IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
)
CENTER FOR NATIONAL SECURITY STUDIES, )
ET AL., )
PlaintiffS, )
)
v. ) Civil Action
) No. 01-2500
DEPARTMENT OF JUSTICE, )
) Judge Kessler
Defendant. )
______________________________________)
DECLARATION OF JAMES REYNOLDS
I, James Reynolds, declare as follows:
1. I am the Chief of the Terrorism and Violent Crime Section in the Criminal
Division of the U.S. Department of Justice ("DOJ") and have served
in this capacity since May, 1991. As part of my official duties, I am one of
those responsible for coordinating and supervising DOJ*s investigation into
the September 11, 2001, attacks of the World Trade Center and Pentagon ("PENTTBOM"),
and its investigation of related threats, conspiracies, and attempted terrorist
attacks throughout the nation and the world. This declaration is based upon
my personal knowledge and upon information provided to me in my official capacity.
2. Following the events of September 11, 2001, the United States government
launched an extensive, broad based and world-wide investigation into those terrorist
attacks and into threats, conspiracies, and attempts to perpetrate terrorist
acts against United States citizens and interests. Since September 11, DOJ has
actively been conducting the investigation in conjunction with other federal,
state and local agencies. Four thousand FBI agents are engaged with their international
counterparts in an unprecedented worldwide effort to prevent further attacks
by apprehending those responsible for the September 11 attacks and by detecting,
disrupting, and dismantling terrorist organizations. This is an open and ongoing
investigation; the FBI is continuing to follow leads and conduct interviews
at this time.
3. As part of this investigation, law enforcement has questioned over one thousand
individuals about whom concern had arisen.
4. The concerns related to some of these individuals were resolved by the interviews
and no further action was taken related to them. Other interviews resulted in
a decision to take individuals into custody. Those detainees fall into three
general categories. First, some were arrested for alleged violations of federal
criminal law. Second, those who have violated immigration laws have been detained
by INS for immigration violations. Third, some individuals who were believed
to have information material to the events of September 11 were taken into custody
under material witness warrants pursuant to 18 U.S.C. * 3144.
5. Plaintiffs seek information about all of these individuals. The information
they seek is contained in DOJ records created as a result of these investigations.
DOJ and its components, including INS and FBI, have opened and maintained these
files. These files pertain to the ongoing immigration proceedings of the detainees
and related investigations.
6. Specifically, plaintiffs' FOIA requests seek the following four items of
information regarding individuals "arrested or detained" in the wake
of the September 11 attacks on the World Trade Center and Pentagon:
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
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 witnesses 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 order sealing
any proceedings 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
or immigration proceedings.
7. The Department of Justice has already released publicly a significant amount
of information sought by plaintiffs, varying according to the category of the
detainee. First, for INS detainees, DOJ has already disclosed to plaintiffs
(1) their place of birth, (2) citizenship status, (3) the immigration charges
brought against them, and (4) the date charges were filed. With respect to citizenship
status, none of the INS detainees is a United States citizen; each is in removal
proceedings, subject to administrative removal, or subject to a final order
of removal. All of this information was broadly disseminated to the general
public prior to the filing of this lawsuit. The released information is attached
hereto.
8. Second, for those persons being held on federal criminal charges whose cases
are not under seal, DOJ has already disclosed to plaintiffs (1) their names,
(2) the dates any charges were filed, (3) the date the defenadnt was released,
if released, (4) the nature of the criminal charges filed against them, and
(5) their lawyer's identity. Prior to the filing of this lawsuit, DOJ also released
to the public the district where the complaint or indictment was filed, whether
the defendant was the subject of a complaint or an indictment, and the Assistant
United States Attorney assigned to the prosecution. The information is attached
hereto.
9. Nevertheless, as set forth below in more detail, DOJ has withheld certain
information on the three categories of detainees identified in paragraph 4.
The scope of the withheld information has been narrowly tailored to protect
the integrity and efficacy of the ongoing investigations, to ensure the safety
of the detainees and U.S. citizens, and to prevent the invasion of the personal
privacy of the detainees and other individuals associated with them. DOJ has
withheld certain information sought with respect to each of the three categories
of detainees as follows:
INS DETAINEES
10. The first category of detainees are persons being held on immigration-related
charges by INS. These individuals were originally questioned because there were
indications that they might have connections with, or possess information pertaining
to, terrorist activity against the United States including particularly the
September 11 attacks and/or the individuals and organizations who perpetrated
them. For example, they may have been questioned because they were identified
as having interacted with the hijackers, or were believed to have information
relating to other aspects of the investigation. In the course of questioning
them, law enforcement agents determined, often from the subjects themselves,
that they were in violation of federal immigration laws, and, in some instances
also determined that they had links to other facets of the investigation.
11. Regarding the INS detainees, DOJ has withheld the following information:
(1) the names of the INS detainees, (2) their citizenship status, (3) the location
where they were initially arrested or detained, (4) the location where they
are currently being held, (5) the date of their arrest or detention, and (6)
their lawyer's identity.
