| |
|
Oral Argument before Judge Gladys Kessler |
|
|
|
|
Written by Court Reporter
|
|
Wednesday, 29 May 2002 |
0001
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLUMBIA
3 CENTER FOR NATIONAL .
4 SECURITY STUDIES, ET AL . DOCKET NUMBER: CA 01-2500
5 .
6 Plaintiffs, .
7 .
8 vs. . Washington, D.C.
9 . May 29,2002
10 U.S. DEPARTMENT OF . 10:00 a.m.
11 JUSTICE .
12 Defendant. .
13 .. . . . . . . . . . . . .
14 TRANSCRIPT OF MOTIONS HEARING
15 BEFORE THE HONORABLE GLADYS KESSLER
16 A UNITED STATES DISTRICT JUDGE
17 APPEARANCES:
18 FOR THE PLAINTIFF: ARTHUR B. SPITZER, ESQUIRE
19 American Civil Liberties Union
20 Of the National Capital Area
21 1400 -20th Street, N.W.
22 #119
23 Washington, D.C. 20036
24 (202) 457-0800
25 (202) 452-1868 (Fax)
26 KATE MARTIN, ESQUIRE
27 Center for National Security
28 Studies
29 1120 19th Street, N.W.
30 8th Floor
31 Washington, D.C. 20036
32 (202) 721-5650
33 (202) 530-0128 (Fax)
34
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
0002
1 ELLIOTT M. MINCBERG, ESQUIRE
2 General Counsel & Legal Director
3 2000 M Street, N.W.
4 Suite 400
5 Washington, D.C. 20036
6 (202) 467-4999
7 (202) 293-2672(Fax)
8
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
9 DAVID L. SOBEL, ESQUIRE
10 Electronic Privacy Information
11 Center
12 1718 Connecticut Avenue, N.W.
13 Suite 200
14 Washington, D.C. 20009
15 (202) 483-1140
16 (202) 483-1248 (Fax)
17
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
18
19 FOR THE DEFENDANT: ANNE L. WEISMANN, ESQUIRE
20 Assistant Director
21 Civil Division
22 LISA A. OLSON, ESQUIRE
23 Senior Counsel
24 CAROL FEDERIGHI, ESQUIRE
25 Trial Attorney
26 U.S. Department of Justice
27 Room 1034
28 901 E Street, N.W.
29 Washington, D.C. 20530
30 (202) 514-3395
31 (202) 368-3393 (Fax)
32
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
33 ROBERT D. McCALLUM, JR., ESQUIRE
34 Assistant Attorney General
35 SHANNEN W. COFFIN, ESQUIRE
36 Deputy Assistant Attorney General
37 U.S. Department of Justice
38 Robert F. Kennedy Justice Building
39 Room 3137
40 950 Pennsylvania Avenue, N.W.
41 Washington, D.C. 20530
42 (202) 514-3301
43 (202) 514-8071 (Fax)
0003
1
2 THE COURT REPORTER: SUSAN PAGE TYNER, CVR-CM
3 Official Court Reporter
4 United States District Court
5 333 Constitution Avenue, N.W.
6 Room 6824
7 Washington, D.C. 20001
8 (202) 371-2230
9 (202) 371-1892 (Fax)d
10
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
11 Computer aided transcript prepared with the aid of
12 SpeechCAT.
13 3
14 SUSAN PAGE TYNER, OFFICIAL COURT REPORTER
0004
1 P R O C E E D I N G S
2 THE COURT: Good morning, ladies and gentlemen. I
3 guess I expected some people at this hearing, but perhaps
4 not quite this many.
5 This is the case of the Center for National
6 Security Studies, et al, versus the U.S. Department of
7 Justice, CA 01--2500. Would counsel identify themselves,
8 and in particular I want to know who is going to be arguing
9 for plaintiff and defendant, and we will start with
10 plaintiff, please.
11 MS. MARTIN: Good morning, Your Honor. I am Kate
12 Martin, and I would be arguing for the plaintiffs.
13 THE COURT: All right. And who are you with, Ms.
14 Martin?
15 MS. MARTIN: I am with the Center for National
16 Securities.
17 MR. SPITZER: Arthur Spitzer with the American
18 Civil Liberties Union.
19 MR. MINCEBERG: Elliott Mincberg, People of
20 American Way Foundation.
21 MR. SOBEL: David Sobel, Electronic Privacy
22 Information Center.
23 MR. McCALLUM: Your Honor, I am Robert McCallum,
24 the Assistant Attorney General for the Civil Division, and I
25 will be splitting the argument with Ms. Anne Weismann of
0005
1 the Department of Justice, if that is acceptable to the
2 court.
3 THE COURT: That is fine. Ms. Weismann has argued
4 many, many cases in front of me.
5 MR. McCALLUM: We have with us at counsel table
6 Ms. Shannen Coffin, Ms. Carol Federighi and Ms. Lisa Olson,
7 all with the Department of Justice.
8 THE COURT: All right. Thank you.
9 This matter is before the court on cross motions
10 for summary judgment. Of course I have read the papers
11 everybody. I have read many, maybe not every single one,
12 but many of the cases that you have cited.
13 Let me give my standard disclaimer when I have a
14 motions hearing on a major matter, which clearly this is.
15 No one should make the mistake of drawing any assumptions
16 from the questions that I raise.
17 Sometimes I am playing devil's advocate.
18 Sometimes I am not. I know counsel are certainly
19 sophisticated enough to know that. But I want to make that
20 very clear to everybody.
21 I will be asking a lot of questions, and again, I
22 want counsel to understand that those questions and
23 interruptions are not designed to throw anybody off course
24 in their argument, or to deflect them, but obviously I have
25 many concerns and issues that I want clarification on, and
0006
1 of course your purpose should be to give me the
2 clarification that you think will advance your particular
3 side.
4 I know as a former advocate that it is sometimes
5 disconcerting when a judge keeps interrupting, but I am
6 going to have to do that this morning everyone, so everyone
7 is on notice about that.
8 I am going to start with the government. Their
9 brief was submitted first, and I believe that the government
10 can at least start out by addressing some factual issues
11 that I want clear on the record, and the government will be
12 able to give me the most current answers to some of those
13 questions, because obviously the briefs were filed over a
14 period of many, many months, and I would imagine that some
15 of the facts have changed.
16 So Mr. McCallum, do you want to begin.
17 MR. McCALLUM: May it please the court. As I
18 indicated, I am Robert McCallum, and I serve as the
19 Assistant Attorney General for the Civil Division. Along
20 with Ms. Anne Weismann, I will be representing and arguing
21 on behalf of the Department of Justice.
22 Ms. Weismann will present the detailed argument on
23 the controlling and established FOIA case law that is before
24 the court today.
25 But before she begins, with the court's
0007
1 permission, I would like to take perhaps three or four
2 minutes to place in context the factual background which I
3 believe to be unique, against which the established
4 exemptions of FOIA are going to be applied, and that is
5 7(a), the law-enforcement exemption, 7(c), the privacy
6 exemption, and 7(f), the public safety exemption.
7 As the court is well aware, the investigation of
8 the September 11 terrorist attacks is the highest priority
9 within the Justice Department. That investigation is not
10 limited to the September 11 attacks, but is also focused on
11 the disruption and dismantling of future terrorist attacks
12 against the citizens of the United States.
13 It is not merely past events. It is future events
14 that we are concerned with, and the Attorney General has
15 assigned to me the responsibility to coordinate and oversee
16 the defense of civil litigation cases that are filed
17 relating to on-going investigation.
18 I submit to the court that vital interests of the
19 highest national import are involved, and I request the
20 court's, and I am sure I will receive, and this case will
21 receive the court's most serious consideration to those
22 issues in which I would categorize them in three particular
23 areas, and they are, in effect, public safety, law-
24 enforcement, if you will, and privacy.
