IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________

CENTER FOR NATIONAL SECURITY
STUDIES, et al.,

v.

DEPARTMENT OF JUSTICE,

Defendant.
___________________________________________________

Plaintiffs, Civil Action No. 01-2500

Judge Kessler

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Arthur B. Spitzer
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036

Kate Martin
Marcia T. Maack
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037

David L. Sobel
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009

Steven R. Shapiro
Lucas Guttentag
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004

Elliot M. Mincberg
People For the American Way Foundation
2000 M Street N.W., Suite 400
Washington, D.C. 20036

Counsel for Plaintiffs

INTRODUCTION

The government now claims that disclosing the names of the individuals it has arrested and jailed will not just harm its investigation, but could prove to be "catastrophic." Defendant’s Reply In Support of Motion for Summary Judgment, and Opposition to Plaintiffs’ Motion for Summary Judgment ("Def. Reply") at 1, 8. This claim has no basis in reality. It strains credulity to believe that after eight months a terrorist organization has not already determined whether any of its associates have been arrested. Moreover, the government’s claim is contradicted by its own announcement identifying a captured high level al Qaeda operative and reporting on his interrogation. The government cites no authority or logic justifying its extraordinary policy of secretly detaining hundreds of individuals pre-trial, without even claiming that it has information linking those individuals to terrorism. As this court has stated, "the government’s burden in justifying nondisclosure [under FOIA] is demanding." Linn v. Department of Justice, No. 92-1406, 1995 U.S. Dist. LEXIS 9302, at * 8 (D.D.C. June 6, 1995). Notwithstanding its rhetoric, the government has failed to meet that burden.

Notably, two courts have now rejected separate but related aspects of the government’s secrecy policy. In ACLU of New Jersey v. County of Hudson-in which the United States intervened making the same arguments against disclosure it has made in this case relying on the same Reynolds Declarations-the New Jersey Superior Court ruled that pursuant to state law the Hudson and Passaic County jails must release the names of the INS detainees being held there. The court rejected the United States’ argument that releasing the names of the detainees could harm its investigation.

In Detroit Free Press v. Ashcroft, newspapers and other plaintiffs challenged the constitutionality of an INS directive categorically closing all immigration proceedings relating to the INS detainees who were designated as special interest cases, and specifically the closure of the deportation proceedings of Rabid Haddad, one of these INS detainees. To support its argument for closure, the government submitted a declaration from James S. Reynolds that is virtually identical to the Reynolds Declaration submitted in this case.

The district court granted the plaintiffs’ motion for a preliminary injunction, holding that plaintiffs had established a likelihood of success on their claim that the blanket closure of deportation hearings in the "special interest" cases was unconstitutional. With respect to the deportation proceedings of Mr. Haddad, the court found that the government’s allegations regarding the harms that could ensue from holding open deportation proceedings, as delineated in the Reynolds Declaration, did not support closing Mr. Haddad’s proceedings, noting that Mr. Haddad’s arrest and detention had been well publicized, and that both Haddad and his counsel remained free to reveal any information they wished about his immigration proceedings to the press and public.
The Court of Appeals for the Sixth Circuit has denied the government’s motion for a stay of the district court order on the grounds that the government failed to demonstrate a likelihood of success on the merits. In acquiescing to an order requiring it to release the transcripts of previously closed hearings in Haddad’s case, the government conceded that doing so "will not cause irreparable harm to the national security or to the safety of the American people."

ARGUMENT

In its Reply Brief (at 19-21), the government makes an important concession. It states that it was required to release the names of the detainees charged with criminal offenses because the Constitution requires that criminal prosecutions be "public." This means that if the Constitution requires that deportation proceedings be public, the government is required to release the names of the INS detainees.

As the district court’s decision in Detroit Free Press demonstrates, there is a strong constitutional argument in favor of a public right of access to deportation proceedings. 2002 U.S. Dist. LEXIS 5839, at *9-17. The Supreme Court has established a two-part test for access: have the proceedings historically been open to the public and would public scrutiny play a significant positive role in the functioning of such proceedings. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986). Deportation proceedings appear to meet both prongs of this test. See Detroit Free Press, 2002 U.S. Dist. LEXIS 5839, at *11-17.

