IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
CENTER FOR NATIONAL SECURITY
STUDIES, et al.,
v.
DEPARTMENT OF JUSTICE,
Defendant.
___________________________________________________
Plaintiffs, Civil Action No. 01-2500
Judge Kessler
PLAINTIFFS' REPLY IN SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY
JUDGMENT AND OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Arthur B. Spitzer
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
Kate Martin
Marcia T. Maack
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037
David L. Sobel
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009
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
Counsel for Plaintiffs
INTRODUCTION
The government now claims that disclosing the names of the individuals it has
arrested and jailed will not just harm its investigation, but could prove to
be "catastrophic." Defendant's Reply In Support of Motion for Summary
Judgment, and Opposition to Plaintiffs' Motion for Summary Judgment ("Def.
Reply") at 1, 8. This claim has no basis in reality. It strains credulity
to believe that after eight months a terrorist organization has not already
determined whether any of its associates have been arrested. Moreover, the government's
claim is contradicted by its own announcement identifying a captured high level
al Qaeda operative and reporting on his interrogation. The government cites
no authority or logic justifying its extraordinary policy of secretly detaining
hundreds of individuals pre-trial, without even claiming that it has information
linking those individuals to terrorism. As this court has stated, "the
government's burden in justifying nondisclosure [under FOIA] is demanding."
Linn v. Department of Justice, No. 92-1406, 1995 U.S. Dist. LEXIS 9302, at *
8 (D.D.C. June 6, 1995). Notwithstanding its rhetoric, the government has failed
to meet that burden.
Notably, two courts have now rejected separate but related aspects of the government's
secrecy policy. In ACLU of New Jersey v. County of Hudson-in which the United
States intervened making the same arguments against disclosure it has made in
this case relying on the same Reynolds Declarations-the New Jersey Superior
Court ruled that pursuant to state law the Hudson and Passaic County jails must
release the names of the INS detainees being held there. The court rejected
the United States' argument that releasing the names of the detainees could
harm its investigation.
In Detroit Free Press v. Ashcroft, newspapers and other plaintiffs challenged
the constitutionality of an INS directive categorically closing all immigration
proceedings relating to the INS detainees who were designated as special interest
cases, and specifically the closure of the deportation proceedings of Rabid
Haddad, one of these INS detainees. To support its argument for closure, the
government submitted a declaration from James S. Reynolds that is virtually
identical to the Reynolds Declaration submitted in this case.
The district court granted the plaintiffs' motion for a preliminary injunction,
holding that plaintiffs had established a likelihood of success on their claim
that the blanket closure of deportation hearings in the "special interest"
cases was unconstitutional. With respect to the deportation proceedings of Mr.
Haddad, the court found that the government's allegations regarding the harms
that could ensue from holding open deportation proceedings, as delineated in
the Reynolds Declaration, did not support closing Mr. Haddad's proceedings,
noting that Mr. Haddad's arrest and detention had been well publicized, and
that both Haddad and his counsel remained free to reveal any information they
wished about his immigration proceedings to the press and public.
The Court of Appeals for the Sixth Circuit has denied the government's motion
for a stay of the district court order on the grounds that the government failed
to demonstrate a likelihood of success on the merits. In acquiescing to an order
requiring it to release the transcripts of previously closed hearings in Haddad's
case, the government conceded that doing so "will not cause irreparable
harm to the national security or to the safety of the American people."
ARGUMENT
In its Reply Brief (at 19-21), the government makes an important concession.
It states that it was required to release the names of the detainees charged
with criminal offenses because the Constitution requires that criminal prosecutions
be "public." This means that if the Constitution requires that deportation
proceedings be public, the government is required to release the names of the
INS detainees.
As the district court's decision in Detroit Free Press demonstrates, there
is a strong constitutional argument in favor of a public right of access to
deportation proceedings. 2002 U.S. Dist. LEXIS 5839, at *9-17. The Supreme Court
has established a two-part test for access: have the proceedings historically
been open to the public and would public scrutiny play a significant positive
role in the functioning of such proceedings. See Press-Enterprise Co. v. Superior
Court, 478 U.S. 1, 8-9 (1986). Deportation proceedings appear to meet both prongs
of this test. See Detroit Free Press, 2002 U.S. Dist. LEXIS 5839, at *11-17.
