|
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. )
______________________________________)
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
 Add as favourites (23) |  Quote this article on your site | Views: 1615
|
- Please keep the topic of messages relevant to the subject of the article.
- Personal verbal attacks will be deleted.
- Please don't use comments to plug your web site. Such material will be removed.
- Just ensure to *Refresh* your browser for a new security code to be displayed prior to clicking on the 'Send' button.
- Keep in mind that the above process only applies if you simply entered the wrong security code.
|
Powered by AkoComment Tweaked Special Edition v.1.4.6
AkoComment © Copyright 2004 by Arthur Konze - www.mamboportal.com
All right reserved |
Be first to comment this article