25 This factual background is reflected in many of
0008
1 the filings that we have made and the numerous
2 declarations, but two in particular I think merit the
3 court's attention.
4 Number one, the declaration of James Reynolds,
5 who is the Chief of the Terrorism and Violent Crimes
6 Section of the Criminal Division of the Department of
7 Justice, and Mr. Dale Watson, who is the Executive Assistant
8 Director for Counterterrorism and Counterintelligence with
9 the FBI.
10 Both are career public servants with specific
11 experience, expertise and responsibilities for the
12 terrorist-related investigations that are going to be the
13 controlling facts in this particular case.
14 Of these declarations I would point the court's
15 attention to paragraphs 13 through 20 of the Reynolds
16 declaration, and paragraphs 11 through 20 of the Watson
17 declaration. And both of those reflect the potential harm
18 and damage to our national interest that disclosure of the
19 information sought in this case would cause.
20 With respect to public safety, those declarations
21 indicate that the disclosure of the information, the
22 significance of which may not be apparent in isolation, can
23 create serious risks.
24 THE COURT: That is the government's so-called
25 mosaic theory?
0009
1 MR. McCALLUM: It is, Your Honor. Isolated bits
2 and pieces of information can be critical to the
3 sophisticated intelligence analysts as indicated in those
4 declarations.
5 For instance, information sought on the arrest
6 dates, on the arrest locations, on the common connections
7 between multiple detainees. Those would allow a
8 sophisticated intelligence analyst to identify the thrust,
9 the scope, if you will, the direction of the on-going
10 investigation.
11 In the mosaic theory, Your Honor, we suggest that
12 that would disclose the pattern, and the intelligence
13 analysts would then know what we know, or at least be able
14 to gauge reasonably what we know. They would be able to
15 gauge reasonably who might be the sources of information for
16 the investigation.
17 More importantly, they might be able to gauge
18 reasonably what we don't know, where we have not gone, what
19 we have not done yet because we are not aware of it. And
20 therefore they would be able to reprogram, re-adjust their
21 plans going forward.
22 It creates a real and not insignificant danger to
23 individuals and to groups of individuals which I phrase as
24 the public safety.
25 In the second area it clearly compromises an on-
0010
1 going law-enforcement investigation. As indicated, we are
2 not just concerned with September 11 and the criminal
3 prosecution of those that might be somehow implicated in it.
4 We are also concerned, and the goal is to prevent future
5 attacks.
6 If the disclosure occurs as requested by the
7 plaintiff, it would deter the cooperation of the detainees.
8 It would deter the cooperation of others who are associated
9 with the detainees. It might allow terrorists to intimidate
10 witnesses and potential witnesses.
11 It would allow the destruction of existing
12 evidence as indicated in the declarations, and it would also
13 allow the fabrication of false evidence to mislead and
14 disrupt the on-going investigation.
15 Thirdly is the privacy interest. The established
16 case law indicates that an association with an on-going
17 investigation can create a significant stigma for those
18 whose relationship with the investigation is revealed even
19 if they are not targets or subjects.
20 This is the most horrific attack in American
21 history. It exposes the detainees and others related to
22 this investigation to risks of retaliation by those who
23 are misguided but incensed against terrorists, assuming,
24 of course, that everyone who is a detainee must somehow
25 be guilty of terrorist acts or terrorism support. And
0011
1 this risk exists both home here in the United States and
2 abroad.
3 I would also suggest that the reverse is also
4 true. That disclosure of the identity of the detainees
5 would expose them to risks from those who support terrorism,
6 and allow the detainee's public safety to be at issue, to
7 allow that of their families to be at issue, to allow that
8 of their associates to be at issue, and to even allow the
9 safety of detention facilities and detention personnel to be
10 at issue.
11 These are serious risks and concerns, Your Honor,
12 and I think --
13 THE COURT: Given all those risks, Mr. McCallum,
14 my understanding is that there is no bar to the detainees
15 themselves informing either their families, their attorneys
16 if they are lucky enough to have them, their advocates, the
17 media, of the facts of their detection. I am not clear on
18 how much more they are allowed to say.
19 So all of these concerns that you are raising
20 about what may flow from the dissemination of this
21 information, these concerns seem to be very much undermined
22 or challenged by the fact that detainees themselves are
23 perfectly free to talk, and in fact have, I gather, based
24 upon the footnotes in at least the plaintiffs' briefs, and
25 Federal Judges do read the newspapers, and I gather there
0012
1 was a big story on Sunday.
2 We all know that Amnesty has just released a
3 report. So there is a lot of information, quote unquote, on
4 the street already about detainees and at least their
5 versions of what has happened and the treatment that they
6 believe they are being subjected to.
7 MR. McCALLUM: Yes, ma'am. Let me respond to
8 that.
9 Number one, there is a categorical difference
10 between the piecemeal and sporadic disclosure of an
11 individual to family, or friends, or relatives and the like,
12 with the wholesale en masse disclosure by the government to
13 the world at-large.
14 I think, Your Honor, the most eloquent statement
15 of the risks involved is the fact that relatively few --
16 relatively few of the detainees themselves have chosen to
17 self-disclose to the world en masse.
18 There are some, but neither the vast, vast
19 majority of the detainees, nor the detainees' attorneys have
20 determined to self-disclose, because they recognize the
21 risk, and that is perhaps the most eloquent statement
22 involved.
23 THE COURT: Well, that gets me to some facts that
24 I certainly want to get too.
25 Do you have any figures on how many of the
0013
1 detainees are actually represented by counsel?
2 MR. McCALLUM: I do not have those figures. I do
3 not know if Ms. Weismann has them, but we can get those
4 figures.
5 The point that I would make with that, Your
6 Honor, is that if there is any -- well let me state it this
7 way.
8 The United States takes very seriously its
9 obligations and the administrative proceedings related to
10 the INS detainees. The United States provides them with
11 information regarding counsel, with a list of pro bono
12 counsel that are available to them, and we have established
13 this in the declaration.
14 The Immigration Judge asks them at their hearings
15 if they have counsel, and Your Honor will note that all of
16 the self-disclosures that have been involved in the news
17 media have counsel and are represented.
18 This is a distinctly different case. This is not
19 a case of deprivation of individual rights for detainees.
20 This is an information case. If anyone wants to bring a
21 case, and some detainees have wanted to bring cases, they
22 can do so.
23 And the remedy for that particular type of issue
24 in that case -- not in this case, but in that case, is to
25 obtain counsel for the individuals, or to remedy the
0014
1 specific deprivation that is alleged.
2 None of the information that the court has is
3 evidence. And none -- you know, it is the news media
4 reports.
5 THE COURT: I understand.
6 MR. McCALLUM: And of course the court needs to
7 take cognizance of that. But that needs to be compared to
8 the sworn declarations of those with experience and
9 expertise in the area of terrorism.
10 And the issue in this case is if the disclosure of
11 that information would create public safety problems, would
12 allow terrorists perhaps to attack in another place at
13 another time in the future, is the release of that
14 information the remedy that is appropriate even if the
15 allegations in some newspaper article are in fact true, that
16 could be vindicated in another case and could be remedied
17 with a much smaller remedy?
18 So I would suggest to the court that those
19 particular issues are not relevant to the issue of the
20 Freedom of Information Act and what the disclosures
21 exemptions allow under 7(a), 7(c) and 7(f).
22 I would also point out to the court that AMNI
23 International in its report declined to identify
24 particular detainees. Why did they do that? The answer is
25 obvious. And they so stated. That these detainees are at
0015
1 risk.