There is no need to reach the constitutional question in this case because
plaintiffs are entitled to relief under FOIA. But analysis of the FOIA issue
should be informed by First Amendment values. In the discussion below, plaintiffs
point out how the government's position against disclosure runs counter to long-settled
practice and expectations of openness and access, as well as prevents the public
scrutiny necessary to protect against abuses.
II. THE GOVERNMENT MAY NOT KEEP SECRET THE NAMES OF JAILED INDIVIDUALS UNDER
THE FOIA.
A. Names of Arrestees Are Not Information "Compiled For Law Enforcement
Purposes."
The government argues that the names of the arrestees are exempt from disclosure
because they were compiled for a legitimate law enforcement purpose. Def. Reply
at 6-7. This argument is without merit. The process for determining whether
information was compiled for law enforcement purposes within the meaning of
FOIA is not a mechanical one. Rather the inquiry must focus on the nature of
the information or particular document for which the exemption is claimed. See
Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 626 (1982); National
Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 229-230
(1978). Here, the information being withheld is contained in INS charging documents,
the equivalent of arrest warrants or indictments. That is the type of information
that has traditionally been public and that was never intended to fall within
FOIA's harm analysis. Cf. 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").
When Congress enacted the FOIA, it had already legislated that arrest books
in the District of Columbia be kept public because [i]t is felt that the keeping
of such [arrest] records and their availability to the public should be matters
of law and not of administrative discretion, both for the protection of the
public against secret arrests and to guard against abuse in any way of the arrest
power. S. REP. NO. 83-2332 (July 25, 1954). It was undoubtedly aware that the
names of arrested individuals were routinely made public. Tennessean Newspaper
v. Levi, 403 F. Supp. 1318, 1321 (M.D. Tenn. 1975). There is nothing in the
legislative history of the FOIA to suggest that Congress intended Exemption
7 to eliminate access to arrest information that had always been public.
Under the government's wooden reading of this exemption, however, it could
use FOIA to keep secret any arrest warrant and the name of any individual it
had arrested because virtually all arrest warrants could be part of records
compiled for a legitimate law enforcement purpose. That cannot be the law, and
on this ground alone, the government's exemption claim must be rejected.
B. The Government Has Failed To Establish That The Requested Information Is
Exempt Under 7(A) or 7(F).
1. The government's claim that releasing the names of the detainees could be
"catastrophic" is unfounded.
The government's claim that the identities of the detainees must remain secret
to prevent terrorist organizations from learning who has been arrested is unpersuasive
on its face. First, it is unlikely in the extreme that after eight months terrorist
organizations would not know if their associates are missing and would not have
surmised that they have been arrested. After all, the government has widely
publicized the fact that it has detained hundreds of individuals in connection
with its investigation of the events of September 11. See Pl. Mem. at 1-5. Second,
according to the government, since being arrested the INS detainees have been
permitted to self-identify and thus have been able to alert their associates
to their detention. In Detroit Free Press, the district court concluded that
the fact that the detainee in that case remained free to reveal his arrest to
the press and public undermined the government's argument against open deportation
proceedings. 2002 U.S. Dist. LEXIS, at *24-25. The government's argument against
releasing the names of the detainees is similarly undermined here.
The government contends that "disclosure of the information by the government
would have an entirely different impact on the investigation than sporadic disclosure
by the detainees themselves." Def. Reply at 18. But the issue here is disclosure
of the identities of individuals who are involved in terrorism and whether that
is done sporadically by those particular individuals or as part of a list including
hundreds of innocent individuals will make no difference. As to any individuals
who are involved in terrorism, the notion that in the intervening eight months
a terrorist organization would not somehow know about their arrests-either through
the detainees' action or inaction-defies common sense.
Nevertheless, the government claims that releasing the names of the detainees-even
of those who have been "cleared" of any connection to terrorism-could
be "catastrophic." In essence, the government argues that at least
one of the detainees may be a terrorist and if forced to release detainees'
names, it may unwittingly identify someone who is a member of al Qaeda. According
to the government, "dire consequences . . . would flow from even one unnecessary
disclosure." Def. Reply at 9. But the government fails to explain how catastrophe
could ensue from disclosing the identity of a detained terrorist when terrorist
organizations are undoubtedly aware of this detention.
