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IN THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
CENTER FOR NATIONAL SECURITY
STUDIES, et al.,
Plaintiffs, Civil Action No. 01-2500
v.
DEPARTMENT OF JUSTICE,
Defendant.
Judge Kessler
_____________________________________________
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT AND
OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Freedom of Information Act case seeks
the disclosure of the identities of the hundreds of individuals who have been
arrested and jailed in the wake of the September 11th terrorist attacks. The
investigation to identify and apprehend the perpetrators of those terrible attacks
and to prevent further attacks is obviously of the highest importance. It is
not, however, an issue in this case. Rather, plaintiffs seek the identity of
hundreds of individuals, who apparently have nothing to do with terrorism, but
apparently do share either the ethnic background, religion or national origin
of the September 11 hijackers and have accordingly landed in jail. The core
purpose of the Freedom of Information Act-to inform the public about government
activity and to prevent secrecy from shielding government misconduct-is implicated
here. For perhaps the first time in our history, the government has refused
to identify people arrested and jailed, and it has done so by executive fiat,
without any court order finding that extraordinary circumstances exist to justify
such an extraordinary act.
STATEMENT OF FACTS
On September 11, 2001, the United States
suffered terrorist attacks in New York and Washington resulting in more than
3000 deaths. In the wake of these attacks, Attorney General Ashcroft announced
that hundreds of individuals had been "arrested" or "detained"
in the ensuing investigation. In the first few days after the attacks, some
75 individuals were picked up and detained. The Attorney General announced that
480 individuals had been detained as of September 28, ten days later another
135 had been picked up, and in a single week in October, some 150 individuals
were arrested. 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." As of November 5,
1,182 people had been detained.
While trumpeting the numbers of arrests
in an apparent effort to reassure the public, the Department refused to provide
the most basic information about who had been arrested and on what basis. The
government announced no indictments charging anyone as a terrorist. It provided
no information about how many individuals had been released.
As the number of secret detentions increased, press reports began to appear
raising serious questions as to whether the rights of the detainees were being
violated.
On October 29, nearly forty civil liberties,
human rights, legal, and public access organizations demanded release of the
detainees' names and the charges against them under the Freedom of Information
Act. Separate requests were sent to the Department of Justice, the FBI and the
Immigration and Naturalization Service seeking the following information on
those individuals "arrested or detained" in the investigation into
the attacks of September 11:
a. (1) their names and citizenship status;
(2) the location where each individual was arrested or detained initially
and the location where they are currently being held; (3) the dates they were
detained or arrested, the dates any charges were filed, and the dates they
were released, if they have been released; and (4) the nature of any criminal
or immigration charges filed against them or other basis for detaining them,
including material witness warrants and the disposition of such charges or
warrants.
b. The identity of any lawyers representing
any of these individuals, including their names and addresses.
c. The identities of any courts, which
have been requested to enter orders sealing any proceeding in connection with
any of these individuals, any such orders which have been entered, and the
legal authorities that the government has relied upon in seeking any such
secrecy orders.
d. All policy directives or guidance issued
to officials about making public statements or disclosures about these individuals
or about the sealing of judicial immigration proceedings.
Letter to Melanie Ann Pustay, Office of
Information and Privacy, Department of Justice, Oct. 29, 2001 (attached as Ex.
10).
There was widespread media coverage of the
filing of the FOIA requests, and several newspapers wrote editorials urging
the government to release the names of the detainees, as did several ranking
Members of Congress.
On November 8, the Department of Justice
announced that it would no longer provide a running total of all individuals
detained in connection with the investigation, but only of those charged with
federal crimes or immigration violations, and that it would only release information
on the number of detainees currently in custody, not the total number detained
in the course of the investigation.
The next day, following the public announcement
that the Justice Department intended to monitor the attorney-client conversations
of some detainees without a warrant, Senator Leahy again wrote the Attorney
General reiterating his concerns and stating: "no one has explained to
me how national security compels withholding from Congress and the public-with
appropriate protections, if warranted-basic information regarding people who
have been detained, arrested and imprisoned." As chair of the Senate Judiciary
Committee, he informed the Attorney General that he expected the Committee would
be holding prompt hearings on these matters.
On November 16, 2001, the Assistant Attorney
General replied to the October 31 request from Members of Congress and provided
limited information about some of the detainees. The Justice Department sent
copies of some federal criminal complaints and INS charging documents, but deleted
the names of individuals from the INS documents. It also provided one document
in response to the request for policy guidance.
On November 27, 2001, the day before the
Judiciary Committee began its oversight hearings on these issues, the Attorney
General held a press conference and released a list of 93 individuals who had
been charged under federal criminal laws and a document entitled "INS Custody
List" which contained 548 cases with no names provided.
Although the Justice Department had agreed
to expedite plaintiffs' FOI requests because the requests involved "[a]
matter of widespread and exceptional media interest in which there exist possible
questions about the government's integrity which affect public confidence,"
as of November 27, plaintiffs had received no information in response to their
requests. On December 5, plaintiffs filed this action.
On December 19, the Department of Justice
announced that there were 460 individuals still in custody on immigration charges.
On January 11, 2002, the Department filed
a motion for summary judgment and also released certain additional information
about the detainees. The Department again released additional information on
February 5, with its response to plaintiff's Rule 56(f) motion. See Supplemental
Declaration of James Reynolds (Reynolds Supp. Decl.). On February 15, 2002,
the Department of Justice stated that 327 individuals were still in custody
on immigration charges.
The Government's Withholdings
and Disclosures
In response to this lawsuit, the government
has provided the names of only 108 individuals, all of whom have been charged
with federal criminal offenses.
It has refused to provide the names of any
individuals detained for immigration violations, on material witness warrants,
or on state or local charges, or the names of any attorneys representing any
of these individuals. Instead, it released a document showing, for 718 unnamed
individuals, only the date of arrest, place of birth, code citation of INS charge
and date of service of charging documents.
The government has refused to disclose even
the number of individuals detained on material witness warrants, the identity
of the judicial districts entering sealing orders in those cases, or the sealing
orders themselves. It has withheld all information concerning an additional
nine criminal cases, including even the identity of the judicial districts that
allegedly entered sealing orders in those cases and the sealing orders themselves.
It has never even addressed plaintiffs' specific request for documents containing
the legal authorities invoked by the government in seeking such sealing orders.
