice, People for The American Way Foundation, privacyactivism.org, Reporters Committee for Freedom of the Press, Research & Policy Reform Center, The Multiracial Activist and The Abolitionist Examiner, World Organization Against Torture USA.

If you need any further information, please let me know. Thank you for your consideration.

________________________________
Kate Martin, Esq.
Center for National Security Studies
2130 H St., N.W., Suite 701
Washington, D.C. 20037
(202)-994-7060; fax (202)-994-7005

By Facsimile

November 7, 2001

Freedom of Information Appeal
Reference Number: 952485

Richard Huff
Office of Information and Privacy
United States Department of Justice
Flag Building, Suite 570
Washington, DC 20530

Dear Mr. Huff,

Yesterday, we received by mail the Federal Bureau of Investigation's denial, dated November 1, 2001, of our request for information concerning the individuals arrested or detained in the wake of the September 11 attack. The Bureau cited section (b) (7) (a) relating to law enforcement records whose disclosure "could reasonably be expected to interfere with enforcement proceedings."

We hereby appeal your denial of our request as unsupported by the law. Release of the requested information is not at all likely to interfere with ongoing law enforcement proceedings.

We have only requested limited information, which is not only routinely made public in law enforcement investigations, but whose disclosure is compelled by the constitutional and common law right of access to basic information about the criminal justice system, namely who has been arrested, the charges against them, and which courts are handling the proceedings.

Moreover, in this particular case the FBI's own statements make clear that there is no basis for withholding the information. While we recognize the importance of this investigation, the FBI, rather than insisting on complete secrecy of even the identity of arrestees, instead has held almost daily news briefings selectively releasing some of the requested information. The FBI has identified by name several individuals whom it suspects of involvement in the September 11 attacks. It has gone much further than our request in releasing some of its evidence for those suspicions. Both the Attorney General's office and the White House have also selectively released information about the detentions. There is simply no basis to conclude that releasing the requested information will interfere with enforcement proceedings.

We appreciate your prompt response to our request and ask that you again expedite your handling of this appeal.

For your convenience, our request specifically asked for:

1. The identities of each such individual, the circumstances of their detention or arrest, and any charges brought against them. In particular, please provide: (1) their names and citizenship status; (2) the location where each individual was arrested or detained initially and the location where they are currently held; (3) the dates they were detained or arrested, the dates any charges were filed, and the dates they were released, if they have been released; and (4) the nature of any criminal or immigration charges filed against them or other basis for detaining them, including material witness warrants and the disposition of any such charges or warrants.

2. The identity of any lawyers representing any of these individuals, including their names and addresses.

3. The identities of any courts, which have been requested to enter orders sealing any proceedings in connection with any of these individuals, any such orders which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders.

4. All policy directives or guidance issued to officials about making public statements or disclosures about these individuals or about the sealing of judicial or immigration proceedings.

If you need any further information, please call me at 202-994-7060.

_____________________
Kate Martin, Esq.
Center for National Security Studies
2130 H Street, NW, Suite 701
Washington, D.C. 20037

PRESS RELEASE

WEDNESDAY, NOVEMBER 7, 2001

Civil Liberties Groups Appeal FBI Denial
of FOIA Request for Information on Detainees

Washington, D.C., November 7 -- The Center for National Security Studies today received a blanket denial from the FBI of its FOI request made on behalf of 38 organizations for information on the persons arrested since September 11. Without giving any reasons, the FBI cited the FOIA exemption for law enforcement records whose disclosure could be expected to interfere with ongoing law enforcement proceedings.

Kate Martin, Director of the Center for National Security Studies, said they were filing an appeal with the FBI, which is required before going to court.

Martin said, "The FBI's claim that releasing the names of those arrested and the charges against them would interfere with its investigation is not plausible given their daily press briefing is not only naming individuals they suspect as terrorists but even detailing some of the evidence against them. This looks like the selective release of information, not for security or law enforcement reasons, but for public relations reasons."

The FOI request was filed on behalf of civil liberties and public access groups, including the following: the ACLU, American Immigration Law Foundation, American Immigration Lawyers Association, American Muslim Council, Amnesty International USA, Center for Constitutional Rights, Center for Democracy and Technology, Center for National Security Studies, Council on American Islamic Relations, Electronic Frontier Foundation, Electronic Privacy Information Center, Federation of American Scientists, First Amendment Foundation, Human Rights Watch, Lawyers Committee for Civil Rights, Lawyers Committee for Human Rights, National Association of Criminal Defense Lawyers, OMB Watch, Online Policy Group, People for The American Way Foundation, Reporters Committee for Freedom of the Press, Research & Policy Reform Center, and The Nation Magazine.

The FOI request sought: (1) The identities and citizenship status of each individual, the circumstances of their detention or arrest, the location where each was arrested and where they are currently held, and any charges brought against them; (2) The identity of any lawyers representing any of these individuals; (3) The identity of any courts that have been requested to enter orders sealing any proceedings in connection with any of these individuals; (4) All policy directives or guidance issued to officials about making public statements about these individuals or about the sealing of judicial or immigration proceedings.

The groups objected to the curtain of official silence over the unprecedented detention of several hundred individuals for more than six weeks. They cited the growing number of reports that raise serious questions about deprivations of fundamental due process, including imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury. And they pointed out that democratic accountability requires the public be informed about the FBI's response to the attacks.

www.cnss.gwu.edu

Contact: Kate Martin or Ken Gude 202-994-7060, or Morton Halperin 202-518-3406
###

American Civil Liberties Union
American Friends Service Committee
American Immigration Law Foundation
American Immigration Lawyers Association
American Muslim Council
Amnesty International USA
Arab American Institute
Arab-American Anti-Discrimination Committee
Asian American Legal Defense and Education Fund
Center for Constitutional Rights
Center for Democracy and Technology
Center for Economic and Social Rights
Center for Human Rights and Constitutional Law
Center for National Security Studies
Council on American Islamic Relations
Electronic Frontier Foundation
Electronic Privacy Information Center
Federation of American Scientists
First Amendment Foundation
Freedom of Information Center at the Missouri School of Journalism
Fund for Constitutional Government
Human Rights Watch
Lawyers Committee for Civil Rights
Lawyers Committee for Human Rights
Libertarian Party
National Black Police Association
National Association of Criminal Defense Lawyers
National Immigration Project of the National Lawyers Guild
OMB Watch
Online Policy Group
Partnership for Civil Justice
People for The American Way Foundation
privacyactivism.org
Reporters Committee for Freedom of the Press
Research & Policy Reform Center
The Multiracial Activist and The Abolitionist Examiner
The Nation Magazine
World Organization Against Torture USA

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CENTER FOR NATIONAL SECURITY STUDIES )

2130 H Street, N.W., S. 701 )

Washington, DC 20037 )

)

AMERICAN CIVIL LIBERTIES UNION )

125 Broad Street )

New York, NY 10004 )

)

ELECTRONIC PRIVACY INFORMATION CENTER ) Civil Action

1718 Connecticut Avenue, N.W. ) No. 01-2500

Suite 200 ) Judge Kessler

)

American-Arab Anti-Discrimination )

Committee )

4201 Connecticut Avenue, N.W., Suite 300 )

Washington, DC 20008 )

)

American Immigration Law FoundaTION )

918 F Street, N.W., 6th Floor )

Washington, DC 20004 )

)

American Immigration Lawyers Association )

918 F Street, N.W. )

Washington, DC 20004 )

)

AMNESTY INTERNATIONAL USA )

322 Eighth Avenue )

New York, NY 10001 )

)

Arab-American Institute )

1600 K Street, N.W., Suite 601 )

Washington, DC 20006 )

)

Asian American Legal Defense and )

Education Fund )

99 Hudson Street )

New York, NY 10013 )

)

Center for Constitutional Rights )

666 Broadway, 7th Floor )

New York, NY 10012 )

)

Center for Democracy and Technology )

1634 Eye Street, N.W., Suite 1100 )

Washington, DC 20006 )

)

Council on American Islamic Relations )

453 New Jersey Avenue, S.E. )

Washington, DC 20003 )

First Amendment Foundation )

3321 12th Sreet, N.E. )

Washington, DC 20017 )

)

HUMAN RIGHTS WATCH )

350 Fifth Avenue, 34th Floor )

New York, NY 10118 )

)

THE MULTIRACIAL ACTIVIST )

P.O. Box 8208 )

Alexandria, VA 22306 )

)

THE NATION MAGAZINE )

110 Maryland Avenue N.E., #308 )

Washington, DC 20002 )

)

National Association of Criminal )

Defense Lawyers )

1025 Connecticut Avenue, N.W., Suite 901 )

Washington, DC 20036 )

)

National Black Police Association, Inc. )

3251 Mt. Pleasant Street, N.W. )

Washington, DC 20010 )

)

Partnership for Civil Justice, Inc. )

1901 Pennsylvania Avenue, N.W., Suite 607 )

Washington, DC 20006 )

)

PEOPLE FOR THE AMERICAN WAY FOUNDATION )

2000 M Street N.W., Suite 400 )

Washington, DC 20036 )

)

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS )

1815 N. Ft. Myer Drive, #900 )

Arlington, VA 22209 )

)

WORLD ORGANIZATION AGAINST TORTURE USA )

1725 K Street, NW, Suite 610 )

Washington, DC 20006, )

)

Plaintiffs, )

)

v. )

)

DEPARTMENT OF JUSTICE )

950 Pennsylvania Avenue, N.W. )

Washington, DC 20530, )

)

Defendant. )

)

AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the First Amendment and the common law, for injunctive and other appropriate relief, and seeking the expedited processing and immediate release of agency records requested by plaintiffs from defendant Department of Justice ("DOJ") and DOJ's components Immigration and Naturalization Service ("INS") and Federal Bureau of Investigation ("FBI").