Moreover, the government's claim of catastrophe is contradicted by its own
release of information about individuals it has identified as important members
of al Qaeda or connected to that organization. The government recently announced
that it has captured an extremely high level al Qaeda operative in Pakistan.
Instead of keeping secret his name, as it has done for many of the persons captured
in Afghanistan and now held in Guantanamo, the government identified him as
Abu Zabaydah, described him as the operations director for al Qaeda, announced
that he would be questioned, and made public information from that questioning.
Government officials also recently announced that they had arrested a Mr. Issaya
Nombo on immigration charges after a letter congratulating him on obtaining
his pilot's license was discovered in a cave in Afghanistan. The government's
selective disclosures contradict its claim that its investigation would be seriously
jeopardized if it identified any of the hundreds of people who were arrested
on immigration charges after September 11th, many of whom even the government
admits have now been "cleared" of any suspected terrorist connections.
2. The government does not challenge that it is required to show a rational
nexus between releasing the identities and the alleged law enforcement harms.
The government does not contest that in order to come within the requirement
of Exemption 7 that disclosure "could reasonably be expected to" cause
the alleged law enforcement harms, it must establish a rational nexus between
releasing the identities of the INS detainees and the alleged law enforcement
harms. Def. Reply at 9-12. Instead, the government complains that plaintiffs
have "implicitly" argued for a heightened standard of proof, i.e.
that the government show that disclosing the detainees' identities "would,"
rather than "could reasonably be expected to," harm its investigation
or cause harm to the detainees or the public. Id. at 9-11. Plaintiffs make no
such argument. In particular, the government challenges plaintiffs' citation
to North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989), contending that this case
relies on more restrictive pre-1986 case law. But North is a post-1986 case
that applies the less restrictive "could reasonably be expected to"
standard. See 881 F.2d at 1098 n.4 ("In 1986, Congress changed 'would'
to 'could reasonably be expected to'").
Nor do plaintiffs argue that in order to meet the nexus requirement the government
must "prove to a certainty that the detainees actually have a connection
to terrorism." Def. Reply at 8, 11-12. The government's claim, however,
that it is not required to show a connection between the detainees and terrorism
(Def. Reply at 12), is incorrect. As explained in plaintiffs' opening Memorandum
(at 13-15), the government's allegations of harm rest on the necessary assumption
that each of the detainees is involved in, or has material knowledge about,
the terrorist conspiracy or organizations involved in the conspiracy. Accordingly,
while the government does not have to "prove to a certainty that the detainees
have a connection to terrorism" in order to show a rational nexus between
disclosing the information and the alleged harms, the government must, at a
minimum, show that: (1) 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; and (2) that it is reasonably likely
that the terrorist organizations do not already know about the detainees' arrest.
Otherwise, the government has not met its burden of demonstrating that there
is a reasonable expectation that disclosure could harm its investigation or
cause physical harm to the detainees or the public.
3. The government's new affidavit still fails to establish a rational nexus
between releasing the identities of the INS detainees and the alleged law enforcement
harms.
Although the government submitted a new declaration with its Reply, that declaration
still fails even to allege that it has facts or information showing that each
detainee is involved in terrorism sufficient to establish a nexus with the alleged
harms. The declaration of Dale L. Watson (Watson Decl.) was first filed in the
Detroit Free Press case in support of the government's motion for reconsideration
of the preliminary injunction ordering the opening of the deportation proceedings
of Rabid Haddad. (Since filing the Watson Declaration, the government has agreed
to release the transcripts of the Haddad proceedings after the Sixth Circuit,
having the declaration before it, denied the government's request for a stay
of the preliminary injunction.)
The Watson Declaration does not support the government's argument here for
several reasons. First, most of the Watson Declaration recites harms that might
ensue from opening deportation hearings and disclosing evidence-not from disclosing
detainees' identities-and thus has no application to this case. See Watson Decl.
12-14, 16-17, 20-23. Significantly, the government's suggestion that "[b]its
and pieces of information that may appear innocuous in isolation can be fit
into a bigger picture by terrorist groups in order to thwart the government's
efforts to investigate and prevent terrorism" (Def. Reply at 14), derives
from a paragraph of the Watson Declaration that does not even allude to disclosure
of detainees' identities as a possible danger. See Watson Decl. 12.
