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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CENTER FOR NATIONAL SECURITY )
STUDIES, et al., )
)
Plaintiffs, )
)
v. )
)
UNITED STATES DEPARTMENT OF )
JUSTICE, )
)
Defendant. )
)
Judge Kessler
Civil Action No. 01-2500
DEFENDANT'S OBJECTIONS AND RESPONSES TO
PLAINTIFFS' STATEMENT OF MATERIAL FACTS
OBJECTIONS
Defendant objects to Plaintiffs' Statement of Material Facts ("SMF")
on the following grounds.
1. Defendant objects to paragraphs 1, 2, 4, 6, 8, 13, and 20-38 of Plaintiffs'
SMF to the extent that the statements in these paragraphs refer to, rely on,
are supported by, or paraphrase newspaper articles, letters, or prepared testimony.
The assertions plaintiffs make based on these documents are not "facts"
that can properly substantiate plaintiffs' motion for summary judgment. Under
Federal Rule of Civil Procedure 56(c), plaintiffs' motion for summary judgment
may be based only on "pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any," and under
Local Rule 56.1, plaintiffs' statement of facts must include "references
to the record" to support the statement. None of the categories of documents
set forth in Fed. R. Civ. P. 56(c) that can properly support a summary judgment
motion includes newspaper articles, letters, or prepared testimony. It is inappropriate
for plaintiffs to rely on such documents because they contain hearsay statements
rather than facts. Fed. R. Evid. 801(c) (hearsay defined as "a statement,
other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted"). As hearsay,
the documents are not admissible evidence of the truthfulness of their contents.
See Fed. R. Evid. 802 (hearsay not admissible except in circumstances not applicable
here); Carter v. District of Columbia, 795 F.2d 116, 128 (D.C. Cir. 1986) ("The
specific accounts of allegations contained in newspaper articles were themselves
of no probative value"). Because the assertions in these paragraphs do
not constitute statements of "fact," no response to them by defendant
is required. See Fed. R. Civ. P. 56(c) (requiring defendant to identify controverted
material "facts"). Moreover, no response regarding the truth of the
matters asserted in these documents is required, and none will therefore be
offered.
2. Defendant objects to paragraphs 2, 4, 6-9, 13, 18, 19, 20, 21-39 and 41 of
Plaintiffs' SMF on the ground that the alleged facts in these paragraphs, whether
or not true, are not material to the resolution of plaintiffs' motion for summary
judgment in this Freedom of Information Act case. See Local Rule 56.1 (requiring
a statement of "material" facts). "Material facts" are those
facts which, under the governing substantive law, "might affect the outcome
of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 492 (D.C. Cir. 1998); see
also Fed. R. Evid. 401 (defining "relevant evidence" as "evidence
having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable"). None
of the purported facts in these paragraphs has any bearing on the outcome of
this suit under applicable law. Since defendant must identify genuine issues
only with respect to "material" facts, Fed. R. Civ. P. 56(c), (f);
Local Rule 56.1, no response to those paragraphs by defendant is required.
3. Defendant objects to paragraphs 1-13 and 20-38 of Plaintiffs' SMF to the
extent that these paragraphs contain plaintiffs' characterization and description
of the cited documents (such as newspaper articles, press releases, letters),
which speak for themselves and to which no response is necessary. The Court
is respectfully referred to the cited documents for a true and accurate statement
of their contents.
RESPONSES
Defendant responds to the individually numbered paragraphs of Plaintiffs' Statement
of Material Facts, to the extent that defendant has not already objected to
such paragraphs, as follows:
1. The first two sentences are undisputed. To the extent that a response to
the third sentence is deemed required, it is undisputed. To the extent that
a response to the fourth sentence is deemed required, the first part of this
sentence (describing Exh. 2) is undisputed but defendant disputes that the remainder
of this sentence accurately describes the cited Exhs. 3 and 4.
2. This paragraph is undisputed.
3. To the extent a response is deemed required to this paragraph, the first
sentence is disputed. Defendant disputes that it "refused" to provide
the names, since it had no obligation to do so because they are protected from
disclosure by FOIA, and prior to October 29 defendant did release the names
of individuals who had been charged with criminal offenses as well as the charges
against them. The second sentence is undisputed.
4. To the extent a response is deemed required to this paragraph, defendant
disputes that the detentions were "secret," and disputes the characterization
of the reports as raising "serious questions."
5. Defendant disputes the characterizations contained in the first sentence
of this paragraph but does not dispute that thirty-nine organizations submitted
FOIA requests to the Department of Justice seeking the information described.
The rest of this paragraph is undisputed.
6-7. To the extent a response to these paragraphs is deemed required, they
are undisputed.
8. This paragraph is undisputed.
9-10. To the extent a response to these paragraphs is deemed required, they
are undisputed.
11. This paragraph is undisputed.
12. To the extent a response to this paragraph is deemed required, the first
sentence is undisputed, but defendant further avers that the Department of Justice
expedited processing of plaintiffs' request pursuant to the standard in 28 C.F.R.
