CENTER FOR NATIONAL SECURITY
STUDIES, et al.,

Plaintiffs,

v.

DEPARTMENT OF JUSTICE,

Defendant.

Civil Action No. 01-2500

Judge Kessler
_____________________________________

PLAINTIFFS' SUPPLEMENTAL MEMORANDUM

At the invitation of the Court, plaintiffs submit this supplemental memorandum.

1. The government's actions belie its arguments.

This is a case where the government's actions speak louder than its words: the government's assertions that disclosing information about the detainees would be harmful to its investigation are contradicted by its own extensive disclosures.

Most recently, on June 10, 2002, Attorney General Ashcroft announced from Moscow that the United States had in custody an al Qaeda operative named Abdullah al Mujahir, born José Pedilla, who had been arrested on May 8, 2002, as he arrived at Chicago O'Hare International Airport from Pakistan; that on "several occasions in 2001, he met with senior al-Qaida officials," that he was exploring a plan to build and explode a . . . 'dirty bomb' in the United States," and that there were "multiple independent and corroborating sources" for this information. Other officials disclosed that Mr. Mujahir had been held at the Metropolitan Corrections Center in downtown Manhattan from May 8 through June 9 on a material witness warrant for the purpose of testifying before a grand jury, and then transferred to the Brig at the Charleston Naval Weapons Station in Charleston, South Carolina; that he had stayed at an al Qaeda safe house in Lahore, Pakistan, in late 2001 or early 2002; and that the information leading to his capture had come from a "top al Qaeda leader" named Abu Zubaydah.

The government thus disclosed the very information about this detainee that it claims in this lawsuit, could cause "catastrophic" harm if disclosed-his name, the date and place of his arrest, and the place of his confinement. It disclosed his status as a material witness, despite its claims that court orders prohibit such disclosure. It even disclosed the very information that it fears terrorists "might" be able to deduce, such as "sources of information for the investigation," or "what we know," so that they could "reprogram, re-adjust their plans going forward." Transcript of May 29 oral argument ("Tr.") at 9. And it has done this in the case of a detainee who is believed to be a terrorist, as opposed to the detainees whose identities are the subject of this lawsuit, as to which all the government can say is that they have some "link" to some "facet" of the post-9/11 investigation.

This is just one of many government disclosures outlining the scope of its investigation-Arabs or Muslims attending flight schools, or those who had some contact, however minimal, with any of the hijackers (see e.g., Exs. 4 & 29 to Pl. Motion for Summary Judgment). The government has also disclosed many details of its investigation. For example, on June 4, 2002, government officials announced that the Justice Department had identified 23 people in the United States with potential ties to terrorism, who have either been arrested or deported, an announcement apparently intended to support the Justice Department's new plan for registering non-citizens. FBI Director Mueller then told the Washington Post that the FBI had also identified a "substantial number" of people as supporters of al Qaeda, who cannot be detained for immigration or other violations, and who are therefore being monitored around the clock. He then named the individual who is suspected of playing a key role in planning the September 11 attacks.

Such disclosures began within weeks of the September 11 attacks. For example, on October 21, 2001, senior government officials disclosed that they had captured at least 10 members of Al Qaeda and that investigators had established connections between the hijackers and two dozen people in custody, but that they were only casual connections. See Ex. 4 to Pl. Motion for Summary Judgment. Most notably, government investigators identified Zacarias Moussaoui by name as a suspect in the hijackings, when he was still being held on immigration charges or as a material witness. Id. Similarly, on October 31, the Attorney General announced the arrest of three named individuals "suspected of having knowledge of the September 11 attacks" and outlined the evidence supporting that suspicion, even though the public charges related only to possession of false documents. See Ex. 30 to Pl. to Motion for Summary Judgment.

Moreover, in the case of individuals jailed on criminal charges, the government has disclosed far more than it was required to. The government released not just the defendant's name and the charges against him, it also volunteered that individuals charged with crimes having nothing to do with September 11 had been jailed as part of the terrorism investigation. The Attorney General did this personally, at a press conference. See Ex. 22 to Pl. Motion for Summary Judgment.

This case is thus unlike cases involving national security intelligence information, in which the government, mindful of the "mosaic" concept, takes great care not to disclose any piece of relevant information. Here, the government's allegations of likely harm from the release of information are contradicted by its own disclosures. In light of those extensive disclosures-as well as the detainees' unrestricted freedom to self-disclose (Tr. 46)-there is no basis to find that identifying the detainees to the American people could reasonably be expected to harm the investigation. The evidence provided by the government's actual conduct plainly outweighs its speculative assertions. See Lederman v. United States, __ F.3d __, 2002 WL 1071927 at *5 (D.C. Cir. May 31, 2002) (rejecting government's professed security concerns about persons engaged in First Amendment activity on Capitol Hill in light of government's demonstrated lack of security concerns about tourists and other pedestrians in the same area).

