The opinion of the court was delivered by: Kessler, District Judge.
Plaintiffs are the Center for National Security Studies, the
American Civil Liberties Union, and twenty-one other public
interest organizations committed to civil rights, human rights,
and civil liberties issues.*fn1 Defendant is the Department
of Justice ("DOJ").
On September 11, 2001 — truly a day of infamy in our national
history — this country was attacked by terrorists in New York
City and at the Pentagon across the river from Washington, D.C.
We will recover from the physical damage inflicted by those
attacks. The psychic damage suffered by the body politic of our
country may take far longer to heal.
Immediately after the terrible events of September 11, the
Government began its massive effort to investigate, identify and
apprehend those who were responsible and to protect the American
public against further attacks of this nature. As part of that
effort the Government arrested and jailed — or in the bloodless
language of the law "detained" — well over 1000 people in
connection with its investigation. Despite demands from members
of Congress, numerous civil liberties and human rights
organizations, and the media, the Government refused to make
public the number of people arrested, their names, their
lawyers, the reasons for their detention, and other information
relating to their where-abouts and circumstances.*fn2
Secret arrests are "a concept odious to a democratic society,"
Morrow v. District of Columbia, 417 F.2d 728, 741-742
(D.C.Cir. 1969), and profoundly antithetical to the bedrock
values that characterize a free and open one such as ours.
Plaintiffs in this case seek to vindicate that fundamental
principle by relying primarily on the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, as well as the First Amendment and
common law. The animating principle behind the Freedom of
Information Act is safeguarding the American public's right to
know what "their Government is up to." United States v.
Reporters Committee for Freedom of the Press, 489 U.S. 749,
773, 109 S.Ct. 1468 (1989) (internal citations omitted). In
enacting that statute, Congress recognized that access to
government records is critical to earning and keeping citizens'
faith in their public institutions and to ensuring that those
institutions operate within the bounds of the law.
Difficult times such as these have always tested our fidelity
to the core democratic values of openness, government
accountability, and the rule of law. The Court fully understands
and appreciates that the first priority of the executive branch
in a time of crisis is to ensure the physical security of its
citizens. By the same token, the first priority of the judicial
branch must be to ensure that our Government always operates
within the statutory and constitutional constraints which
distinguish a democracy from a dictatorship.
With these considerations in mind, the Court now turns to the
parties' motions. This matter is before the Court on Defendant's
Motion for Summary Judgment ("Def.'s Mot.") and Plaintiffs'
Cross-motion for Summary Judgment ("Pls.' Mot."). Upon
consideration of the motions, oppositions, replies, the Motions
Hearing held in this matter on May 29, 2002, the amicus brief
submitted by the Washington Legal Foundation, and the entire
record herein, and for the reasons stated below, the Court
grants in part and denies in part Defendant's Motion for
Judgment and grants in part and denies in part Plaintiffs'
Cross Motion for Summary Judgment.
Following the terrorist attacks of September 11, 2001, the
United States government launched a massive investigation into
the attacks as well as into "threats, conspiracies, and attempts
to perpetrate terrorist acts against [the] United States."
Declaration of James S. Reynolds ("Reynolds Decl.") ¶ 2
(Attached as Ex. 1 to Def.'s Mot.).
On October 25, 2001, Attorney General John Ashcroft announced
that the "antiterrorism offensive has arrested or detained
nearly 1,000 individuals as part of the September 11
investigation." Amended Compl. ¶ 28; Answer ¶ 28; Reynolds Decl.
At the time of that announcement, the Government refused to
reveal the names of those who were arrested or detained, as well
as the circumstances of their arrest and detention, including
dates of arrest or release, locations of arrest and detention,
and the nature of the charges filed.*fn3
A. Plaintiffs' FOIA Request
On October 29, 2001, Plaintiffs submitted three letters to
DOJ, sending one to the FBI, another to the Office of
Information Privacy ("OIP"), and the third to the Immigration
and Naturalization Service ("INS"), requesting information about
those arrested by the Government in connection with its
September 11 investigation. Specifically, they sought disclosure
of the following four categories of information:
1. Identities of each [detainee], the
circumstances of their detention or arrest, and any
charges brought against them. In particular, (1)
their names and citizenship status; (2) the
location where each individual was arrested or
detained initially and the location where they are
currently held; (3) the dates they were detained or
arrested, the dates any charges were filed, and the
dates they were released, if they have been
released; and (4) the nature of any criminal or
immigration charges filed against them or other
basis for detaining them, including material
witness warrants and the disposition of any such
charges or warrants.
2. The identities of any lawyers representing
any of these individuals, including their names and
3. The identities of any courts, which have
been requested to enter orders sealing any
proceeding in connection with any of these
individuals, any such orders that have been
entered, and the legal authorities that the
government has relied upon in seeking any such
4. All policy directives or guidance issued to
officials about making public statements or
disclosures about these individuals or about the
sealing of judicial or immigration proceedings.
Pls.' Mot., Ex. 10. Plaintiffs also requested expedited
processing of their FOIA request.