§ 16.5 which permits expedition for requests involving "[a] matter
of widespread and exceptional media interest in which there exist possible questions
about the government's integrity, which affect public confidence." The
second sentence is disputed because although plaintiffs did not receive information
from defendant in response to their requests, much of the information requested
about the detainees was available to them in the public record. See Reynolds
Dec. 7-8. Defendant also disputes any inference that defendant did not in fact
expedite the processing of plaintiffs' FOIA requests. The third sentence is
undisputed.
13. This paragraph is undisputed.
14. Defendant does not dispute that the government has publicly provided the
names of at least 108 individuals charged with federal criminal offenses, but
defendant disputes that the names were provided "in response to this lawsuit."
15. The first sentence is undisputed, except that defendant disputes that it
has "refused" to provide this information, since it had no obligation
to do so because the information is protected from disclosure by FOIA. The second
sentence is undisputed, except that defendant disputes the use of the term "instead"
as an inaccurate characterization.
16. The first sentence is undisputed, except that defendant disputes that it
has "refused" to disclose "even" this information, since
it had no obligation to do so because the information is protected from disclosure
by FOIA. The second sentence is undisputed, except that defendant disputes the
use of the term "even." The third sentence is disputed. See Declaration
of James S. Reynolds 39; Memorandum in Support of Defendant's Motion for Summary
Judgment at 30-32. The fourth sentence is undisputed. The fifth sentence is
undisputed, except that defendant disputes that defendant's filings "only"
account for the stated number of individuals, since the filings were accurate.
See Supp. Reynolds Dec. 3-4. The sixth sentence is undisputed.
17. The first sentence is undisputed, except that defendant disputes the characterization
that it released "only" one draft and "only" one document
because no additional document exists. The second sentence is undisputed, but
defendant further avers that no additional documents exist that are covered
by the requests.
18. Defendant objects to the first sentence on grounds that it is immaterial,
vague, and speculative, and no response is required. To the extent that a response
is deemed required, it is disputed. Defendant objects to the second sentence
on grounds that it is immaterial, and that the term "Arabic names"
is undefined and hence vague, and no response is therefore required. To the
extent a response is deemed required, it is disputed.
19. This paragraph is undisputed.
20. The first, second, and third sentences are undisputed. The fourth sentence
is undisputed, except that defendant disputes that it "failed" to
allege that any of the detained individuals are involved in terrorism, since
such involvement is not required in order for the information in question to
be exempt from disclosure under FOIA. See Reply in Support of Defendant's Motion
for Summary Judgment, and Opposition to Plaintiffs' Motion for Summary Judgment.
21. Defendant objects to plaintiffs' assertion that reports are "credible"
on the ground that the issue of credibility is a legal issue, to which no response
is required. Notwithstanding this objection, defendant disputes that the cited
newspaper articles and hearsay testimony are "extensive," "varied,"
or "credible," or that they report government misconduct, rights violations,
or secret arrests or detentions. See Defendant's Responses to 22-38 below.
22. Defendant objects to the first sentence on the ground that whether reports
are "credible" is a legal issue to which no response is required.
Notwithstanding this objection, defendant disputes that there are "credible"
reports about "severe" obstacles the government has placed in the
way of detainees seeking counsel. The hearsay newspaper articles and testimony
plaintiffs cite are not "credible" reports and the incidents described
are not "severe." Defendant does not dispute that the second sentence
generally describes portions of the cited testimony.
23. With regard to the first sentence, defendant objects to the use of the word
"incommunicado" on the ground that it is undefined and hence vague.
Subject to this objection, defendant does not dispute that this paragraph otherwise
generally summarizes portions of the cited document, which is prepared testimony,
not necessarily actual testimony before the Senate Judiciary Committee, as plaintiffs
assert. Pl. Exh. 32.
24. Defendant disputes the first sentence on the ground that the one newspaper
article cited by plaintiffs does not constitute "numerous press accounts"
and that the article describes "limited access" to counsel, not a
complete denial of counsel. Defendant does not dispute that the second and third
sentences generally summarize portions of the cited article.
25. Defendant does not dispute that this paragraph generally describes portions
of the cited newspaper article.
26. Defendant disputes the first and third sentences in this paragraph on the
ground that they do not accurately summarize the cited newspaper articles. With
regard to the first sentence, Pl. Exh. 36 does not report that Mr. Baloch was
"denied access to legal counsel," but rather that he "had been
turned down when he asked for . . . legal help." With regard to the third
sentence, plaintiffs failed to mention that Mr. Higazy is reported as also stating
that "I've got no complaints" and "wanted it known that he thanks
the United States government, the F.B.I., . . . and the jail guards who were
his keepers." Pl. Exh. 33 [miscited by plaintiffs as Exh. 38]. Defendant
does not dispute that the second sentence generally summarizes part of Pl. Exh.
33.