And it has provided no information regarding individuals detained on state and
local charges, who were included in the Justice Department's announcements of
the number of detainees prior to November 8, 2001. Its filings only account
for a maximum of 835 individuals, when even as of November 5, 2001, it had stated
that 1,182 people had been detained. It has thus failed to provide any accounting
of at least 347 individuals not included in the categories outlined above.
Additionally, the government has implausibly
released only one draft of a document in response to plaintiffs' request for
directives issued about making public statements, and only one document in response
to the request for directives or guidance about the sealing of judicial or immigration
proceedings. It provided no Vaughn affidavit describing any additional documents
covered by these requests.
Questions raised about government
misconduct.
For almost six months, there have been extensive,
varied and credible reports of government misconduct and rights violations in
connection with these secret arrests and detentions.
It appears that virtually all the detainees
are either Arabs or Muslims, or believed by the government to be such. For example,
all but 12 of the publicly released names of the criminal defendants are Arabic
names. At the same time, there is extensive evidence that the government has
no facts or information reasonably indicating any involvement in or knowledge
of terrorism by the vast majority of the detainees. Only one individual has
been criminally charged in the attacks, and he was detained before September
11. Less than five of the 718 immigration charges detailed by the government
relate to terrorism. See Def. Ex. 6. The government admits that "many [of
the detainees] have [been] or may be cleared of any wrongdoing." Def. Mem.
at 21. Its own affidavits notably fail to allege that any of the detained individuals
are involved in terrorism. There are, however, extensive reports of serious
violations of the rights of the detained individuals, including denial of access
to counsel, denial of consular notification, physical and mental abuse, imprisonment
without probable cause and denial of reasonable bail. (See reports detailed
in section I.B infra.)
The available evidence suggests that the
government is engaged in religious and ethnic discrimination in jailing these
individuals, and is violating their rights under the Fourth, Fifth and Eighth
Amendments. Plaintiffs seek the names and other information about the jailed
individuals to shed light on whether, instead of conducting a focused law enforcement
investigation targeting individuals involved in terrorism, the Department is
conducting an unconstitutional and discriminatory dragnet.
ARGUMENT
"The requirement that arrest books
be open to the public is to prevent any 'secret arrests,' a concept odious to
a democratic society." Morrow v. District of Columbia, 417 F.2d 728, 741-42
(D.C. Cir. 1969).
MATTERS AT ISSUE
Defendant has withheld the following information,
claiming the following exemptions: The identities of those arrested for immigration
violations and of their attorneys (Exemptions 7(A), 7(C), and 7(F)) and where
they are detained (Exemptions 7(A) and 7(C));
The identity of courts that have issued sealing orders, the sealing orders,
and the legal authorities relied upon in seeking the orders (court orders and
Exemption 7(A)); and
The identities of those being held pursuant
to material witness warrants and of their attorneys (Exemption 3, 7(A), 7(C)
and 7(F) and court orders), as well as the detention location and release date,
if any, of these individuals (Exemptions 3, 7(A), 7(C), 7(F) and court orders).
Defendant has also failed to account for all detainees covered by plaintiffs'
FOIA requests and failed to conduct an adequate search for policy directives
and guidance.
As shown below, none of this information
is exempt from disclosure under FOIA. In addition, plaintiffs are entitled to
this information under the common law.
I. THE FOIA REQUIRES DISCLOSURE
OF THE NAMES AND OTHER INFORMATION ABOUT ARRESTED AND JAILED INDIVIDUALS.
"[D]isclosure, not secrecy, is the
dominant objective of [FOIA]." Department of the Interior v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting Department of the Air
Force v. Rose, 425 U.S. 352, 361 (1976)). The Act requires disclosure of all
information unless it comes within a specific exemption, Rose, 425 U.S. at 360-361,
and those exemptions must be narrowly construed, Klamath Water Users, 532 U.S.
at 7. The basic purpose of FOIA is to open agency action to the light of public
scrutiny. Rose, 425 U.S. at 372. Thus, when an agency withholds documents, the
burden is on the agency to prove that the claimed exemption applies. 5 U.S.C.
§ 552(a)(4)(B); Campbell v. Department of Justice, 164 F.3d 20, 30 (D.C.
Cir. 1998). The courts must review de novo an agency's refusal to disclose requested
information, 5 U.S.C. § 552(a)(4)(B), and as a general rule, agency affidavits
are not entitled to any special deference, Alyeska Pipeline Service Co. v. Environmental
Protection Agency, 856 F.2d 309, 315 (D.C. Cir. 1988).
In this case, for the first time in at least
recent history, the United States government has arrested and jailed hundreds
of individuals and kept their identities secret. While the government invokes
the importance of the anti-terrorism investigation to justify its refusal, it
cites no case under FOIA, or any other authority, authorizing the government
to keep secret the names of those whom it arrests or incarcerates. To the contrary,
the government's refusal to release the names of the more than 750 detainees
is a stark departure from the bedrock principle that the government must disclose
the identity of people whom it forcibly deprives of liberty.
Indeed, after plaintiffs and Members of
Congress objected, the government finally released the names of those who have
been held on federal criminal charges, presumably recognizing the clear authority
requiring openness in criminal proceedings. See, e.g., Press-Enterprise Co.
v. Superior Court, 478 U.S. 1 (1986); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980); Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).
The government has suggested no basis under
FOIA for distinguishing between criminal defendants and those jailed on immigration
charges. Nor is there any. Just as in criminal proceedings, the time-honored
practice of the INS has been to publicly disclose the names of individuals detained
for violating the immigration laws. And INS regulations require that deportation
hearings be open to the public except under limited circumstances. 8 C.F.R.
§ 240.10(b). Moreover, while those jailed on immigration charges are not
charged with a crime, they face equally serious deprivations of liberty. Many
of the INS detainees have already been imprisoned for significant periods of
time, and most, if not all, face the possibility of deportation, a punishment
that can have grave consequences. See Bridges v. Wixon, 326 U.S 135, 154 (1945)
(in deportation proceedings "the liberty of an individual is at stake"
).
Nothing in the Freedom of Information Act
creates some new rule allowing the government to keep secret the identities
of those whom it arrests or jails; such an interpretation would stand FOIA on
its head. FOIA was enacted to assure the public access to information that it
had previously been denied. See Environmental Protection Agency v. Mink, 410
U.S. 73, 80 (1973) (FOIA enacted to "permit access to official information
long shielded unnecessarily from public view"). The Act's carefully structured
exemptions were not meant to provide the government with authority to withhold
basic information about the operations of government that had traditionally
been public.