Second, even those paragraphs that do refer to disclosure of the detainees'
identities do not apply to all the INS detainees whose names are being withheld.
The Watson Declaration states that there is a subset of detainees about whom
the government still has "concerns," presumably because they have
not yet been cleared (Watson Decl. 10), and it is only that subset which is
addressed by the declaration. Indeed, the admission in the Watson declaration
that the government is only seeking to close the deportation hearings for this
subset of detainees contradicts the government's argument in this case that
releasing the identities of even those detainees about whom concerns no longer
exist could harm its investigation or the safety of the public. See Pl. Mem.
at 16-17.
Third, even with respect to the subset of detainees addressed by the Watson
Declaration, the few paragraphs regarding disclosure of their identities fail
to supply the essential nexus between disclosure and harm. The Watson Declaration
does not address the fact that the terrorist organizations undoubtedly know
if any of their associates have been detained and that therefore the harms described
in the declaration ( 15) have already occurred. Nor does the statement that
the government still has "concerns" regarding some individuals meet
its burden to show that it has facts or information that these individuals are
involved in terrorism. The Declaration is far too vague and conclusory. See
Campbell v. Department of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (agency
affidavits will not suffice to support summary judgment if they are too vague
or conclusory).
Accordingly, while the Watson Declaration elaborates on the harms that could
ensue from disclosing the identity of individuals who are involved with terrorism
when the terrorist organization is unaware of their detention ( 15), it fails
to establish that those harms could reasonably be expected to occur from disclosing
the identities of these detainees.
C. The Public Interest In Disclosure Of The Detainees' Identities Outweighs
Any Privacy Interest.
As demonstrated in plaintiffs' initial Memorandum (at 20-32), the compelling
public interest in disclosure of the detainees' identities outweighs any privacy
interest at stake. In response, the government argues that plaintiffs have not
put forth compelling evidence of illegal government activity and thus have failed
to demonstrate the requisite public interest. Def. Reply at 25-28. That contention
both misstates the law and is factually incorrect. The government cites no case
in which the "compelling evidence of illegal government activity"
standard has been applied to justify withholding the name of someone who has
been arrested, or even to consideration of such withholding. See Def. Reply
at 21-25. While the District of Columbia Circuit has applied that standard to
disclosure of the names of suspects, witnesses, investigators or informants
in law enforcement files, such information is significantly different from the
names of those arrested. See Pl. Mem at 30. The power of the government to detain
individuals is its most awesome and potentially dangerous power, and the consequences
of governmental mistakes or abuse are particularly pernicious. When the government
uses its arrest power, the need for public scrutiny is at its highest. There
is a much greater public interest in knowing who has been jailed than in knowing
who has talked to law enforcement. Finally, the governments' heretofore routine
disclosure of arrests is inconsistent with the adoption of the compelling evidence
standard.
In any event, even if plaintiffs were required to show compelling evidence
of illegal government conduct in order to demonstrate a public interest in disclosure,
they have done so. See Pl. Mem. at 22-29. The government does not rebut any
of plaintiffs' extensive evidence of widespread abuse. Indeed, although the
defendant makes the surprising claim in its memorandum that there is not a "scintilla
of evidence of government wrongdoing" (Def. Reply at 23 n.10), the Justice
Department's own Office of Inspector General has found the allegations of rights
violations sufficiently compelling that it has launched an investigation. It
announced its investigation after plaintiff Amnesty International published
a report detailing serious rights violations going beyond even those outlined
in plaintiffs' Memorandum, including, inter alia: (1) failure to file charges
for prolonged periods; (2) prolonged detention for minor immigration violations
and continued detention after bond has been set or deportation has been ordered;
and (3) abusive treatment while in custody, including prolonged solitary confinement
and use of restraints.
All the evidence strongly contradicts the government's suggestion that this
case involves "[a] mere desire to review how the agency is doing its job."
Def. Reply at 26. And the information already released by the government does
not sufficiently serve the public interest in disclosure. The American public
has a right to know who their government is rounding up and jailing, especially
when there is evidence that the government may be using secrecy to shield its
own unlawful and unconstitutional actions. The public interest in having the
government release the names of those it secretly jailed is compelling.
