IN THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR NATIONAL SECURITY STUDIES, )
et al., )
)
Plaintiffs, )
) Civil Action
v. ) No. 01-2500
)
DEPARTMENT OF JUSTICE, ) Judge Kessler
)
Defendant. )
____________________________________________ )
PLAINTIFFS' STATEMENT OF MATERIAL FACTS
1. On September 11, 2001, the United States
suffered terrorist attacks in New York and Washington resulting in more than
3000 deaths. Hundreds of individuals have been "arrested" or "detained"
in the ensuing investigation. In the first few days after the attacks, some
75 individuals were picked up and detained. Attorney General Ashcroft, Press
Briefing, Sept. 18, 2001 (attached as Ex. 1). As of September 28, the Attorney
General announced that 480 individuals had been detained (Attorney General Ashcroft,
Press Briefing, Sept. 28, 2001 (attached as Ex. 2), ten days later another 135
had been picked up (Attorney General Ashcroft, News Briefing, Oct. 18, 2001
(attached as Ex. 3), and in a single week in October, some 150 individuals were
arrested, (see Christopher Drew, Jo Thomas, and Don Van Natta, Jr., Hundreds
of Arrests, but Promising Leads Unravel, N.Y.Times, Oct. 21, 2001, at B1 (attached
as Ex. 4).
2. On October 25, the Attorney General announced
that "[t]o date, our anti-terrorism offensive has arrested or detained
nearly 1,000 individuals as part of the September 11 terrorism investigation."
Amended Complaint 28 (admitted in defendant's Answer). As of November 5, the
government announced that 1,182 people had been detained. Dan Eggen and Susan
Schmidt, Count of Released Detainees Is Hard to Pin Down, Wash. Post, Nov. 6,
2001 (attached as Ex. 7).
3. Prior to October 29, the Justice Department
refused to provide the names of the individuals who had been arrested or the
charges against them. Attorney General Ashcroft and FBI Director Mueller, News
Conference, Oct. 16, 2001 (attached as Ex. 8). It provided no information about
how many individuals had been released.
4. As the number of secret detentions increased,
press reports began to appear raising serious questions as to whether the rights
of the detainees were being violated. William Glaberson, Detainees Accounts
Are At Odds With Official Reports of an Orderly Investigation, N.Y. Times, Sept.
24, 2001, at B2 (attached as Ex. 40); Lois Romano and David S. Fallis, Questions
Swirl Around Men Held in Terror Probe, Wash. Post, Oct. 15, 2001, at A1 (attached
as Ex. 34); Richard A. Serrano, Many Held in Terror Probe Report Rights Being
Abused, L.A. Times, Oct. 15, 2001, at A1 (attached as Ex. 35); Judy Peres, Concerns
Rise of Civil Rights Being Ignored, Chic. Trib., Oct. 16, 2001 (attached as
Ex. 44); Alison Leigh Cowen, Detainees' Lawyers Complain of Unfair Treatment,
N.Y. Times, Oct. 21, 2001, at B1 (attached as Ex. 39).
5. On October 29, nearly forty civil liberties, human rights, legal, and public access organizations demanded release of the detainees' names and the charges against them under the Freedom of Information Act. Separate requests were sent to the Department of Justice, the FBI and the Immigration and Naturalization Service seeking the following information on those individuals "arrested or detained" in the investigation into the attacks of September 11:
a. (1) their names and citizenship status; (2) the location where each individual was arrested or detained initially and the location where they are currently being 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 such charges or warrants.
b. The identity of any lawyers representing any of these individuals, including their names and addresses.
c. 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 which have been entered, and the legal authorities that the government has relied upon in seeking any such secrecy orders.
d. All policy directives or guidance issued to officials about making public statements or disclosures about these individuals or about the sealing of judicial immigration proceedings.
See, e.g., Letter to Melanie Ann Pustay,
Office of Information and Privacy, Department of Justice, Oct. 29, 2001 (attached
as Ex. 10).
6. There was widespread media coverage of
the filing of the FOIA requests, and several newspapers wrote editorials urging
the government to release the names of the detainees. Why Not Disclose?, Wash.