Nevertheless, the government claims that
the names and other requested information about arrested and jailed individuals
is exempt from disclosure under Exemptions 7(A), 7(C) and 7(F). However, Exemption
7 applies only to information "compiled for law enforcement purposes."
As the D.C. Circuit has explained, it
"was intended to apply 'whenever
the Government's case in court-a concrete prospective law enforcement proceeding-would
be harmed by the premature release of evidence or information not in the possession
of known or potential defendants. This would apply also where the agency could
show that the disclosure of such information would substantially harm such
proceedings by impeding any necessary investigation before the proceeding.'"
North v. Walsh, 881 F.2d 1088, 1098 (D.C.
Cir. 1989) (quoting 120 Cong. Rec. S17,033 (May 30, 1974) (emphasis omitted)).
This appears to be the first time that the government has invoked Exemption
7 to withhold information contained in the INS charging documents served on
a defendant-i.e., the defendant's own name-rather than information, like the
names of witnesses, contained in the records of an investigation that are not
available to the defendant. The government's claim that it can withhold the
INS charging documents, which are covered by the plaintiffs' request and have
presumably been served on the detainees (see Declaration of Kerry Bretz 2 (attached
as Ex. A)), is no less extraordinary than a claim that it could withhold unsealed
indictments under Exemption 7.
In addition to showing that the requested
information was "compiled for law enforcement purposes," to justify
withholding pursuant to Exemption 7, the government must prove that release
of the information (A) "could reasonably be expected to interfere with
enforcement proceedings," or (C) "could reasonably be expected to
constitute an unwarranted invasion of personal privacy," or (F) "could
reasonably be expected to endanger the life or physical safety of any individual."
5 U.S.C. § 552(b)(7)(A), (C), (F) (emphasis added). As shown below, the
government has failed to establish that disclosing the information plaintiffs
requested could reasonably be expected to result in any of these statutory harms.
The government also claims that it may withhold
the identities of the courts that have entered sealing orders in connection
with jailed individuals, the sealing orders themselves, and any legal authority
supporting those orders, and that it may withhold the identity of persons held
on material witness warrants, pursuant to Federal Rule of Criminal Procedure
6(e) and court order. Again, it has failed to meet its burden to establish that
this information is exempt under those authorities. Accordingly, this Court
should grant summary judgment to the plaintiffs and order the government to
release the requested information under the FOIA.
A. The Government Has Failed To Establish
That The Information Requested Is Exempt Under 7(A) or 7(F).
The government has failed to meet its burden
under Exemptions 7(A) and 7(F) because it has not established that disclosure
of the names of the detainees or their attorneys could reasonably be expected
to interfere with enforcement proceedings or endanger the life or physical safety
of an individual. With respect to those jailed for immigration violations, the
government simply has not established the requisite link between disclosure
of their names and the harms it asserts will ensue from such disclosure. Moreover,
the government's argument proves far too much. If accepted, it would authorize
secret jailing in connection with any serious criminal investigation.
1. The government has failed to show a
nexus between releasing the identities and locations of the individuals jailed
on immigration charges and the alleged law enforcement harms.
The government has the burden of establishing
a connection between disclosure of the information that has been withheld and
the harms it alleges will ensue from such disclosure. See, e.g., North, 881
F.2d at 1097 ("the government must show that disclosure of those documents
would, in some particular, discernable way, disrupt, impede, or otherwise harm
the enforcement proceeding"); Putnam v. Department of Justice, 873 F. Supp.
705, 713 (D.D.C. 1995) ("The government has the burden of demonstrating
the ways in which disclosure of the information would interfere with prospective
law enforcement proceedings") (citing Campbell v. Department of Health
and Human Services, 682 F.2d 256 (D.C. Cir. 1982)). Even a showing of a "direct
relationship between an active investigation and withheld information"
does not carry the government's burden, because it does not prove that disclosure
can reasonably be expected to cause the alleged harms. Campbell, 682 F.2d at
263-264. Rather, the government must demonstrate a "rational link between
the nature of the document and the alleged likely interference." Crooker
v. Bureau of Alcohol, Tobacco and Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986)
(emphasis added).
With respect to Exemptions 7(A) and 7(F),
the government claims that releasing the names and places of detention of the
INS detainees could compromise its investigation and put the safety of these
individuals and the public at risk. But the affidavits submitted in support
of these contentions do not meet the government's burden of proof because, on
their face, they fail to establish any link between disclosure of the names
of the detainees and the alleged harms.
While the government's declarations describe
in ominous terms the harms it alleges could follow from identifying the INS
detainees, none of these alleged harms could reasonably be expected to result
from disclosing a name, unless the individual whose name was disclosed was involved
in the terrorist conspiracy related to the September 11 attacks, or in terrorist
organizations involved in the attacks, or had material knowledge concerning
the attacks or these terrorist organizations. But the government nowhere even
asserts, much less offers any evidence, that the hundreds of individuals secretly
jailed on immigration charges fall into any of these categories.
The government's own submissions show that
its predictions of harm depend on each of the detainees being involved in, or
having material knowledge about, terrorism. The government posits four alleged
harms under Exemption 7(A). First, "disclosing the names of the detainees
who may be revealed to have knowledge of or a connection to terrorism could
lead to the public identification of individuals associated with them, other
investigative sources, and potential witnesses." Declaration of James S.
Reynolds ("Reynolds Decl.") 14 (emphasis added). Second, "divulging
the detainees' identities may deter them from cooperating with the Department
of Justice once they are released from custody and impair their usefulness to
the investigation" because "terrorist organizations with whom they
have a connection could refuse to deal further with them" and a detainee
"may be deterred from cooperating . . . for fear of retaliation by terrorist
organizations against him or his family and associates." Id. 15 (emphasis
added). Third, "releasing the names of the detainees who may be associated
with terrorism and their place and date of arrest would reveal the direction
and progress of the investigations by identifying where DOJ is focusing its
efforts." Id. 16 (emphasis added). Fourth, "the public release of
names, and place and date of arrest, of detainees who may have knowledge of
or connections to terrorism, could allow terrorist organizations and others
to interfere with the pending proceedings by creating false or misleading evidence."
Id. 17 (emphasis added).