In response, the government claims that the detainees have an overriding privacy
interest in not being associated with the worst terrorist attack in history.
The government's solicitude is suspect, as it is the government that continues
to associate the detainees with terrorism and it is the government that claims
it "cannot rule out" links to terrorism, even while admitting that
it has no evidence to that effect. If the government were truly concerned about
protecting the detainees from stigmatization, it could announce that none or
only a few of them have actually been linked to terrorism.
Moreover, people are arrested for heinous crimes all the time and their names
are not kept secret in order to protect their privacy. To the contrary, the
Department of Justice routinely announces such arrests to the media. The government's
argument that the privacy interest at stake has nothing to do with the fact
of the arrest, but with being associated with the investigation of the September
11 attacks, is misleading. It was the government itself that associated the
arrests with the September 11 attacks. The government should not be permitted
to use its own characterization of the arrests to withhold information that
is routinely made public. See ACLU of New Jersey v. County of Hudson, No. L-463-02,
slip op., at 10 (there is no "merit to the contention that INS inmates
arrested in connection with September 11 events have a privacy right worthy
of protection against disclosures."); Tennessean Newspaper, 403 F. Supp.
at 1321 (disclosing "information about persons arrested or indicted for
federal criminal offenses does not involve substantial privacy concerns").
Finally, the government's reliance on plaintiff Amnesty International's report
to support withholding the names of the detainees is misplaced. Although Amnesty
International chose not to reveal its sources because some feared being associated
with the September 11 attacks, the Amnesty report did not state that the detainees'
fears provided a legitimate reason for the government to withhold their identities.
Instead, it noted the "disturbing level of secrecy surrounding the detentions"
(AI Report § 1) and called on the government to "[p]rovide in full
the information requested under the FOIA" (id. at 42). Because the compelling
public interest in disclosure outweighs any privacy interest at stake, the government
may not withhold the identities of the INS detainees. See Bennett v. Drug Enforcement
Administration, 55 F. Supp.2d 36, 42-43 (D.D.C. 1999) (Kessler, J.) (holding
that government improperly withheld requested information where compelling evidence
of government misconduct outweighed any privacy interest of informant).
D. The Government Has Not Established That The Names Of The Attorneys For The
INS Detainees Are Exempt From Disclosure.
As explained in plaintiffs' Memorandum, the government has not met its burden
of proving that disclosing the names of the attorneys for the detainees could
reasonably be expected to harm its investigation or the safety of the detainees
or the public for the same reasons it has not met its burden for withholding
the names of the detainees. Pl. Mem. at 19. In addition, the public interest
in disclosure of the attorneys' identities is substantial because the attorneys
can provide important information about government misconduct. While skirting
these arguments, the government claims that revealing the names of the detainees'
attorneys could subject them to retaliation from the American public and place
them in "potentially grave peril." Def. Reply at 19, 28. Once again,
the government is using rhetoric to mask the weakness of its arguments. The
government provides no basis for its assertion that the detainees' attorneys
could face "grave peril" if their names are disclosed; the names of
a number of detainees' attorneys have been made public and none appear to have
been harmed. Moreover, as previously noted, attorneys have no expectation that
their identities will remain anonymous when they take on a case. Accordingly,
the government's argument fails.
E. The Government Has Not Met Its Burden Of Proving It May Withhold The Identities
Of Persons Detained On Material Witness Warrants.
Federal Rule of Criminal Procedure 6(e)(2) does not bar disclosure of the identities
of the persons detained as material witnesses. As explained in plaintiffs' initial
Memorandum (at 34-36), the material witness statute refers generally to criminal
proceedings, not to grand jury proceedings. Therefore, the government could
have released the names of individuals detained as material witnesses without
exposing them as grand jury witnesses and thus without "reveal[ing] the
inner workings of the grand jury." See Washington Post. Co. v. Department
of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988); Senate of Puerto Rico v. Department
of Justice, 823 F.2d 574, 583 (D.C. Cir. 1987). The government contends, however,
that because of its terrorism investigation, the "only reasonable conclusion
that could have been drawn is that the material witnesses pertain to a grand
jury investigation." Def. Reply at 34. But plaintiffs never asked for the
identity of material witnesses appearing before the grand jury. And the individuals
concerned could have been detained as material witnesses for any of the more
than ninety pending criminal cases against persons who were arrested in connection
with the investigation of the September 11 attacks. See Amended Ex. 5 to Defendant's
Motion for Summary Judgment (listing criminal defendants).
