CENTER FOR NATIONAL SECURITY STUDIES, )
et al., )
Plaintiffs, )
)
v. )
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
______________________________________)

Judge Kessler

Civil Action No. 01-2500

PLAINTIFFS' OPPOSITION TO
DEFENDANT'S MOTION FOR STAY PENDING APPEAL

On August 2, 2002, the Court ordered the government to "disclose within fifteen days the names of those it has arrested and detained in connection with its September 11, 2001 terrorist investigation." Order at 1 (emphasis in original). Recognizing the urgency of disclosure, the Court noted that "[s]ecret arrests are 'a concept odious to a democratic society,' and profoundly antithetical to the bedrock values that characterize a free and open one such as ours," and that "[p]laintiffs in this case seek to vindicate that fundamental principle." Memorandum Opinion ("Mem.") at 3 (citation omitted).
Giving short shrift to the substantial harm that plaintiffs (and the public) will suffer as a result of delayed disclosure, and brushing aside the demonstrated weakness of its position on the merits, the government seeks an indefinite stay of the Court's order pending appeal. Plaintiffs oppose the motion.

ARGUMENT

THE COURT'S ORDER SHOULD NOT BE STAYED

A. Further Delay in Disclosure Will Cause Irreparable Harm to Plaintiffs and the Public

As the Court has recognized, the information at issue in this case involves matters of the utmost public importance. "[T]he 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." Mem. at 11.

Such secrecy hampers the ability of plaintiffs and the public to learn, in a timely manner, of possible ongoing abuses of the government's detention power, such as denial of the right to counsel and consular notification; discriminatory and arbitrary detention; failure to file charges for prolonged periods of detention; and mistreatment of detainees in custody. See id. at 25-26 (footnote and citations omitted). As the Court has found, "[u]nquestionably, the public's interest in learning the identities of those arrested and detained is essential to verifying whether the Government is operating within the bounds of the law." Id. at 26.
Indeed, the government, in granting plaintiffs' request for expedited processing of their FOIA request, conceded months ago that the information at issue here concerns "(a) matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." Exhibit B to Declaration of Melanie Ann Pustay (attached to Defendant's Motion for Summary Judgment as Exhibit 4).

Congress enacted the expedited processing provision in 1996, requiring agencies to grant expedition in cases, such as this, where "the person requesting the records demonstrates a compelling need." See Electronic Freedom of Information Act Amendments of 1996, Pub. L. 104-231, § 8, 110 Stat. 3048, 3051-52; 5 U.S.C. § 552(a)(6)(E)(i). A "compelling need" exists, inter alia, where there is an "urgency to inform the public concerning actual or alleged Federal Government activity." Id., § 552(a)(6)(E)(v).

The standard of "urgency to inform" requires that the information requested should pertain to a matter of a current exigency to the American public and that a reasonable person might conclude that the consequences of delaying a response to a FOIA request would compromise a significant recognized interest. H.R. REP. NO. 104-795, at 26 (1996), quoted in Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 2001).

As the D.C. Circuit has noted, "the expedited access procedure is intended to be limited to circumstances [such as those present here] in which a delay in obtaining information can reasonably be foreseen to cause a significant adverse consequence to a recognized interest." Id., 254 F.3d at 311 (citation omitted). Congress thus established the general principle that, in some small number of cases, a delay in disclosure will result in a cognizable harm. As the government conceded when it granted plaintiffs' request for expedited processing, and as the Court found when it ordered disclosure, the continued withholding of the information at issue here would cause substantial harm both to plaintiffs and the public interest. See Mem. at 3 (plaintiffs "seek to vindicate [a] fundamental principle"); 26 ("the public's interest in learning the identities of those arrested and detained is essential").