2. This Freedom of Information Act case seeks the immediate disclosure of government documents concerning more than 1,000 individuals who have been arrested and detained in the wake of the September 11th terrorist attacks. This lawsuit does not question the importance of the government's investigation. But the manner in which the government is conducting its investigation also raises issues of the utmost public importance. One of the core purposes of the FOIA is to assure that the government cannot shield its actions from scrutiny by withholding information that is traditionally available to the public. Yet, that is precisely what has occurred here. The government candidly acknowledges that hundreds of people remain in federal custody but refuses to disclose, among other basic facts, who these detainees are and where they are being held. This secrecy is unprecedented and deprives the public of information it is lawfully entitled to receive. In recent days, the government has publicly disclosed some fragmentary and incomplete information about some of the detainees in response to requests from Members of Congress. Thus far, however, the government has either ignored or rejected plaintiffs' FOIA requests, which were filed more than a month ago.

Jurisdiction and Venue

3. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(E)(iii). This court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over plaintiffs' common law claim under 28 U.S.C. § 1367. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).

Parties

4. Plaintiff Center for National Security Studies has worked to protect civil liberties and human rights for more than 25 years.

5. Plaintiff American Civil Liberties Union is a nationwide, non-profit membership organization with approximately 300,000 members that, since its founding in 1920, has been dedicated to protecting the civil liberties and civil rights of all Americans, both immigrant and native-born.

6. Plaintiff Electronic Privacy Information Center is a non-profit, public interest research center established in 1994 to focus public attention on emerging civil liberties issues and to promote constitutional values.

7. Plaintiff American-Arab Anti-Discrimination Committee is a non-partisan, non-sectarian civil rights organization dedicated to protecting rights of Arab-Americans and promoting cultural heritage.

8. Plaintiff American Immigration Law Foundation was established in 1987 as a tax-exempt, not-for-profit educational and service organization. The Foundation's mission is to promote understanding among the general public of immigration law and policy, through education, policy analysis, and support to litigators.

9. Plaintiff American Immigration Lawyers Association is a voluntary bar association of 7500 immigration lawyers and law professors.

10. Plaintiff Amnesty International USA is the U.S. Section of Amnesty International, a grassroots activist organization with over one million members worldwide. Amnesty International is dedicated to freeing prisoners of conscience, gaining fair trials for political prisoners, ending torture, political killings and "disappearances," and abolishing the death penalty throughout the world.

11. Plaintiff Arab-American Institute is a tax-exempt public affairs, ethnic citizenship development organization dedicated to the political empowerment of Arab Americans.

12. Plaintiff Asian American Legal Defense and Education Fund, is a non-profit civil liberties organization defending civil rights of Asian Americans nationwide.

13. Plaintiff Center for Constitutional Rights is a non-profit legal and educational organization dedicated to protecting and advancing the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.

14. Plaintiff Center for Democracy and Technology works to promote democratic values and constitutional liberties in the digital age.

15. Plaintiff Council on American Islamic Relations is a non-profit, grassroots membership organization established to promote a positive image of Islam and Muslims in America.

16. Plaintiff Electronic Frontier Foundation is a non-profit public interest group focused on free speech and civil liberties in the online world.

17. Plaintiff First Amendment Foundation is a constitutional rights organization whose purpose is to educate the public about the fluid nature of First Amendment rights and to maintain these rights.

18. Plaintiff Human Rights Watch is dedicated to protecting the human rights of people around the world.

19. Plaintiff The Multiracial Activist is a libertarian oriented activist journal covering social and civil liberties issues of interest to individuals who perceive themselves to be "biracial" or "multiracial," "interracial" couples/families and "transracial" adoptees.

20. Plaintiff The Nation magazine is a weekly magazine published by The Nation Company.

21. Plaintiff National Association of Criminal Defense Lawyers is a professional bar association committed to preserving fairness within American's criminal justice system.

22. Plaintiff National Black Police Association, Inc. is a non-profit organization established to improve relationships between police departments, African American police officers and communities of color. It also works to maintain a network between African American police officers across the country.

23. Plaintiff Partnership for Civil Justice, Inc., is a public interest law firm that litigates on behalf of individuals and activist and political organizations in constitutional and civil rights claims challenging discrimination and protecting the right to engage in political dissent.

24. Plaintiff People For the American Way Foundation is a constitutional liberties organization.

25. Plaintiff Reporters Committee for Freedom of the Press was created in 1970 at a time when the nation's news media faced a wave of government subpoenas asking reporters to name confidential sources.

26. Plaintiff World Organization Against Torture USA is a non-profit human rights monitoring, reporting and advocacy group, and a U.S. affiliate of the international World Organization Against Torture, a worldwide network of over 200 human rights organizations.

27. Defendant DOJ is a Department of the Executive Branch of the United States Government, and includes component entities including the INS and the FBI. DOJ is an agency within the meaning of 5 U.S.C. § 552(f).

The Post-September 11 Detentions

28. In the wake of the terrorist attacks in New York and Washington on September 11, 2001, Attorney General Ashcroft, FBI Director Mueller, and other officials issued a series of statements indicating that individuals had been "arrested" or "detained" as a result of investigative activities relating to the attacks. On October 25, the Attorney General announced that, "[t]o date, our anti-terrorism offensive has arrested or detained nearly 1,000 individuals as part of the September 11 terrorism investigation."

Plaintiffs' FOIA Requests and Requests for Expedited Processing

29. By three separate letters, plaintiffs on October 29, 2001, delivered to defendant DOJ, the INS and the FBI requests under the FOIA seeking the disclosure of agency records "concerning the individuals 'arrested or detained' in the words of Attorney General Ashcroft." Specifically, plaintiffs requested disclosure of the following information:

a) the identities of each such individual, where they are being held, the circumstances of their detention or arrest, and any charges brought against them;

b) the identity of any lawyers representing any of these individuals;

c) the identities of any courts, which have been requested to enter orders sealing any proceedings in connection with any of these individuals, any such orders which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders; and

d) all policy directives or guidance issued to officials about making public statements or disclosures about these individuals or about the sealing of judicial or immigration proceedings.

30. In their letters to defendant DOJ, the INS and the FBI of October 29, 2001, plaintiffs stated that their FOIA requests met the criteria for expedited processing under defendant DOJ's regulations:

The "information is urgently needed to inform the public concerning some actual or alleged government activity;" the requesting organizations are primarily engaged in disseminating information to the public; the subject of the detainees "is of widespread and exceptional media interest and the information sought involves possible questions about the government's integrity which affect public confidence," and the information is needed immediately to prevent "the loss of substantial due process rights" to individuals and "threats to their physical safety."

31. Plaintiffs summed up their entitlement to expedited disclosure by noting that "this request is about federal government activity, it concerns a matter of current exigency to the American public, and the consequences of delaying a response would be to compromise a significant recognized interest."

Defendant DOJ's Failure to Timely Comply with Plaintiffs' Request

32. By letter to plaintiffs dated November 1, 2001, defendant DOJ advised plaintiffs that their request for expedited processing had been "granted" on the ground that the request concerned "(a) matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." To date, defendant DOJ has not provided a substantive response to plaintiffs' request, despite the statutory requirement that all requests (even those that don't warrant expedition) must be processed within twenty working days, 5 U.S.C. § 552(a)(6)(A)(i).

33. Plaintiffs have exhausted the applicable administrative remedies with respect to their FOIA request to defendant DOJ.

34. Defendant DOJ has wrongfully withheld the requested records from plaintiffs.

The INS' Failure to Timely Comply with Plaintiffs' Request

35. Notwithstanding the statutory, 5 U.S.C. § 552(a)(6)(E) (ii), and regulatory, 28 CFR 16.5(d)(4), time limit of ten calendar days in which to respond to a request for expedited processing, the INS has not responded to plaintiffs' request for expedited processing of their FOIA request.

36. To date, the INS has not provided a substantive response to plaintiffs' request, despite the statutory requirement that all requests (even those that don't warrant expedition) must be processed within twenty working days, 5 U.S.C. § 552(a)(6)(A)(i).

37. Plaintiffs are entitled to expedited processing of their FOIA request to the INS under the standards contained in defendant DOJ's regulations.

38. Plaintiffs have exhausted the applicable administrative remedies with respect to their FOIA request to the INS.

39. The INS has wrongfully withheld the requested records from plaintiffs.

The FBI's Failure to Timely Comply with Plaintiffs' Request

40. By letter to plaintiffs dated November 1, the FBI stated that "the material responsive to your request is being withheld pursuant to Title 5, United States Code, Section 552, (b)(7)(A)," and advised plaintiffs of their right to submit an appeal of that determination to defendant DOJ. Plaintiffs received the FBI's letter on November 6 and submitted an appeal by facsimile to defendant DOJ's Office of Information and Privacy on November 7. To date, defendant DOJ has not made a determination of plaintiffs' appeal, despite the statutory requirement that all appeals (even those that don't warrant expedition) must be decided within twenty working days, 5 U.S.C. § 552(a)(6)(A)(ii).

41. Plaintiffs have exhausted the applicable administrative remedies with respect to their FOIA request to the FBI.

42. The FBI has wrongfully withheld the requested records from plaintiffs.

CAUSES OF ACTION

First Cause of Action:

Violation of the Freedom of Information Act for

Failure Timely to Respond to Request for Expedited Processing

43. Plaintiffs repeat and reallege paragraphs 1-42.

44. The INS' failure timely to respond to plaintiff's request for expedited processing violates the FOIA, 5 U.S.C. § 552(a)(6)(E)(ii), and defendant DOJ's own regulation promulgated thereunder, 28 CFR 16.5(d)(4).

Second Cause of Action:

Violation of the Freedom of Information Act for

Failure Timely to Respond to Request for Agency Records

45. Plaintiffs repeat and reallege paragraphs 1-42.

46. Defendant DOJ's failure timely to respond to plaintiff's request for agency records violates the FOIA, 5 U.S.C. § 552(a)(6)(A)(i).

