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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR NATIONAL SECURITY STUDIES, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action
) No. 01-2500
DEPARTMENT OF JUSTICE, )
) Judge Kessler
Defendant. )
______________________________________)
DECLARATION OF DAVID L. SOBEL
I, DAVID L. SOBEL, hereby depose and state:
1. I am co-counsel to the plaintiffs in the above-captioned action.
2. I have reviewed the Declaration of James S. Reynolds ("Reynolds Decl."),
proffered by defendant in support of its motion for summary judgment. With respect
to those portions of Mr. Reynold's declaration that address defendant's contention
that disclosure of the information plaintiffs seek would, inter alia, interfere
with investigative activities, invade personal privacy, and endanger the safety
of individuals, plaintiffs' counsel are currently unable to present certain
facts material to plaintiffs' opposition to defendant's motion.
3. Based upon experience I have gained through litigating Freedom of Information
Act cases during the past 20 years, I believe that these material facts may
only be obtained through discovery, as they are in the exclusive possession
of defendant.
4. There are credible indications that, contrary to defendant's vague assertions,
the government itself has determined that most of the detainees are not connected
to terrorism. I base this conclusion upon the following factors:
a) In support of its motion for summary judgment, defendant 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 defendant's claims to the requested information. In fact, only one paragraph
of defendant's supporting declaration contains language making any connection
between the harms posited by defendant 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).
b) Mr. Reynolds 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. Significantly, Mr. Reynolds does not assert that each of
the detainees -- and former detainees -- about whom basic information is being
withheld has been "linked" to anything.
c) In contrast to Mr. Reynolds' vague assertion that "some" detainees
may have unspecified "links" to some "other facets" of the
government's investigations, there are (as set forth below) credible indications
that, in fact, the government has determined that hundreds of the detainees
are not in any way connected to terrorism.
d) Defendant's own submission appears to contradict Mr. Reynold's assertion.
The 118-page list of INS detainees submitted by defendant in support of its
summary judgment motion (Exhibit 6) 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" in large type. The apparent meaning of that legend is that these
344 individuals are no longer of "special interest."
e) It is public knowledge that hundreds of the individuals listed in defendant's
Exhibit 6 have now been released from custody. 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"). At a recent public forum,
a Justice Department spokesman stated that there were only 160 post-September
11 INS detainees still in custody. Declaration of Elizabeth S. Westfall. If
the government has concluded that most of those initially detained no longer
need to be in custody, it appears that those individuals are no longer even
suspected of being involved in terrorist activity.
f) There are other credible indications that most of the detainees are not,
in fact, even suspected of terrorist activity, believed to have knowledge of
terrorist activity, or 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.
g) The "USA PATRIOT" Act of 2001 provides that a non-citizen may
be detained when the Attorney General certifies that he has "reasonable
grounds to believe" that the non-citizen is "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). Mr. Reynolds' declaration does not address the number of detainees
who have -- or, more importantly, have not -- been so certified under the Act.
5. There are credible indications that defendant's submission in support of
its summary judgment motion is inaccurate and incomplete. I base this conclusion
upon the following factors:
a) 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.
b) Defendant's list of detainees who have been charged with federal crimes
(Exhibit 5 to defendant's motion) contains the names of 92 individuals. However,
on November 27, 2001, Attorney General Ashcroft named 93 criminal defendants
who were said to be part of the post-September 11 investigation. Dan Eggen,
Many Held on Tenuous Ties to Sept. 11; Ashcroft Names 93 Defendants, Washington
Post, November 29, 2001, page A18. Moreover, Mr. Reynolds states that "[t]he
second category of detainees consists of 117 individuals who have been held
on federal criminal charges." Reynolds Decl. 27 (emphasis added). Thus,
25 individuals appear to have been omitted altogether from defendant's list.
c) There appears to be an unspecified number of federal criminal defendants
whose cases are under seal. Mr. Reynolds states, 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. Mr. Reynolds says nothing further 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. However, government officials have stated that there
were eleven such defendants as of late November, and there may well be more
by now. Dan Eggen, Many Held on Tenuous Ties to Sept. 11; Ashcroft Names 93
Defendants, Washington Post, November 29, 2001, page A18.
d) Mr. Reynolds states that defendant 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. His assertion 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
defendant's 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 in
5(a), supra, there appear to be 25 charged individuals as to whom no information
-- including district in which charged -- has been provided.
e) On defendant's 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 for plaintiffs 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.
6. In order to resolve the discrepancies set forth above, plaintiffs must obtain
relevant facts through discovery. Plaintiffs require discovery, inter alia,
to clarify the apparent incompleteness and inconsistency of defendant's disclosures;
to ascertain the number of detainees who have been released from custody and/or
approved for voluntary departure under the immigration laws; to ascertain the
number of detainees who have been certified or not certified under the USA PATRIOT
Act; and to determine the significance of a detainee being placed on the "INACTIVE"
list.
7. The information at issue in this case concerns matters that raise questions
relating to potential governmental impropriety. I base this conclusion upon
the following factors:
a) 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).
b) Review of the list of INS detainees attached to defendant's summary judgment
motion indicates that, as the Washington Post has reported, "[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. Dan Eggen,
Delays Cited In Charging Detainees, Washington Post, January 15, 2002, page
A1.
c) Although Mr. Reynolds 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. Testimony of Gerald H. Goldstein,
Esq., before the Committee on the Judiciary of the United States Senate, December
4, 2001; Testimony of Michael Boyle, Esq., before the Committee on the Judiciary
of the United States Senate, December 4, 2001. See also Lois Romano & David
S. Fallis, Questions Swirl Around Men Held in Terror Probe, Washington Post,
October 15, 2001, page A1 (quoting "senior federal law enforcement official
involved in the investigation" as saying that some detainees are "held
for a week or longer without legal representation or permission to contact family
members").
d) There have been 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. Barbara Crossette, Diplomats Protest Lack
of Information, New York Times, December 20, 2001, page B5.
e) There have been credible 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. Id.; see also Testimony of Ali Al-Maqtari
before the Committee on the Judiciary of the United States Senate, December
4, 2001; Richard A. Serrano, Many Held in Terror Probe Report Rights Being Abused,
Los Angeles Times, October 15, 2001.
8. Plaintiffs require discovery into the treatment of detainees, as such facts
are relevant to the showing of potential government misconduct, which is in
turn relevant to this Court's review of the defendant's declarations. See Rugiero
v. Department of Justice, 257 F.3d 534, 546 (6th Cir. 2001).
9. Plaintiffs' discovery will seek only information material to their opposition
to defendant's motion for summary judgment, and will not seek disclosure of
the very information they sought in their original FOIA requests or in this
litigation.
10. The published reports and congressional testimony upon which plaintiffs
rely are attached hereto.
Under penalty of perjury, I hereby affirm that the foregoing is true and correct
to the best of my knowledge and belief.
______________ _____________________________
DATE DAVID L. SOBEL
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