The alleged harms to the public and individual
safety under Exemption 7(F) likewise depend upon the individual's connection
to terrorism. With respect to the public's safety, the government alleges that
"[i]f terrorist organizations learn that their associates have been detained,
or even people who know their associates have been detained, they may alter
their plans in a way that presents an even greater danger to the United States."
Def. Mem. at 20-21 (citing Reynolds Decl. 16) (emphasis added). With respect
to the safety of the detainees, the government claims that "detainees who
are, in fact affiliated with a terrorist group may be perceived by such groups
as informants for the United States and be killed to preclude their future cooperation."
Reynolds Decl. 37. Also, "the detainees' family members and friends could
face threats of physical violence by terrorists to deter the detainees from
cooperating." Id. Finally, "revealing the detention facilities where
these individuals are being detained could place at risk not only those detainees,
but the facilities themselves and their employees." Id.
Even though the government's allegations
of harm necessarily rest on an assumption that every detainee whose name is
withheld is involved in or has material knowledge about the terrorist conspiracy
or terrorist organizations, the government does not even claim that this assumption
is a fact. Indeed, only one paragraph of the government's declarations even
addresses the connection between the alleged harms and the requested information.
In that paragraph the government states that the detainees
were originally questioned because there
were indications that they might have connections with, or possess information
pertaining to, terrorist activity against the United States including particularly
the September 11 attacks and/or the individuals and organizations who perpetrated
them. For example, they may have been questioned because they were identified
as having interacted with the hijackers, or were believed to have information
relating to other aspects of the investigation. Reynolds Decl. 10 (emphasis
added).
Glaringly, the government fails to state
that any of these original suspicions were confirmed about even one of the individuals
on the list of 718. Instead, it states only that "in the course of questioning
[these individuals], 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."
Id.
The government's assertion that "some"
of the detainees have "links" to "facets" of the investigation
is entirely inadequate to meet its burden of showing how disclosure of the information
will lead to the alleged harms.
First, "some" clearly does not
mean "all," and an allegation about some detainees can not support
the government's refusal to disclose the identity of all the detainees. Second,
the assertion that there are some detainees with "links" to "other
facets of the investigation" is much too attenuated to sustain the government's
burden of establishing that the alleged harms could reasonably be expected to
follow from disclosure of even those detainees' identities. See Campbell, 164
F.3d at 30 (vague agency affidavits will not support summary judgment). In order
for the government to establish the requisite nexus between the information
being withheld and its alleged harms, at a minimum, it must show that it has
facts or information that reasonably indicate that these detainees are involved
in or have material knowledge about the terrorist conspiracy or terrorist organizations.
It has not even come close to doing that here.
2. The government's claims of harm are
contradicted by its admission that almost half of the INS detainees are not
"of current interest to the investigation."
In response to plaintiffs' discovery motion,
the government admitted that 338 individuals listed as "INACTIVE CASES"
on its list of INS detainees are "persons believed not to be of current
interest regarding the investigations emanating from the September 11th attacks"
and that these individuals "may have been released or deported." Reynolds
Supp. Decl. 3. As to these individuals, the government has therefore admitted
that it has no evidence linking them to terrorism. On that ground alone, the
government's exemption claims as to these individuals must be denied. See Crooker,
789 F.2d at 67 (government must demonstrate a "rational link" between
the withholding and the alleged likely injury).
The government's suggestion that "[e]ven
though such detainees may not themselves be of current investigative interest,
the same harms . . . could occur if their names are disclosed," Id. 5,
is without support in logic or in fact. Nothing in the government's papers supports
such a conclusion. The government further hypothesizes that "because the
investigation is fluid and evolving, the significance of a given detainee may
change over time." Reynolds Supp. Decl. 7. In other words, although the
government has no evidence linking these individuals to terrorism, perhaps someday
it will. That mere possibility, however, is not sufficient to meet the requirements
of Exemptions 7(A) and (F) that disclosure "could reasonably be expected
to" cause the alleged harms. And that reasoning would permit the government
to secretly jail any person, for it can be said of any person that perhaps,
someday, the government will discover evidence linking him to terrorism.
3. Even if the government had established
the requisite nexus, according to the government's reasoning, the alleged
harms would follow from the jailing of terrorist suspects, not from disclosing
their names.
While the government outlines a litany of
feared harms from identifying the detainees as a result of Al Qaeda learning
which of its associates are jailed, it can reasonably be expected that Al Qaeda
already knows which (if any) of its associates have been detained. The names
are being kept secret from the American people, not from the terrorists.
Indeed, the government claims that the detainees
are free to self-identify: "If [they] wish to disclose their names they
may do so." Reynolds Decl. 23. If this is so, then any detainees who are
in fact members of terrorist organizations have been able to alert their associates
to their detention. The terrorist's ability to tip off his associates, not public
identification, will cause the alleged harms. The government alleges that "official
verification that a member has been detained . . . may enable the organization
to find a substitute who can achieve its goals more effectively," id.,
but a detainee's own report will serve the same purpose. It is not the "public
identification" that could cause the alleged harms, but the simple fact
that the information is known.
Even if detainees are prevented from self-identifying,
once an individual has been jailed for a period of time, a terrorist organization
with which he is associated will become aware of his disappearance and can surmise
that he is among the hundreds who have been detained by the government. Accordingly,
all of the government's parade of horribles could reasonably be expected to
occur merely from the passage of time.
Moreover, the government's own disclosures,
by its own account, have been the most significant source of information about
its investigation. It has released the names of those individuals being held
on federal criminal charges who, according to the government, "remain a
potential source of relevant or probative information." Reynolds Decl.
27. In addition, the Attorney General himself announced that the government
had apprehended suspects who were believed to have had advance knowledge of
the September 11 attacks and outlined the evidence against them. Logically,
the same harms would flow from identifying these individuals as those jailed
on immigration charges, severely undermining the government's arguments for
withholding the names of the INS detainees.
4. The government's argument, if accepted,
would have no bounds.
In the end, the government's argument for
withholding the identities of the detainees fails because it simply proves too
much. If accepted, it would allow the government to secretly jail anyone on
the mere allegation that it was being done in connection with a terrorism investigation-or
an investigation of organized crime or drug dealing. Under the government's
analysis, it would not even have to make a showing that it had facts or information
reasonably indicating that the person was part of or had material knowledge
about a criminal conspiracy, much less that there was sufficient evidence to
charge him with criminal offenses. Contrary to the government's implication
(Reynolds Decl 13, Reynolds Supp. Decl. 4), it is not entitled to keep secret
the names of all the detainees simply because it has an active terrorism investigation
underway. See Campbell, 682 F.2d at 261 ("government must show something
more than a direct relationship between agency records and a pending investigation
in order to demonstrate that disclosure would interfere with enforcement proceedings").