B. There Is No Per Se Rule Requiring A Stay

In support of its motion, the government asserts that "courts routinely grant stays in FOIA cases," Memorandum in Support of Defendant's Motion for Stay Pending Appeal ("Def. Mem.") at 3. Notwithstanding the government's suggestion, there is no per se rule mandating stays in FOIA cases. First, none of the cases defendant cites involved the disclosure of information, such as that at issue here, that the government itself recognized as concerning a "matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." Nor had the district court found disclosure to be "essential."

Further, the government ignores those cases in which the courts have denied requests for stays of disclosure pending appeal. See, e.g., NLRB v. Getman, 404 U.S. 1204 (1971) (Black, J., in chambers) (denying stay in FOIA case where government had been ordered to disclose list of names); Sears Roebuck and Co. v. General Services Administration, 509 F.2d 527 (D.C. Cir. 1974) (dissolving temporary stay; failure to show likelihood of success on the merits); Jos. Schlitz Brewing Co. v. Securities and Exchange Comm'n, No. CA 81-1491, 1982 U.S. Dist. LEXIS 13670, at *4-5 (D.D.C. March 16, 1982) (denying stay; "a party seeking release is harmed when the agency fails to release the documents and of course the public interest favors disclosure").

The relevant caselaw belies the government's suggestion that an inherent "harm" will result from denial of a stay pending appeal in a FOIA case. The other, case-specific "harms" the government asserts, Def. Mem. at 3-7, have already been considered and rejected by the Court and underscore defendant's failure to show that it is likely to prevail on the merits.

C. There Is No Substantial Likelihood That Defendant Will Prevail On The Merits

The bulk of the government's argument in support of a stay is a stale reiteration of speculative "harms" that allegedly would result from disclosure. After extensive briefing, review of numerous declarations from high-ranking officials, and oral argument, the Court rejected those claims. The Court found the government's assertions of harm to be, inter alia, "unpersuasive for several reasons," Mem. at 15; noted that "the Government's rationale is contradicted by its own extensive disclosures," id. at 16; and held that "the Government has not met its burden of establishing a 'rational link' between the harms alleged and disclosure . . . [and has] utterly fail[ed] to demonstrate [such a link]," id. at 17. The Court characterized the government's assertions of harm as "flawed legally and factually," id. at 18; and "fundamentally wrong as a matter of law," id. at 28.

It is hard to imagine a weaker foundation upon which to assert a likelihood of success on the merits, so the government seeks to minimize the significance of the merits. Defendant cites authority for the proposition that where a stay "will cause relatively slight harm to appellee, appellants need not show an absolute probability of success." Def. Mem. at 7 (citation omitted). Here, however, as plaintiffs have shown, the requested stay would cause substantial harm to an interest that Congress and the courts have expressly recognized. Defendant's concededly weak position on the merits does not outweigh the resulting harm to plaintiffs and the public interest.

CONCLUSION

As the Court has recognized, disclosure of "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," Mem. at 3, and, in particular, disclosure of the information at issue in this case is "essential," id. at 26. The government has failed to establish its entitlement to an indefinite delay in the release of that information and, accordingly, its motion for a stay should be denied.

Respectfully submitted,

____________________________________
David L. Sobel
D.C. Bar No. 360418
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W. Suite 200
Washington, DC 20009
Tel. 202-483-1140; Fax 202-483-1248

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

Kate Martin
D.C. Bar No. 949115
Center for National Security Studies
1120 19th St., N.W. 8th floor
Washington, D.C. 20036
Tel. 202-994-7060; Fax 202-994-7005

Steven R. Shapiro
Lucas Guttentag
American Civil Liberties Union
Foundation
125 Broad Street
New York, N.Y. 10004
Tel. 212-549-2500; Fax 212-549-2651

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

August 13, 2002

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Plaintiffs' Opposition to Defendant's Motion for Stay Pending Appeal was served by first-class mail, fax and e-mail upon:

Anne L. Weismann, Esq.
Lisa A. Olson, Esq.
Carol Federighi, Esq.
United States Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, DC 20530

fax: 202-616-8470

this 13th day of August, 2002.

_________________________________
David L. Sobel