There is no need to reach the constitutional question in this case because plaintiffs are entitled to relief under FOIA. But analysis of the FOIA issue should be informed by First Amendment values. In the discussion below, plaintiffs point out how the government’s position against disclosure runs counter to long-settled practice and expectations of openness and access, as well as prevents the public scrutiny necessary to protect against abuses.

II. THE GOVERNMENT MAY NOT KEEP SECRET THE NAMES OF JAILED INDIVIDUALS UNDER THE FOIA.

A. Names of Arrestees Are Not Information "Compiled For Law Enforcement Purposes."

The government argues that the names of the arrestees are exempt from disclosure because they were compiled for a legitimate law enforcement purpose. Def. Reply at 6-7. This argument is without merit. The process for determining whether information was compiled for law enforcement purposes within the meaning of FOIA is not a mechanical one. Rather the inquiry must focus on the nature of the information or particular document for which the exemption is claimed. See Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 626 (1982); National Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 229-230 (1978). Here, the information being withheld is contained in INS charging documents, the equivalent of arrest warrants or indictments. That is the type of information that has traditionally been public and that was never intended to fall within FOIA’s harm analysis. Cf. Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973) (FOIA enacted to "permit access to official information long shielded unnecessarily from public view").

When Congress enacted the FOIA, it had already legislated that arrest books in the District of Columbia be kept public because [i]t is felt that the keeping of such [arrest] records and their availability to the public should be matters of law and not of administrative discretion, both for the protection of the public against secret arrests and to guard against abuse in any way of the arrest power. S. REP. NO. 83-2332 (July 25, 1954). It was undoubtedly aware that the names of arrested individuals were routinely made public. Tennessean Newspaper v. Levi, 403 F. Supp. 1318, 1321 (M.D. Tenn. 1975). There is nothing in the legislative history of the FOIA to suggest that Congress intended Exemption 7 to eliminate access to arrest information that had always been public.

Under the government’s wooden reading of this exemption, however, it could use FOIA to keep secret any arrest warrant and the name of any individual it had arrested because virtually all arrest warrants could be part of records compiled for a legitimate law enforcement purpose. That cannot be the law, and on this ground alone, the government’s exemption claim must be rejected.

B. The Government Has Failed To Establish That The Requested Information Is Exempt Under 7(A) or 7(F).

1. The government’s claim that releasing the names of the detainees could be "catastrophic" is unfounded.

The government’s claim that the identities of the detainees must remain secret to prevent terrorist organizations from learning who has been arrested is unpersuasive on its face. First, it is unlikely in the extreme that after eight months terrorist organizations would not know if their associates are missing and would not have surmised that they have been arrested. After all, the government has widely publicized the fact that it has detained hundreds of individuals in connection with its investigation of the events of September 11. See Pl. Mem. at 1-5. Second, according to the government, since being arrested the INS detainees have been permitted to self-identify and thus have been able to alert their associates to their detention. In Detroit Free Press, the district court concluded that the fact that the detainee in that case remained free to reveal his arrest to the press and public undermined the government’s argument against open deportation proceedings. 2002 U.S. Dist. LEXIS, at *24-25. The government’s argument against releasing the names of the detainees is similarly undermined here.

The government contends that "disclosure of the information by the government would have an entirely different impact on the investigation than sporadic disclosure by the detainees themselves." Def. Reply at 18. But the issue here is disclosure of the identities of individuals who are involved in terrorism and whether that is done sporadically by those particular individuals or as part of a list including hundreds of innocent individuals will make no difference. As to any individuals who are involved in terrorism, the notion that in the intervening eight months a terrorist organization would not somehow know about their arrests-either through the detainees’ action or inaction-defies common sense.

Nevertheless, the government claims that releasing the names of the detainees-even of those who have been "cleared" of any connection to terrorism-could be "catastrophic." In essence, the government argues that at least one of the detainees may be a terrorist and if forced to release detainees’ names, it may unwittingly identify someone who is a member of al Qaeda. According to the government, "dire consequences . . . would flow from even one unnecessary disclosure." Def. Reply at 9. But the government fails to explain how catastrophe could ensue from disclosing the identity of a detained terrorist when terrorist organizations are undoubtedly aware of this detention.