The government's claim to the contrary is a frightening proposition that is
antithetical to the American system of justice and for which there is no basis
in the law.
5. The government has failed to demonstrate
that it is entitled to withhold the names of the attorneys for the INS detainees.
The government argues that the rationale
for withholding the names of the INS detainees under Exemptions 7(A) and 7(F)
also supports withholding the names of their attorneys. Reynolds Decl. 18. Specifically,
the government claims that releasing the attorneys' names may facilitate identification
of the detainees, which could then cause all of the government's alleged harms
to ensue. Id.
However, just as the government has not
met its burden of proving that disclosing the names of the detainees could reasonably
be expected to harm its investigation or the safety of the detainees and the
public, it also has not met its burden for withholding the names of their attorneys.
The government also asserts that if the
attorneys' identities were revealed, they themselves could be subject to physical
harm (either from angry citizens or from terrorist organizations) and thus this
information is exempt from disclosure under 7(F). Reynolds Decl. 38. It is undeniable,
however, that when an attorney agrees to take on a case he or she has no expectation
of remaining anonymous. To the contrary, a lawyer knows that the more notorious
the case, the more likely it is that his or her identity will become publicly
known.
There is no suggestion that any lawyer who
signed up for an INS detainee case was unaware of this or unwilling to accept
it. And, of course, the lawyers representing the detainees who have been charged
publicly with federal crimes-presumably more subject to these hypothesized harms
than those representing INS detainees-have all been publicly identified. Accordingly,
there is no legitimate basis for the government's refusal to disclose the identities
of the detainees' attorneys.
B. The Government Has Failed to Demonstrate
That The Information Requested Is Exempt From Disclosure Under 7(C).
"Exemption 7(C), by its terms, permits
an agency to withhold a document only when revelation 'could reasonably be expected
to constitute an unwarranted invasion of personal privacy.'" Reporters
Committee, 489 U.S. at 771 (1989) (emphasis by the Court). It follows, as the
Supreme Court has explained, that whether disclosure under Exemption 7(C) "is
warranted must turn on the nature of the requested document and its relationship
to the basic purpose of the Freedom of Information Act to open agency action
to the light of public scrutiny." Id. at 772 (emphasis added; internal
quotation marks omitted).
These criteria mandate disclosure here.
The requested documents are not private papers that have come into the government's
possession or records that would only shed light on an individual. Rather, they
are official arrest records and charging papers-items that have been traditional
public documents since long before the Freedom of Information Act ever existed,
and in which there is no recognized privacy interest at all. And disclosure
will directly serve "the basic purpose of the Freedom of Information Act
to open agency action to the light of public scrutiny" by making it possible
for plaintiffs and others (such as the news media) to probe whether the government
has been engaging in serious misconduct against a class of individuals defined
by religion and/or ethnicity. As the Supreme Court has explained: "[FOIA's]
basic policy of full agency disclosure . . . focuses on the citizens' right
to be informed about what their government is up to. Official information that
sheds light on an agency's performance of its statutory duties falls squarely
within that statutory purpose." Reporters Committee, 489 U.S. at 773 (internal
quotation and citations omitted).
Here, the public interest in obtaining traditionally
public information about the detainees serves the core purpose of the Freedom
of Information Act because it shows "what the government is up to."
Moreover, compelling evidence suggests that the government has engaged in unlawful-indeed,
unconstitutional-conduct, and the information being withheld is "necessary
in order to confirm or refute" that evidence. SafeCard Serv., Inc. v. SEC,
926 F.2d 1197, 1206 (D.C. Cir. 1991). By contrast, any privacy interest in the
fact of being arrested and detained for violating the immigration laws is minimal,
as the government recognizes by routinely making that information public in
thousands of cases every year.
1. The public interest in disclosure could
not be greater.
Disclosure of the information requested
here serves the core purpose of the Freedom of Information Act. The American
public is entitled to know who their government is rounding up and jailing.
Moreover, there is already compelling evidence that the government has engaged
in serious and repeated violations of the rights of these individuals. Disclosure
of their identities is necessary to determine whether this is, in fact, the
case.
The existence of a substantial public interest
here is confirmed by the massive media attention to this question and the requests
by several Members of Congress, including Senator Leahy, chair of the Judiciary
Committee, to the Justice Department for the detainees' names and other information.
See pages 3-4, supra. The Department of Justice has itself recognized that there
are questions that need to be answered about potential governmental impropriety.
In granting plaintiffs' request 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." Ex. B to Declaration of Melanie
Ann Pustay (Ex. 4 to Defendant's Motion for Summary Judgment).
There have been numerous reports to the
Congress and in the press which raise critical questions about whether the rights
of those jailed have been seriously violated. These violations include: (1)
denial of the right to counsel; (2) violation of the right to consular notification;
(3) abusive treatment while in custody; (4) unlawful use of material witness
authority; and (5) imprisonment without probable cause and in violation of the
right to bail and the right to equal protection.
Denial of the right to
counsel. Contrary to the government's unsupported assertion that
"no one has been denied their right to talk to an attorney," Reynolds
Decl. 21, there have been credible reports about the severe obstacles the government
has placed in the way of those arrested seeking to contact legal counsel. For
example, Gerald H. Goldstein testified before the Senate Judiciary Committee
that his client had been arrested on September 12 and held incommunicado from
his lawyers until September 19, despite both his and his lawyers' repeated requests
for access to each other. During that time, he was repeatedly interrogated despite
his requests to speak with counsel. Likewise, Michael Boyle, a member of the
American Immigration Lawyers Association, testified before the same committee
that Tarek Mohammed Fayad was arrested on September 13 and held incommunicado
from his lawyer for more than one month. Mr. Boyle further testified that a
group of Israelis arrested on October 31, 2001, were told that "things
would be more 'complicated' and their detention 'longer' if counsel was retained
in their defense."
