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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
v. ) No. 01-2500
)
DEPARTMENT OF JUSTICE, ) Judge Kessler
)
Defendant. )
______________________________________)
PLAINTIFFS' REPLY IN SUPPORT OF THEIR
MOTION TO STAY PROCEEDINGS ON DEFENDANT'S
SUMMARY JUDGMENT MOTION PENDING DISCOVERY
On January 22, 2002, plaintiffs moved for the entry of an order temporarily
staying proceedings on defendant's motion for summary judgment pending responses
to plaintiffs' discovery requests. Plaintiffs established their need for limited
discovery of facts concerning the status of the "INS detainees," and
certain discrepancies as to the number of detainees reflected in defendant's
FOIA response.
While defendant filed an opposition to the motion, it responded to plaintiffs
by filing a supplemental declaration and providing additional information. In
particular, defendant provided additional information concerning the status
of more than half of the INS detainees by explaining the meaning of "inactive
cases" and clarified its initial declaration with respect to the number
of detainees.
Thus, the discovery still at issue is quite limited. It is however, necessary
to put a complete record before the Court to decide the case on the merits.
In particular, plaintiffs seek confirmation that some of the INS detainees have
been released or deported; information concerning the adequacy and completeness
of defendant's search for responsive documents; and the basis for the government's
assertion that court orders preclude it from identifying the federal judicial
districts that have issued material witness warrants or sealed criminal proceedings
in connection with the terrorism investigation.
ARGUMENT
By filing the Supplemental Declaration of James S. Reynolds ("Supp. Reynolds
Dec.") in order "to clarify some of the information provided by Mr.
Reynolds in his [initial] declaration," Defendant's Opposition to Plaintiff's
Motion to Stay Proceedings ("Def. Opp.") at 8, defendant implicitly
concedes that plaintiffs' motion identified omissions and discrepancies in the
government's submission in support of its summary judgment motion. While the
supplemental declaration obviates the need for discovery of some of the "facts
essential to justify [plaintiffs'] opposition" to defendant's motion, Fed.
R. Civ. P. 56(f), it does not, as plaintiffs set forth below, remove the need
for discovery entirely.
I. Plaintiffs are Entitled to Admissible Evidence Showing that
Some Detainees Have been Released from Custody, Deported or Granted Voluntary
Departure
As defendant admits, in order to be entitled to withhold documents under exemption
7(A), the government has the burden of showing that the disclosure "'could
reasonably be expected to interfere with law enforcement proceedings.'"
Def. Opp. at 14, qouting 5 U.S.C. § 552(a)(7)(A) and citing North v. Walsh,
881 F.2d 1088, 1097 (D.C. Cir. 1989) (agency must demonstrate that disclosure
would "disrupt, impede, or otherwise harm the enforcement proceeding");
see also Campbell v. Department of Health and Human Services, 682 F.2d 256,
260 (denying government's 7(A) exemption claim where it failed to demonstrate
the alleged law enforcement harm). As plaintiffs explained in their Rule 56(f)
motion ("Pl. Mot."), it is "essential to the government's assertions
about the harms to its investigation and enforcement activities that could result
from disclosure . . . that the detainees are individuals involved in terrorism
or having knowledge about terrorism." Pl. Mot. at 14.
Defendant seeks to justify withholding information about all detainees on the
basis of a single rationale. While plaintiffs will demonstrate on the merits
that defendant's allegations are insufficient on their face to justify withholding
the names of detainees, plaintiffs will also demonstrate that defendant's rationale
for withholding the names is contradicted by evidence concerning the status
of particular categories of detainees. The limited discovery plaintiffs seek
is therefore relevant to issues that will be before the court.
In particular, plaintiffs seek admissions from the defendant: 1) that some
of those whose names have been withheld have been released from custody; 2)
that some have been deported; 3) that some have been granted voluntary departure
by the INS in lieu of being subject to removal proceedings; and 4) that some
have been granted voluntary departure by an Immigration Judge. The third and
fourth requests are relevant because as to all individuals who have been granted
voluntary departure there would have been a finding that the individual was
not deportable as a terrorist, and as to those granted voluntary departure by
an Immigration Judge there would have been an additional finding that the individual
was not a threat to national security. See 8 U.S.C. §§ 1229c(a); 1229(b)(1)(C);
8 CFR § 240.26(b)(E).
For the Court's convenience, plaintiffs' proposed discovery (which has been
served upon defendant today) is attached to this memorandum as Exhibit A (five
requests for admissions), Exhibit B (three interrogatories) and Exhibit C (one
request for production of documents). The Court can see for itself how straightforward
and non-burdensome this discovery is, and how relevant to the merits the Court
will be called upon to decide.
Such discovery is relevant to rebutting the allegations of harm upon which
defendant relies in claiming that it may withhold the name of every individual
whom the INS has detained. Indeed, defendant's own declarations recognize the
relevance of whether individuals whose names are sought by plaintiffs have been
released from custody or deported, when they refer to the fact that "persons
believed not to be of current interest regarding the investigations emanating
from the September 11th attacks are placed in an 'inactive' status and may have
been released from custody or deported." Supp. Reynolds Dec. 3 (emphasis
added). Plaintiffs are entitled to discovery concerning this allegation in order
to obtain admissible evidence that indeed some individuals have been released
or deported.