2 They are at risk for retaliation here. They are
3 at risk for retaliation abroad, and they are at risk from
4 both ends of the political spectrum, those that are
5 vigilantes and want revenge, and those that are terrorist
6 supporters and want to prohibit cooperation with an on-going
7 investigation.
8 THE COURT: Is the government prepared to indicate
9 at this point the total number of individuals who have been
10 detained in the course of this investigation?
11 MR. McCALLUM: We have, in fact, provided
12 information in a broad and general nature regarding the
13 number of detainees and things of that --
14 THE COURT: That was back in November?
15 MR. McCALLUM: It was back in November.
16 THE COURT: Do we have any current figures? It is
17 a long way from November to now.
18 MR. McCALLUM: I do not have current figures.
19 Perhaps Ms. Weismann has them. If we do not have them and
20 the court wishes to have them, then we will do our best to
21 obtain them. But it is the same sort of general information
22 that supports --
23 THE COURT: Do you know how many individuals are
24 currently detained? I have seen news reports that you have
25 released people, but do you know how many are currently
0016
1 detained?
2 MR. McCALLUM: I do not have that information at
3 this time, Your Honor. But again that is the sort of
4 information if the court wishes that we certainly could get
5 for you.
6 THE COURT: I do.
7 MR. McCALLUM: We can obtain that for the court.
8 THE COURT: I do.
9 Let me ask you a few other basic fact questions,
10 because again the information that I have is dated from the
11 briefs as they were submitted.
12 As of now, do we know how many people are detained
13 on federal criminal charges?
14 MR. McCALLUM: Those indictments that are not
15 under seal are matters of public record. So I do not have
16 the precise number for Your Honor that I can provide at this
17 time. But it is a matter of public record, and we can
18 obtain that information.
19 There may be indictments that are under seal of
20 which I am unaware, but other than sealed indictments -- but
21 Your Honor, even with those particular indictments, the
22 dates that the individuals were detained, the locations at
23 which they were arrested, things of that nature, we have not
24 provided, because that is information that would fit into
25 the mosaic, that would allow terrorists in a wholesale en
0017
1 masse disclosure by the government with its imprimatur of
2 legitimacy to all of the world that would be harmful to the
3 public safety, law enforcement and privacy interests of the
4 individual detainees.
5 THE COURT: On the criminal charges, I believe
6 that your papers indicate that nine are sealed. Is that
7 right?
8 MR. McCALLUM: At one time, Your Honor. I cannot
9 tell you that that is, in fact, the case today. It is my
10 recollection, and of course I will defer to Ms. Weismann
11 with her superior knowledge of the details of the factual
12 record, but it was my recollection that we originally had
13 one number.
14 There was a supplemental declaration from Mr.
15 Reynolds, which corrected that particular number, and then
16 there may be changes. The point being that we were in a
17 fluid situation, Your Honor.
18 THE COURT: I understand that.
19 MR. McCALLUM: A very fluid situation.
20 THE COURT: In terms of the criminal charges,
21 other than those that have been sealed, has the government
22 released the names of all individuals?
23 MR. McCALLUM: They are a matter of public
24 record because of a criminal -- an unsealed criminal
25 indictment.
0018
1 Now whether or not particular news media or others
2 have connected the particular indictments to a September 11
3 investigation, I cannot state that. But I can state that in
4 terms of the unsealed criminal indictments and criminal
5 proceedings, they are matters of public record.
6 THE COURT: Can you, and I think this will be the
7 final factual question I am going to ask you, although I am
8 not sure.
9 Can you give numbers that differentiate in terms
10 of the individuals who are being held on immigration
11 charges, or immigration violations I should say, can you
12 differentiate between those who are still of interest to the
13 government's investigation, and then again, relying on your
14 papers, a substantial number, who I gather you have already
15 determined are not of interest to the government's
16 investigation?
17 MR. McCALLUM: Again, that is a fluid number
18 that changes from day to day. It is certainly possible,
19 and to my understanding has happened, that a detainee will
20 be of special interest become not of special interest,
21 because the investigation of particular areas indicates no
22 involvement, and yet later become of special interest again
23 when another line of investigation reveals other connections
24 and links.
25 And therefore, it is certainly possible that
0019
1 someone who currently is not of special interest and who is
2 an INS detainee may tomorrow, or this afternoon, or three
3 weeks from now, become very significantly of special-
4 interest.
5 I would also point out that with respect to the
6 special interest detainees, the hypothetical group of them
7 who will never in this fluid situation return to special
8 interest, the disclosure of information concerning those no
9 longer and never will be special interest detainees, even if
10 we could hypothetically predicted who that might be, that
11 even the disclosure of that information would provide the
12 exact factual basis that the skilled intelligence analyst
13 would use to utilize to piece together what we know, where
14 we are going, what we do not know, who our sources are
15 likely to be, and how they can revamp, and reorganize, and
16 readjust their plans in areas that we have not yet thought
17 of.
18 So even in the area of special interest detainees,
19 who hypothetically will never be involved, there is still
20 the mosaic. There is still their personal safety and
21 privacy interest, and there is still the potential for
22 intimidation of them when they might, in the future, be
23 willing to cooperate with us and provide information that
24 would protect the public safety within the United States of
25 our citizens.
0020
1 So for all of those reasons, even those, quote,
2 special interest detainees who are no longer, quote, of
3 special-interest, the disclosure of that information, as
4 indicated in the Reynolds declaration and the Watson
5 declaration, would be most harmful to the interests of the
6 United States.
7 THE COURT: Mr. McCallum, let me interrupt you a
8 minute, because I see that there may not be enough seats.
9 There are some seats up front for the people in the back,
10 and if people sitting would just raise their hand if there
11 are empty seats next to them. Individuals could sit there
12 more comfortably.
13 All right. Why don't you proceed, and I think you
14 had better move on if we are going to have time for Ms.
15 Weismann.
16 MR. McCALLUM: Your Honor, it took a little bit
17 more than three or four minutes.
18 THE COURT: It did, and I noticed that Mr.
19 McCallum.
20 MR. McCALLUM: And I apologize to the court.
21 My point in this factual context, Your Honor, is
22 that we would suggest those declarations are entitled to
23 some deference from this court based upon the experience,
24 responsibilities and expertise of Mr. Reynolds and Mr.
25 Watson.
0021
1 And we would further suggest that this court is
2 faced with the responsibility of applying what I term to be
3 established FOIA law to these unique facts.
4 We are not asking this court to make special
5 exemptions under FOIA because of the factual background.
6 What we are asking this court to do is to apply existing law
7 to unique facts. We are not proposing secrecy for secrecy's
8 sake.
9 We, in fact, suggest to the court that on these
10 most compelling facts the normal, customary and established
11 FOIA law precludes the disclosure, and that it is, in fact,
12 the plaintiffs who are requesting this court to change FOIA
13 law, to apply different standards from the customary FOIA
14 case law.
15 THE COURT: Mr. McCallum, are you seriously
16 suggesting that the secret detention of over 1,000 people, I
17 think totally male, and mostly Muslim, is something that
18 ordinarily happens in the course of our American political
19 experience?
20 MR. McCALLUM: No. Those are unique facts, Your
21 Honor, and I would not -- I would respectfully dissent from
22 the court's characterization of it as secret detention.
23 There is nothing secret about it. We have disclosed the
24 number of --
25 THE COURT: Isn't that what this case is all
0022
1 about?
2 MR. McCALLUM: No, Your Honor.
3 THE COURT: Maybe I am reading different papers
4 than everybody else.
5 MR. McCALLUM: Your Honor, I would characterize it
6 as the disclosure of certain information, but there is no
7 secret that certain individuals are being detained. There
8 is no secret, and it is in the Reynolds' declaration, as to
9 how many.
10 There is no secret as to the on-going
11 investigation and the providing of information in general
12 terms that allows the supervision of government
13 activities.