Moreover, the government’s claim of catastrophe is contradicted by its own release of information about individuals it has identified as important members of al Qaeda or connected to that organization. The government recently announced that it has captured an extremely high level al Qaeda operative in Pakistan. Instead of keeping secret his name, as it has done for many of the persons captured in Afghanistan and now held in Guantanamo, the government identified him as Abu Zabaydah, described him as the operations director for al Qaeda, announced that he would be questioned, and made public information from that questioning. Government officials also recently announced that they had arrested a Mr. Issaya Nombo on immigration charges after a letter congratulating him on obtaining his pilot’s license was discovered in a cave in Afghanistan. The government’s selective disclosures contradict its claim that its investigation would be seriously jeopardized if it identified any of the hundreds of people who were arrested on immigration charges after September 11th, many of whom even the government admits have now been "cleared" of any suspected terrorist connections.

2. The government does not challenge that it is required to show a rational nexus between releasing the identities and the alleged law enforcement harms.

The government does not contest that in order to come within the requirement of Exemption 7 that disclosure "could reasonably be expected to" cause the alleged law enforcement harms, it must establish a rational nexus between releasing the identities of the INS detainees and the alleged law enforcement harms. Def. Reply at 9-12. Instead, the government complains that plaintiffs have "implicitly" argued for a heightened standard of proof, i.e. that the government show that disclosing the detainees’ identities "would," rather than "could reasonably be expected to," harm its investigation or cause harm to the detainees or the public. Id. at 9-11. Plaintiffs make no such argument. In particular, the government challenges plaintiffs’ citation to North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989), contending that this case relies on more restrictive pre-1986 case law. But North is a post-1986 case that applies the less restrictive "could reasonably be expected to" standard. See 881 F.2d at 1098 n.4 ("In 1986, Congress changed ‘would’ to ‘could reasonably be expected to’").

Nor do plaintiffs argue that in order to meet the nexus requirement the government must "prove to a certainty that the detainees actually have a connection to terrorism." Def. Reply at 8, 11-12. The government’s claim, however, that it is not required to show a connection between the detainees and terrorism (Def. Reply at 12), is incorrect. As explained in plaintiffs’ opening Memorandum (at 13-15), the government’s allegations of harm rest on the necessary assumption that each of the detainees is involved in, or has material knowledge about, the terrorist conspiracy or organizations involved in the conspiracy. Accordingly, while the government does not have to "prove to a certainty that the detainees have a connection to terrorism" in order to show a rational nexus between disclosing the information and the alleged harms, the government must, at a minimum, show that: (1) it has facts or information that reasonably indicate that these detainees are involved in or have material knowledge about the terrorist conspiracy or terrorist organizations; and (2) that it is reasonably likely that the terrorist organizations do not already know about the detainees’ arrest. Otherwise, the government has not met its burden of demonstrating that there is a reasonable expectation that disclosure could harm its investigation or cause physical harm to the detainees or the public.

3. The government’s new affidavit still fails to establish a rational nexus between releasing the identities of the INS detainees and the alleged law enforcement harms.

Although the government submitted a new declaration with its Reply, that declaration still fails even to allege that it has facts or information showing that each detainee is involved in terrorism sufficient to establish a nexus with the alleged harms. The declaration of Dale L. Watson (Watson Decl.) was first filed in the Detroit Free Press case in support of the government’s motion for reconsideration of the preliminary injunction ordering the opening of the deportation proceedings of Rabid Haddad. (Since filing the Watson Declaration, the government has agreed to release the transcripts of the Haddad proceedings after the Sixth Circuit, having the declaration before it, denied the government’s request for a stay of the preliminary injunction.)

The Watson Declaration does not support the government’s argument here for several reasons. First, most of the Watson Declaration recites harms that might ensue from opening deportation hearings and disclosing evidence-not from disclosing detainees’ identities-and thus has no application to this case. See Watson Decl. 12-14, 16-17, 20-23. Significantly, the government’s suggestion that "[b]its and pieces of information that may appear innocuous in isolation can be fit into a bigger picture by terrorist groups in order to thwart the government’s efforts to investigate and prevent terrorism" (Def. Reply at 14), derives from a paragraph of the Watson Declaration that does not even allude to disclosure of detainees’ identities as a possible danger. See Watson Decl. 12.