47. The INS' failure timely to respond to plaintiff's request for agency records violates the FOIA, 5 U.S.C. § 552(a)(6)(A)(i).

Third Cause of Action:

Violation of the Freedom of Information Act for

Failure Timely to Respond to Appeal of Determination to

Deny a Request for Agency Records

48. Plaintiffs repeat and reallege paragraphs 1-42.

49. The failure of defendant DOJ and the FBI to timely respond to plaintiff's appeal of the FBI's determination to deny plaintiffs' request for agency records violates the FOIA, 5 U.S.C. § 552(a)(6)(A)(ii).

Fourth Cause of Action:

Violation of the Freedom of Information Act

for Failure Timely to Release Agency Records

50. Plaintiffs repeat and reallege paragraphs 1-42.

51. Defendant DOJ's failure timely to release the agency records requested by plaintiffs violates the FOIA, 5 U.S.C. § 552.

52. The INS' failure timely to release the agency records requested by plaintiffs violates the FOIA, 5 U.S.C. § 552.

53. The FBI's failure timely to release the agency records requested by plaintiffs violates the FOIA, 5 U.S.C. § 552.

Fifth Cause of Action:

Violation of the First Amendment

for Failure to Release Court Records

54. Plaintiffs repeat and reallege paragraphs 1-42.

55. Defendant DOJ's failure to release to plaintiffs those requested agency records that are also court records violates plaintiffs' First Amendment right of access to records concerning judicial proceedings.

56. The INS' failure to release to plaintiffs those requested agency records that are also court records violates plaintiffs' First Amendment right of access to records concerning judicial proceedings.

57. The FBI's failure to release to plaintiffs those requested agency records that are also court records violates plaintiffs' First Amendment right of access to records concerning judicial proceedings.

Sixth Cause of Action:

Violation of the Common Law Right of
Access for Failure to Release Court Records

58. Plaintiffs repeat and reallege paragraphs 1-42.

59. Defendant DOJ's failure to release to plaintiffs those requested agency records that are also court records violates plaintiffs' common law right of access to records concerning judicial proceedings.

60. The INS' failure to release to plaintiffs those requested agency records that are also court records violates plaintiffs' common law right of access to records concerning judicial proceedings.

61. The FBI's failure to release to plaintiffs those requested agency records that are also court records violates plaintiffs' common law right of access to records concerning judicial proceedings.

Requested Relief

WHEREFORE, plaintiffs pray that this Court:

A. order defendant to process plaintiffs' FOIA requests immediately;

B. order defendant to disclose the requested records and make copies available to plaintiffs;

C. provide for expeditious proceedings in this action;

D. award plaintiffs their costs and reasonable attorneys fees

incurred in this action; and

E. grant such other relief as the Court may deem just and

proper.

Respectfully submitted,

_____________________________________

DAVID L. SOBEL

D.C. Bar No. 360418

Electronic Privacy Information Center

1718 Connecticut Avenue, N.W.

Suite 200

Washington, DC 20009

tel. 202-483-1140

fax 202-483-1248

_____________________________________

ARTHUR B. SPITZER

D.C. Bar. No. 235960

American Civil Liberties Union

of the National Capital Area

1400 20th Street, N.W. #119

Washington, D.C. 20036

tel. 202-457-0800

fax 202-452-1868

KATE MARTIN

D.C. Bar No. 949115

Center for National Security Studies

2130 H Street, N.W. S. 701

Washington, D.C. 20037

202-994-7060

STEVEN R. SHAPIRO

LUCAS GUTTENTAG

American Civil Liberties Union

Foundation

125 Broad Street

New York, N.Y. 10004

212-549-2500

ELLIOT M. MINCBERG

D.C. Bar No. 941575

People For the American Way Foundation

2000 M Street N.W., Suite 400

Washington, D.C. 20036

tel. 202-467-4999

fax 202-293-2672

Counsel for Plaintiffs

December 10, 2001

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Amended Complaint for Injunctive Relief has been served by messenger delivery, this 10th day of December 2001, upon counsel for defendant:

Lisa Olson, Esq.

U.S. Department of Justice

901 E Street, N.W.

Room 1052

Washington, DC 20530

______________________________

DAVID L. SOBEL

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________

)

CENTER FOR NATIONAL SECURITY STUDIES, )
ET AL., )

Plaintiffs, )
)

v. ) Civil Action
) No. 01-2500

UNITED STATES DEPARTMENT OF JUSTICE, )

) Judge Kessler

Defendant. )

______________________________________)

ANSWER

Defendant, United States Department of Justice, by and through its undersigned counsel, answers plaintiffs' Amended Complaint for Injunctive Relief ("complaint") as follows:

FIRST DEFENSE

The complaint fails to state a claim upon which relief can be granted.

SECOND DEFENSE

In answer to the individually numbered paragraphs of the complaint, defendant states as follows:

1-2. These paragraphs contain plaintiffs' characterization of this action to which no answer is required, but insofar as one is required, denied.

3. The first and third sentences are admitted. The second sentence is denied.

4-26. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in these paragraphs.

27. Admit.

28. Admit.

29-31. These paragraphs contain plaintiffs' characterization and description of their October 29, 2001 letters to the Office of Information and Privacy, the FBI, and INS, to which no answer is required, but insofar as one is deemed required, denied, and the Court is respectfully referred to the letters for an accurate and complete statement of their contents.

32. The first sentence contains plaintiffs' characterization and description of the November 1, 2001 letter from Melanie Ann Pustay, Office of Information and Privacy, Department of Justice, on behalf of the Offices of the Attorney General and Deputy Attorney General, to Kate Martin, Center for National Security Studies, to which no answer is required, but insofar as one is deemed required, denied, and the Court is respectfully referred to the letter for an accurate and complete statement of its contents. The second sentence is denied, except to admit that the FBI provided a substantive response to plaintiffs' request on November 1, 2001.

33. Admit.

34. Denied.

35. Denied.

36. Denied, and it is averred that INS asked the requesters to consider narrowing the scope of their request because of the potential enormity of the response.

37. Admit.

38. Admit.

39. Denied.

40. The first sentence contains plaintiffs' characterization and description of the November 1, 2001 letter from John Kelso, FBI, to Kate Martin, Center for National Security Studies, to which no answer is required, but insofar as one is deemed required, denied, and the Court is respectfully referred to the November 1, 2001 letter for an accurate and complete statement of its contents. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in the second sentence except to admit that an appeal was telefaxed to the Office of Information and Privacy on November 7. The third sentence is denied, and it is avered that by letter dated December 10, 2001, DOJ's Office of Information and Privacy denied the appeal and affirmed the FBI's action on plaintiffs' FOIA request on both Exemption 7(A) and 7(C) grounds, and also notified plaintiffs that the FBI had no records responsive to the request for policy directives issues to officials regarding the disclosure of information about detainees.

41. Admit.

42. Denied.

43. Defendant here incorporates its above responses to paragraphs 1 through 42 of the complaint.

44. This paragraph contains conclusions of law and not averments of fact to which an answer is required, but insofar as one is required, denied.

45. Defendant here incorporates its above responses to paragraphs 1 through 42 of the complaint.

46-47. These paragraphs contain conclusions of law and not averments of fact to which an answer is required, but insofar as one is required, denied.

48. Defendant here incorporates its above responses to paragraphs 1 through 42 of the complaint.

49. This paragraph contains conclusions of law and not averments of fact to which an answer is required, but insofar as one is required, denied.

50. Defendant here incorporates its above responses to paragraphs 1 through 42 of the complaint.

51-53. These paragraphs contain conclusions of law and not averments of fact to which an answer is required, but insofar as one is required, denied.

54. Defendant here incorporates its above responses to paragraphs 1 through 42 of the complaint.

55-57. These paragraphs contain conclusions of law and not averments of fact to which an answer is required, but insofar as one is required, denied.

58. Defendant here incorporates its above responses to paragraphs 1 through 42 of the complaint.

59-61. These paragraphs contain conclusions of law and not averments of fact to which an answer is required, but insofar as one is required, denied.

The remainder of the complaint sets forth plaintiffs' prayer for relief to which no answer is required, but insofar as an answer is deemed required, defendant denies that plaintiffs are entitled to the relief requested or to any relief whatsoever.

Wherefore, having fully answered, defendant respectfully requests that the Court enter judgment dismissing the complaint with prejudice.

Respectfully submitted,

ROBERT D. McCALLUM, JR.
Assistant Attorney General

ROSCOE C. HOWARD
United States Attorney

DAVID J. ANDERSON

ANNE L. WEISMANN

LISA A. OLSON

U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-5633
Facsimile: (202) 616-8470
E-mail: lisa.olson@usdoj.gov
Dated: Jan. 11, 2002 Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on January 11, 2002, copies of the Answer were served by facsimile and by first-class mail, postage pre-paid, upon plaintiffs' counsel as follows:

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
fax: (202) 483-1248

Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: (202) 452-1868

Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037
fax: (202) 994-7005

Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
fax: (212) 549-2651

Ellior M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
fax: (202) 293-2672

__________________________
LISA A. OLSON

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________

)
CENTER FOR NATIONAL SECURITY STUDIES, )
ET AL., )

Plaintiffs, )
)

v. ) Civil Action
) No. 01-2500

UNITED STATES DEPARTMENT OF JUSTICE, )

) Judge Kessler

Defendant. )

______________________________________)

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56 and U.S. Dist. Ct. Rules D.C., General Rule 108(h), defendant hereby moves the Court to grant summary judgment in its favor, on grounds that there is no genuine issue as to any material fact and defendant is entitled to a judgment as a matter of law. The reasons for this motion are more fully set forth in the accompanying Memorandum of Points and Authorities, which is incorporated herein.

Respectfully submitted,

ROBERT D. McCALLUM, JR.