12. Information regarding the INS detainees is being withheld pursuant to Exemption
7 (A), 7(C) and 7(F) of FOIA, 5 U.S.C. * 552(b)(7). Exemption 7(A) protects
from disclosure "records or information compiled for law enforcement purposes"
if their production "could reasonably be expected to interfere with enforcement
proceedings." 5 U.S.C. * 552(b)(7)(A). Exemption 7(C) protects law enforcement
information the disclosure of which "could reasonably be expected to constitute
an unwarranted invasion of personal privacy." Id. * 552(b)(7)(C). Exemption
7(F) protects information compiled for law enforcement purposes, the disclosure
of which could reasonably be expected to endanger the life or physical safety
or an individual. Id. * 552(b)(7)(F).
Exemption 7(A) of FOIA
13. As discussed below, as long as these investigations remain open and active,
disclosing the information in question could result in significant harm to the
interests of the United States and compromise the September 11 and other ongoing
terrorism- related investigations. Indeed, releasing this information could
pave the way for additional terrorist activities in that it would undermine
the ability of the United States to obtain cooperation from knowledgeable witnesses,
thereby hampering follow up on investigative leads.
14. First, disclosing the names of the detainees who may be revealed to have
knowledge of or a connection to terrorism could lead to the public identification
of individuals associated with them, other investigative sources, and potential
witnesses. Terrorist organizations that discover the identities of these individuals
could subject them to intimidation or harm, thereby discouraging or preventing
them from supplying valuable information or further leads.
15. Second, divulging the detainees' identities may deter them from cooperating
with the Department of Justice once they are released from custody and impair
their usefulness to the ongoing investigation. As a result of their public identification,
terrorist organizations with whom they have a connection may refuse to deal
further with them. This could eliminate valuable sources of information for
the investigation. It would similarly impair the government's ability to infiltrate
terrorist organizations engaged in ongoing criminal activities. Moreover, a
detainee who knows his name will be made public may be deterred from cooperating
now or in the future for fear of retaliation by terrorist organizations against
him or his family and associates.
16. Third, releasing the names of the detainees who may be associated with
terrorism and their place and date of arrest would reveal the direction and
progress of the investigations by identifying where DOJ is focusing its efforts.
In effect, it would allow terrorist organizations to map the progress of the
investigation and thereby develop the means to impede them. Even disclosing
the identities of those detainees who have been released may reveal details
about the focus and scope of the investigation and thereby allow terrorists
to counteract it. This may cause terrorists, who learn that their associates
or even people who know their associates have been detained, to alter their
plans in a way that presents an even greater threat to the United States. Official
verification that a member has been detained and therefore can no longer carry
out the plans of his terrorist organization may enable the organization to find
a substitute who can achieve its goals more effectively, thereby thwarting the
government's ability to frustrate ongoing conspiracies. For example, upon learning
that a particular terrorist cell has been compromised through the detention
of some or all of its members or affiliated persons, terrorists may switch to
an alternative cell, thereby retaining the ability to mount future terrorist
attacks.
17. Fourth, the public release of names, and place and date of arrest, of detainees
who may have knowledge of or connections to terrorism, could allow terrorist
organizations and others to interfere with the pending proceedings by creating
false or misleading evidence. As a consequence, the investigations will be hindered
by unnecessary and burdensome confusion. Similarly, revealing the location of
the detainees may facilitate contact between detainees and members of terrorist
organizations.
18. The rationale that underlies the withholding of the names of the detainees
similarly supports the nondisclosure of their lawyers' identities under 5 U.S.C.
* 552(b)(7)(A) and (F). Although some attorneys may voluntarily reveal the names
of their clients, such sporadic, piecemeal disclosures are qualitatively different
from DOJ's publication of a comprehensive list of all lawyers' names. Release
of such a list may facilitate the identification of the detainees themselves
and the harms described above could ensue.
Exemption 7(C) of FOIA
19. The detainees have a substantial privacy interest in their names and the
requested personal information connected with their status as detainees. All
of these individuals were originally detained because of their possible connection
to terrorism, particularly to the worst terrorist attack ever committed on United
States soil. Although they may eventually be found to have no connection to
terrorist activity, release of their names and personal information at this
time would forever connect them to the September 11 attacks. Given the nature
of these investigations, the mere mention of their name in connection with these
investigations would cause the detainees embarrassment, humiliation, risk of
retaliation, harassment and possibly even physical harm in the United States
and in their home countries, if they are eventually deported. They could be
stigmatized by being viewed as "guilty by association." The viciousness
of the attacks of September 11 is unprecedented. The interests of these detainees
in not being connected with such activity is overwhelming.
20. In their requests plaintiffs state that "there is an overriding public
interest in knowing the activities of the government in detaining people in
connection with the September 11 attack." This assertion of generalized
public interest is not linked to the specific information that has been requested.