Post, Oct. 31, 2001, at A26 (attached as Ex. 11); Arrests, Secrecy, Detroit
Free Press, Nov. 2, 2001 (attached as Ex. 12); Secrecy, Security, And Justice,
St. Louis Post-Dispatch, Nov. 4, 2001, at B2 (attached as Ex. 13); Fully Satisfied
How?, Wash. Post, Nov. 7, 2001, at A28 (attached as Ex. 14); Disappearing in
America, N.Y. Times, Nov. 10, 2001, at A22 (attached as Ex. 15); Government
Too Secretive About Jailing Immigrants, Atlanta Journal-Constitution, Nov. 12,
2001, at A11 (attached as Ex. 16).
7. On October 31, 2001, seven members of
Congress including Senator Leahy, chair of the Judiciary Committee, Senator
Feingold, chair of the Subcommittee on the Constitution, Senator Kennedy, chair
of the Subcommittee on Immigration, and Rep. Conyers, ranking member of the
House Judiciary Committee, wrote Attorney General Ashcroft similarly asking
for the identities of and charges against the detained individuals. See Letter
to Attorney General Ashcroft, Oct. 31, 2001 (attached as Ex. 17). On November
7, 2001, Senator Leahy sent a follow-up letter stating that "[r]ecent reports
have prompted additional questions regarding the Justice Department's handling
of the ongoing investigation." Letter from Senator Patrick Leahy to Attorney
General Ashcroft, Nov. 7, 2001 (attached as Ex. 18).
8. On November 8, the Department of Justice
announced that it would no longer provide a running total of all individuals
detained in connection with the investigation, but only of those charged with
federal crimes or immigration violations, and that it would only release information
on the number of detainees currently in custody, not the total number detained
in the course of the investigation. Amy Goldstein and Dan Eggen, U.S. to Stop
Issuing Detention Tallies, Wash. Post, Nov. 9, 2001 (attached as Ex. 19).
9. The next day, Senator Leahy again wrote
the Attorney General reiterating his concerns and stating: "no one has
explained to me how national security compels withholding from congress and
the public-with appropriate protections, if warranted-basic information regarding
people who have been detained, arrested and imprisoned." Letter from Senator
Patrick Leahy to Attorney General Ashcroft, Nov. 9, 2001 (attached as Ex. 20).
As chair of the Senate Judiciary Committee, he informed the Attorney General
that he expected the Committee would be holding prompt hearings on these matters.
Id.
10. On November 16, 2001, the Assistant
Attorney General replied to the October 31 request from Members of Congress
and provided limited information about some of the detainees. The Justice Department
sent Congress copies of some federal criminal complaints and INS charging documents,
but deleted the names of individuals from the INS documents. It also provided
one document in response to the request for policy guidance. Letter from Daniel
J. Bryant to Sen. Feingold, Nov. 16, 2001 (attached as Ex. 21).
11. On November 27, 2001, the day before
the Judiciary Committee began its oversight hearings on these issues, the Attorney
General held a press conference and released a list of 93 individuals who had
been charged under federal criminal laws and a documents entitled "INS
Custody List" which contained 548 cases with no names provided. Attorney
General Ashcroft, Press Briefing, Nov. 27, 2001 (attached as Ex. 22).
12. The Justice Department agreed to expedite
plaintiffs' FOI requests because the requests involved "[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 of November 27, plaintiffs had received no information in response
to their requests. On December 5, plaintiffs filed this action.
13. On December 19, the Department of Justice
announced that there were 460 individuals still in custody on immigration charges.
Brooke A. Masters and Patricia Davis, Moussaoui Has Va. Hearing; Terror Suspect
Ordered Held; Alexandria Jail Tightens Security, Wash. Post, Dec, 20, 2001,
at A32 (attached as Ex. 23). On February 15, 2002, the Department of Justice
stated that 327 individuals were still in custody on immigration charges. Steve
Fainaru, Detainee Consented to Search, Wash. Post, Feb. 16, 2002, at A17 (attached
as Ex. 24).
14. In response to this lawsuit, the government
has provided the names of only 108 individuals, all of whom have been charged
with federal criminal offenses. Def. Amended Ex. 5.
15. Defendant has refused to provide the
names of any individuals detained for immigration violations, on material witness
warrants, or on state or local charges, or the names of any attorneys representing
any of these individuals. Instead, it released a document showing, for 718 unnamed
individuals, only the date of arrest, place of birth, code citation of INS charge
and date of service of charging documents. Def. Ex. 6, "INS Special Interest
List: Joint Terrorism Task Force Working Group."