Assistant Attorney General

ROSCOE C. HOWARD

United States Attorney

DAVID J. ANDERSON

ANNE L. WEISMANN

LISA A. OLSON

U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-5633
Facsimile: (202) 616-8470
E-mail: lisa.olson@usdoj.gov
Dated: Jan. 11, 2002 Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on January 11, 2002, copies of the Answer, Defendant's Statement of Material Facts, Defendant's Motion for Summary Judgment, and the Memorandum in Support of Defendant's Motion for Summary Judgment, with attached Exhibits were served by hand-delivery, first-class mail, or federal express, upon plaintiffs' counsel as follows:

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
fax: (202) 483-1248

Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: (202) 452-1868

Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037
fax: (202) 994-7005

Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
fax: (212) 549-2651

Ellior M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
fax: (202) 293-2672

__________________________
LISA A. OLSON

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

PLAINTIFFS' MOTION TO STAY PROCEEDINGS ON
DEFENDANT'S SUMMARY JUDGMENT MOTION PENDING DISCOVERY

Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, plaintiffs hereby move for the entry of an order temporarily staying proceedings on defendant's motion for summary judgment pending responses to plaintiffs' discovery requests.

While plaintiffs believe that the government has failed to meet its burden of establishing the exempt status of the withheld information, the discovery plaintiffs seek will enable them to present facts material to their opposition to defendant's motion and will assist the court in conducting its de novo review of the defendant's decision to withhold the requested material, 5 U.S.C. § 552(a)(4)(B). Defendant has indicated that it will oppose this motion.

The grounds for this motion are set forth below and in the Declarations of David L. Sobel and Elizabeth S. Westfall, filed herewith.

Introduction

This is a case of extraordinary public interest, in which plaintiffs seek disclosure of the identities of, and other information about, hundreds of individuals who have been detained for weeks and months in the wake of the events of September 11, 2001, and in which the Department of Justice has sought to impose an unprecedented shroud of secrecy to shield highly controversial governmental actions from public scrutiny. The public interest in this matter is such that the material defendant filed with the court in support of its summary judgment motion formed the basis of a front-page news article in the Washington Post. Dan Eggen, Delays Cited In Charging Detainees, Washington Post, January 15, 2002, page A1.

In a stark departure from the bedrock principle of our legal system that the government must disclose the identity of people whom it forcibly deprives of liberty, the Department of Justice continues to withhold that information, and other basic facts (such as the place of arrest and the place of confinement), about more than 700 individuals, some of whom have been held in secret confinement for more than four months.

Specifically, the government continues to keep secret the names, the citizenship status, the places of arrest, the places of confinement, and the names and addresses of the attorneys representing hundreds of individuals who have been arrested or detained for alleged immigration violations in connection with its post-September 11 investigation.

Even as to 92 individuals who have been indicted on federal criminal charges in connection with the post-September 11 investigation and whose names have been provided, the government continues to keep secret the dates and places of their arrest and the places of their confinement. And as to a still-unknown number of individuals held as material witnesses in that investigation, the government refuses to disclose even the identity of the federal judicial districts that have issued orders governing their detention.

Defendant's summary judgment motion rests principally upon the declaration of an agency official who asserts, in the broadest terms, that disclosure of the information plaintiffs seek would, inter alia, interfere with investigative activities, invade personal privacy, and endanger the safety of individuals. Declaration of James S. Reynolds ("Reynolds Decl."). Defendant contends that those purported harms render the requested information exempt from disclosure under FOIA Exemption 7.

On its face, the Reynolds Declaration does not meet the government's burden of establishing that the predicted law enforcement harms would follow from disclosure of the names of the detainees, because it fails to address the material facts relevant to determining the applicability of the exemption, about which plaintiffs need discovery. For example, the declaration states only that "some" of the detainees have "links" to "facets" of the anti-terrorism investigation. Apparently, then, some do not even have "links" to "facets" of the investigation, and as to those, the law enforcement harms that Mr. Reynolds discusses simply do not apply.

In addition to that basic flaw, there are other material issues of fact as to which there is reason to believe that the government's declarations are inaccurate or at least incomplete. These factual issues can be resolved only through the discovery contemplated by Fed. R. Civ. P. 56(f). Therefore, further proceedings on defendant's motion for summary judgment should be stayed pending limited discovery on issues material to defendant's exemption claims and to the accuracy and completeness of defendant's response to plaintiffs' FOIA request.

ARGUMENT

DISCOVERY REGARDING CERTAIN MATERIAL FACTS IS NECESSARY TO OPPOSE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND TO DETERMINE THE ACCURACY AND COMPLETENESS OF DEFENDANT'S RESPONSE TO PLAINTIFFS' FOIA REQUEST

The government argues that disclosing the identity of the INS detainees could compromise its ongoing investigation. However, as shown below, there are credible indications that the government itself has determined that most of the detainees are not connected to terrorism. If that is the case, defendant's law-enforcement arguments for withholding this information are entirely pretextual. Plaintiffs need discovery in order to illuminate the potentially misleading nature of the government's arguments.

Additionally, as shown below, there are several respects in which defendant's response to the FOIA request appears to be incomplete or inaccurate. Plaintiffs also need discovery so that the Court will be able to determine the adequacy of defendant's response.

I. Plaintiffs are Entitled to Discovery Because Defendant's Declaration is Inadequate for Plaintiffs to Oppose, and
the Court to Review, the Agency's Claims

The FOIA's exemptions are to be narrowly construed, Department of the Interior v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060, 1065 (2001) (quoting United States Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989)), and when an agency withholds requested documents, the burden is on the agency to justify its action. 5 U.S.C. § 552(a)(4)(B). Thus, the structure of the Act reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Department of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quotation omitted).

Judicial consideration of claims under Exemption 7 (upon which defendant primarily relies) requires a two-part inquiry: (1) the requested information must be demonstrated to have been compiled for law enforcement purposes; and (2) the agency must show that release of the material will result in one of the harms specified in the statute. Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 622 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). Thus, in order to resist disclosure, the government must establish that some distinct harm could reasonably be expected to result if the information requested were disclosed. See Crooker v. ATF, 789 F.2d 64, 65-67 (D.C. Cir. 1986).

The standard for withholding information under Exemption 7(A) is "whether disclosure can reasonably be expected to interfere in a palpable, particular way" with enforcement proceedings. North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989) (emphasis added). "[T]he government must show, by more than conclusory statements, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding." Campbell v. Department of Health & Human Services, 682 F.2d 256, 259 (D.C. Cir. 1982) (emphasis added). Material is exempt under 7(A) only where the government "states in detail the problems that would arise should such information be released." Accuracy in Media v. FBI, No. 97-2107, slip op. at 5 (D.D.C. Mar. 31, 1999). "Specificity . . . is necessary to ensure meaningful review of an agency's claim to withhold information subject to a FOIA request." King v. Department of Justice, 830 F.2d 210, 223 (D.C. Cir. 1987); see also Neill v. Department of Justice, No. 93-5292, 1994 WL 88219, at *1 (D.C. Cir. Mar. 9, 1994) (conclusory affidavit lacked specificity "necessary to ensure meaningful review" of agency's Exemption 7(A) claims).

In support of its motion for summary judgment, the government has presented only broad and general assertions that purport to apply to the various circumstances of hundreds of detained individuals. There is no solid information provided from which plaintiffs or the court can determine the applicability or validity of the government's claims to the requested information. In fact, only one paragraph of the agency's supporting declaration contains language making any connection between the harms posited by the government and the requested information: "in the course of questioning [the individuals detained], law enforcement agents determined, often from the subjects themselves, that they were in violation of federal immigration laws, and, in some instances also determined that they had links to other facets of the investigation." Reynolds Decl. 10 (emphasis added).

Attempting to build upon this glaringly broad and insufficient assertion, the government's declarant proceeds to recite a litany of potential harms, using the assertion that "some" detainees have "links" to "facets of the investigation" to justify withholding information relating to each of the 725 INS detainees. But there has not been even an assertion by the defendant that each of the detainees -- and former detainees -- about whom basic information is being withheld has been "linked" to anything.

As the D.C. Circuit has held, "[a] district court may grant summary judgment to the government in a FOIA case only if 'the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.'" PHE, Inc. v. Department of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993) (quoting King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)).

Since "both the court and the requester must look to the affidavits for an explanation of the agency's decision to withhold information . . . an affidavit that contains merely a 'categorical description of redacted materials coupled with categorical indication of anticipated consequences of disclosure is clearly inadequate.'" Id. While the cited cases involved a lack of specificity in describing the withheld documents or the anticipated harms, the same principle applies here, where what is lacking is specificity in showing the connection between the material that has been withheld (identity of detainees who are not believed to have any connection to terrorism) and the reasons for withholding it (predicted law enforcement harms).

The deficiencies of the Reynolds Declaration are exacerbated by the fact that the information at issue in this case concerns matters that indisputably raise questions relating to potential governmental impropriety. In granting plaintiffs' requests for expedited processing of their FOIA requests, defendant conceded that this is "(a) matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." Exhibit B to Declaration of Melanie Ann Pustay (attached to Defendant's Motion for Summary Judgment as Exhibit 4).

For example, review of the list of INS detainees attached to defendant's summary judgment motion indicates that, as the Washington Post reported last week, "[s]cores of immigrants detained after the Sept. 11 terror attacks were jailed for weeks before they were charged with immigration violations," including at least one who was held for 66 days with no charge pending against him. And while the government asserts that "[n]o one has been denied their right to talk to an attorney," Reynolds Decl. 21, there have been credible reports about the severe obstacles that the government has placed in the way of detainees seeking to contact legal counsel. Defendant's continuing refusal to disclose the identity of the detainees or their counsel makes it impossible for the American people to know how many detainees continue to be without counsel after weeks or months in custody, or to find out how difficult the government made it for currently-represented detainees to obtain counsel.