27-28. Defendant does not dispute that these paragraphs generally summarize
the cited newspaper articles.
29. With regard to the first sentence, defendant does not dispute that there
have been hearsay allegations of improper treatment, but disputes the truth
of such allegations. Defendant does not dispute that the remainder of this paragraph
generally characterizes the cited parts of the referenced judicial opinion.
30. Defendant does not dispute that the statements in this paragraph generally
describe parts of the cited newspaper articles, except that defendant disputes
that Mr. Maddy stated that guards at the Metropolitan Detention Center "assaulted"
him, and defendant further notes that plaintiffs fail to state that the article
reports that AUSA Andres said that Mr. Maddy's allegations are "something
obviously we are going to investigate." Pl. Exh. 35.
31. Defendant does not dispute that the statements in this paragraph generally
describe parts of the cited document, which is prepared testimony, not necessarily
actual testimony, as plaintiffs state, Pl. Exh. 32, except that defendant disputes
that the document states that Mr. Fayad was held in solitary confinement.
32. Defendant does not dispute that the statements in this paragraph generally
describe parts of the cited document, which is prepared testimony, not necessarily
actual testimony "before the Senate Judiciary Committee," as plaintiffs
state. Pl. Exh. 42.
33. Defendant does not dispute this paragraph generally characterizes the cited
newspaper articles.
34. Defendant objects to the first sentence on the ground that whether the material
witness authority has been misused is a legal question, to which no response
is required. To the extent that a response is required, defendant disputes this
sentence. Defendant does not dispute that the remainder of this paragraph generally
characterizes the cited newspaper articles and judicial opinion except that
defendant disputes the statement that Mr. Albasti "was never even questioned
by investigators while in custody" and objects to the statement "[s]erious
questions have also been raised in the case of Osama Awadallah." Mr. Albasti
is reported to have said that he was questioned about flying lessons while in
custody. Pl. Exh. 46. Defendant objects to the use of the phrase "serious
questions" on the grounds that the phrase is undefined and hence vague.
35. The first sentence of this paragraph contains a conclusion of law, to which
no response is required, but to the extent that a response is deemed required,
defendant disputes that the "reports of locking up men of Middle Eastern
origin" "raise questions of constitutional imprisonment and denial
of bail." Defendant objects to plaintiffs' use of the term "Arabic
names" on the ground that this term is undefined and hence vague. Defendant
does not dispute that the remaining statements in this paragraph generally summarize
the cited newspaper article.
36. Defendant disputes the statements in this paragraph on the ground that
they do not accurately summarize the cited newspaper articles. The cited newspaper
articles do not report that individuals are being denied bail for "the
most petty offenses" "when there is no credible evidence connecting
them with the September 11 attacks," but rather, that bail is being denied
for a variety of immigration violations resulting in individuals being in the
country illegally or because they are being held on material witness warrants.
See Pl. Exhs. 27, 29, 41. The descriptions of the contents of the Affidavit
of Michael Rolince and testimony of Michael Boyle are not disputed, but defendant
disputes the characterization of the Affidavit as a "form affidavit."
37. Defendant disputes the statements in this paragraph on the ground that
they do not accurately summarize the cited newspaper articles. The cited newspaper
articles identify only three detainees who were held in jails for periods of
from six weeks to almost five months, not "many detainees . . . held in
prison for significant periods of time." See Pl. Exhs. 26-28.
38. Defendant disputes the statements in this paragraph on the ground that they
do not accurately summarize the cited newspaper articles and testimony. The
cited four newspaper articles and Mr. Boyle's testimony do not constitute "many"
reports, and report only that telephone calls and visits are limited, not that
detainees are "being prevented from communicating with those outside the
jail." Pl. Exhs. 26, 32, 35, 51, & 52.
39. The first and second sentences of this paragraph are undisputed. The third
sentence is disputed because the Notice to Appear does not necessarily list
all of this information and can, for example, list certain information as "to
be determined."
40. This first sentence of this paragraph is undisputed. The second and third
sentences are undisputed to the extent that they refer to proceedings involving
individuals who are denoted as of "special interest."
41. This paragraph is undisputed to the extent that it describes general practice.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
ROSCOE C. HOWARD, JR.
United States Attorney
JOSEPH H. HUNT
ANNE L. WEISMANN (D.C. Bar No. 298190)
LISA A. OLSON (D.C. Bar No. 384266)
CAROL FEDERIGHI
U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-5633
Facsimile: (202) 616-8470
E-mail:
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Dated: April 15, 2002 Counsel for Defendant
CERTIFICATE OF SERVICE
I hereby certify that, on April 15, 2002, copies of the foregoing Defendant's
Objections And Responses To Plaintiffs' Statement Of Material Facts were scheduled
for hand delivery on April 16, 2002, to the following:
Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037
Elliot M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
and further that copies of the foregoing were scheduled for delivery by Federal
Express on April 17, 2002, to:
Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
__________________________
CAROL FEDERIGHI
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