Numerous press accounts report instances
of individuals being denied counsel. The Washington Post quoted a "federal
law enforcement official involved in the investigation" as saying that
some material witnesses "are being detained based on circumstantial evidence
and held for a week or longer without legal representation or permission to
contact family members." Other articles report that those detained on immigration
violations have asked for and been denied counsel, and that because many inmates
are only allowed one phone call per week, it has taken several weeks to contact
potential counsel. In addition, there have been several news reports that attorneys
have been blocked from finding out about or attending the deportation hearings
of their clients. For example, ABC News reported that Martin Stolar, the attorney
for an Egyptian detainee, called the INS for five consecutive days to find out
when his client's deportation hearing would be held, and on the fifth day was
told that the hearing had been held already and that his client had waived his
right to counsel and agreed to voluntary deportation.
The government'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, because of government interference, continue
to be without counsel after weeks or months in custody, how difficult the government
has made it for currently-represented detainees to obtain counsel, or how often
the government has blocked a detainees' access to his counsel, and vice versa.
Denial of the right to
consular notification. There have also been highly credible reports
about detainees being refused or hindered in exercising their legal right to
contact consular officials from their country of citizenship. For example, The
New York Times reported that the Canadian government has protested the treatment
of a Canadian citizen of Pakistani descent who "disappeared" on September
20 and whose detention in federal custody was not disclosed for nearly three
months, despite his own request for consular help and despite inquiries by the
Canadian authorities. The same article quoted the Pakistani vice consul as reporting
that many detained Pakistanis were told that if they sought to contact their
consulate "their cases would be delayed." Without knowing the identity
of the detainees, it is impossible to find out how many of these individuals
have been denied their right to consular notification.
Abuses in detention.
There are also many reports about detainees being abused or treated improperly
while in federal custody. Detainees have alleged that they have been beaten
by guards. The Los Angeles Times reported that a Pakistani detainee was stripped
and beaten in his cell by inmates while guards did nothing; that five Israelis
were blindfolded during questioning, handcuffed in their cells and forced to
take polygraph tests; and that a Saudi Arabian man "was deprived of a mattress,
a blanket, a drinking cup and a clock to let him know when to recite his Muslim
prayers."
According to The New York Times, Pakistani
detainees have said "that they are left in the cold without blankets for
24 hours after being picked up, apparently to weaken their resistance,"
and that they have been housed with convicted criminals "and are beaten
or live in constant fear of physical assaults." There have also been numerous
reports of detainees being held in solitary confinement, sometimes for 23 or
24 hours a day, and of detainees being shackled in chains or wrist irons in
their cells. Without the identity of the detainees and their attorneys, it is
impossible to know just how widespread this abuse is and what, if anything,
the government has done to put a stop to it.
Unlawful use of material witness warrants.
There is also compelling evidence that the government is using the material
witness statute not to secure testimony, but to secure the detention of individuals
it cannot detain by any lawful means. For example, news stories have reported
that Tarek Abdelhamed Albasti-a U.S. citizen of Egyptian origin-and eight Egyptian
men, some of whom worked for him, were arrested on material witness warrants
and held for one week, without ever testifying before a grand jury. According
to Mr. Albasti, he was never even questioned by investigators while in custody.
According to The New York Times, a law enforcement official said that "[f]ederal
authorities had learned that one of the men had recently taken flying lessons
and that they lived together in Indiana and sent money home to Egypt."
Serious questions are also raised by the
case of Osama Awadallah as to whether the government is misusing the material
witness authority to detain individuals when it could secure their testimony
by deposition. As the district court stated in its opinion granting Awadallah's
request for a suppression hearing, although Awadallah was detained for twenty
days as a material witness, there was "no indication that the government
had attempted to take Awadallah's deposition or offered to explain why it would
not have been feasible-even though Awadallah's counsel made the offer to have
Awadallah deposed." Awadallah, 2002 U.S. Dist. LEXIS 1430, at *96.
All of these reports raise considerable
concerns about whether the Department of Justice is using the material witness
statute to incarcerate people even when it has no information that they have
material knowledge about the attacks, much less any basis for establishing that
they will be unavailable to testify. Without disclosure of the identity of the
jailed individuals, and importantly, their attorneys, it is impossible to determine
whether, and to what extent, the government is abusing the material witness
statute.
Imprisonment without probable
cause and in violation of the right to bail and the right to equal protection.
There is also significant evidence of an unconstitutional practice,
if not policy, of locking-up men of Middle Eastern origin by using charges of
minor immigration violations and petty offenses or the material witness authority,
despite the fact that the government has no evidence that these individuals
have any knowledge of or involvement in terrorism or terrorist organizations.
As a general matter, preventive detention is only constitutional when the government
can demonstrate either that an individual poses a flight risk or that the individual
is particularly dangerous and thus poses a threat to the community or to national
security. Zadvydas v. Davis, 533 U.S. 678, 2498-99 (2001); United States v.
Salerno, 481 U.S. 739, 751 (1987). Nevertheless, news reports indicate that
individuals are being denied bail, sometimes for the most petty offense, at
the insistence of the government, even when there is no credible evidence connecting
them with the September 11 attacks or terrorist organizations involved in the
attacks.
For example, The New York Times reported
that a father and son, both U.S. citizens of Palestinian origin with Arabic
names, were arrested as they returned from a business trip in Mexico because
their passports looked suspicious. The father was released after ten days and
sent home wearing a leg monitor, but the son spent two more months in jail until
a federal judge determined that the only thing wrong with his passport was that
the plastic covering had split, Tamar Lewin, Cleared After Terror Sweep, Trying
to Get His Life Back, N.Y. Times, Dec. 28, 2001, at A1 (attached as Ex. 49).
News stories have also reported that the government is producing the same form
affidavit in multiple cases to persuade judges to deny bail to those charged
with immigration violations. See, e.g., Goldstein, A Deliberate Strategy of
Disruption, at A1. That affidavit, signed by Michael E. Rolince, chief of the
FBI counterterrorism division's international terrorism section ("Rolince
Aff."), recounts the terrible events of September 11 and then goes on to
state that the government "has been unable to rule out the possibility
that [the detainee] is somehow linked to or possesses knowledge of, the terrorist
attacks on the World Trade Center and the Pentagon." Rolince Aff. 13 (attached
as Ex. 50). This affidavit contains no facts about the particular individual
evidencing some connection to terrorism, or some other reason why he might be
a danger to the community; it simply states that the government wishes to make
further inquiries. Accordingly, rather than demonstrating that an individual's
release would pose a threat to the community, the government is simply asserting
that it has no evidence that he wouldn't pose a threat to the community.
