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August 2, 2002


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 Summary 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. ¶¶ 3-4.

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 addresses.
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 secrecy orders.
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) (2001)).

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.

1. Immigration 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 their lawyers.

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 detention.

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 investigation.*fn7


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).


As of this moment, the public does not know how many persons the Government has arrested and detained as part of its September 11 investigation; nor does it know who most of them are, where they are, whether they are represented by counsel, and if so, who their counsel are. Plaintiffs rely on FOIA, as well as the First Amendment and common law, to obtain this information.

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 ...

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