14 But there is only the refusal to disclose
15 information that would endanger the public safety, that
16 would impede an on-going investigation, and that would
17 prevent -- present privacy violations and personal safety
18 risks for detainees.
19 All of those are traditional. All of those are
20 consistent with the established case law. What they are
21 asking you to do, Your Honor, is to say, this is an
22 unprecedented investigation. And therefore, we should apply
23 different laws here. We should not apply normal FOIA law.
24 We should apply something different, because it is so
25 massive, it is so extreme.
0023
1 I suggest to Your Honor that catastrophic
2 measures, or catastrophic damage in this case supports the
3 FOIA exemptions on the established case law, not destroys
4 them.
5 And that is -- there are issues in which Your
6 Honor has expressed concern regarding representation by
7 counsel, regarding whether these people have access to
8 phones, whether or not these individuals are being
9 represented in the immigration courts.
10 All of those can be solved by methods other than
11 the wholesale massive distribution of information to the
12 world at large, which would damage the interests of the
13 United States and place its citizens at risk.
14 Let me cede the lectern to Ms. Weismann for the
15 details of the established FOIA case law, and I appreciate
16 the patience of the court, and I apologize for my estimate
17 of three or four minutes.
18 THE COURT: That is fine. This is an important
19 case. I am going to hear from everybody.
20 Ms. Weismann.
21 MS. WEISMANN: Good morning, Your Honor, Anne
22 Weismann.
23 Let me at the outset, before I turn to the details
24 of the specific exemptions that have been invoked here, let
25 me stress a couple of additional things if I may.
0024
1 First, the central question in this case --
2 excuse me, I want to make sure that I can be heard -- is
3 whether the government should be compelled to produce to
4 the public information it acquired as part of its
5 investigation into the events of September 11th and
6 afterwards.
7 The critical thing here, Your Honor, is that each
8 of these detainees has a link to the pending investigation.
9 Each was initially determined to have either a connection to
10 or some information about the atrocities of September 11th,
11 and that is the key here, Your Honor.
12 THE COURT: The standard, by the way, that the
13 government used -- you certainly didn't use probable cause,
14 is that right? What was the standard that was used in
15 detaining people who allegedly had some kind of link to the
16 investigation?
17 MS. WEISMANN: Your Honor, I don't have that
18 information, but one thing that we do know is that we have
19 the sworn declarations of two high-ranking and long-term
20 Department of Justice officials who have been involved from
21 the outset in this investigation, and they --
22 THE COURT: They certainly didn't address that
23 issue in any detail.
24 MS. WEISMANN: Well, no. But Mr. Reynolds did
25 say, Your Honor --
0025
1 THE COURT: In some instances, isn't it true, Ms.
2 Weismann, and again, I can't help but refer to things that I
3 have read, because obviously we don't have a record here,
4 and I know that these are not proven.
5 But isn't it true that in some instances people
6 were detained simply because they had some passing -- either
7 acquaintenceship or -- I guess acquaintanceship is a good
8 word, with someone who was certainly under suspicion,
9 serious suspicion?
10 MS. WEISMANN: Your Honor, with all due respect,
11 for me to answer that question I would have to do what the
12 court has just done, which is to speculate.
13 There is not that kind of evidence in this record,
14 because this case is not about the bona fides of the
15 detention of these individuals. It is a Freedom of
16 Information Act case that seeks information that we submit,
17 if released, would disclose the three enumerated harms that
18 Mr. McCallum referred to.
19 The point is that each of these individuals did
20 have some connection to the investigation, and that is why,
21 Your Honor, we dispute the characterization of this case as
22 about secret detentions.
23 The government here is not seeking to keep secret
24 the fact of any detention. What the government is seeking
25 --
0026
1 THE COURT: We all know that at this point.
2 MS. WEISMANN: Well, Your Honor, what the
3 government is actually seeking to protect here is again the
4 connection that each of these detainees has with the
5 investigation, because as Mr. Reynolds in particular spells
6 out, to reveal that connection for each category of
7 detainees would place into the public, and therefore into
8 the hands of terrorist organizations, information that would
9 pose one of the three enumerated harms that we have
10 outlined.
11 And I think that is critical, Your Honor. I think
12 that is a critical flaw in plaintiff's argument, to suggest
13 that what this case is all about is a lawless roundup of
14 thousands of detainees, and the government is now trying to
15 cover up by somehow keeping the fact of their detention
16 secret.
17 That is not what Mr. Reynolds' declaration speaks
18 to at all. It talks about the fact that if you reveal, for
19 example, not just the identities of detainees, but their
20 place of arrest, the current place of location, the date of
21 the arrest, that kind of information can be very useful to
22 sophisticated terrorists.
23 Let me just give you an example, and this is
24 totally a hypothetical example, but I think it is properly
25 drawn from the background that Mr. Reynolds has provided.
0027
1 And this would be, even for those people who are
2 subsequently found not to be of an investigative
3 interest.
4 Let us assume that on September 20th in Tulsa the
5 government arrested fifty individuals because it believed --
6 or detained, excuse me, I misspoke. Let us assume that the
7 government detained fifty separate individuals.
8 THE COURT: Arrest requiring probable cause as we
9 all know.
10 MS. WEISMANN: Yes. We are not talking simply
11 about those who have been arrested, Your Honor. As we said
12 there are three categories of people.
13 But in any event, the point I wanted to make, Your
14 Honor, is that revealing that in a certain city, on a
15 certain date, a certain number of people were detained,
16 could be extremely useful information to terrorist
17 organizations.
18 THE COURT: Well, assuming you are right about
19 that for a moment, what is the government's position or
20 response to the suggestion that the harms that are
21 spelled out in the Reynolds -- the two Reynolds
22 declarations and the Watson one, would be either diminished
23 or completely obliterated if the only thing to be released
24 in this case were the names of the individuals who had been
25 detained?
0028
1 MS. WEISMANN: Well, I do not know how we could
2 credibly assume that releasing the names would not in any
3 way cause harm, because Mr. Reynolds and Mr. Watson have
4 both explained that the specific identification of certain
5 detainees will, in fact, cause harm.
6 It will compromise them --
7 THE COURT: Don't you think that -- and this, of
8 course, is one of plaintiff's major arguments -- don't you
9 think that after all these months, and most of the people, I
10 believe, were detained or arrested -- detained, way back in
11 November, don't you think that after all of these months if
12 individuals were connected to terrorists, either cells or
13 organizations, that those cells or organizations know that
14 they are in custody?
15 MS. WEISMANN: Your Honor, again with all due
16 respect to the court, like the court I can only speculate on
17 that, because we do not have any evidence of that before
18 this court. All we have is the plaintiffs' and journalists'
19 speculation, and that is not --
20 THE COURT: But isn't it true that what we have in
21 the Reynolds and Watson declarations is also a lot of
22 speculation?
23 MS. WEISMANN: Well, if I may, Your Honor, and I
24 very much want to address that question, but let me at least
25 finish addressing --
0029
1 THE COURT: And I don't mean to diminish that.
2 MS. WEISMANN: No, no. I understand that, Your
3 Honor. I just wanted to finish -- I think there were a
4 couple of points to make to your first question about, isn't
5 it obvious -- I am rephrasing the court's point or question,
6 but don't we think that they already know?
7 Not only do I think that that is unbridled
8 speculation on which there is no evidence here, but also I
9 don't know if there is even a good faith basis as to make
10 that kind speculation, Your Honor.
11 I mean after all we have had thousands of law
12 enforcement investigators hard at work since September 11.
13 We can presume that they may have been successful, for
14 example, in either infiltrating cells or disrupting
15 communications, and so I do not think it is reasonable to
16 necessarily presume that there has been -- that the
17 terrorist organizations have had ready access to this
18 information.