Defendant's argument that plaintiffs seek "to gain access to the inner
workings and probe the bona fides of the government's ongoing terrorism investigation,"
Def. Opp. at 2, is simply wrong. Plaintiffs seek no such information. Answering
plaintiff's limited discovery requests will reveal nothing about the inner workings
of the investigation.
Indeed, most of defendant's opposition is devoted to attacking a straw man,
namely disputing plaintiffs' right to discover "more specific information
about how each of the individuals detained pursuant to the investigation of
the September 11 attacks is connected to terrorism." Def. Opp. at 2. But
plaintiffs seek no such discovery, they simply seek an admission of facts, most
already publicly known, namely that some of the individuals whose names have
been withheld have already been either released from custody, deported or cleared
for voluntary departure.
Defendant also argues that "regardless of their status, release
of information about the detainees may cause the harms Exemption 7 of the FOIA
was intended to protect against." Def. Opp. at 13. But this is an argument
addressed to the merits of defendant's position, not plaintiffs' entitlement
to the limited and non-burdensome discovery they seek. Defendant's argument
asks this Court to decide the merits of its position before having in front
of it the evidence necessary to that decision. Defendants do not and cannot
make any argument that such information is not relevant to the Court's determination
of this case.
II. Plaintiffs are Entitled to Discovery of Information Concerning the Completeness
of Defendant's Response and the Adequacy of The Search
Defendant concedes that discovery is generally appropriate when the FOIA requester
seeks to examine "the adequacy of the agency's search or the completeness
of the agency's index." Def. Opp. at 18. Although the government's supplemental
declaration has resolved several questions concerning the completeness of defendant's
FOIA response, plaintiffs continue to seek limited discovery relating to the
adequacy of defendant's search for responsive records.
In response to the portion of plaintiffs' FOIA request seeking "policy
directives or guidance issued to officials about making public statements or
disclosures" regarding the detainees, defendant has released a document,
identified as "draft talking points prepared . . . for the ultimate use
of the Attorney General." Declaration of Melanie Ann Pustay (attached to
Defendant's Motion for Summary Judgment), 6. Plaintiffs seek limited discovery
to ascertain whether one of more releasable documents ever emerged from this
draft.
Similarly, defendant has released a memorandum from Michael Creppy, Chief Immigration
Judge, to "All Immigration Judges; Court Administrators," dated September
21, 2001. That memorandum states that some of the recipients "already know"
that the Attorney General "has implemented . . . procedures [that] require
us . . . to close the hearing[s] to the public, and to avoid discussing the
case or otherwise disclosing any information about the case to anyone outside
the Immigration Court." Plaintiffs seek limited discovery to ascertain
whether the procedures implemented by the Attorney General were set forth in
any document other than Mr. Creppy's memorandum.
Where, as here, the record raises doubts as to the adequacy of an agency search,
discovery is clearly appropriate. As this court has held, especially mindful
of the disadvantage faced by the plaintiff in attempting to test the claims
raised by the agency in a FOIA action, where the plaintiff has pointed to some
countervailing factor calling into question the completeness of the agency's
search or otherwise questioning the satisfactory nature of the agency's response,
an issue of material fact, precluding the denial of discovery and award of summary
judgment, may be recognized. Thus, under Rule 56(f), the district court may
defer ruling on a motion for summary judgment and permit discovery so that the
non-moving party may obtain the information necessary to show an issue of fact
in dispute.
Shurberg Broadcasting v. FCC, 617 F. Supp. 825, 831 (D.D.C. 1985) (emphasis
added; citations omitted). See also Exxon Corp. v. Federal Trade Comm'n, 466
F. Supp. 1088, 1094 (D.D.C. 1978), aff'd, 663 F.2d 120 (D.C. Cir. 1980).
Plaintiffs have identified a "countervailing factor calling into question
the completeness of the agency's search" and should thus be permitted to
take limited discovery to resolve the issue.
III. Plaintiffs Are Entitled to Discovery Regarding the Basis of Defendant's
Assertion that it is Precluded by Court Order from Identifying the Relevant
Judicial Districts.
Finally, plaintiffs seek pinpointed discovery concerning the basis for defendant's
allegation that it is precluded by court order from identifying the federal
judicial districts which have issued material witness warrants or sealed criminal
cases in connection with the terrorism investigation. In response to plaintiffs'
FOIA requests for copies of any court orders sealing proceedings, defendant
has refused to identify even the judicial districts that have issued the orders.
It justifies its refusal by simply asserting that it is precluded from identifying
the districts, without citing or quoting any court order to that effect. See
Declaration of James S. Reynolds, 32, 39. Plaintiffs are entitled to discovery
concerning the language relied upon by the government in making this allegation,
especially in light of its breadth and implausibility.
CONCLUSION
For the reasons stated above and in plaintiffs' motion, proceedings on defendant's
motion for summary judgment should be temporarily stayed, pursuant to Rule 56(f),
pending defendant's response to plaintiffs' discovery.
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' REPLY IN SUPPORT
OF THEIR 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 12th day of February, 2002.
________________________
Arthur B. Spitzer
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