16. The government has refused to disclose
even the number of individuals detained on material witness warrants, the identity
of the judicial districts entering sealing orders in those cases, or the sealing
orders themselves. It has withheld all information concerning an additional
nine criminal cases, including even the identity of the judicial districts that
allegedly entered sealing orders in those cases and the sealing orders themselves.
It has not addressed plaintiffs' specific request for documents containing the
legal authorities invoked by the government in seeking such sealing orders.
See Reynolds Declaration. It has provided no information regarding individuals
detained on state and local charges, who were included in the Justice Department's
announcements of the number of detainees prior to November 8, 2001. See Reynolds
Declaration. Its filings only account for a maximum of 835 individuals. See
Def Ex. 5, 108 federally charged detainees, Supp. Dec. of James Reynolds, nine
federally charged detainees under seal and Def. Ex. 6, 718 INS detainees. More
than 150 additional people have been detained since November 5, see Def. Ex
6, List of INS Detainees.
17. The government has released only one
draft of a document in response to plaintiffs' request for directives issued
about making public statements and only one document in response to the request
for directives or guidance about the sealing of judicial or immigration proceedings.
It provided no Vaughn affidavit describing any additional documents covered
by these requests. See Declarations filed in support of Defendant's Motion for
Summary Judgment.
18. Virtually all of the detainees appear
to be either Arabs or Muslims. All but 12 of the publicly released names of
the criminal defendants are Arabic names. See Nos. 32, 35-37, 51-53, 56m, 63,
64, 90, and 106 on Def. Amended Ex. 5.
19. Less than five of the 718 immigration
charges detailed by the government relate to terrorism. See Def. Ex. 6.
20. Only one individual has been criminally
charged in the attacks, and he was detained before September 11 (Reynolds Decl
27). Attorney General Ashcroft had announced at one point that the government
had apprehended suspects who were believed to have had advance knowledge of
the September 11 attacks and outlined evidence against them, see Philip Shenon
and Don Van Natta, U.S. Says 3 Detainees May Be Tied to Hijackings, N.Y. Times,
Nov. 1, 2001, at A1 (attached as Ex. 31). The government states that "many
[of the detainees] have [been] or may be cleared of any wrongdoing." Def.
Mem. at 21. The government's affidavits fail to allege that any of the detained
individuals are involved in terrorism. See Reynolds Declaration and Supplemental
Declaration.
21. For almost six months, there have been
extensive, varied and credible reports of government misconduct and rights violations
in connection with these secret arrests and detentions as set forth below.
22. There have been credible reports about
the severe obstacles that the government has placed in the way of those arrested
or detained seeking to contact legal counsel. For example, Gerald H. Goldstein
testified before the Senate Judiciary Committee that his client, Dr. Al-Badr
Al Hazmi, was arrested on September 12 and held incommunicado from his lawyers
until September 19, despite both his and his lawyers' repeated requests for
access to each other, and that during that time, he was repeatedly interrogated
despite his requests to speak with counsel. Id. at 3. Testimony of Gerald H.
Goldstein, Esq., before the Committee on the Judiciary of the United States
Senate, Dec. 4, 2001, pp. 1-3 (Goldstein Test.) (attached as Ex. 56).
23. Likewise, Michael Boyle testified before
the same committee that Tarek Mohamed Fayed was arrested on September 13 and
held incommunicado from his lawyer for more than a month. Testimony of Michael
Boyle, Esq. before the Committee on the Judiciary of the United States Senate,
Dec. 4, 2001, pp. 4-5 ("Boyle Test.") (attached as Ex. 32). Mr. Boyle
further testified that a group of Israelis arrested on October 31, 2001 were
told by federal law enforcement officials that "things would be more 'complicated'
and their detention would be 'longer' if counsel was retained in their defense."
Id. at 3.
24. Numerous press accounts report instances
of individuals being denied counsel. On October 15, 2001, a story appeared in
the The Washington Post reporting that "an unknown number of men with Middle
Eastern names are being held in solitary confinement" in Manhattan's Metropolitan
Correctional Center with "limited access to their lawyers." Lois Romano
& David S. Fallis, Questions Swirl Around Men Held In Terror Probe, Wash.
Post, October 15, 2001, at A1 (attached as Ex. 34). The article stated that
"one federal law enforcement official involved in the investigation"
said that some material witnesses "are being detained based on circumstantial
evidence and held for a week or longer without legal representation or permission
to contact family members." Id.