According to news reports, that affidavit
was used to deny bail to Mohammed Mubeen, a 28-year old Pakistani gas station
attendant, who was arrested on immigration charges after it was discovered that
he got his driver's license renewed in Florida shortly after terrorist plot
leader Mohammed Atta acquired his driver's license at the same DMV office. Goldstein,
A Deliberate Strategy of Disruption, at A1. Given the government's detention
of hundreds of individuals and the dearth of any allegations that these individuals
are connected to terrorism, there is a substantial probability that constitutional
standards for depriving individuals of their liberty are not being met. The
identities of the detainees and their attorneys are necessary to determine whether
this is the case.
In that regard, this case is much like Rosenfeld v. Dep't of Justice, 57 F.3d
803 (9th Cir. 1995), in which the court rejected the government's argument that
there was no public interest in knowing the identities of the individuals investigated
by the FBI as part of the Berkeley Free Speech Movement (FSM). The Court rejected
the government's Exemption 7(C) claim concluding that the "public interest
in this case is knowing whether and to what extent the FBI investigated individuals
for participating in political protests, not federal criminal activity"
and "the public interest in this case may not be served without disclosing
the names of the investigation subjects." Id. at 812.
Here, as in Rosenfeld, releasing the identity
of (and other information about) the detainees is the only way for the American
people to find out "what their government is up to" here.
2. The substantial public interest in
disclosure outweighs any privacy interests of the detainees.
a. The INS detainees
While there is an overwhelming public interest
in ascertaining whether the government has engaged in misconduct with respect
to those detained in connection with the September 11 attacks, disclosing the
names (and other information) of the detainees does not raise equivalent privacy
concerns. Indeed, the government points to no authority holding that individuals
have a recognized privacy interest in the fact that they have been arrested
and jailed. Rather, all of the cases involve the privacy interest of individuals
concerning the fact that their names are contained in law enforcement files,
as suspects, witnesses, investigators or informants. See Def. Mem. at 24-30.
Here, by contrast, plaintiffs do not seek
the names of individuals who are being investigated by law enforcement authorities,
but of individuals who have been arrested, charged and held against their will
for violating the immigration laws. See Tennessean Newspaper, Inc. v. Levi,
403 F. Supp. 1318, 1321 (M.D. Tenn. 1975) (disclosing "information about
persons arrested or indicted for federal criminal offenses does not involve
substantial privacy concerns").
In claiming concern about the privacy of
the detainees, the government argues that they have an interest in not being
associated with the September 11 attacks. But it is the government who jailed
these individuals on unrelated immigration charges and then announced to the
world that they had been detained in connection with the September 11 attacks.
Its assertion of concern for their privacy is nothing more than an effort to
shield from public view the information necessary to determine whether it has
violated their rights.
The government's claim that the detainees
"are free to release [their identities] voluntarily," Def. Mem. at
23, is beside the point, even if true. As detailed above, there are many credible
reports that detainees are being prevented from communicating with those outside
the jail. But in any event, whether an individual may inform the world of his
jailing is quite irrelevant to whether the government has met its burden of
keeping that fact secret.
Even if there were some privacy interest
in the fact of being jailed, it is far outweighed by the substantial public
interest in determining whether the government has violated the rights of those
whose privacy it now invokes. Indeed, the INS' own rules recognize that any
privacy interest of non-citizens in their immigration status must give way where
"disclosure would reflect agency performance." In a Justice Department
interpretation of the effect of the Reporter's Committee decision on FOIA requests
for information about the immigration status of individuals-puzzlingly cited
by the Attorney General in support of refusing the detainees names -the Department
specifically directs that such information be withheld on privacy grounds, unless
it "would reflect agency performance." Third Party Requests for INS
File Information, Memorandum for the Attorney General from Richard L. Huff and
Daniel J. Metcalfe, May 10, 1996 (attached as Ex. 54). That is exactly the case
here. The government's Exemption 7(C) claim must be rejected. See Stern v. Federal
Bureau of Investigation, 737 F.2d 84, 93-94 (D.C. Cir. 1984) (ordering disclosure
of name of senior FBI agent censured for misconduct because privacy interest
outweighed by public interest in disclosure).
b. Attorneys
The government states that it can "discern
no public interest cognizable under FOIA in the identities of the individual
private attorneys that have been retained" by the detainees. Reynolds Decl.
24. However, as we explained above, the names of the attorneys, like the names
of the detainees, are needed to determine whether the government has engaged
in misconduct in jailing these individuals. Accordingly, contrary to the government's
assertion, the public interest in disclosure of their names is substantial.
By contrast, the attorneys have minimal
privacy interests here, if any. As explained earlier, attorneys have no expectation
of anonymity when they take on a case, particularly a controversial one. And
while the government speculates that "some attorneys may have been dissuaded
form representing individuals in this context," it provides absolutely
no support for that assertion (which, in any event, would have no bearing on
the privacy interests of the hardier attorneys who were not dissuaded). Accordingly,
any privacy interest the attorneys may have is greatly outweighed by the public
interest in determining whether the government has violated the rights of these
detainees.
C. The Government's Argument that it is
Precluded from Releasing the Identities of Those Courts that have Entered Sealing
Orders, and other Information is Not Supported by the Evidence.
Plaintiffs also requested (1) the identity
of those courts that entered orders sealing proceedings in connection with detained
individuals; (2) the sealing orders themselves; and (3) the legal authority
the government relied on in obtaining the sealing orders. The government claims
that there are nine such sealing orders in effect, Reynolds Supp. Decl. 9, but
that disclosure of all of the requested information, including the judicial
districts in which the sealing orders were entered and the actual sealing orders
themselves, is prohibited by court order. Id. 39. The Reynolds Declaration does
not quote the relevant language of these court orders, however, and thus does
not meet the government's burden to establish a basis for withholding all of
this requested information.
As noted previously, the defendant has the
burden of proving that it is entitled to withhold documents under FOIA. See
Campbell, 164 F.3d at 30. Here, without the specific language from these court
orders, the Reynolds Affidavit is far too conclusory to support the government's
claim that it is prohibited from releasing any of the information requested.
See, e.g., Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (agency affidavits
that are too conclusory will not support summary judgment). Accordingly, the
government has not met its burden of proof and summary judgment on this point
is inappropriate.
