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Judicial Watch, Inc. v. U.S. Dept. of Justice

United States District Court, District of Columbia

October 12, 2012


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Michael Bekesha, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Judson Owen Littleton, U.S. Department of Justice, Washington, DC, for Defendant.


BERYL A. HOWELL, District Judge.

Plaintiff Judicial Watch, Inc. brings this action against the United States Department

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of Justice (" DOJ" ) under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., seeking injunctive relief. Pursuant to the FOIA, the plaintiff requested records from the defendant relating to the alleged criminal investigation and prosecutorial deliberations regarding a man named Omar Ahmad, who is a co-founder of an organization called the Council on American Islamic Relations (" CAIR" ). In response to the plaintiff's FOIA requests, the defendant refused to confirm or deny the existence of certain categories of potentially responsive records, and the issue before the Court is whether those responses were appropriate under the FOIA.


A. Holy Land Foundation Prosecution

On November 30, 2005, a federal grand jury charged an organization called Holy Land Foundation for Relief and Development (" HLF" ) and several of its executives with 42 criminal counts for their alleged material support to Harakat al-Muqawamah al-Islamiyya (" Hamas" )— a group that the United States government considers a terrorist organization. See Superseding Indictment, United States v. Holy Land Found. for Relief & Dev., No. 3:04-CR-240 (N.D.Tex. Nov. 30, 2005), ECF No. 233. In prosecuting the case, the United States submitted a " List of Unindicted Co-Conspirators and/or Joint Venturers," which contained the names of 246 individuals and organizations " ‘ for which [the Government] intended to prove were engaged in supporting Hamas.’ " Pl.'s Mem. P. & A. Opp'n to Def.'s Mot. Summ. J. & Supp. Pl.'s Cross-Mot. Summ. J. (" Pl.'s Opp'n" ) at 3, ECF No. 13 (quoting Decl. of Michael Bekesha (" Bekesha Decl." ) Ex. A at 5, ECF No. 13-1). The list was not originally filed under seal and was available to the public for some period of time before being placed under seal by the Texas district court. See Def.'s Response to Pl.'s Statement of Material Facts Not in Dispute (" Def.'s SMF Response" ) ¶ 3-4, ECF No. 18; Pl.'s Statement of Material Facts Not in Dispute (" Pl.'s SMF" ) ¶ 4, ECF No. 13.

While the pleadings and evidence from the HLF trial were sealed by the Texas court, the parties agree that Omar Ahmad's name appeared in some of the evidence that was introduced during the HLF trial. See Pl.'s SMF ¶ 5; Def.'s SMF Response ¶ 5. The plaintiff also contends that Ahmad's name appeared on the " List of Unindicted Co-Conspirators and/or Joint Venturers," though the defendant refuses to confirm or deny that fact.[1] See Pl.'s SMF ¶ 3; Def.'s SMF Response ¶ 3. Five of the defendants, including the HLF, were convicted on all counts in November 2008, and they appealed their convictions to the Fifth Circuit. See United States v. El-Mezain, 664 F.3d 467 (5th Cir.2011). In reviewing some of the evidence presented at trial, the Fifth Circuit summarized evidence that Ahmad, by virtue of his leadership role in an organization known as the Palestinian Committee, was affiliated with and perhaps helped to control the HLF. Id. at 530-31.[2] Despite the apparent existence of evidence connecting Ahmad to the

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HLF's illegal activities, the government has never formally pursued his prosecution. Pl.'s Opp'n at 5.

In April 2011, Patrick Poole, a journalist and counter-terrorism consultant, published a series of articles and blog posts concerning the Department of Justice's decision not to prosecute Ahmad. Decl. of Patrick S. Poole (" Poole Decl." ) ¶¶ 5-11, ECF No. 13-3. Poole states that he based the articles on his conversations with " high-ranking" DOJ officials who spoke to him on the condition of anonymity. Id. ¶¶ 12, 14. Poole also states that one of his anonymous sources allowed him to review a copy of a March 31, 2010 memorandum entitled " Declination of Prosecution of Omar Ahmad." Id. ¶ 13, 15.

On April 15, 2011, Rep. Peter King, the Chairman of the House Committee on Homeland Security, wrote an open letter to Attorney General Eric Holder regarding the alleged decision not to prosecute Ahmad. See Decl. of Vanessa R. Brinkmann (" Brinkmann Decl." ) Ex. D, ECF No. 11-1. In the letter, Rep. King asserted that he had been " reliably informed" that " high-ranking officials at Department of Justice" had " usurped" the decision not to file charges against Ahmad over the " vehement and stated objections" of individuals within the FBI and the U.S. Attorney's Office for the Northern District of Texas. Id. at 3.

Several days after Rep. King sent his letter, Attorney General Holder held a press conference in Washington, D.C., during which a reporter asked:

Representative Peter King wrote you a letter earlier this month asking why CAIR and other unindicted co-conspirators in the Holy Land Foundation case were not prosecuted and who ultimately approved the decision. He asked for you to respond yesterday. Who was— why weren't they prosecuted and who was ultimately responsible for making that decision not to prosecute?

Pl.'s SMF ¶ 7. Attorney General Holder replied:

Well, here's a— people don't have that quite right. I mean the decision wasn't necessarily about CAIR as it was about a guy, a person, an individual. But that being the case, the decision ... which was reached in this administration, the same that was reached in the Bush Administration, a determination was made that for a variety of reasons, looking at the facts and the law, prosecution would not be appropriate. A review was done of that decision in this Administration and the conclusion was reached that [the] earlier decision was an appropriate one ... [The final decision] was done by career folks looking at the evidence. And you know, as ...

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