19 And I think there is also a critical difference,
20 Your Honor, and this is a difference that Mr. McCallum
21 eluded to, between piecemeal disclosures of information,
22 piecemeal speculation on the part of someone about what may
23 or may not have happened, and the government confirming en
24 masse a large amount of information and confirming that, in
25 fact, it is accurate.
0030
1 I mean let me go back to the example I gave, the
2 hypothetical example I gave for Your Honor a few moments ago
3 about fifty individuals being detained on a date certain in
4 a place certain, and let us assume further that not only
5 could terrorist organizations discern from that where law
6 enforcement effort has chosen to focus its efforts, how
7 potentially successful they have been, but it might also
8 reveal, for example, also hypothetically to a terrorist
9 organization that any communications they have had with
10 cells in Tulsa may have been compromised from the date
11 forward.
12 Maybe they have been fed misinformation. I mean
13 there are any number of ways in which the government -- we
14 as part of our lawful war on terrorism seek to disrupt
15 terrorists.
16 And I think that there are just any number of
17 ways which counter any number of ways -- let me rephrase
18 that. There are any number of facts which counter the
19 court's and the plaintiffs' speculation here about what it
20 is that the terrorists do and do not know.
21 And now I would like to turn to your second
22 question, because again I think that this is the
23 characterization that the plaintiffs have attempted to give
24 to the declarations of Mr. Reynolds and Mr. Watson. And it
25 is one that we dispute.
0031
1 And even if -- because I think there is
2 necessarily, in assessing the harm under the Freedom of
3 Information Act and exemption 7, there is necessarily a
4 predictive nature to it.
5 After all, what we are talking about is harm that
6 will occur in the future, and I think here that that is a
7 particularly compelling fact given that what the
8 investigation is about is not simply bringing to justice
9 those perpetrators of the acts of September 11, but
10 preventing future acts of terrorist as well.
11 So I think there is a special force in that
12 concept here, given the duel purposes of the pending
13 investigations. But it is necessarily predictive, and that
14 is why in 1986 Congress amended the FOIA to change, would
15 reasonably be expected, to could reasonably be expected,
16 recognizing the predictive nature of what the government
17 must assess in this area.
18 THE COURT: Well, your argument is certainly a
19 fair one, Ms. Weismann, but you have probably read almost
20 every FOIA case ever decided I have a feeling, and you know
21 that most of those cases deal with -- the overwhelming
22 number of them deal with very the specific, discrete,
23 threats to people.
24 An informant's identity cannot be released because
25 obviously they would be retaliation by, let's say, drug
0032
1 gangs. Or -- I guess that is the standard one that is used
2 most of the time.
3 Can you think of any FOIA case offhand, because I
4 cannot, and I don't think I saw any cited in your papers,
5 that suggests future harm and endangerment to the safety and
6 welfare of the public on a magnitude that is predicted in
7 the two -- or the three, rather, declarations submitted in
8 this case?
9 MS. WEISMANN: I cannot, Your Honor. But what I
10 think that speaks to is not a lack of legal authority for
11 what the government is asserting here, but the very, very
12 painfully changed reality in which we live.
13 And I would submit to this court, with all due
14 respect, that if the government had come in here prior to
15 September 11 and suggested that there was even the
16 possibility that hijackers would hijack plans and fly them
17 in to and destroy the World Trade Center and part of the
18 Pentagon, we would have been accused of the grossest kind of
19 speculation and hyperbole.
20 And I don't mean to -- I don't think you can
21 overstate this situation, Your Honor, because we live in a
22 reality where almost on a daily we are informed by the CIA,
23 the FBI, the President, that the likelihood -- not just the
24 risk, but that there is a significant likelihood of future
25 attacks.
0033
1 I think the court cannot ignore that context when
2 evaluating the harms that Mr. Reynolds and Mr. Watson lay
3 out. I think it is fair to say that Mr. Reynolds and Mr.
4 Watson don't ignore that context.
5 And I agree with you that there may not be a case
6 in the FOIA books, however comprehensive that that FOIA
7 guide is that the Department puts out, that talks about harm
8 of this magnitude, because I don't think in my lifetime, and
9 in current history, there has ever been this level of threat
10 to the public safety, to the American public safety, as
11 currently exists.
12 And that is why I think that we really can't be
13 accused of overstating the harm. It is the reality. It is
14 the changed lens through which we must view the harms in the
15 world. And I think that that is the reality that both Mr.
16 Watson and Mr. Reynolds address.
17 As I said, the critical issue here is that each of
18 these detainees does have that link to the investigation,
19 and it is that link that forms the core of both the harms
20 that would flow from disclosure and the reason why the
21 government is not disclosing certain information.
22 I just want to remind the court, and I know that
23 you are well aware of this, but we are talking about three
24 different categories of information here.
25 There are those people -- individuals who were
0034
1 detained as a result -- who are being detained as a result
2 of immigration violations, and for those people the
3 government has withheld their names, the location where
4 they are currently being detained and were initially
5 detained, their date of arrests and their lawyers'
6 identity.
7 There is a second group of people who have been
8 charged with federal crimes.
9 THE COURT: And do you have some of the
10 particular data on those groups that Mr. McCallum did not
11 have?
12 MS. WEISMANN: I do know, Your Honor. The only --
13 the only additional data I have for this court -- Your Honor
14 asked a question it was originally ten, and then in the last
15 declaration we submitted Mr. Reynolds spoke of nine sealed
16 indictments and other cases.
17 My understanding is that number is currently down
18 to number three, because as the indictments are presented
19 the seal is lifted, and that number is likely to change as
20 well.
21 For the most part, many of the information -- or
22 much of the information that the court acquired -- inquired
23 about we could provide. There is -- I must say there is at
24 least one category, however, which I think would pose
25 serious concerns in terms of providing it on the public
0035
1 record, and that is the difference -- the number -- the
2 difference between those individuals being held on
3 immigration charges and those who are no longer of
4 interest.
5 Again, that is the kind of information that in the
6 wrong hands and in the public domain --
7 THE COURT: Well, wait a minute. I do not think
8 that those are two completely separate categories, and
9 correct me if I am wrong.
10 Isn't it true that many people who were detained
11 because of perceived connections to the investigation were
12 then held for immigration violations?
13 MS. WEISMANN: Yes.
14 THE COURT: And will be processed on those, i.e.,
15 deported, even though there are they are no longer of
16 special interest to the investigation?
17 MS. WEISMANN: No. That is true, Your Honor.
18 And I think in our original filing we gave that number. But
19 I think Your Honor asked whether we could break that out
20 further. And that is what I was responding to.
21 I think that there would be -- there would be
22 concerns that that kind of information would be too
23 revealing.
24 And again, like Mr. McCallum, of course if the
25 court wants this other additional information, we would be
0036
1 happy to provide it. But let me just suggest to the court
2 that aside from that, I don't think that these numbers are
3 in any way going to materially change the issues that are
4 before this court.
5 And of course, in your typical FOIA case, we are
6 talking about information at a specified point in time when
7 the FOIA request was processed. I mean I think the fact
8 that the timeliness of that information may be, you know, in
9 some question is because it is the nature of the
10 investigation.
11 As Mr. Reynolds explained more specifically, I
12 think it was in his first supplemental declaration, this is
13 a very fluid investigation, and some of the differences in
14 the numbers, for example, are accounted for by the fact that
15 we were -- you know, initially certain groups were included,
16 you know, that are no longer included.
17 The numbers changed all the time. People moved
18 from one category to another. And I think because of that,
19 whatever the numbers are today, I am not sure that it is
20 going to change what we believe are the proper legal issues
21 for this court to focus on.