Second, even those paragraphs that do refer to disclosure of the detainees’ identities do not apply to all the INS detainees whose names are being withheld. The Watson Declaration states that there is a subset of detainees about whom the government still has "concerns," presumably because they have not yet been cleared (Watson Decl. 10), and it is only that subset which is addressed by the declaration. Indeed, the admission in the Watson declaration that the government is only seeking to close the deportation hearings for this subset of detainees contradicts the government’s argument in this case that releasing the identities of even those detainees about whom concerns no longer exist could harm its investigation or the safety of the public. See Pl. Mem. at 16-17.

Third, even with respect to the subset of detainees addressed by the Watson Declaration, the few paragraphs regarding disclosure of their identities fail to supply the essential nexus between disclosure and harm. The Watson Declaration does not address the fact that the terrorist organizations undoubtedly know if any of their associates have been detained and that therefore the harms described in the declaration ( 15) have already occurred. Nor does the statement that the government still has "concerns" regarding some individuals meet its burden to show that it has facts or information that these individuals are involved in terrorism. The Declaration is far too vague and conclusory. See Campbell v. Department of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (agency affidavits will not suffice to support summary judgment if they are too vague or conclusory).

Accordingly, while the Watson Declaration elaborates on the harms that could ensue from disclosing the identity of individuals who are involved with terrorism when the terrorist organization is unaware of their detention ( 15), it fails to establish that those harms could reasonably be expected to occur from disclosing the identities of these detainees.

C. The Public Interest In Disclosure Of The Detainees’ Identities Outweighs Any Privacy Interest.

As demonstrated in plaintiffs’ initial Memorandum (at 20-32), the compelling public interest in disclosure of the detainees’ identities outweighs any privacy interest at stake. In response, the government argues that plaintiffs have not put forth compelling evidence of illegal government activity and thus have failed to demonstrate the requisite public interest. Def. Reply at 25-28. That contention both misstates the law and is factually incorrect. The government cites no case in which the "compelling evidence of illegal government activity" standard has been applied to justify withholding the name of someone who has been arrested, or even to consideration of such withholding. See Def. Reply at 21-25. While the District of Columbia Circuit has applied that standard to disclosure of the names of suspects, witnesses, investigators or informants in law enforcement files, such information is significantly different from the names of those arrested. See Pl. Mem at 30. The power of the government to detain individuals is its most awesome and potentially dangerous power, and the consequences of governmental mistakes or abuse are particularly pernicious. When the government uses its arrest power, the need for public scrutiny is at its highest. There is a much greater public interest in knowing who has been jailed than in knowing who has talked to law enforcement. Finally, the governments’ heretofore routine disclosure of arrests is inconsistent with the adoption of the compelling evidence standard.

In any event, even if plaintiffs were required to show compelling evidence of illegal government conduct in order to demonstrate a public interest in disclosure, they have done so. See Pl. Mem. at 22-29. The government does not rebut any of plaintiffs’ extensive evidence of widespread abuse. Indeed, although the defendant makes the surprising claim in its memorandum that there is not a "scintilla of evidence of government wrongdoing" (Def. Reply at 23 n.10), the Justice Department’s own Office of Inspector General has found the allegations of rights violations sufficiently compelling that it has launched an investigation. It announced its investigation after plaintiff Amnesty International published a report detailing serious rights violations going beyond even those outlined in plaintiffs’ Memorandum, including, inter alia: (1) failure to file charges for prolonged periods; (2) prolonged detention for minor immigration violations and continued detention after bond has been set or deportation has been ordered; and (3) abusive treatment while in custody, including prolonged solitary confinement and use of restraints.

All the evidence strongly contradicts the government’s suggestion that this case involves "[a] mere desire to review how the agency is doing its job." Def. Reply at 26. And the information already released by the government does not sufficiently serve the public interest in disclosure. The American public has a right to know who their government is rounding up and jailing, especially when there is evidence that the government may be using secrecy to shield its own unlawful and unconstitutional actions. The public interest in having the government release the names of those it secretly jailed is compelling.