Likewise, there have been highly credible reports about detainees being refused or hindered in exercising their undoubted legal right to contact consular officials from their country of citizenship. For example, the Canadian government recently sent a formal diplomatic note to the U.S. State Department, protesting the treatment of a Canadian citizen who "disappeared" on September 20 and whose detention in federal custody was not disclosed for nearly three months, despite inquiries by Canadian authorities.

Equally troubling -- and equally raising concerns about misconduct by government officials -- are the reports about detainees being abused or treated improperly while in federal custody. For example, some detainees are reported to have been left in the cold without blankets "apparently to weaken their resistance," or to have been housed with convicted criminals. Others have reportedly been kept blindfolded during questioning or confined without a mattress, blanket or drinking cup. At least one female detainee was guarded by male guards 24 hours a day, even while bathing. Just last Friday, Abdallah Higazy was released after 31 days in detention when the government admitted that it had no evidence linking him to terrorism. He told the New York Times that during most of that time "he had not been allowed to speak to anyone or use the telephone," and although he had retained counsel, his attorney was excluded from his interrogation by FBI agents. Monitoring organizations such as plaintiff Human Rights Watch, seeking to respond to such complaints, have been "flatly refused access, in contrast to past practice."

As common sense would indicate, and as courts have concluded, "where it becomes apparent that the subject matter of a [FOIA] request involves activities which, if disclosed, would publicly embarrass the agency . . . government affidavits lose credibility." Rugiero v. Department of Justice, 257 F.3d 534, 546 (6th Cir. 2001) (quoting Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994)). Under the circumstances presented here, plaintiffs' right to seek material facts to rebut defendant's self-serving blunderbuss declarations is concomitantly heightened.

II. Plaintiffs are Entitled to Discovery of Information that will Rebut Defendant's Overbroad Assertions

Not only does the government fail to allege, much less show, that it has information establishing some connection between each detainee and terrorism, but there is reason to believe that with respect to most of the detainees, the government has already concluded that there is no connection to terrorism. Plaintiffs are entitled to take discovery in order to illuminate the misleading nature of the government's arguments.

Perhaps the best illustration of plaintiffs' need for discovery is found in defendant's own submission, where the 118-page list of INS detainees is divided into two segments: a 58-page segment with 381 names captioned "INS Special Interest List," and a 60-page segment with 344 names, with each page bearing the legend "INACTIVE CASES." The apparent meaning of that legend is that these 344 individuals have been cleared of any link to terrorism and thus are no longer of "special interest" to the government; plaintiffs are entitled to know whether that is true.

Indeed, it is public knowledge that hundreds of these individuals have been released from custody. See Brooke A. Masters and Patricia Davis, Moussaoui Has Va. Hearing, Washington Post, December 20, 2001, page A32 ("yesterday, the Justice Department announced that 460 people are currently in federal custody on immigration charges"). And at a public forum sponsored by the Washington Council of Lawyers just last week, a high-level Justice Department official stated that there are now only 160 post-September 11 INS detainees still in custody. See Declaration of Elizabeth S. Westfall, filed herewith.

If the government has concluded that many or most of those initially detained no longer need to be in custody, it is fair to conclude that those individuals are no longer suspected of being involved in terrorist activity. Indeed, the Department of Justice has so stated. See Brooke A. Masters and Patricia Davis, Moussaoui Has Va. Hearing, Washington Post, December 20, 2001, page A32 ("'People who have been determined to have no links to terrorism organizations' have been freed on bond or deported, the department said in a statement"). And if the government has no evidence that they are involved in terrorist activity, then its parade of horribles will have no application to information about those individuals. It is therefore highly relevant for plaintiffs to confirm, through discovery, this information about the number of individuals no longer in custody.

There are yet other sources of support for the proposition that many of the detainees or former detainees are neither suspected of terrorist activity, believed to have knowledge of terrorist activity, nor of any continuing interest to the government's ongoing post-September 11 investigation. The Los Angeles Times reported that "[o]fficials have said that, of the 700, only a few have links to the terrorism investigation. The vast majority were swept up on immigration violations or state and local charges." Richard A. Serrano, Many Held in Terror Probe Report Rights Being Violated, Los Angeles Times, October 15, 2001, page A1.

It is logically essential to the government's assertions about the harms to its investigation and enforcement activities that could result from disclosure of identifying information about the detainees that the detainees are individuals involved in terrorism or having knowledge about terrorism. The Reynolds declaration rests on the assumption that each of the detainees has such involvement or knowledge, and falls of its own weight if they do not. Yet the declaration never goes further than to say that "some" detainees had "links" to "facets" of defendant's investigation, Reynolds Decl. 10, and the information noted above emphasizes the significance of that carefully-hedged statement.

In order to resolve issues of fact material to the government's predictions of harm, plaintiffs are entitled to discovery of information that would shed light on the government's own determinations that most of the detainees have no connection to terrorism. That discovery would include the following:

-- Discovery about the meaning of the legend "INACTIVE CASES" on the list of INS detainees provided to plaintiffs by the government. If, as we believe, this legend means that these individuals have been cleared of any link to terrorism, that would be material evidence contradicting the government's assertions.

-- Discovery about the number of INS detainees that have been cleared for voluntary departure. Some number of detainees have apparently been granted voluntary departure under the immigration laws yet those laws prohibit such approval in any case in which the individual is involved in terrorist activity, see 8 U.S.C. § 1229c(a)(1) & (b)(1)(C). Terrorist activity, in turn, is very broadly defined, see 8 U.S.C. § 1182(a)(3)(B)(iii).

-- Discovery of the number of detainees who have been cleared for voluntary departure will therefore identify a group that the government has itself found will not present the problems postulated in the Reynolds declaration.

-- Discovery about the number of INS detainees who have been released from custody, whether on bond or not. Presumably the government would not release any suspected terrorists from custody. Accordingly, discovery of the number of detainees who have been released will, once again, provide material information to refute the government's assertions.

-- Discovery about the number of INS detainees as to whom the Attorney General has certified that he has "reasonable grounds to believe" they have "engaged in any . . . activity that endangers the national security of the United States." Pub. L. 107-56, § 412, 115 Stat. 272, 351 (October 26, 2001) (to be codified at 8 U.S.C. § 1226a). Discovery of the number of detainees who have or have not been certified under the Act will also provide useful information about how many of the detainees are actually believed to be connected to terrorism.

This discovery would not require the identification of any named individuals or otherwise compel the government to disclose any of the withheld information at issue.

III. Plaintiffs are Entitled to Discovery to Show that Defendant's FOIA Response was Inaccurate and Incomplete

There are also reasons to believe that defendant's FOIA response is not even complete, as the government's response gives no accounting whatsoever of hundreds of people whom the Justice Department has announced have been detained as part of the September 11 investigation.

On November 5, 2001, the Department announced that 1,182 people had been detained since September 11. See Dan Eggen and Susan Schmidt, Count on Released Detainees is Hard to Pin Down, The Washington Post, November 6, 2001, page A10.

However, in its FOIA response, defendant lists only 725 INS detainees and states that 117 detainees are being held on federal criminal charges and some number on material witness warrants; the Justice Department has stated that the latter is a "small number." Neil A. Lewis, A Nation Challenged: The Detainees, New York Times, October 30, 2001, page B1. Accordingly, the government's response at a minimum fails to account for more than 300 individuals who have been detained.

In addition, it appears that the number of unaccounted-for individuals may be even larger than that, as Justice Department releases show that more than 100 individuals have been detained since November 6, when the Justice Department last announced a total number. Compare arrest dates on INS Custody List released November 27, 2001 (available at <http://www.nytimes.com/library/ national/0111127.ins.2.pdf>), with arrest dates on List of INS detainees released January 11, 2002 (Exhibit 6 to defendant's sumary judgment motion).

The list of detainees who have been charged with federal crimes (Exhibit 5 to defendant's motion) likewise appears to be incomplete. That list contains the names of 92 individuals. But on November 27, 2001, Attorney General Ashcroft named 93 criminal defendants who were said to be part of the post-September 11 investigation. Moreover, the Reynolds declaration states that there are "117 individuals who have been held on federal criminal charges." Reynolds Decl. 27 (emphasis added). Thus, 25 individuals in this category seem to have been omitted altogether, without any explanation in Defendant's declarations or memorandum.

In addition, there appears to be an unspecified number of federal criminal defendants whose cases are under seal. Defendant's declarant notes, just in passing, that "for those persons being held on federal criminal charges whose cases are not under seal, DOJ has already disclosed [certain information] to plaintiffs." Reynolds Decl. 8. Nothing further is ever said about cases that are under seal (these are not the sealed "material witness" cases discussed by Mr. Reynolds at 31-36 of his declaration), and no information has been released as to them -- not even the number. But government officials have stated that there were eleven such defendants as of late November, and there may well be more by now. Plaintiffs' FOIA request required a response regarding these individuals, but there has been none.

Defendant also states that it has previously released to the public the identity of the federal judicial district in which "the complaint or indictment was filed" against each criminally charged defendant. Reynolds Decl. 8. But that is only partially true. That category of information was released on November 27, 2001, in connection with the release of information about the 93 defendants then disclosed. But there are 10 detainees listed in Exhibit 5 who were not named on November 27, and as to them the district in which they are charged has not been disclosed. And, as noted above, there appear to be 25 charged individuals as to whom no information -- including district in which charged -- has been provided.

Further, on the list of INS detainees (Exhibit 6 to defendant's motion), eleven individuals are shown as being charged under federal criminal law (Title 18 U.S. Code) rather than under provisions of the Immigration Act. Because of the absence of names, it is impossible to ascertain whether any of those individuals are also listed in Exhibit 5 (the criminally-charged detainees). However, it appears certain that at least six of those eleven individuals do not appear in Exhibit 5, because the charges (or combination of charges) shown against them on Exhibit 6 do not appear on Exhibit 5.