On November 1, 2001, OIP advised Plaintiffs that their request
for expedited processing had been granted on the ground that the
request involved a "matter of widespread and exceptional media
interest in which there exists possible questions about the
government's integrity which affect public confidence." Def.'s
Mot., Ex. 4, attachment B (citing 28 C.F.R. § 16.5(d)(1)(iv)
The INS responded on November 23, 2001, granting expedited
treatment of Plaintiffs' FOIA request and requesting that
Plaintiffs narrow the scope of their request. See Declaration
of Raymond Holmes ("Holmes Decl.") ¶ 7, attachment F. (attached
as Ex. 3 to Def.'s Mot.).
The FBI responded to Plaintiffs' FOIA request on November 1,
2001, indicating that it had reviewed Plaintiffs' request on an
expedited basis and that all "material responsive to
[plaintiffs'] request was being withheld pursuant to [Exemption
7(a)]" of FOIA. See Declaration of Scott A. Hodes ("Hodes
Decl.") ¶ 4 (attached as Ex. 2 to Def.'s Mot.). Plaintiffs
appealed, and on December 10, the FBI affirmed its denial under
both Exemptions 7(A) and 7(C), 5 U.S.C. § 552(b)(7)(A),(C).
Hodes Dec. ¶ 4
B. Information Disclosed by DOJ
The Government asserts that those it has arrested and detained
fall into one of three categories: (1) persons held on
immigration-related charges by INS; (2) persons charged with
federal crimes; and (3) persons held on material witness
warrants. DOJ has released the following information about each
of the three categories of detainees.
The Government has detained a total of 751 individuals on
immigration violations over the course of its investigation.
See Def.'s Response to the Court's Order of May 31, 2002. As
of June 13, 2002, the number of people still being held in INS
custody was 74.*fn4 Id.
For 718 of the 751 individuals detained, DOJ has revealed
their place of birth and citizenship status, as well as the
dates any immigration charges were filed, and the nature of
those charges. See Def.'s Mot., Ex. 6 ("INS Special Interest
List: Joint Terrorism Task Force Working Group"). The Government
has withheld the names of those detained, the dates and
locations of their arrest and detention, the dates of release
for those 677 who were released,*fn5 and the identities of
2. Federally Charged Detainees
A total of 129 people have been detained on federal criminal
charges since September 11, 2001. As of June 11, 2002, 73
individuals remained in detention on criminal charges. Def.'s
Response to the Court's Order of May 31, 2002 at 2. Only one of
these has been charged in connection with the September 11
attacks.*fn6 See Reynolds Decl. ¶ 27.
DOJ has released the names of all individuals federally
charged, with the exception of one defendant whose case is
sealed by court order. See Def.'s Response to this Court's
Order of May 31, 2002. Defendant also released the dates charges
were filed; the nature of the charges filed; the dates any
detainees were released; and their lawyers' identities. The
Government continues to withhold information concerning dates or
locations of arrest as well as the dates and locations of
3. Material Witness Detainees
With respect to those held on material witness warrants, DOJ
has withheld all information, including the number of
individuals detained on material witness warrants, their names,
citizenship status and place of birth, dates and location of
their arrest and detention, and their lawyers' identities.
4. Policy Directives and Guidance
DOJ has released only two documents in response to Plaintiffs'
request for "policy directives or guidance" concerning the
detainees. One is a heavily redacted document entitled "draft
talking points," which contains guidelines that DOJ personnel
must follow when making public statements about the detainees.
See Declaration of Melanie Ann Pustay ¶ 6 ("Pustay Decl.")
(attached as Ex. 8 to Def.'s Reply). The other is a memorandum
from the Chief Immigration Judge to all immigration judges and
court administrators reminding them that immigration hearings
are to be closed to the public. See Pls.' Mot., Ex. 57.
5. Total Numbers of Detainees
Finally, DOJ has withheld the total number of individuals
arrested and detained in connection with its September 11
Summary judgment will be granted when the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
In FOIA cases, the Court may grant summary judgment on the
basis of government affidavits or declarations that explain why
requested information falls within a claimed exemption, as long
as the affidavits or declarations are sufficiently detailed,
non-conclusory, and submitted in good faith, and as long as a
plaintiff has no significant basis for questioning their
reliability. Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir. 1978);
see also Coastal States Gas Corp. v. United States Dep't of
Energy, 617 F.2d 854, 861 (D.C.Cir. 1980). In determining
whether the government may properly withhold requested
information under any of FOIA's exemptions, the district court
conducts a de novo review of the government's decision.
5 U.S.C. § 552(a)(4)(B).
The fundamental purpose of FOIA is to lift the veil of
"secrecy in government." Reporters Committee, 489 U.S. at
772-773, 109 S.Ct. 1468 (internal citations omitted). To that
end, FOIA is designed to "`open up the workings of government
to public scrutiny'" through the disclosure of government
records. McGehee v. CIA, 697 F.2d 1095, 1108 (D.C.Cir. 1983)
(internal citation omitted). In order to accomplish that goal,
the Act mandates "full agency disclosure unless information is
exempted under clearly delineated statutory language."
Reporters Committee, 489 U.S. at ...