In response, the government claims that the detainees have an overriding privacy interest in not being associated with the worst terrorist attack in history. The government’s solicitude is suspect, as it is the government that continues to associate the detainees with terrorism and it is the government that claims it "cannot rule out" links to terrorism, even while admitting that it has no evidence to that effect. If the government were truly concerned about protecting the detainees from stigmatization, it could announce that none or only a few of them have actually been linked to terrorism.

Moreover, people are arrested for heinous crimes all the time and their names are not kept secret in order to protect their privacy. To the contrary, the Department of Justice routinely announces such arrests to the media. The government’s argument that the privacy interest at stake has nothing to do with the fact of the arrest, but with being associated with the investigation of the September 11 attacks, is misleading. It was the government itself that associated the arrests with the September 11 attacks. The government should not be permitted to use its own characterization of the arrests to withhold information that is routinely made public. See ACLU of New Jersey v. County of Hudson, No. L-463-02, slip op., at 10 (there is no "merit to the contention that INS inmates arrested in connection with September 11 events have a privacy right worthy of protection against disclosures."); Tennessean Newspaper, 403 F. Supp. at 1321 (disclosing "information about persons arrested or indicted for federal criminal offenses does not involve substantial privacy concerns").

Finally, the government’s reliance on plaintiff Amnesty International’s report to support withholding the names of the detainees is misplaced. Although Amnesty International chose not to reveal its sources because some feared being associated with the September 11 attacks, the Amnesty report did not state that the detainees’ fears provided a legitimate reason for the government to withhold their identities. Instead, it noted the "disturbing level of secrecy surrounding the detentions" (AI Report § 1) and called on the government to "[p]rovide in full the information requested under the FOIA" (id. at 42). Because the compelling public interest in disclosure outweighs any privacy interest at stake, the government may not withhold the identities of the INS detainees. See Bennett v. Drug Enforcement Administration, 55 F. Supp.2d 36, 42-43 (D.D.C. 1999) (Kessler, J.) (holding that government improperly withheld requested information where compelling evidence of government misconduct outweighed any privacy interest of informant).

D. The Government Has Not Established That The Names Of The Attorneys For The INS Detainees Are Exempt From Disclosure.

As explained in plaintiffs’ Memorandum, the government has not met its burden of proving that disclosing the names of the attorneys for the detainees could reasonably be expected to harm its investigation or the safety of the detainees or the public for the same reasons it has not met its burden for withholding the names of the detainees. Pl. Mem. at 19. In addition, the public interest in disclosure of the attorneys’ identities is substantial because the attorneys can provide important information about government misconduct. While skirting these arguments, the government claims that revealing the names of the detainees’ attorneys could subject them to retaliation from the American public and place them in "potentially grave peril." Def. Reply at 19, 28. Once again, the government is using rhetoric to mask the weakness of its arguments. The government provides no basis for its assertion that the detainees’ attorneys could face "grave peril" if their names are disclosed; the names of a number of detainees’ attorneys have been made public and none appear to have been harmed. Moreover, as previously noted, attorneys have no expectation that their identities will remain anonymous when they take on a case. Accordingly, the government’s argument fails.

E. The Government Has Not Met Its Burden Of Proving It May Withhold The Identities Of Persons Detained On Material Witness Warrants.

Federal Rule of Criminal Procedure 6(e)(2) does not bar disclosure of the identities of the persons detained as material witnesses. As explained in plaintiffs’ initial Memorandum (at 34-36), the material witness statute refers generally to criminal proceedings, not to grand jury proceedings. Therefore, the government could have released the names of individuals detained as material witnesses without exposing them as grand jury witnesses and thus without "reveal[ing] the inner workings of the grand jury." See Washington Post. Co. v. Department of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988); Senate of Puerto Rico v. Department of Justice, 823 F.2d 574, 583 (D.C. Cir. 1987). The government contends, however, that because of its terrorism investigation, the "only reasonable conclusion that could have been drawn is that the material witnesses pertain to a grand jury investigation." Def. Reply at 34. But plaintiffs never asked for the identity of material witnesses appearing before the grand jury. And the individuals concerned could have been detained as material witnesses for any of the more than ninety pending criminal cases against persons who were arrested in connection with the investigation of the September 11 attacks. See Amended Ex. 5 to Defendant’s Motion for Summary Judgment (listing criminal defendants).