In order to determine whether disclosure
of the requested information is prohibited, this court may conduct an in camera
review of the court orders. See Quinon, 86 F.3d at 1228 ("in camera review
may be particularly appropriate when . . . the agency affidavits are insufficiently
detailed to permit meaningful review of exemption claims"). Before resorting
to an in camera review, however, the court should require the government to
submit a more detailed affidavit that sets out the language of the court orders
on which it relies. See Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C.
Cir. 1998) ("this court has repeatedly observed that a district court should
not undertake in camera review of withheld documents as a substitute for requiring
an agency's explanation of its claimed exemptions"); Quinon, 86 F.3d at
1228 (conducting an in camera review of withheld documents rather than requiring
a more detailed agency affidavit "deprives the FOIA requester of an opportunity
to present his interpretation of the withheld documents").
D. The Government Has Failed To Establish
That the Information about Individuals Held on Material Witness Warrants is
Exempt Under FOIA Exemptions 3, 7(A) or 7(F) or Covered by Sealing Orders.
1. The government is not entitled to withhold
information on the individuals held on material witness warrants under FOIA
Exemption 3 or any sealing orders.
Exemption 3 of FOIA permits an agency to
withhold information "specifically exempted from disclosure by [another]
statute." 5 U.S.C. § 552(b)(3). Here, the government argues that it
is prohibited from releasing the names of the individuals held on material witness
warrants pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, which
prohibits disclosure of "matters occurring before [a] grand jury."
However, Rule 6(e) does not prohibit identifying these individuals, and thus
Exemption 3 is inapplicable.
This Circuit has repeatedly stressed that
Rule 6(e) should not be read so literally "as to draw 'a veil of secrecy
. . . over all matters occurring in the world that happen to be investigated
by a grand jury.'" Senate of Puerto Rico v. Department of Justice, 823
F.2d 574, 583 (D.C. Cir. 1987) (quoting SEC v. Dresser Industries, Inc., 628
F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)). "There is no per se rule against
disclosure of any and all information which has reached the grand jury chambers."
Id. Rather, the relevant inquiry is whether disclosure would tend to "reveal
the inner workings of the grand jury." Washington Post Co. v. Department
of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988). "The disclosure of information
coincidentally before the grand jury [which can] be revealed in such a manner
that its revelation would not elucidate the inner workings of the grand jury'
is not prohibited." Senate of Puerto Rico, 823 F.2d at 583 (quoting Fund
for Constitutional Government v. National Archives and Records Serv., 656 F.2d
856, 870 (D.C. Cir. 1981)). It is "the document itself [that] must reveal
the inner workings; the government cannot immunize a document by publicizing
the link." Washington Post Co., 863 F.2d at 100.
In Senate of Puerto Rico, the Department
of Justice refused to turn over grand jury Exhibits in response to a FOIA request,
citing Rule 6(e) and FOIA Exemption 3. But the court held that the government
had not met its burden of establishing that disclosure of the information would
undermine the secrecy of the grand jury proceedings, explaining that material
submitted to the grand jury was not exempt from disclosure absent "some
affirmative demonstration of a nexus between disclosure and revelation of a
protected aspect of the grand jury's investigation." 823 F.2d at 584. The
court noted that although the FOIA request specifically asked for grand jury
materials,
had the DOJ released these Exhibits, along
with the over 1,000 pages of non-grand jury material it did release, there
is nothing in this record to suggest that the Senate, or any third party,
would have been able to determine which documents had been submitted to the
grand jury. Absent that identifying information, it is difficult to see how
disclosure would reveal anything concerning the inner workings of the grand
jury.
Id. at 583 (emphasis added).
Likewise, in Washington Post Co., the Department
of Justice invoked FOIA Exemption 3 and Rule 6(e) to shield from disclosure
a report prepared by a pharmaceutical company that had been subpoenaed by a
grand jury in connection with DOJ's investigation of the company. 863 F.2d at
98. In ruling that Exemption 3 did not apply, the court noted that by itself,
the report would not have
revealed anything whatsoever about the
grand jury's deliberations had the government not disclosed the report's role
in those deliberations. When the Post first requested disclosure of the report,
it was not yet before the grand jury. That the grand jury subpoenaed it five
months later and that it used the report to question witnesses would not be
known by the Post today had the Department not recounted the report's grand
jury role in this litigation.
Id. at 100; see also Dresser Industries,
628 F.2d at 1383 (no bar to disclosure of documents that had been subpoenaed
by grand jury where documents themselves did not reveal what had occurred before
the grand jury); Church of Scientology Intern. v. Department of Justice, 30
F.3d 224, 235 (1st Cir. 1994) (documents not exempt from disclosure where government
did not offer "support for its claim that release of the sought-after documents
would compromise the secrecy of the grand jury process").
In this case, as in Senate of Puerto Rico
and Washington Post Co., but for the government having "publiciz[ed] the
link" between those jailed on material witness warrants and grand jury
proceedings, that link would not be known. The statute authorizing the detention
of material witnesses says nothing about grand juries, rather, it refers generically
to persons whose "testimony . . . is material in a criminal proceeding."
18 U.S.C. § 3144.
Rule 6(e) plainly protects from disclosure
information identifying grand jury witnesses. See, e.g., Farese v. Department
of Justice, 826 F.2d 129 (D.C. Cir. 1987). But in this case, disclosing the
names of those being held on material witness warrants, without more, does not
expose them as grand jury witnesses. And aside from its own identification of
these individuals as grand jury witnesses, the government has drawn absolutely
no nexus between disclosure of their names and "revelation of a protected
aspect of the grand jury's investigation." Like Senate of Puerto Rico,
this is a case where the government could have "revealed [information]
in such a manner that its revelation would not elucidate the inner workings
of the grand jury." 823 F.2d at 583. It chose a less discrete course. But
the government's tactical ploy does not now exempt the information from disclosure.
Id.
The government also claims that it is entitled
to withhold information on the material witnesses pursuant to sealing orders
entered by courts. Reynolds Decl. 32. But as we explained above, by failing
to provide the actual language of those orders (despite plaintiffs' specific
request), the government has failed to meet its burden of proof.
2. The government's assertions are too
vague and conclusory to justify withholding information on the material witnesses
under Exemptions 7(A) and 7(F).
The government also argues that all information
about the individuals detained on material witness warrants may be withheld
under Exemptions 7(A) and 7(F) because disclosure "could reveal the strategy
or direction of the investigati |