22 And again, of course, from a strict FOIA
23 perspective, just in terms of responding to the plaintiffs,
24 we have no obligation to continually update the information,
25 and I know that the court is aware of fact. But, of
0037
1 course, if the court wants these numbers we can get them for
2 you.
3 Let me just to backup on this, and make sure we
4 are talking about the same thing. I mentioned that there
5 were those who are being charged on federal crimes that were
6 detained, and the information that is being withheld for
7 them is their citizenship status, the location of their
8 initial arrest or detention, their current location of
9 detention --
10 THE COURT: I think that is all in your papers
11 though.
12 MS. WEISMANN: Yes, it is.
13 THE COURT: All right. Let's go on.
14 MS. WEISMANN: Then I will just turn specifically
15 to the exemptions. But I think it is important to stress,
16 because one of the things that the plaintiffs do in their
17 papers is to blur all of these and suggest that it is one
18 large group, and they are not.
19 And as Your Honor knows from our papers, we
20 have withheld and disclosed different information
21 depending on the category. So for example for those people
22 who were federally charged, their identities, the lawyers,
23 their charges have been disclosed because of the
24 constitutional requirements that apply to that group of
25 people.
0038
1 So I think it is important in the big scheme to
2 recognize that there are differences in information, but
3 there is a commonality as well. And all of the exemptions
4 that we have asserted have been asserted for all of the
5 information that we have withheld.
6 Let me turn first to exemptions 7(f), which
7 permits withholding of information where its disclosure
8 could reasonably be expected to endanger life or physical
9 safety.
10 The threshold for section 7(f), as with all -- as
11 with exemptions 7(a) and 7(c), is that the information be
12 compiled for law-enforcement purposes.
13 We think that under any standard, objective or not
14 --
15 THE COURT: Well, I know that the plaintiffs
16 argue that point, and I will certainly give them a chance
17 to argue it if they want to. I do not think it is one of
18 their strong arguments, though, so why don't you skip over
19 that.
20 MS. WEISMANN: Yes. I would agree with you, Your
21 Honor.
22 So we think there is no question that we have met
23 the threshold, but this is information compiled for law-
24 enforcement purposes, and the issue then becomes, could it
25 reasonably be expected to endanger life or physical
0039
1 safety?
2 And I emphasize again the could, because this
3 is another point of contention between us and the
4 plaintiffs.
5 I would submit, you know, that no matter how they
6 phrase it, in effect when you read their pleadings, their
7 argument is that we must prove almost to a certainty that
8 the harms would occur.
9 THE COURT: They deny that very strongly. You
10 made that argument in, I guess, the first of your papers.
11 They have vigorously denied it. They also say that they are
12 not guilty of citing pre-amendment cases, that North was
13 decided after FOIA was loosened, if you will, and I think
14 that that is not a fair argument.
15 They are not claiming that you have to show it to
16 a certainty. I am not quite sure what their standard is,
17 and I will explore that with them.
18 What is your answer, though, as to what your
19 standard is?
20 MS. WEISMANN: The standard is --
21 THE COURT: Could is a word that could mean almost
22 anything. And indeed, if one wanted to interpret it very
23 loosely, I would think, and I do not think this is what
24 Congress intended at all, but that one could interpret 7(f)
25 to cover almost any situation.
0040
1 And surely that is not the government's position.
2 So what standard do you use in determining what falls under
3 7(f)?
4 MS. WEISMANN: Well, we do start with the
5 statutory language, which is could reasonably be expected.
6 So clearly there is a standard of reasonableness built in.
7 Again, I think it is also equally as clear that
8 there is a predictive nature. It does not have to happen to
9 a certainty, and the case law reveals that there just needs
10 to be some nexus between the exemption that is being claimed
11 and the harm alleged.
12 And I think that that is met here by the
13 declarations of Mr. Reynolds and Mr. Watson. And I think a
14 starting point for this court's analysis has to be to
15 consider who these individuals are and what their background
16 is.
17 Both Mr. McCallum and I also have already talked
18 about that. But as Your Honor knows full well from the
19 many, many FOIA cases that you have had before you, in
20 general the government's declarations are entitled to
21 substantial deference.
22 And I think that deference should especially be
23 accorded here. In fact the courts recognize for purposes of
24 exemption 7 in the law-enforcement context, the government's
25 declarations are especially entitled to deference.
0041
1 There is simply no reason -- the plaintiffs have
2 come forward with no evidence to dispute anything that is in
3 the Reynolds and Watson declarations. And if we look at
4 what they say --
5 THE COURT: Of course they cannot really. They
6 do not have access to the investigation. They do not have
7 access to any details. All they can say is, we think that
8 the predictions are too alarming, if you will -- that is
9 not their word now, and we don't want you to be swayed by
10 them.
11 MS. WEISMANN: Well, but I think that they are
12 situated no differently than any FOIA requestor typically
13 is.
14 Often a FOIA requestor is making a request for
15 information, and they have no -- on their end they have no
16 information, and the courts recognize that. But at the same
17 time, absent some evidence of bad faith, or direct and
18 explicit contradictory evidence, the courts nevertheless
19 accord the declarations and affidavits of the government
20 substantial deference. And there is no reason to deviate
21 from that analysis here, Your Honor.
22 Turning then to what specifically is in those
23 declarations. Mr. Reynolds makes clear as far as the public
24 safety -- and I think there are a number of categories of
25 harm here that are covered by exemption 7.
0042
1 I would start with the broadest category, which is
2 the category that Mr. McCallum also discussed, which is harm
3 to the American public, and I think there is, as we believe
4 it, and as stated in our declarations, that harm certainly -
5 - the possibility of that harm is very real.
6 As Mr. Reynolds explains, terrorists may be able
7 to map the progress of the investigation and develop a means
8 to impede it, and also their plans, in a way that poses an
9 even greater threat to the United States.
10 They may, for example, switch to an alternative
11 cell if they know that one has been compromised, thereby
12 retaining the ability to mount future attacks. Future
13 attacks unquestionably equates to harm to the American
14 public here.
15 Mr. Watson in his declaration similarly says that
16 discovery that any particular individual has been detained
17 may cause a terrorist group to accelerate the planning of a
18 timed attack.
19 He points out that official verification that a
20 member has been detained may enable a terrorist
21 organization to find a substitute who can more effectively
22 achieve their goals, which is the demise of the American way
23 of life.
24 So I don't -- you know, these -- I think these
25 address -- these have the requisite connection between the
0043
1 exemption that we are claiming 7(f) and the harm. I think
2 that the language that they use meets the standard that
3 could reasonably be expected.
4 Mr. Reynolds goes on to explain that there are
5 also harms that would flow to the detainees themselves. He
6 explains that they could be subjected to physical harm,
7 either here, or if they are deported in their home
8 countries, simply because of a perceived -- the connection
9 that perceives between them and the investigation.
10 Indeed he goes on to say that friends of theirs,
11 family members, could also face physical threats of
12 violence, because detainees may want to -- because
13 terrorists may want to deter detainees from cooperating.
14 He goes on to explain that if we reveal the
15 detention places -- because they have asked for where these
16 people are being detained -- that that may place both those
17 facilities and their employees at risk. And the attorneys
18 are at risk as well, because they could be perceived as
19 working against the interests of the United States, leading
20 to their retaliation.
21 In addition, Mr. Reynolds explains that terrorists
22 may fear that the detainees have told their attorneys too
23 much, and lacking access directly to the detainees may go
24 after their attorneys.
25 THE COURT: Of course this would not be the first
0044
1 time that people are either charged or associated with in
2 some way hideous crimes. And whether they are personally
3 guilty or not, that they suffer the oblique, if you will, of
4 the public.