As the court noted in Senate of Puerto Rico, the fact that "the existence and the general scope of the grand jury’s inquiry . . . are known to all" does not relieve the government of its burden of making the requisite showing that disclosure would reveal the inner workings of the grand jury. 823 F.2d at 583. Here, the government has not met that burden because, apart from its own revelations, it has shown no nexus between disclosure of the names of those detained as material witnesses and "revelation of a protected aspect of the grand jury’s investigation." See Linn v. Department of Justice, No. 92-1406, 1995 U.S. Dist. LEXIS 9302, at *88-89 (D.D.C. June 6, 1995) (holding that government had not met its burden of establishing that disclosure of grand jury subpoenas and witnesses would elucidate inner workings of the grand jury).

The government also invokes Rule 6(e)(6) to justify withholding the names of those detained on material witness warrants. According to the government this rule, and the sealing orders entered by the court "in accordance with this rule," prohibit it from releasing any information about the grand jury proceedings. As noted in plaintiffs’ Memorandum (at 36), without the specific language of the sealing orders, the government’s assertions are far too conclusory to support its claim that it is prohibited from releasing the requested information. In fact, the plain language of the rule indicates that information will not be sealed under all circumstances, but only "to the extent . . . necessary to prevent disclosure of matters occurring before a grand jury." In addition, the government’s broad reading of the sealing orders is called into question by news reports that law enforcement officials have publicly discussed specific individuals being held on material witness warrants. Without the relevant language of the sealing orders before the court, the government has not met its burden to withhold the identities of those being detained on material witness warrants.

In addition, at least twenty-six individuals detained on material witness warrants have been publicly identified, some reportedly by the government. With respect to these individuals, there is no valid ground for withholding their identities. See Linn, 1995 U.S. Dist. LEXIS 9302, at *21 ("the government cannot rely on an otherwise valid exemption claim to justify withholding information that has been officially acknowledged or is in the public domain," quoting Davis v. Department of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (internal quotation marks omitted)). Moreover, of these twenty-six, at least eight (and probably more) never testified before the grand jury. The government claims that it is entitled to withhold the identity of those who did not testify because the fact that they were "proposed as grand jury witnesses would also reveal important information about the nature of the grand jury’s investigation." Def. Reply at 33. But, that statement is too conclusory to provide a "nexus between disclosure and revelation of some protected aspect of the grand jury’s investigation." Linn, 1995 U.S. Dist. LEXIS 9302, at *88-89. Moreover, plaintiffs never asked for the identity of proposed grand jury witnesses, and the government provides absolutely no support for its contention that it may withhold information that was never even presented before a grand jury. If that were the case, then the government could designate anything as potential grand jury material in order to keep it secret.

Finally, there is a substantial question whether the government even intended that every individual it arrested as a material witness would testify before a grand jury. As detailed in plaintiffs’ Memorandum (at 26-27), there is compelling evidence the government is using the material witness statute not to secure testimony, but to secure the imprisonment of "suspicious" individuals it cannot detain by any lawful means. Some of these individuals have been held for months as material witnesses, even though the statute explicitly states that "[n]o material witness may be detained . . . if the testimony of such witness can be adequately secured by deposition, and if further detention is not necessary to prevent a failure of justice." 18 U.S.C. § 3144. Grand jury secrecy rules may not be invoked to shield unlawful uses of the material witness statute.

F. The Government Has Not Demonstrated That Its Search For Policy Directives And Guidance Was Adequate.

Plaintiffs’ Memorandum (at 39-40) explained that the government’s affidavits did not demonstrate that its search for policy directives and guidance was adequate. In response, the government argues that plaintiffs are estopped from making this claim because in their FOIA request, plaintiffs asked for "the key information . . . rather than all relevant documents." This argument is disingenuous. Plaintiffs’ statement clearly refers to the requests for information on persons arrested or detained, not to the request for policy directives and guidance, and makes no sense in the later context.