As the court noted in Senate of Puerto Rico, the fact that "the existence
and the general scope of the grand jury's inquiry . . . are known to all"
does not relieve the government of its burden of making the requisite showing
that disclosure would reveal the inner workings of the grand jury. 823 F.2d
at 583. Here, the government has not met that burden because, apart from its
own revelations, it has shown no nexus between disclosure of the names of those
detained as material witnesses and "revelation of a protected aspect of
the grand jury's investigation." See Linn v. Department of Justice, No.
92-1406, 1995 U.S. Dist. LEXIS 9302, at *88-89 (D.D.C. June 6, 1995) (holding
that government had not met its burden of establishing that disclosure of grand
jury subpoenas and witnesses would elucidate inner workings of the grand jury).
The government also invokes Rule 6(e)(6) to justify withholding the names of
those detained on material witness warrants. According to the government this
rule, and the sealing orders entered by the court "in accordance with this
rule," prohibit it from releasing any information about the grand jury
proceedings. As noted in plaintiffs' Memorandum (at 36), without the specific
language of the sealing orders, the government's assertions are far too conclusory
to support its claim that it is prohibited from releasing the requested information.
In fact, the plain language of the rule indicates that information will not
be sealed under all circumstances, but only "to the extent . . . necessary
to prevent disclosure of matters occurring before a grand jury." In addition,
the government's broad reading of the sealing orders is called into question
by news reports that law enforcement officials have publicly discussed specific
individuals being held on material witness warrants. Without the relevant language
of the sealing orders before the court, the government has not met its burden
to withhold the identities of those being detained on material witness warrants.
In addition, at least twenty-six individuals detained on material witness warrants
have been publicly identified, some reportedly by the government. With respect
to these individuals, there is no valid ground for withholding their identities.
See Linn, 1995 U.S. Dist. LEXIS 9302, at *21 ("the government cannot rely
on an otherwise valid exemption claim to justify withholding information that
has been officially acknowledged or is in the public domain," quoting Davis
v. Department of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (internal quotation
marks omitted)). Moreover, of these twenty-six, at least eight (and probably
more) never testified before the grand jury. The government claims that it is
entitled to withhold the identity of those who did not testify because the fact
that they were "proposed as grand jury witnesses would also reveal important
information about the nature of the grand jury's investigation." Def. Reply
at 33. But, that statement is too conclusory to provide a "nexus between
disclosure and revelation of some protected aspect of the grand jury's investigation."
Linn, 1995 U.S. Dist. LEXIS 9302, at *88-89. Moreover, plaintiffs never asked
for the identity of proposed grand jury witnesses, and the government provides
absolutely no support for its contention that it may withhold information that
was never even presented before a grand jury. If that were the case, then the
government could designate anything as potential grand jury material in order
to keep it secret.
Finally, there is a substantial question whether the government even intended
that every individual it arrested as a material witness would testify before
a grand jury. As detailed in plaintiffs' Memorandum (at 26-27), there is compelling
evidence the government is using the material witness statute not to secure
testimony, but to secure the imprisonment of "suspicious" individuals
it cannot detain by any lawful means. Some of these individuals have been held
for months as material witnesses, even though the statute explicitly states
that "[n]o material witness may be detained . . . if the testimony of such
witness can be adequately secured by deposition, and if further detention is
not necessary to prevent a failure of justice." 18 U.S.C. § 3144.
Grand jury secrecy rules may not be invoked to shield unlawful uses of the material
witness statute.
F. The Government Has Not Demonstrated That Its Search For Policy Directives
And Guidance Was Adequate.
Plaintiffs' Memorandum (at 39-40) explained that the government's affidavits
did not demonstrate that its search for policy directives and guidance was adequate.
In response, the government argues that plaintiffs are estopped from making
this claim because in their FOIA request, plaintiffs asked for "the key
information . . . rather than all relevant documents." This argument is
disingenuous. Plaintiffs' statement clearly refers to the requests for information
on persons arrested or detained, not to the request for policy directives and
guidance, and makes no sense in the later context.