5 I mean I am thinking of something in a different
6 context, but rapists, child molesters, the whole statutory
7 development of Megan's laws, and of course the Megan's laws
8 concern people who have been convicted, not just associated
9 with.
10 But my real point is that many times simply being
11 ensnared in the criminal justice system before guilt or
12 innocence is determined exposes individuals to great either
13 isolation, physical harm, damage to their reputation if we
14 are talking about white-collar crime.
15 Again, I understand full well that the magnitude
16 of September 11th far, far, far outstrips anything we are
17 talking about. But this is not in-kind a new or different
18 problem.
19 MS. WEISMANN: I think it is different in this
20 respect, Your Honor -- in a number of respects. But one way
21 I would suggest is aside from the magnitude, which I think
22 this court clearly appreciates and which has to be part of
23 the calculus here, it is different because we are dealing
24 not simply with an investigation that is aimed at finding
25 those who perpetrated acts in the past, we are trying to
0045
1 prevent -- the very investigation is aimed at finding
2 terrorists and weeding them out so that they will not commit
3 future acts, because we know that they are committed to
4 doing so.
5 And I think that that is a different calculus that
6 is not probably at play in any of the situations that Your
7 Honor mentioned. And I do think the sheer magnitude of this
8 changes the picture considerably.
9 You know, plaintiffs argue -- on attorneys, for
10 example. They suggest that, well, attorneys make public
11 appearances.
12 But again, I think there is a world of difference
13 between an isolated -- isolated instances of individual
14 attorneys individually making an appearance and the
15 government releasing collectively all of this information en
16 masse to the public, you know, and the publicity and the
17 dissemination that that information would get in that
18 format.
19 So I think that there is a difference of degree,
20 and that -- it's that difference of degree that enhances the
21 possibility that some of these harms may, in fact, happen.
22 So I do think that that is something that the court, as a
23 legal matter, can properly take cognizance of.
24 With respect to exemptions 7(f), we do believe as
25 we have stated that we have made the requisite showing. The
0046
1 declarations of Mr. Reynolds and Mr. Watson are reasonably
2 specific, and they outline harms to the public safety and
3 harms to individual that could happen if this information is
4 disclosed.
5 THE COURT: Let me ask you a minor question. The
6 detainees can voluntarily disclosed their names, and of
7 course the fact of their detention. Are they also allowed
8 to voluntarily disclose their location?
9 MS. WEISMANN: There is no prohibition of which
10 I am aware that would prohibit them from disclosing
11 anything.
12 THE COURT: Again, I must say that I do not
13 understand the government's reasoning. I certainly
14 understand -- whether I would say that it is legal or not is
15 a different issue, but I would certainly understand your
16 taking the position that disclosure of location could
17 subject everybody in that prison facility to danger, and so
18 therefore I must say that I thought it was a mistake when I
19 saw that you do allow release of that information as to
20 where an individual is located.
21 MS. WEISMANN: Well, I think what Mr. McCallum
22 explained to you earlier remains -- would be my response as
23 well.
24 THE COURT: That it is not part of the mosaic. I
25 mean if someone --
0047
1 MS. WEISMANN: No, no, no. Is not the mosaic,
2 Your Honor. But I think that there are two critical facts.
3 One is the difference between the wholesale disclosure of
4 this information and what individuals might choose to do,
5 and the second -- and I agree with him.
6 I think this is the most eloquent statement of
7 all, is the fact that so few have chosen to self-select --
8 to self-disclose, and that the public record on that
9 communal, is not very considerable.
10 And I think that is, you know, not very
11 considerable, and I think that is out of recognition that
12 making that kind of disclosure would place them and those
13 around them in jeopardy.
14 And I don't know Your Honor, I am not a criminal -
15 - I deal exclusively in the realm of civil litigation. And
16 whether or not there would be a basis for the government to
17 prohibit them from disclosing that information, I don't
18 know.
19 But I would say that the constitutional
20 implications that apply, for example, to those who are being
21 detained on criminal charges that require that the
22 government disclose their identities, for example, the
23 nature of those charges --
24 THE COURT: That is a small number.
25 MS. WEISMANN: That is a small number. And also I
0048
1 think, Your Honor, more analytically that that represents a
2 balance that the framers of the Constitution struck. They
3 are competing interests, and they determined that that was a
4 critical interest that needed to be addressed and needed to
5 be accommodated.
6 Similarly, I think that the FOIA itself
7 represents a certain balancing of interests by Congress
8 and recognizes that in any given equation there may be
9 interests that outweigh others, and there is a balance that
10 goes on.
11 So the fact that, you know, that because of other
12 overriding concerns, individual or isolated pieces of
13 information are required to be disclosed, I don't think in
14 anyway undermines our ability on the whole to withhold this
15 information under the FOIA.
16 THE COURT: Let me turn to a different topic for a
17 minute, and I know I am cutting you off, but your papers
18 certainly covered basic law.
19 I want to talk about people who are being held as
20 material witnesses, and I just want to make sure that issue
21 does not get lost in this oral argument and discussion, and
22 I have a number of questions.
23 First of all as you know under that statute the
24 statute provides that an individual may be held as a
25 material witness, and this is not the exact wording of
0049
1 the statute, but basically until their deposition can be
2 taken.
3 Why haven't you taken the depositions of the
4 individuals who are being held as material witnesses?
5 MS. WEISMANN: Your Honor, I don't know the
6 answer to that. I don't even know who those individuals
7 are.
8 THE COURT: No. I know you don't know who they
9 are.
10 MS. WEISMANN: I don't know the particular facts
11 of any of those situations.
12 THE COURT: But if you are holding people, and
13 detaining them and depriving them of their precious liberty
14 under a statute that says they should only be held until
15 their deposition can be obtained, and you have got them
16 under your custody, I think it is pretty fundamental to know
17 why their depositions have not been taken when more than six
18 months have past.
19 MS. WEISMANN: Well, Your Honor, your question,
20 and forgive me if I misconstrued it, seems to be directed in
21 the direction that -- that Judge Scheindlin went in the
22 Southern District of New York in concluding -- that was the
23 Awadallah case.
24 THE COURT: I am going to get to her case in a
25 minute.
0050
1 MS. WEISMANN: But I would submit --
2 THE COURT: That case raises another issue, but
3 no, I am not at this moment asking you about that. As you
4 know her case went to whether that statute can even be used
5 for grand jury proceedings.
6 I am assuming for the moment you have used the
7 statute properly, and you have properly detained the people.
8 But even once you have done that, under the statute you are
9 supposed to depose them.
10 MS. WEISMANN: Well, Your Honor, I am not sure
11 that I would necessarily agree that that is what the statute
12 mandates, and I am getting far a field from my area of
13 expertise.
14 I think it gets back to a point that I think must
15 be made at this -- here again, to reiterate something that
16 Mr. McCallum said.
17 If there are an individuals who are being detained
18 because of a material witness warrant, and they believe that
19 some aspect of their detention is unlawful, they have a
20 forum to challenge that.
21 I think the Awadallah case illustrates that very
22 vividly.
23 This is not the proper forum to raise and resolve
24 those substantive issues that deal with whether or not they
25 have been properly detained, whether or not a material
0051
1 witness warrant is the proper vehicle to use for their
2 detention, et cetera.
3 This is a Freedom of Information Act case, and in
4 the sworn declaration of Mr. Reynolds, and in particular he
5 submitted a second supplemental declaration explaining that
6 the government's use of the material witness warrants with
7 respect to these detainees is consistent with its long-
8 standing practice. And I think that his declaration is
9 entitled to deference.
10 THE COURT: Did he say that?
11 MS. WEISMANN: Well, let me get the specific
12 language that he used, Your Honor.
13 THE COURT: I don't think so, because I don't
14 think that I remember that.