Plaintiffs are entitled to take discovery to explore these apparent discrepancies, inconsistencies or omissions, and to assure the completeness and accuracy of defendant's responses.

IV. Discovery is Appropriate under the Circumstances Here

The D.C. Circuit has long recognized that where, as here, "[f]acts respecting the [exemption claim] in question are solely in the control of the [agency]," the FOIA requester "should be allowed to undertake discovery for the purpose of uncovering facts which might prove his right of access to the documents which he seeks." Schaffer v. Kissinger, 505 F.2d 389, 391 (D.C. Cir. 1974) (citing Rule 56(f); other citation omitted). As this Court has noted,

Courts in this Circuit have stressed the importance of permitting FOIA plaintiffs to take depositions under Rule 56(f) where the relevant factors are in the control of the moving party and the affidavits are inaccurate or incomplete. Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164 (D.C. Cir. 1981); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (per curiam).
American Broadcasting Companies, Inc. v. United States Information Agency, 599 F. Supp. 765, 768 (D.D.C. 1984).
In authorizing discovery of the sort plaintiffs seek here, the court cited the "substantial authority supporting the proposition that 'Rule 56(f) motions should be liberally granted . . . especially where all of the allegedly material facts are within the exclusive knowledge of the opposing party.'" Id. (citation omitted). The court permitted discovery upon the plaintiff's assertion that it could "provide important evidence that is missing from [the agency's] declarations, and in the exclusive control of the defendants." Id. at 769.

As the D.C. Circuit found in Londrigan, 670 F.2d at 1175 n.63, "[d]iscovery is especially important in cases, such as this, where a person requesting access to agency records under the . . . FOIA is entitled to as complete and accurate an explanation of the reasons for nondisclosure of sought-after information as the agency is able to provide." The court further recognized that "discovery benefits not only the requester but also the court, which must review an agency decision not to release." Id. (citing Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 833 & n.75 (1979)). See also Porter v. Department of Justice, 717 F.2d 787, 793 (3d Cir. 1983) ("Congress did not intend to leave a requester 'helpless to contradict the government's description of information or effectively assist the trial judge'") (citation omitted).

Plaintiffs' claim for discovery in this case is more than adequate. As this court has held, under Rule 56(f) plaintiffs "need not even present the proof creating the minimal doubt on the issue of fact which entitles [them] to a full trial; it is enough if [they] show[] the circumstances which hamstring [them] in presenting that proof by affidavit in opposition to the motion." American Broadcasting Companies, Inc., 599 F. Supp. at 769 (citing 10A Wright, Miller & Kane, Federal Practice and Procedure, Civil § 2740 at 520 (2d ed. 1983)). See also Carney v. Department of Justice, 19 F.3d 807, 813 (2d Cir. 1994) ("in support of his Rule 56(f) affidavit, [plaintiff] was not required to present evidence that would be admissible at a trial") (citation omitted).

Here, plaintiffs have shown that, in apparent contradiction to defendant's overbroad assertions of harm resulting from the disclosure of information concerning any of the detainees, credible information contained in published reports indicates that the government itself has concluded that hundreds of detainees have no connection to, or knowledge of, terrorism. Plaintiffs are entitled to discovery about this in order effectively to oppose defendant's claims of exemption.

In Washington Post Co. v. Department of State, 840 F.2d 26 (D.C. Cir. 1988), vacated on other grounds, 898 F.2d 793 (D.C. Cir. 1990), the agency sought to withhold information concerning the U.S. citizenship of an Iranian official. At issue was the agency claim that the individual would suffer significant harm if the information was disclosed. The plaintiff challenged the agency's assertion, as plaintiffs do here, with information contained in published news reports. See, e.g., 840 F.2d at 28 (plaintiff "pointed to several press accounts of events in Iran, and to books published . . . that had referred to [the official's] reputed ties to the United States"). Noting that "[m]uch of the content of the Department's affidavits is contradicted by concrete evidence identified by the Post," id. at 36, and that published information "pointedly controvert[s] the Department's prediction of harm from disclosure," id. at 37, the court held that discovery was appropriate. Likewise, plaintiffs here have identified information that contradicts the government's assertions of harm. As in Washington Post and the other cases cited herein, plaintiffs are entitled to discovery.

CONCLUSION

Pursuant to Rule 56(f), proceedings on defendant's motion for summary judgment should be temporarily stayed pending defendant's response to plaintiffs' discovery.

A proposed order is attached.

Respectfully submitted,

_____________________________________
David L. Sobel
D.C. Bar No. 360418
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009
tel. 202-483-1140
fax 202-483-1248

_____________________________________
Arthur B. Spitzer
D.C. Bar. No. 235960
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
tel. 202-457-0800
fax 202-452-1868

Kate Martin
D.C. Bar No. 949115
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037
202-994-7060

Steven R. Shapiro
Lucas Guttentag
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
212-549-2500

Elliot M. Mincberg
D.C. Bar No. 941575
People For the American Way Foundation
2000 M Street N.W., Suite 400
Washington, D.C. 20036
tel. 202-467-4999
fax 202-293-2672

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing PLAINTIFFS' MOTION TO STAY PROCEEDINGS ON DEFENDANT'S SUMMARY JUDGMENT MOTION PENDING DISCOVERY was served by first-class mail and by fax upon:

David J. Anderson, Esq.
Anne L. Weismann, Esq.
Lisa A. Olson, Esq.
United States Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, DC 20530

fax: 202-616-8470

this 22d day of January 2002.

________________________
Arthur B. Spitzer

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

ORDER
Upon consideration of plaintiffs' Motion to Stay Proceedings on Defendant's Summary Judgment Motion Pending Discovery, it appearing to the court that plaintiffs are entitled to discovery before the Court rules on the motion for summary judgment, it is, this _____ day of January, 2002, hereby
ORDERED, that the motion is granted and proceedings on defendant's motion for summary judgment shall be stayed pending further order of the court.

___________________________
Gladys Kessler
United States District Judge

Copies of the foregoing order shall be served upon:

David L. Sobel
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009

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

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

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

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

David J. Anderson
Anne L. Weismann
Lisa A. Olson
United States Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, DC 20530

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

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO STAY PROCEEDINGS ON DEFENDANT'S SUMMARY JUDGMENT MOTION PENDING DISCOVERY

PRELIMINARY STATEMENT

This litigation, as plaintiffs themselves have defined it, concerns requests they filed with several components of the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA") for information concerning individuals detained in connection with the government's investigation of the terrorist attacks of September 11. The Department produced a substantial part of the information responsive to plaintiffs' request, but withheld a narrow category of sensitive information concerning these detainees, after determining that its release could compromise the ongoing investigation, threaten the safety and security of the public and of the detainees, and invade the detainees' personal privacy. Thus, the issue for this Court to resolve is limited and well defined, namely, whether the Department of Justice has met its burden of proving that the withheld information is within the claimed exemptions under the FOIA.

Rather than responding to the merits of defendant's argument, plaintiffs seek to stay the Court's consideration of the pending summary judgment motion to allow them to take discovery. Discovery in a FOIA case is, however, extremely disfavored, as FOIA cases generally do not present factual issues the resolution of which is dependent on discovery. The discovery plaintiffs seek here is particularly inappropriate, representing an attempt to gain access to the inner workings and probe the bona fides of the government's ongoing terrorism investigation. At the same time, the issues on which plaintiffs seek discovery will not shed any light on the merits of the challenged withholdings under the FOIA. Indeed, the plaintiffs seek to use discovery to gain even more information than they have sought in their FOIA requests. But that information is entitled to the same, if not greater, protection from disclosure.

Plaintiffs seek two categories of discovery, but neither is necessary to resolve the government's motion for summary judgment here. First, plaintiffs seek more specific information about how each of the individuals detained pursuant to the investigation of the September 11 attacks is connected to terrorism. Defendant has already demonstrated, however, that disclosure of any additional information about each of the categories of detainees - those subsequently released, those held on immigration?related charges, those held on federal criminal charges, and those held as material witnesses - poses an unacceptable risk of compromising the ongoing investigation, invading the privacy of the detainees, and threatening their safety and the safety of the public at large. More importantly, plaintiffs' request for further information fundamentally misconstrues the nature of the inquiry under FOIA Exemption 7. The government is not required to demonstrate a connection between each detainee and terrorism in order to invoke the exemption, but merely that the release of information about the individuals would threaten to harm the investigation of terrorist activities, or that it could threaten the safety or privacy of the detainees or the safety of the public.

Second, plaintiffs seek discovery to resolve what they claim are factual discrepancies concerning the number of detainees, discrepancies plaintiffs may have inferred from statements released by defendant at different times as the investigation has proceeded. Not only is discovery unnecessary to explain these alleged discrepancies, but none is material to the resolution of the legal issues presented by this FOIA lawsuit. The number of detainees in custody is necessarily in flux because of the fluid and ongoing nature of defendant's investigation. A detainee's status may change as a result of developing circumstances and defendant's efforts to process expeditiously and, if appropriate, to release the detainee. Any minor numerical errors do not bear on the soundness of the government's withholdings and certainly do not constitute evidence of some overall governmental wrongdoing, as plaintiffs suggest. Dissecting each individual case through discovery is unnecessary and inappropriate, and would present an unacceptable risk of harm. Plaintiffs' attempt to broaden this fairly narrow FOIA case into a wide-ranging inquiry into the government's treatment of the detainees and overall conduct of the terrorism investigation should be rejected. Their motion to stay proceedings on defendant's summary judgment motion pending discovery should therefore be denied.

BACKGROUND

On October 29, 2001, plaintiffs submitted three FOIA requests to defendant, seeking certain information about the individuals "arrested or detained" pursuant to defendant's investigation into the September 11 terrorist attacks and related terrorist activities. While defendant was still in the process of responding to these requests, plaintiffs filed this suit on December 5, 2001.