The government also supplies two new affidavits claiming that its search was
adequate. But these affidavits, like the earlier ones, fall short. Once again,
the FBI admits that it did not conduct any search and simply states that after
consultation it was determined that the FBI had no responsive records. Supplemental
Declaration of Scott A. Hodes, 3 (attached as Ex. 9 to Def. Reply). In addition,
the Declaration of Melanie Ann Pustay simply recited that the Offices of the
Attorney General and Deputy Attorney General performed record searches, but
fails to describe how these record searches were actually performed. Declaration
of Melanie Ann Pustay 6 (attached as Ex. 8 to Def. Reply). Tellingly, the government
provides no explanation as to why it has not found these guidances or directives
that its own documents and evidence indicate exist. Its affidavits are insufficient.
See Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (if the
sufficiency of the search is challenged, government must demonstrate "beyond
material doubt that the search was reasonable") (internal quotation marks
and footnotes omitted). Finally, the government has not met its burden to provide
satisfactory evidence that its response does account for all the detainees.
See Pl. Mem. at 40-41.
G. Sealed Criminal Cases
With respect to the nine sealed criminal cases, the government now states that
these indictments and complaints have been sealed pursuant to Fed. R. Crim.
P. 6(e)(4). Def. Reply at 29-30. But that rule permits an indictment or complaint
to be sealed only "until the defendant is in custody or has been released
pending trial." Concerned as to whether this rule was being violated, plaintiffs'
counsel contacted defendant's counsel. Defendant's counsel have stated that
they will provide plaintiffs with a written clarification of the status of the
nine criminal cases. Upon review of that clarification, plaintiffs may submit
a brief supplemental memorandum regarding these cases.
II. PLAINTIFFS ARE ENTITLED TO THE REQUESTED INFORMATION UNDER THE COMMON LAW
The government never takes issue with the basic proposition that there is a
federal common-law right of access to the documents at issue in this litigation.
See Def. Reply. at 40-43. Rather, it identifies three obstacles to the enforcement
of that right: sovereign immunity, preemption and balancing. As we show below,
however, none of those obstacles defeats plaintiffs' claim.
A. Sovereign Immunity Has Been Waived
The government invokes sovereign immunity (Def. Reply at 40), but in the very
next paragraph recognizes that the Administrative Procedure Act, 5 U.S.C. §
702, is a waiver of sovereign immunity for actions against federal agencies
seeking non-monetary relief. Id. at 41. See also Cobell v. Norton, 240 F.3d
1081, 1094 (D.C. Cir. 2001) ("section 702 of the Administrative Procedure
Act waives federal officials' sovereign immunity for actions 'seeking relief
other than money damages' involving a federal official's action or failure to
act"). This case is, obviously, an action "seeking relief other than
money damages" from federal officials, and sovereign immunity is therefore
not a bar. The government asserts that this waiver of sovereign immunity is
conditioned on there being "no other adequate remedy in a court" (Def.
Reply at 41), but no such qualifying language appears in the statutory waiver,
which is quite precise:
An action in a court of the United States seeking relief other than money
damages and stating a claim that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the ground that it
is against the United States or that the United States is an indispensable
party.5 U.S.C. § 702 (emphasis added). Thus, Congress has been quite
clear that the relief sought here "shall not be . . . denied" on
the ground of sovereign immunity. The government's assertion is based on language
in a different section of the APA, which provides that Agency action made
reviewable by statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review [under the APA].
5 U.S.C. § 704.
This is not the language of sovereign immunity, but a non-duplication provision;
as the Supreme Court has explained, "Congress did not intend the general
grant of review in the APA to duplicate existing procedures for review of agency
action." Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). The bottom line
is that in an action seeking non-monetary relief against a federal agency, sovereign
immunity has been waived in either event: either by the APA or by some other
waiver that provides an "adequate remedy in a court." Thus, this Circuit
has squarely rejected a sovereign immunity defense to a lawsuit seeking to enforce
a common-law right of access to public documents. Washington Legal Foundation
v. United States Sentencing Commission, 89 F.3d 897, 901-02 (D.C. Cir. 1996).