25. On November 1, 2001, the Wall Street
Journal also reported that a number of people detained on immigration violations
were being held in solitary confinement in the Metropolitan Detention Center.
Laurie P. Cohen and Jess Bravin, Denied Access to Attorneys: Some Detainees
Are Jailed Without Charges on INS Offenses, Wall St. J., Nov. 1, 2001, at A8
(attached as Ex. 37). That report stated that according to Janet Sabel of New
York's Legal Aid Society, these individuals "are being held in isolation,
treated as security risks and interviewed by the FBI with almost no opportunity
to first get counsel." Id. Ms. Sabel further stated that "her clients
have been permitted only 'one phone call a week' to a lawyer and if the line
is busy, they must wait another week. It has taken many of them several weeks
to contact Legal Aid." Id.
26. On December 20, 2001, The New York Times
reported that Shakir Ali Baloch, a Canadian citizen of Pakistani origin being
detained by federal authorities for immigration violations, requested but was
denied access to legal counsel. Barbara Crossette, Diplomats Protest Lack of
Information, N.Y. Times, Dec. 20, 2001, at B5 (attached as Ex. 36). On January
18, 2002, the New York Times reported that Abdallah Higazy was released after
31 days in detention when the government admitted that it had no evidence linking
him to terrorism. Jane Fritsch, Grateful Egyptian is Freed as U.S. Terror Case
Fizzles, N.Y. Times, Jan. 18, 2002, at A11 (attached as Ex. 38). He told the
New York Times that during most of that time "he had not been allowed to
speak to anyone or use the telephone," and although he had retained counsel,
his attorney was excluded from his interrogation by FBI agents. Id.
27. On October 21, 2001, The New York Times
reported that Michael J. Wildes, an immigration lawyer, had been consulted on
six cases of individuals detained on immigration violations, but was blocked
from trying to find hearing dates on these individuals. Alison Leigh Cowan,
Detainees' Lawyers Complain of Unfair Treatment, N.Y. Times, Oct. 21, 2001,
at B1 (attached as Ex. 39). According to Mr. Wildes, he was told by the court
administrator that "they were under instructions to neither confirm nor
deny that any of these individuals are in the court system." Id. On November
19, 2001, ABC News reported that Martin Stolar, the attorney for Egyptian Ahmed
Abou El-Khier, had also been blocked from finding out the deportation hearing
date on his client. Josh Gerstein, Cases Closed: Information on Immigration
Hearings, Records Restricted, ABCNews.com, Nov.19, 2001 (attached as Ex. 38).
According to Mr. Stolar, he called the INS for five straight days to find out
when his client's deportation hearing would be held. On the fifth day, he was
told by an INS official that the hearing had been held already and that Mr.
El-Khier had waived his right to counsel and agreed to voluntary deportation.
Id.
28. There have been reports about detainees
being refused or hindered in exercising their legal right to contact consular
officials from their country of citizenship, and of consular officials not being
informed that their nationals have been detained. A story in The New York Times
reported that "[i]n protests to the State Department, diplomats in New
York are accusing the authorities of violating international conventions governing
access to detainees." Crossette, Diplomats Protest Lack of Information,
at B5. For example, according to this news story, the Canadian government recently
sent a formal diplomatic note to the U.S. State Department protesting the treatment
of Mr. Baloch whose detention in federal custody was not disclosed for nearly
three months, despite inquiries by the Canadian authorities. Id. The report
stated that Mr. Baloch "told consular officials that he had been turned
down when he asked for . . . consular help." Id. This same article quoted
the Pakistani vice consul in New York as reporting that many of his detained
citizens were told that if they sought to contact their consulate "their
cases would be delayed." Id.
29. There are also reports about detainees
being abused or treated improperly while in federal custody. For example, Osama
Awadallah, a Jordanian citizen, has alleged, inter alia, that he was forced
to strip naked in front of a female guard (United States v. Awadallah, 2002
U.S. Dist. LEXIS 1430, No. 01-CR-1026, at *16-17 (S.D.N.Y. Jan. 31, 2002), he
was placed in a cell so cold his body turned blue (id. at 17), an officer twisted
his arm, forced him to bow, and pushed his face to the floor (id. at 17), a
guard caused his hand to bleed by pushing him into a door and a wall while he
was handcuffed (id.at 18), a guard kicked his leg shackles and pulled him by
the hair to force him to face an American flag (id.), and marshals made his
left foot bleed by kicking it (id. at 13). Mr. Awadallah has also alleged that
for the first five days of his incarceration he was served food that did not
comport with his Muslim dietary restrictions, he was not given toilet paper
or soap for two days, and for three to four days he was not allowed to shower
(id. at 14).