2. The government's numbers don't add up.

The Court has asked the government to provide figures about the number of persons who are and have been detained. We note that the Wall Street Journal recently reported that the Justice Department had given the General Accounting Office a list of approximately 1,000 INS detainees in connection with a GAO inquiry into the 9/11 investigation. (If this list existed at the time of the government's response to plaintiffs' FOIA request, it was of course covered by the request and should be provided.) The list reportedly did not include individuals detained on criminal charges. If that is true, then the list of 718 INS detainees provided in this case is short by about 300 people. The government should be required to account for the discrepancy-which may indicate that a very large number of persons are being held on material witness warrants.

3. Information about material witnesses should be disclosed.

There is every reason to believe that many people have been held as material witnesses, for long periods of time, in extreme conditions, and in violation of law. The government claims that grand jury secrecy rules and court orders prohibit the release of any information about material witnesses, but it has not quoted even a single sentence from a single court order, and all it really says is that "'the Department of Justice interprets such orders'" to prohibit disclosure. Tr. 51-52 (quoting Reynolds Second Supp. Decl.) (emphasis added). Yet despite that "interpret[ation]" the government has publicized information about persons held as material witnesses (including their names) when it has suited the government to do so. The government's disclosures confirm plaintiffs' claim that such court orders and grand jury secrecy rules do not prohibit disclosing the requested information. The government's disclosures also contradict its Exemption 7 claim that it may withhold the identities of material witnesses on harm grounds.

4. Plaintiffs are also entitled to disclosure under the common law and the First Amendment.

Plaintiffs' common law and First Amendment claims were briefed, and should be reached if their FOIA claim is rejected. The common law right of access to arrest records (not "rap sheets" but "police blotter" information) is historically clear, and thus the government can prevail on the common law claim only if the Court holds that the Freedom of Information Act was intended to displace the common law and restrict access to information that had previously been routinely available to the public. But there is nothing in FOIA to suggest that Congress intended it to be an accress-restricting law.

As to plaintiffs' First Amendment claim, the government concedes that "constitutional requirements" mandate the disclosure of charging-document information about "those people who were federally charged" (Tr. 37). The law of this Circuit, as well as recent decisions in other federal courts, supports the proposition that the same requirements apply here. See Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972); Detroit Free Press v. Ashcroft, 195 F.Supp.2d 948 (E.D. Mich. 2002), motion for stay denied, No. 02-1437 (6th Cir. Apr. 18, 2002); North Jersey Media Group, Inc. v. Ashcroft, __ F.Supp.2d __, 2002 WL 1163637 (D.N.J. May 28, 2002).

5. The recent New Jersey appellate decision makes this Court's ruling even more important.

The April 12 New Jersey trial court decision ordering release of the rosters of county jails under state law was reversed this week by that state's intermediate appellate court. ACLU of New Jersey v. County of Hudson, __ A.2d __, 2002 WL 1285110 (N.J. Super. Ct. App. Div. Jun 12, 2002), on the sole ground that the state's law had been preempted by a new INS regulation that prohibits release of the names of all INS detainees by their custodians. 8 C.F.R. § 236.6 (issued April 17, 2002). Even if that decision is correct, it has no bearing here, for the INS regulation does not purport to override the Freedom of Information Act, nor could it. Notably, the New Jersey decision did not reverse the trial court's ruling that the state's Right-to-Know Law compelled disclosure, just as FOIA does here. But the new INS regulation-assuming it does preempt state and local laws-makes it all the more critical that FOIA serve its great purpose of letting the American people know "what their government is up to." Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989).

6. This Court should not license a "dangerous engine of arbitrary government."

The government's argument in this case has fearsome implications far beyond the 9/11 investigation. The government may well claim that public disclosure of an arrested person's name could interfere with law enforcement in a wide variety of contexts-drug dealing, organized crime, even securities fraud-just as it makes that claim here. Even if limited to the terrorism context, the government's position that anyone who has a "link" to a "facet" of an investigation means that virtually anyone of middle-eastern origin can be secretly arrested and jailed.

The founders of our nation were aware of the evils of secret arrests, and they did not intend for that instrument of oppression to exist on these shores. As Alexander Hamilton wrote in the Federalist Papers:

"To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."
Federalist No. 84 (emphasis in original) (quoting 1 Blackstone, Commentaries on the Laws of England 335).

As recognized by Hamilton and Blackstone, secret arrests are the hallmark of arbitrary government. In the United States, arrest records have always been public. The only court that has considered the question held that FOIA requires the release of arrest records. Tennessean Newspaper, Inc. v. Levi, 403 F. Supp. 1318 (M.D. Tenn. 1975). This Court should not be the first to hold that this "dangerous engine of arbitrary government" is available for use by federal law enforcement agencies.

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
Center for National Security Studies
1120 19th St., N.W. 8th floor
Washington, D.C. 20036
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
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

June 14, 2002