In response to the requests and this lawsuit, defendant has provided much of the information plaintiffs requested, but has withheld certain limited categories of information pursuant to Exemptions 3, 5, 7(A), 7(C), and 7(F) of the FOIA. The information withheld that is relevant to the present motion includes the names of persons being held on immigration-related charges by the INS and their release date, if they have been released, the citizenship status and dates of arrest of those charged with federal crimes, the places of arrest of all the detainees, the locations where the detainees were originally held and the locations where they are currently being held, and all information regarding those being held as material witnesses and those cases sealed by court order. See Def's SJ Mem. at 8-10 & Exhs. 5 & 6.

On January 11, 2002, defendant filed a summary judgment motion, seeking a judgment that defendant has properly withheld the above categories of information under the FOIA. See Defendant's Motion for Summary Judgment. Defendant first showed that the information in question met the threshold requirement that it be "compiled for law enforcement purposes." Def's SJ Mem. at 13-14. Defendant then showed that the disclosure of this information "could reasonably be expected" to result in three of the harms covered by Exemption 7. Id. at 14-30. This conclusion was established by the Declaration of James S. Reynolds, the Chief of the Terrorism and Violent Crime Section in the Criminal Division of the DOJ, and one of those responsible for coordinating and supervising DOJ's investigation into the September 11 terrorist attacks. In his declaration, Mr. Reynolds explains specifically how disclosure of the requested information could result in significant harm to the interests of the United States and compromise the September 11 and other ongoing terrorism?related investigations, 5 U.S.C. § 552(b)(7)(A); Reynolds Dec. 13?18, 28, 35; could violate the substantial privacy interests of the detainees in their names and the requested personal information connected with their status as detainees, 5 U.S.C. § 552(b)(7)(C); Reynolds Dec. 19?23, 29?30, 36; see also id. 24?26; and could pose a serious threat to the life or physical safety of the public, as well as of the detainees and persons affiliated with them, 5 U.S.C. § 552(b)(7)(F); Reynolds Dec. 13-18, 37?38.

Despite the fact that the government's motion was filed pursuant to a schedule agreed upon by the parties - one that was premised on all parties' understanding that this case presents issues of law properly resolved by motions for summary judgment and that an expeditious resolution of these issues is appropriate - plaintiffs in response seek to stay the summary judgment proceedings in order to conduct discovery. See Plaintiffs' Motion to Stay Proceedings on Defendant's Summary Judgment Motion Pending Discovery (filed Jan. 22, 2002) ("Pls' Stay Mtn."). Plaintiffs contend that, in order to rebut defendant's showing that disclosure may jeopardize the ongoing law enforcement investigation, see 5 U.S.C. § 552(b)(7)(A), they need information concerning, generally, the nature and degree of each detainee's connection to terrorism and why the public identification of detainees with no currently known link to the September 11 attacks would pose any threat to the investigation. Pls' Stay Mtn. at 7?16. Plaintiffs also seek clarification of certain alleged factual discrepancies relating to the number of detainees, discrepancies which plaintiffs may have inferred from statements released by defendant at different times as the investigation has proceeded. Id. at 17-20. As will be shown below, this discovery is not warranted.

ARGUMENT

I.

PLAINTIFFS' MOTION TO STAY SUMMARY JUDGMENT PROCEEDINGS
TO TAKE DISCOVERY SHOULD BE DENIED

Plaintiffs bear a significant burden in attempting to obtain Rule 56(f) discovery in a Freedom of Information Act case. The courts have overwhelmingly and unambiguously declared that discovery is "generally inappropriate" in FOIA cases. Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 25 (D.D.C. 2000) (internal quotation marks and citation omitted); see also Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) ("discovery . . . generally is unnecessary"); Broadrick v. Executive Office of the President, 139 F. Supp. 2d 55, 62 (D.D.C. 2001) ("discovery is not typically part of FOIA . . . "). In FOIA cases, where the defendant has the burden of proof, see 5 U.S.C. § 552(a)(4)(B), discovery is unwarranted if defendant's affidavits "describe the documents and the justifications for nondisclosure in reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738, 751 (D.C. Cir. 1981); see also Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); Billington v. Department of Justice, 11 F. Supp. 2d 45, 72 (D.D.C. 1998) ("[d]iscovery should be denied altogether if the court is satisfied from the agency's affidavits that no factual disputes remain, and when the affidavits are relatively detailed and submitted in good faith") (internal quotation marks and citations omitted), aff'd in part, vacated in part, 233 F.3d 581 (D.C. Cir. 2000).

The standard for obtaining discovery under Rule 56(f) is equally strenuous. Rule 56(f) permits discovery only if the party opposing the motion files an affidavit demonstrating that it "cannot for reasons stated present by affidavit facts essential to justify [its] opposition." Fed. R. Civ. P. 56(f). To meet this burden, the party opposing the motion for summary judgment must "demonstrate precisely how additional discovery will lead to a genuine issue of material fact." Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 987 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000). That is, the opposing party must "indicate what facts [it] intend[s] to discover that would create a triable issue." Carpenter v. Federal Nat'l Mortgage Ass'n, 174 F.3d 231, 237 (D.C. Cir. 1999); see King v. United States Dep't of Justice, 830 F.2d 210, 232 n.157 (D.C. Cir. 1987).

Plaintiffs fail to meet these stringent standards in the present case. Plaintiffs identify two general matters on which they want discovery: (1) the nature and degree of the connection between each detainee and terrorism, and how the disclosure of information regarding detainees who have been determined to be of no current investigative interest could harm the government's investigation, and (2) clarification of certain alleged factual discrepancies in defendant's declarations. However, neither category of information is "essential" to resolving defendant's summary judgment motion. FOIA Exemption 7(A) does not require that the government establish a connection between each detainee and terrorism, but rather between release of the withheld information and potential harm to the investigation of terrorism. As to the latter issue, the Declaration of James S. Reynolds, Chief of the Terrorism and Violent Crime Section of the Criminal Division of the Department of Justice, filed with defendant's summary judgment motion, explains in sufficient detail how disclosure of the withheld information, even as to detainees who are not currently of investigative interest regarding the September 11 attacks, could harm the investigation. And resolving the exact number of detainees is equally irrelevant. In Exemption 7 cases, the courts are authorized to make decisions regarding generic categories of information, rather than being required to review each document and each withholding individually. In the present case, the applicability of the relevant exemptions can be adequately assessed without knowing exactly how many detainees are in each category.

Nevertheless, to clarify some of the information provided by Mr. Reynolds in his January 11 declaration, defendant submits herewith the Supplemental Declaration of Mr. Reynolds ("Supp. Reynolds Dec.") (Exhibit 1 hereto), providing additional information and making clear beyond any doubt that discovery is neither necessary nor appropriate here. Cf. Founding Church of Scientology v. United States Marshals Serv., 516 F. Supp. 151, 156 (D.D.C. 1980) (finding affidavits insufficient but issuing protective order against discovery and ordering defendants "to file with the Court a detailed affidavit or affidavits which support(s) their assertions that the search of their files conducted in response to plaintiff's FOIA request was adequate"). This supplemental declaration confirms that the INS list of "Inactive Cases" contains the names of detainees who are believed not to be of current interest regarding the investigations emanating from the September 11 attacks, thus answering one of plaintiffs' questions. Supp. Reynolds Dec. 3. It also makes clear that the harms outlined in Mr. Reynolds' prior declaration apply equally to disclosure of details regarding these detainees. Id. 5-6. It further addresses plaintiffs' questions with regard to the number of detainees. Id. 2-4. Corrected lists of detainees are also provided. Id. 8 & Amended Exhs. 5 & 6. This declaration lays to rest any valid concerns about the sufficiency of defendant's response, and underlines that there is no evidence of bad faith in defendant's FOIA response or any other evidence sufficient to overcome the presumption against discovery. For all of these reasons, plaintiffs' motion for a stay of proceedings to take discovery should be denied.

A. THE NATURE OF THE CONNECTION BETWEEN EACH DETAINEE AND TERRORIST ACTIVITIES IS NOT RELEVANT TO RESOLVING THE VALIDITY OF DEFENDANT'S WITHHOLDINGS

Plaintiffs seek discovery to ascertain whether the government has concluded that, with respect to at least some of the detainees, "there is no connection to terrorism." Pls' Stay Mtn. at 12 (emphasis in original). More specifically, plaintiffs seek information regarding detainees on the INS list labeled "Inactive Cases," detainees cleared for voluntary departure, detainees who have been released from custody, and detainees who have been certified under Public Law No. 107-56. Id. at 15-17. These details will, they assert, reveal that the government has determined that there is no connection between some of the detainees and terrorist activities. In addition, they seek discovery generally to "shed light on the government's own determinations that most of the detainees have no connection to terrorism." Id. at 15.

This discovery is unnecessary and inappropriate for three reasons. First, defendant has acknowledged its conclusion that some detainees are not currently of interest regarding the investigations emanating from the September 11 attacks. Moreover, Mr. Reynolds' declarations sufficiently demonstrate that release of the information sought, even as to those detainees not currently of investigative interest, could harm the investigation, as well as put at risk the safety of the public and the detainees and threaten the privacy of the detainees, and therefore establish the validity of the government's assertion of Exemption 7. Second, to the extent that plaintiffs' request for discovery actually goes beyond the foregoing issues, into the connection between each detainee and terrorism, it is based on a misreading of Exemption 7. And, third, discovery into the government's underlying investigative determinations regarding the link between the detainees and terrorism is in any event not permitted under FOIA.