30. News reports in the Washington Post
stated that Tony Oulai was beaten by guards and handcuffed and shackled during
4 1/2 hours of questioning by the FBI. Amy Goldstein, I Want To Go Home: Detainee
Tony Oulai Awaits End of 4-Month Legal Limbo, Wash. Post, Jan. 26, 2002, at
A1 (attached as Ex. 41). An article in the Los Angeles Times reported that Mohammed
Maddy alleged that guards at the Metropolitan Detention Center assaulted him,
causing bruising on his arm. Richard A. Serrano, Many Held in Terror Probe Report
Being Abused, L.A. Times, Oct. 15, 2001, at A1(attached as Ex. 35). That same
article reported that a Pakistani student being held in a Mississippi jail said
that he was stripped and beaten in his cell by inmates while jail guards did
nothing, that the Israeli consulate is looking into allegations by five Israelis
that they were blindfolded, handcuffed in their cells and forced to take polygraph
tests, and that a Saudi Arabian man detained in Texas "was deprived of
a mattress, a blanket, a drinking cup and a clock to let him know when to recite
his Muslim prayers." Id.
31. In his testimony before the Senate Judiciary
Committee, Michael Boyle stated that "[t]wo . . . female detainees were
subjected to a degrading and humiliating 'pat down' search by a male INS officer
as a prerequisite to using the restroom." Boyle Test. at 3. In addition,
Mr. Boyle testified that guards at the Metropolitan Detention Center ("MDC")
in New York, where Tarek Mohamed Fayad was being held, "would frequently
taunt him by calling him a terrorist" and "[a]t night, they woke him
every half an hour" (id.), and that Mr. Fayad was being held in solitary
confinement, having to remain in his cell 24 hours a day. Id. Mr. Boyle testified
that although Mr. Fayad was moved to the MDC on September 20, it was not until
the end of October that he was allowed to go outside, at 7 am, for one hour.
Ibid
32. In his testimony before the Senate Judiciary
Committee, Ali Al-Maqtari recounted how he was held in prison for two months
while federal law enforcement authorities interrogated and threatened him. Testimony
of Ali Al-Maqtari before the Committee on the Judiciary of the United States
Senate, December 4, 2001 (attached as Ex. 42). According to Mr. Al-Maqtari,
he was held in a segregated unit with prisoners who had been convicted of serious
crimes and he was threatened and taunted by fellow inmates after the guard told
them he was a terrorist. Id. at 4.
33. According to an article in the New York
Times, Pakistani detainees have said "that they were left in the cold without
blankets for 24 hours after being picked up, apparently to weaken their resistance."
Crossette, Diplomats Protest Lack of Information, at B5. The article reported
that the vice consul for Pakistan, these detainees have been housed with convicted
criminals "and are beaten or live in constant fear of physical assaults."
Id. Likewise, an article in the Los Angeles Times stated that detainees have
complained that "they are held in solitary confinement, in chains or wrist
irons, and are not receiving such basic amenities as blankets." Richard
A. Serrano, Isolation, Secrecy Veil Most Jailed in Roundup, L.A. Times, Nov.
4, 2001, at 1(attached as Ex. 43). Another news article indicated that a detainee
had "abrasions on his wrists and ankles from being constantly shackled."
Kareem Fahim, INS Detainee Among Longest-Held Makes Plea For Release, Village
Voice, Mar. 6-12, 2002 (attached as Ex. 26). News reports also stated that Yazeed
Al-Salmi of Yemen, who was questioned as a material witness and then released,
"said he was confined to a dirty, high security cell in New York and deprived
of a shower and toothbrush for nine days." Judy Peres, Concerns rise of
civil rights being ignored, Chic. Trib., Oct. 16, 2001, at 8 (attached as Ex.
44).