The government also supplies two new affidavits claiming that its search was adequate. But these affidavits, like the earlier ones, fall short. Once again, the FBI admits that it did not conduct any search and simply states that after consultation it was determined that the FBI had no responsive records. Supplemental Declaration of Scott A. Hodes, 3 (attached as Ex. 9 to Def. Reply). In addition, the Declaration of Melanie Ann Pustay simply recited that the Offices of the Attorney General and Deputy Attorney General performed record searches, but fails to describe how these record searches were actually performed. Declaration of Melanie Ann Pustay 6 (attached as Ex. 8 to Def. Reply). Tellingly, the government provides no explanation as to why it has not found these guidances or directives that its own documents and evidence indicate exist. Its affidavits are insufficient. See Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (if the sufficiency of the search is challenged, government must demonstrate "beyond material doubt that the search was reasonable") (internal quotation marks and footnotes omitted). Finally, the government has not met its burden to provide satisfactory evidence that its response does account for all the detainees. See Pl. Mem. at 40-41.

G. Sealed Criminal Cases

With respect to the nine sealed criminal cases, the government now states that these indictments and complaints have been sealed pursuant to Fed. R. Crim. P. 6(e)(4). Def. Reply at 29-30. But that rule permits an indictment or complaint to be sealed only "until the defendant is in custody or has been released pending trial." Concerned as to whether this rule was being violated, plaintiffs’ counsel contacted defendant’s counsel. Defendant’s counsel have stated that they will provide plaintiffs with a written clarification of the status of the nine criminal cases. Upon review of that clarification, plaintiffs may submit a brief supplemental memorandum regarding these cases.

II. PLAINTIFFS ARE ENTITLED TO THE REQUESTED INFORMATION UNDER THE COMMON LAW

The government never takes issue with the basic proposition that there is a federal common-law right of access to the documents at issue in this litigation. See Def. Reply. at 40-43. Rather, it identifies three obstacles to the enforcement of that right: sovereign immunity, preemption and balancing. As we show below, however, none of those obstacles defeats plaintiffs’ claim.

A. Sovereign Immunity Has Been Waived

The government invokes sovereign immunity (Def. Reply at 40), but in the very next paragraph recognizes that the Administrative Procedure Act, 5 U.S.C. § 702, is a waiver of sovereign immunity for actions against federal agencies seeking non-monetary relief. Id. at 41. See also Cobell v. Norton, 240 F.3d 1081, 1094 (D.C. Cir. 2001) ("section 702 of the Administrative Procedure Act waives federal officials’ sovereign immunity for actions ‘seeking relief other than money damages’ involving a federal official’s action or failure to act"). This case is, obviously, an action "seeking relief other than money damages" from federal officials, and sovereign immunity is therefore not a bar. The government asserts that this waiver of sovereign immunity is conditioned on there being "no other adequate remedy in a court" (Def. Reply at 41), but no such qualifying language appears in the statutory waiver, which is quite precise:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.5 U.S.C. § 702 (emphasis added). Thus, Congress has been quite clear that the relief sought here "shall not be . . . denied" on the ground of sovereign immunity. The government’s assertion is based on language in a different section of the APA, which provides that Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review [under the APA]. 5 U.S.C. § 704.

This is not the language of sovereign immunity, but a non-duplication provision; as the Supreme Court has explained, "Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action." Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). The bottom line is that in an action seeking non-monetary relief against a federal agency, sovereign immunity has been waived in either event: either by the APA or by some other waiver that provides an "adequate remedy in a court." Thus, this Circuit has squarely rejected a sovereign immunity defense to a lawsuit seeking to enforce a common-law right of access to public documents. Washington Legal Foundation v. United States Sentencing Commission, 89 F.3d 897, 901-02 (D.C. Cir. 1996).

B. FOIA Has Not Displaced the Common Law Right of Access.

The government’s second argument is that the enactment of FOIA displaced and preempted the common law right of access to public documents. Def. Reply at 41-43. The trouble with that argument is that no case has so held. To the contrary, this Court, this Circuit, and the Supreme Court have all continued to recognize, develop and apply the common-law right of access subsequent to the enactment of the FOIA in 1966. Indeed, it was 1974-eight years after the enactment of the FOIA-when Judge Gesell began the modern development of this right when he ruled that the media had a common-law right of access to "White House tapes" in the custody of the Clerk of Court. United States v. Mitchell, 386 F.Supp. 639, 641 (D.D.C. 1974).