1. Mr. Reynolds' Declarations Establish That Release Of Information Even Regarding Those Detainees Who Have Been Determined Not To Be Of Current Interest Regarding The Investigations Emanating From The September 11 Attacks Could Harm The Investigations

That some of the detainees about whom information has been withheld include individuals not currently of investigative interest regarding the events of September 11 is not in dispute. See, e.g., Reynolds Dec. 16 & Exh. 6; Supp. Reynolds Dec. 3. What plaintiffs apparently dispute is the conclusion that releasing their names and other identifying information could nevertheless pose an unacceptable risk to the ongoing investigation or the public safety. However, Mr. Reynolds' declarations sufficiently establish that release of the information sought, even as to those detainees not currently of investigative interest, could harm the investigation, as well as endanger the safety of the public and the safety of the detainees and threaten the privacy of the detainees. Further discovery on these issues is, therefore, not justified. Indeed, in making this argument, plaintiffs ignore the privacy and safety interests independently justifying withholding under Exemption 7(C) and 7(F). Unless those exemptions are first held inapplicable, discovery allegedly directed towards ascertaining the applicability of Exemption 7(A) is superfluous.

As Mr. Reynolds explains, even though some detainees may not themselves be of current interest with respect to the investigations emanating from the September 11 attacks, the same harms described in his original declaration at paragraphs 14?16 could occur if their names are disclosed. Supp. Reynolds Dec. 5-6. For example, disclosure of information regarding these detainees could inform terrorist organizations about what evidence law enforcement has obtained, or, just as importantly, has not obtained. Id. 6.

Disclosure could reveal important information about the direction, progress, focus and scope of the investigation, and thereby assist terrorist organizations in counteracting our investigative efforts. Id. For example, disclosing information about persons who are not currently the subject of investigative interest may inform terrorist organizations of routes of investigation that were followed but eventually abandoned. Id. Such information could provide insights into the past and current strategies and tactics of law enforcement agencies conducting the investigation. Id. Even confirmation of negative knowledge can be harmful to government efforts when battling a sophisticated foe. See Vosburgh v. IRS, 1994 WL 564699, *2 (D. Ore. 1994) ("Exemption 7(A) protects disclosure of the kinds of documents which could interfere with enforcement proceedings by exposing . . . the evidence that has and has not been gathered . . . ."), aff'd, 106 F.3d 411 (9th Cir. 1997) (Table); International Collision Specialists, Inc. v. IRS, 1994 WL 395310, *2 (D.N.J. 1994) (protecting against disclosure of information that would reveal "what information was and was not in the possession of the IRS" and "would also reveal the strengths and weaknesses of the IRS's case").

Disclosure could also reveal investigative methods, sources, and witnesses. Supp. Reynolds Dec. 6. In addition, the detainees about whom information is disclosed could be subjected to intimidation or harm, thereby discouraging or preventing them from supplying valuable information or leads in the future. Id. Disclosure could deter these individuals from cooperating with the Department of Justice after they are released from custody for fear of retaliation by terrorist organizations against them or their family members and associates. Id.

Finally, because the investigation is fluid and evolving, the significance of a given detainee may change over time. Supp. Reynolds Dec. 7. For example, at least one detainee who had been determined to be of no investigative interest was later returned to the active interest category after a reevaluation by law enforcement components involved in the investigation. Id.

The Reynolds declarations provide a more than adequate record to explain both the status of the class of detainees who have been determined to be no longer of investigative interest, and the link between information withheld concerning them and the threat of harms to the ongoing terrorism investigation, or to the public safety or to the safety and privacy of the detainees. Discovery is therefore both unnecessary and inappropriate. Plaintiffs are free to dispute the legal sufficiency of defendant's showing in this regard, but that is a merits issue addressed properly through briefing on the pending summary judgment motion, not discovery. See note 3 supra.

Plaintiffs also have no legitimate need under the FOIA for the specific information they request regarding numbers of detainees in certain categories, such as the specific numbers of individuals cleared for voluntary departure, released from custody, or certified pursuant to Public Law No. 107-56. The Reynolds declarations establish that, regardless of their status, release of information about the detainees may cause the harms Exemption 7 of the FOIA was intended to protect against. Further information regarding the exact number of detainees in each category is simply irrelevant to determining the applicability of this Exemption.

2. Exemption 7(A) Does Not Require Defendant To Establish The Existence Of A Connection Between Each Detainee
And Terrorism

As an initial matter, plaintiffs fundamentally misconceive the function of a criminal investigation when they suggest that the September 11 investigations have partially resulted in a conclusion that some detainees have "no connection" to terrorism. As the Reynolds declarations indicate, Reynolds Dec. 4; Supp. Reynolds Dec. 2-5, and common sense dictates, the purpose of such an investigation is not to "clear" suspects, and that is not the effect of a determination, necessary an interim one, that someone is not currently of investigative interest. Rather, such a judgment merely indicates that insufficient evidence exists, at a particular point in time, to associate an individual with criminal activities. This is a far cry from a conclusion that a detainee has "no connection" to terrorism.

In addition, there are logical errors in plaintiffs' reasoning that they need information regarding the connection between each detainee and terrorism. Plaintiffs assert that they need this information because the applicability of Exemption 7(A) relies on "information establishing some connection between each detainee and terrorism." Pls' Stay Mtn. at 12. They contend that "[i]t is logically essential to the government's assertions about the harms to its investigation and enforcement activities that could result from disclosure of identifying information about the detainees that the detainees are individuals involved in terrorism or having knowledge about terrorism." Id. at 15. Plaintiffs' assertions, however, are incorrect.

First, Exemption 7(A) does not require defendant to show a connection between each detainee and terrorism, but rather between the type of information about the detainees being withheld and possible harm to the terrorism investigation, or to future law enforcement proceedings. Specifically, Exemption 7(A) requires that defendant show that disclosure of the information about the detainees "could reasonably be expected to interfere with law enforcement proceedings." 5 U.S.C. § 552(a)(7)(A); see North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989) (the agency must demonstrate that disclosure would "disrupt, impede, or otherwise harm the enforcement proceeding"). As explained above, Mr. Reynolds' declarations establish that even disclosure of information about detainees who have been determined to be of no investigative interest regarding the September 11 attacks could potentially harm the investigation in several ways. Each of these harms can be established without establishing the existence of a connection between each detainee and terrorism.

It is also not necessary for the government to establish how release of information about each individual detainee is harmful. It is well established that an agency may make "generic determinations" of the applicability of Exemption 7(A), i.e., that "with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records . . . would generally 'interfere with enforcement proceedings.'" Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236 (1978)). "[A]n agency is permitted to withhold records under Exemption 7(A) on a categorical basis and establish a generic showing of interference, rather than an individual showing of interference." Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C. 1997), aff'd, 172 F.3d 919 (D.C. Cir. 1998) (Table); see also United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989) ("Our cases provide support for the proposition that categorical decisions may be appropriate and individual circumstances disregarded" in Exemption 7(C) cases.).

Plaintiffs cite also the wrong standard for Exemption 7 in attempting to justify discovery, stating that "the agency must show that release of the material will result in one of the harms specified in the statute." Pls' Stay Mtn. at 6 (emphasis supplied). In fact, the FOIA was amended in 1986 (after the cases cited by plaintiffs, such as FBI v. Abramson, 456 U.S. 615 (1982)), to lessen the showing required. Pub. L. No. 99-570, § 1802, 100 Stat. 3207, 3207-48 (1986). At present, with regard to exemptions 7(A), 7(C), and 7(F), the FOIA requires only that a defendant establish that disclosure "could reasonably be expected" to create the harm specified. 5 U.S.C. § 552(b)(7)(A), (C), (F). Under this standard, defendant does not need to establish that the predicted harms will follow or that they ever have followed, only that they are reasonably likely. In short, FOIA Exemption 7(A) simply does not require defendant to establish that "the detainees are individuals involved in terrorism or having knowledge about terrorism," as plaintiffs assert. Under Rule 56(f), plaintiffs must show that discovery will provide them with specific material facts that are "essential" to defeat the government's summary judgment motion. Fed. R. Civ. P. 56(f). The connection between each detainee and terrorism is not an essential, material fact in this case, and therefore discovery on this issue is unnecessary.

3. Discovery On The Government's Determinations Regarding Each Detainee's "Connection To Terrorism" Would Be An
Improper End Run Around FOIA

Finally, to the extent that plaintiffs seek discovery generally to "shed light on the government's own determinations that most of the detainees have no connection to terrorism," Pls' Stay Mtn. at 15, such discovery is not permitted under FOIA. Allowing discovery into the facts connecting each detainee to terrorism and the government's decisions regarding these facts would allow plaintiffs access to the very information that the government claims is exempt and hence improperly attempts an end run around the FOIA. See Public Citizen Health Research Group v. FDA, 997 F. Supp. 56, 73 (D.D.C. 1998) (plaintiff's attempt to obtain through discovery "precisely that which is at issue in the FOIA suit itself . . . is clearly improper"), aff'd in part, rev'd in part on other grounds, 185 F.3d 898 (D.C. Cir. 1999); see also Military Audit Project, 656 F.2d at 751 (denying discovery in case involving classified materials, on ground that "more detailed information [about the government's position] itself may compromise intelligence methods and sources"). Moreover, "the thought processes of the agency in deciding to claim a particular FOIA exemption . . . constitute[] predecisional thought processes of agency officials. They are protected from disclosure by United States v. Morgan, 313 U.S. 409, 422 (1941)." Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980).

B. DISCOVERY INTO THE ADEQUACY OF DEFENDANT'S FOIA RESPONSE IS NOT NECESSARY AND, IN ANY EVENT, THE ADDITIONAL DECLARATIONS SUBMITTED HEREWITH ADDRESS PLAINTIFFS' QUESTIONS REGARDING THE NUMBERS OF DETAINEES

Plaintiffs also seek discovery to clarify certain alleged factual discrepancies regarding the numbers of detainees. As indicated above, these numbers are irrelevant to determining the applicability of the exemptions, and the requested discovery is therefore unnecessary. In addition, discrepancies and errors in the numbers of detainees do not establish