15 MS. WEISMANN: What I am referring to, Your Honor,
16 is what has been labeled the second supplemental declaration
17 of James Reynolds. It is dated April 15th.
18 And what he said is in paragraph 5. He said:
19 "They are governed by court
20 orders prohibiting the government
21 from releasing any information
22 about these proceedings. The
23 exact language of these orders
24 varies, but the Department of
25 Justice interprets such orders
0052
1 to protect from disclosure
2 not only the contents."
3 And I may have misstated, and I did not mean
4 to mislead the court, and I apologize for that, Your
5 Honor.
6 THE COURT: I think so. I think so. I did not
7 think he said that.
8 What is the Department's position as to how
9 Awadallah effects or impacts your FOIA argument in this
10 case?
11 MS. WEISMANN: We do not thing that it should have
12 any effect whatsoever, and the reason for that is that we
13 believe that opinion is simply wrong. It is contrary to
14 other courts that have found otherwise.
15 THE COURT: One court, right? The Ninth Circuit.
16 MS. WEISMANN: Well, it is contrary to that court.
17 It is contrary -- it is contrary, and on this I think I am
18 properly representing what Mr. Reynolds said in his
19 declaration, it is contrary to what the Justice Department's
20 position has been about the effect of material witness
21 warrants and sealing orders.
22 We think it is wrong, and it is not binding on
23 this court. And it is certainly -- I don't think at this
24 point, in this Freedom of Information Act case, that it
25 provides any basis for this court to challenge or ignore the
0053
1 declarations that we have put in the evidence -- that we
2 have put in the record before the court, and what has been,
3 I think --
4 THE COURT: Well, I think some of those
5 declarations may have been before Judge Scheindlin, but I do
6 not think that was part of her analysis if I remember it
7 correctly.
8 MS. WEISMANN: Again, I would simply say that the
9 government - that the Department of Justice takes the
10 position that her analysis is just flat wrong, and therefore
11 should not provided a basis. But I think again that
12 illustrates --
13 THE COURT: Have you sought a stay from the Second
14 Circuit in that case?
15 MS. WEISMANN: I would need to check. I am not
16 quite sure of the exact status. I know that the decision of
17 whether or not to seek an appeal from that is under review
18 by the Solicitor General's Office.
19 THE COURT: I know, but I am not asking about
20 appeals, which I am assuming you'll take.
21 MS. WEISMANN: I would have to check on that and
22 get back with you. But again I think -- I think this is
23 precisely -- and with all due respect to the court, this is
24 precisely what the plaintiffs are trying to use this
25 litigation four.
0054
1 They are trying to use it for a forum to address
2 and resolve other more substantive issues dealing with
3 things like conditions of detention, right to counsel, right
4 to consular notification.
5 As Mr. McCallum noted earlier, there is -- there
6 is a regime of federal laws and regulations and
7 international treaty obligations that governs the
8 government's treatment of detainees here. The government
9 takes those obligations very seriously.
10 THE COURT: Have we signed on to any of those
11 treaties? We signed on to some others.
12 MS. WEISMANN: It was my understanding that there
13 was at least one treaty obligation, Your Honor. I don't
14 want to get too far a field, again, from my limited
15 expertise in that area, and I do not want to mislead the
16 court. I do know --
17 THE COURT: One thing I can promise you is that
18 however I come out in this case, and I think I am pretty
19 safe in promising you this, that it is not going to involve
20 a discussion of international law.
21 Why don't you take maybe three minutes to sum up.
22 I mean I know that I have interrupted you a lot, and I know
23 that your papers are very comprehensive.
24 MS. WEISMANN: Your Honor, actually I appreciate
25 the court's questions, because I think it is important for
0055
1 us to know and help the court resolve what questions it does
2 have.
3 I have talked about exemption 7(f). I think our
4 briefs are fairly comprehensive on exemption 7(a). I think
5 that the declarations are perhaps at their most powerful in
6 outlining for the court the harm to the investigation from
7 the disclosure of this information.
8 As Mr. McCallum said earlier, that harm flows
9 even from those individuals who are determined subsequently
10 not to be of investigative interest because it can be
11 revealing in the direction, and focus, and scope of the
12 investigation.
13 It can tell the terrorists not just what evidence
14 we do have, but just as importantly what evidence we do not
15 have. And this is a very fluid process.
16 As Mr. Reynolds identified in his supplemental
17 declaration, there is at least one instance of an individual
18 who was initially thought not to be of active interest and
19 subsequently found to have information that made him of
20 active interest.
21 So it is wrong to pigeonhole individuals in one
22 category and assume that they will stay in that category.
23 And again, that is part of the calculus that Mr. Reynolds
24 took into account in assessing the harms here, and we
25 submit that that assessment is entitled to substantial
0056
1 deference.
2 The only thing that I would like to stress with
3 respect to exemption 7(c) is that this is the only exemption
4 we have invoked that requires a balancing.
5 So, you know, the plaintiffs have tried to inject
6 the public interest I think throughout here. That may have
7 a part with respect to the court's analysis, and must have a
8 part with respect to the court's analysis of exemption 7(c),
9 but exemption 7(f) and 7(a) do not require a balancing
10 between the lawful interests of the government on the one
11 hand and any interests that is claimed on behalf of the
12 public interest.
13 I think that the plaintiffs' arguments with
14 respect to the non-existent of any privacy interests that
15 these individuals has is contrary to the very, very well-
16 established case law in this area, Your Honor, which I know
17 Your Honor has cited again and again in your opinions, and
18 which recognizes that the mere association with an
19 investigation can have a stigmatizing effect.
20 THE COURT: That is the general case law, and of
21 course the dispositive cases safeguard. But again the
22 exception is made for instances when it is argued that the
23 government is doing something illegal. And of course that
24 is the plaintiffs' argument.
25 MS. WEISMANN: Well, Your Honor, that is
0057
1 speculation. And I think that is critical. Because the
2 case law also makes clear that they need to come forward
3 with compelling evidence. That is what the Circuit has
4 said. You need compelling evidence.
5 Where is their evidence? It is not in the record
6 before this court. We have offered you admissible evidence
7 in the form of the declarations of Jim Reynolds and Dale
8 Watson, and they have put forth newspaper accounts, which in
9 and of themselves under the Federal Rules of Evidence are
10 hearsay. They do not constitute admissible evidence. They
11 have not come forward with evidence, much less compelling
12 evidence.
13 And I think the other point to keep in mind is
14 that even if they had, that revealing, for example, the
15 names of the detainees is not going to disclose whether or
16 not the government has done anything illegal here. There is
17 not that direct link between the information they seek and
18 what it would show.
19 And I think if you look at the rare case, and it
20 is a rare case in the FOIA, where the court or the
21 government finds that the public interests outweighs the
22 privacy interests, those are cases where the information
23 in question provides a direct link between what the
24 plaintiffs have been able to demonstrate by compelling
25 evidence of wrongdoing and wrongdoing itself. That link is
0058
1 not here.
2 It is too attenuated. And that is yet another
3 reason, we submit, why the balance is struck in favor of
4 withholding the information.
5 We have already talked about material witness
6 warrants. I am sorry if I have not been sufficiently clear.
7 Perhaps when I sit back down I will get some additional
8 information that I will be able to provide the court that
9 might be helpful in your analysis.
10 But you know, of course, that we have withheld
11 that information not only under exemption three because of
12 the operation of Rule 6(c) of the Federal Rules of
13 Criminal Procedure, but also under exemptions 7(f), 7(a) and
14 7(c).
15 THE COURT: I understand that.
16 MS. WEISMANN: Unless the court has any questions
17 I will not get into the issue of adequacy of search, and the
18 common law theories that the plaintiffs advance. I think we
19 covered those in our papers.
20 Wi | |