34. There are also reports that the government
is misusing the material witness authority. For example, news stories have reported
that Tarek Abdelhamed Albasti-a U.S. citizen of Egyptian origin, with an American
wife, a 2-year old daughter and a father who is a former foreign service officer-and
eight Egyptian men, some of whom worked for him, were arrested on material witness
warrants and held for a week, without ever testifying before a grand jury. Amy
Goldstein, A Deliberate Strategy of Disruption: Massive, Secret Detention Effort
Aimed Mainly At Preventing More Terror, Wash. Post, Nov. 4, 2001, at A1 (attached
as Ex. 29); Indiana men ordered to testify return to Evansville, Associated
Press, October 25, 2001 (attached as Ex. 45). According to Mr. Albasti, he was
never even questioned by investigators while in custody. Evansville Man Says
He Was Questioned About Flying Lessons, Assoc. Press, Oct. 20, 2001 (attached
as Ex. 46). The New York Times reported that a law enforcement official said
that "[f]ederal authorities had learned that one of the men had recently
taken flying lessons and that they lived together in Indiana and sent money
home to Egypt. Van Natta, Hundreds of Arrests, but Promising Leads Unravel,
at B1; see also reports regarding the case of Tony Oulai in Goldstein, I Want
To Go Home: Detainee Tony Oulai Awaits End of 4-Month Legal Limbo, at A1; Amy
Goldstein, No Evidence in Pilot's Case, Wash. Post, Feb. 2, 2002, at A20 (attached
as Ex. 47); and Amy Goldstein, No Longer Material Witness, West African Still
Detained, Wash. Post, Feb. 15, 2002, at A17 (attached as Ex. 48). Serious questions
have also been raised in the case of Osama Awadallah. In the opinion and order
granting Mr. Awadallah's request for a suppression hearing, the district court
stated that although Mr. Awadallah was detained for twenty days as a material
witness, there was "no indication that the government attempted to take
Awadallah's deposition or offered to explain why it would not have been feasible
- even though Awadallah's counsel made the offer to have Awadallah deposed."
Awadallah, 2002 U.S. Dist. LEXIS 1430, at *96.
35. There are reports of locking up men
of Middle Eastern origin, which raise questions of unconstitutional imprisonment
and denial of bail. For example, The New York Times reported that a father and
son, both U.S. citizens of Palestinian origin with Arabic names, were arrested
as they returned from a business trip in Mexico because their passports looked
suspicious. The article reported that the father was released after ten days
and sent home wearing a leg monitor, but the son spent two more months in jail
until a federal judge determined that the only thing wrong with his passport
was that the plastic covering had split, Tamar Lewin, Cleared After Terror Sweep,
Trying to Get His Life Back, N.Y. Times, Dec. 28, 2001, at A1 (attached as Ex.
49)
36. News stories have reported that individuals
are being denied bail, sometimes for the most petty offenses, at the insistence
of the government, when there is no credible evidence connecting them with the
September 11 attacks or terrorist organizations involved in the attacks. For
example, news stories have reported that the government is producing the same
form affidavit in multiple cases to persuade judges to deny bail to those charged
with immigration violations. See, e.g., Goldstein, A Deliberate Strategy of
Disruption, at A1. That affidavit, signed by Michael E. Rolince, chief of the
FBI counterterrorism division's international terrorism section ("Rolince
Aff."), recounts the terrible events of September 11 and then goes on to
state that it "has been unable to rule out the possibility that [the detainee]
is somehow linked to or possesses knowledge of, the terrorist attacks on the
World Trade Center and the Pentagon." Rolince Aff. 13 (attached as Ex.
50). The FBI affidavit contains no facts about the particular individual evidencing
some connection to terrorism, or some other reason why he might be a danger
to the community, it simply states that it wants to make further inquiries.
See Rolince Aff. According to news reports, that affidavit was used to deny
bail to Mohammed Mubeen, a 28-year old Pakistani gas station attendant, who
was arrested on immigration charges after it was discovered that he got his
driver's license renewed in Florida shortly after terrorist plot leader Mohammed
Atta acquired his driver's license at the same motor vehicles' branch. Goldstein,
A Deliberate Strategy of Disruption, at A1. Likewise, that same story reported
that the Rolince Affidavit was also used to block the bond of Osama Elfar, an
aviation mechanic for Trans State Airlines, who was arrested for overstaying
his student visa. Id. According to this report, Mr. Elfar took and passed a
polygraph test, and allowed the FBI agents to search his apartment and computer
and to look at his phone bills. Id. He was reportedly held in detention for
10 weeks before being deported. Four detainees - and how they got caught up
in terrorist probe, Assoc. Press, Dec. 9, 2001 (attached as Ex. 27). The Washington
Post also reported that the Rolince Affidavit was used to block the bond of
Tony Oulai, who was arrested on September 14th for immigration violations. Goldstein,
I Want to Go Home: Detainee Tony Oulai, at A1. That same news story reported
that Hady Omar Jr., an Egyptian antiques dealer, was being denied bail on immigration
charges, the principal evidence against him being that he made a plane reservation
from the same Kinko's computer in South Florida as one of the hijackers. Id.