B. FOIA Has Not Displaced the Common Law Right of Access.
The government's second argument is that the enactment of FOIA displaced and
preempted the common law right of access to public documents. Def. Reply at
41-43. The trouble with that argument is that no case has so held. To the contrary,
this Court, this Circuit, and the Supreme Court have all continued to recognize,
develop and apply the common-law right of access subsequent to the enactment
of the FOIA in 1966. Indeed, it was 1974-eight years after the enactment of
the FOIA-when Judge Gesell began the modern development of this right when he
ruled that the media had a common-law right of access to "White House tapes"
in the custody of the Clerk of Court. United States v. Mitchell, 386 F.Supp.
639, 641 (D.D.C. 1974).
The Court of Appeals agreed, 551 F.2d 1252 (D.C. Cir. 1976). It is true, as
the government notes, that the Supreme Court denied access, Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978), but not on the ground that FOIA had
broadly displaced the common law. To the contrary, the Court acknowledged the
vitality of the common-law right of access, which all parties conceded, see
id. at 597. However, the Court recognized that the Presidential Recordings and
Materials Preservation Act, Pub. L. 93-526, 88 Stat. 1695 (1974), constituted
an "additional, unique element" in the case, inasmuch as "Congress
[had] directed the Administrator of General Services to take custody of petitioner's
Presidential tapes and documents" and to screen and process and release
them in a specified manner. 435 U.S. at 603 (emphasis added).
The government posits that FOIA should have the same effect on all common-law
requests for access to public documents as the Presidential Recordings and Materials
Preservation Act had on the common-law claim of access to the White House tapes.
But the situations are hardly analogous. In the Nixon case, it was clear that
Congress had focused with laser-like precision on the tape recordings at issue,
and had enacted a statute providing exactly what should be done with them. Enforcing
the common-law right of access to those tapes necessarily would have interfered
with that specific congressional judgment. By contrast, there is no reason to
believe that in enacting the Freedom of Information Act, the purpose of which
was to increase public access to government information, Congress intended to
eliminate existing legal rights of access. Indeed, this Circuit has made clear
that FOIA "is not to be interpreted in any way as a restriction on government
disclosure." Charles River Park A, Inc. v. Department of Housing and Urban
Development, 519 F.2d 935, 941 (D.C. Cir. 1975). Consistent with that admonition,
the courts have continued to consider common-law access claims as not being
precluded by FOIA. See, e.g., Washington Legal Foundation v. United States Sentencing
Commission, 89 F.3d 897 (D.C. Cir. 1996) (adjudicating common-law claim on the
merits); Schwartz v. Department of Justice, 435 F.Supp. 1203 (D.D.C. 1977) (common
law right applies to congressional documents), aff'd, 595 F.2d 888 (D.C. Cir.
1979) (table). This case should proceed the same way.
C. The Public Interest in Disclosure Outweighs Any Harm to the Government
The parties agree that if the documents sought are public records, as they
surely are, then the court must "'proceed to balance the government's interest
in keeping the document secret against the public's interest in disclosure.'"
Washington Legal Foundation v. United States Sentencing Commission, supra, 89
F.3d at 902 (quoting Washington Legal Foundation v. United States Sentencing
Commission, 17 F.3d 1446, 1451-52 (D.C. Cir. 1994)). See Def. Reply at 43. Plaintiffs
have discussed above the reasons why there is a strong public interest-an interest
specifically recognized by Congress in requiring public arrest books in the
District of Columbia -- in disclosure of the information at issue, and why the
harms proffered by the government are speculative, exaggerated and unlikely.
See supra pp. 4-10. Those same reasons apply here, and they are reinforced by
the recent decisions of courts in Michigan and New Jersey rejecting the government's
efforts to keep secret this information. See supra pp. 1-3. For these reasons,
the Court should conclude that the public interest in disclosure prevails, and
order the information disclosed.
CONCLUSION
For the reasons outlined above, and in the Memorandum of Points and Authorities
in Support of Plaintiffs' Cross-Motion for Summary Judgment and Opposition to
Defendant's Motion for Summary Judgment, the court should deny defendant's motion
for summary judgment and grant plaintiffs' cross-motion for summary judgment
and order the information disclosed.
Respectfully submitted,
________________________________
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
Marcia T. Maack, D.C. Bar. No. 467035
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037
Tel: 202-994-7060
Fax: 202-994-7005
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
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
 Add as favourites (12) |  Quote this article on your site | Views: 1099
|
- 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