The Court of Appeals agreed, 551 F.2d 1252 (D.C. Cir. 1976). It is true, as the government notes, that the Supreme Court denied access, Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), but not on the ground that FOIA had broadly displaced the common law. To the contrary, the Court acknowledged the vitality of the common-law right of access, which all parties conceded, see id. at 597. However, the Court recognized that the Presidential Recordings and Materials Preservation Act, Pub. L. 93-526, 88 Stat. 1695 (1974), constituted an "additional, unique element" in the case, inasmuch as "Congress [had] directed the Administrator of General Services to take custody of petitioner’s Presidential tapes and documents" and to screen and process and release them in a specified manner. 435 U.S. at 603 (emphasis added).

The government posits that FOIA should have the same effect on all common-law requests for access to public documents as the Presidential Recordings and Materials Preservation Act had on the common-law claim of access to the White House tapes. But the situations are hardly analogous. In the Nixon case, it was clear that Congress had focused with laser-like precision on the tape recordings at issue, and had enacted a statute providing exactly what should be done with them. Enforcing the common-law right of access to those tapes necessarily would have interfered with that specific congressional judgment. By contrast, there is no reason to believe that in enacting the Freedom of Information Act, the purpose of which was to increase public access to government information, Congress intended to eliminate existing legal rights of access. Indeed, this Circuit has made clear that FOIA "is not to be interpreted in any way as a restriction on government disclosure." Charles River Park A, Inc. v. Department of Housing and Urban Development, 519 F.2d 935, 941 (D.C. Cir. 1975). Consistent with that admonition, the courts have continued to consider common-law access claims as not being precluded by FOIA. See, e.g., Washington Legal Foundation v. United States Sentencing Commission, 89 F.3d 897 (D.C. Cir. 1996) (adjudicating common-law claim on the merits); Schwartz v. Department of Justice, 435 F.Supp. 1203 (D.D.C. 1977) (common law right applies to congressional documents), aff’d, 595 F.2d 888 (D.C. Cir. 1979) (table). This case should proceed the same way.

C. The Public Interest in Disclosure Outweighs Any Harm to the Government

The parties agree that if the documents sought are public records, as they surely are, then the court must "’proceed to balance the government’s interest in keeping the document secret against the public’s interest in disclosure.’" Washington Legal Foundation v. United States Sentencing Commission, supra, 89 F.3d at 902 (quoting Washington Legal Foundation v. United States Sentencing Commission, 17 F.3d 1446, 1451-52 (D.C. Cir. 1994)). See Def. Reply at 43. Plaintiffs have discussed above the reasons why there is a strong public interest-an interest specifically recognized by Congress in requiring public arrest books in the District of Columbia — in disclosure of the information at issue, and why the harms proffered by the government are speculative, exaggerated and unlikely. See supra pp. 4-10. Those same reasons apply here, and they are reinforced by the recent decisions of courts in Michigan and New Jersey rejecting the government’s efforts to keep secret this information. See supra pp. 1-3. For these reasons, the Court should conclude that the public interest in disclosure prevails, and order the information disclosed.

CONCLUSION

For the reasons outlined above, and in the Memorandum of Points and Authorities in Support of Plaintiffs’ Cross-Motion for Summary Judgment and Opposition to Defendant’s Motion for Summary Judgment, the court should deny defendant’s motion for summary judgment and grant plaintiffs’ cross-motion for summary judgment and order the information disclosed.

Respectfully submitted,

________________________________
Arthur B. Spitzer, D.C. Bar. No. 235960
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
tel. 202-457-0800
fax 202-452-1868

_________________________________
Kate Martin, D.C. Bar No. 949115
Marcia T. Maack, D.C. Bar. No. 467035
Center for National Security Studies
2130 H Street, N.W. #701
Washington, D.C. 20037
Tel: 202-994-7060
Fax: 202-994-7005

David L. Sobel, D.C. Bar No. 360418
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. #200
Washington, DC 20009
tel. 202-483-1140
fax 202-483-1248

Steven R. Shapiro
Lucas Guttentag
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
212-549-2500

Elliot M. Mincberg, D.C. Bar No. 941575
People For the American Way Foundation
2000 M Street N.W., Suite 400
Washington, D.C. 20036
tel. 202-467-4999
fax 202-293-2672

Counsel for Plaintiffs