Michael Boyle testified before the Senate Judiciary Committee that although
a bond was set for Mr. Omar and despite the weakness of the case, the government
obtained a stay of the judge's bond order. Boyle Test. at 7. According to Mr.
Boyle, Mr. Omar was not released on bond until a month later. Id.
37. News reports indicate that many detainees
have been held in prison for significant periods of time. For example, the Village
Voice reported that Shakir Baloch has been in solitary confinement for five
months. Kareem Fahim, INS Detainee Among Longest-Held Makes Plea for Release,
Village Voice, Mar. 6-12, 2002. The Associated Press reported that Mohammed
Omar has been in prison for two and one-half months. Four detainees - and how
they got caught up in terrorist probe, Assoc. Press, Dec. 9, 2001. The New York
Times reported that Cheikh Melainen ould Belal, from Mauritania, spent six weeks
in prison. David Firestone, Wide Ranging Federal Sweep Changes Attitudes of
Immigrants About US, N.Y. Times, Dec. 5, 2001, at B6 (attached as Ex. 28).
38. There are many reports that during their
stay in prison, detainees are being prevented from communicating with those
outside the jail. For example, reports have indicated that many detainees are
only allowed one phone call per week (See, e.g., Hundred held on immigration
charges, USA Today, Jan. 3, 2002 (attached as Ex. 51), and are not allowed visits
even from close family members (See Boyle Test. at 3; Christopher Lawton, Rally
for Release of Detainees' Names, Newsday, Jan. 27, 2002, at A14 (attached as
Ex. 52); Richard A. Serrano, Response to Terror; Rights Being Abused, L.A. Times,
Nov. 19, 2001, at A1 (attached as Ex. 35). A news report stated that that two
days before one detainee was scheduled to speak with Amnesty International,
he was transferred to another prison. Fahim, INS Detainee Among Longest-Held
Makes Plea for Release, Village Voice, Mar 6-12. That article also reported
that Martin Stolar raised concerns that his client, Shakir Baloch, who has been
held in solitary confinement for five months, was prosecuted by the government
for entering the country illegally and using a false Social Security card to
obtain working papers because he publicly questioned the government's policies.
Id. The report stated that Attorney Regis Fernandez raised similar concerns
that his client was charged with misuse of entry documents because he had spoken
to Amnesty International about the conditions of his imprisonment. Id.
39. When the Immigration and Naturalization
Service ("INS") decides to initiate deportation proceedings against
an alien, it issues a Notice to Appear and serves the Notice to Appear on the
alien in question. Declaration of Kerry Bretz (Bretz Decl.) 2 (attached as Ex.
A). The Notice to Appear is also filed with the immigration court. Id. That
Notice to Appear contains the alien's name, registration number ("A-number),
address, telephone number, citizenship, the case number, the reason the INS
has instituted the deportation proceedings, the date and time of the deportation
hearing, and the immigration court and room where the hearing will take place.
Id.
40. In general, deportation proceedings
are open to the public pursuant to INS regulations. Id. 3 (citing 8 C.F.R. §
240.10). The government has ordered that all proceedings relating to individuals
detained in connection with the post-September 11 investigation be closed. Reynolds
Decl. 22. The government has refused to unseal the proceedings even when requested
by the detainee. See Declaration of Ashraf Nubani, filed in the case of Haddad
v. Ashcroft, No. 02-70605 (E.D. Mich.) (attached as Ex. 25).
41. Outside of each immigration courtroom,
a docket sheet is posted that contains a list of all the cases being heard on
that date in that courtroom. Bretz Declaration (attached as Ex. A). For each
case, the docket sheet lists, inter alia, the alien's name and A-number, the
judge presiding, and the type of proceeding. Id. This practice has not been
followed with respect to individuals detained in connection with the post-September
11 investigation. Reynolds Decl. 22.
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
tel: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
March 18, 2002