The Department of Justice has already released much information about "the
activities of the government in detaining people," such as the number of
people detained and the charges brought against them. The disclosure of their
names and their current location * which could lead to their identification
* would pose the risks discussed in paragraphs 14-17 while not adding significantly
to the public's understanding of the overall activities of the government. As
a result, when the strong privacy interests of the detainees are balanced against
any public interest in disclosure, the privacy interests in protection outweigh
any perceived public interest in release.
21. Moreover, all of these individuals have been charged with immigration violations
which are at various stages of the administrative process. Many detainees have
retained counsel and all detainees have that right. No one has been denied their
right to talk to an attorney. INS has provided each of the persons detained
on immigration violations with information about available pro bono representation.
Persons with criminal charges filed against them and material witnesses have
been assigned counsel at government expense if they cannot afford one.
22. While these proceedings are usually public, see 8 C.F.R. * 240.10(b) (with
various exceptions, see 8 C.F.R. * 3.27), the Department of Justice has ordered
them sealed if they involve a detainee originally taken into custody in connection
with the terrorist investigation. Identifying information has been kept confidential
to avoid stigmatizing the detainee through the implication that he is associated
with terrorism.
23. If the detainees wish to disclose their names they may do so. For the Department
of Justice to publish a list of potential or actual immigration violators, however,
would violate their personal privacy interests, which are protected by 5 U.S.C.
* 552(b)(7)(C). Release of this information would not contribute meaningfully
to the public*s understanding of the inner workings of the government.
Lawyers of the Detainees
24. The names of the detainees' lawyers are also being withheld pursuant to
FOIA Exemption 7(C). In reaching our determination to withhold this information,
we balanced the privacy interests of these individuals against any public interest
in disclosure. While there may be some other public interest * not applicable
under the FOIA * in ensuring that the detainees are properly represented, that
interest is not vindicated here. In fact, we can discern no public interest
cognizable under the FOIA in the identities of the individual private attorneys
that have been retained.
25. Any public interest that may exist is far outweighed by the strong privacy
interests at stake here. Unlike more routine immigration cases where attorneys
readily, and openly represent clients, these particular lawyers are representing
individuals who have been apprehended in connection with the investigation emanating
from what has been described as an act of war against the United States. The
overwhelming grief and anger felt by the American people could be directed at
these attorneys even more strongly than at the detainees themselves. While all
people have a right to counsel in this country, some individuals may view the
attorneys' representation of the detainees negatively because of the severity
of the attacks on our nation.
26. Indeed, some attorneys may have been dissuaded from representing individuals
in this context. Those that do, run the risk that they will be subjected to
harassment or retaliation in their personal as well as professional lives. Revealing
the identities of these lawyers may also subject them to unwanted scrutiny by
the public or the media that could distract them from effective representation
of their clients. They have a strong privacy interest in not having the government
facilitate such harms by publicly identifying them to all the world. Those attorneys
who wish to come forward and identify themselves voluntarily are free to do
so, but the government should not be forced to reveal a comprehensive list of
all their identities thereby forcibly exposing those that chose to remain obscure
to the risks described above.
DETAINEES CHARGED WITH FEDERAL CRIMES
27. The second category of detainees consists of 117 individuals who have been
held on federal criminal charges. One individual, Zaccharias Moussaui, has been
charged with violations of federal criminal laws in connection with the September
11 attacks. Like the INS detainees, these individuals were originally apprehended
by federal, state, or local law enforcement as a result of the federal investigation
emanating from the September 11 attacks. These individuals face federal criminal
charges. They remain a potential source of relevant or probative information.
28. The following information has not been disclosed: (1) their citizenship
status, (2) the location where they were initially arrested or detained, (3)
the location where they are currently being held, and (4) the date of their
arrest or detention. This information was withheld pursuant to 5 U.S.C. * 552(b)(7)(A),
7(C) and 7(D). The release of this information would assist terrorist organizations
in tracking the flow and progress of the investigation and to develop a strategy
to counteract it, as described above. Accordingly, it was properly withheld
to prevent the possible compromise of this most sensitive investigation.
29. Information pertaining to the detainees charged with federal crimes is
also exempt from release under Exemption 7(C). Because of these individuals'
association with the terrorist investigation, disclosing their detention location
could subject them to possible harassment, intimidation and even physical harm.
It is not unusual for other prisoners in a facility to attempt to harm or harass
those they believe have been involved in particularly heinous crimes. If prisoners
learn that an individual who was detained as a result of the investigation emanating
from the September 11 attacks is in their own prison facility, some may try
to retaliate against this individual.
30. In addition, the detention location is an item of information about each
of these individuals. The detainees have no voice in the determination as to
where they are detained.
MATERIAL WITNESSES
31. The third category of detainees consists of persons who have been the subject
of a material witness warrant issued by a federal court. Plaintiffs have requested
the names of these detainees, their citizenship status, the location where they
were arrested or detained, the location where they are being held, the dates
they were arrested or detained, the date any charges were filed, the date they
were released, if released, the nature of any charges against them, and their
lawyers' names. All information sought in the FOIA request regarding these detainees
has been withheld.
32. The United States District Courts before which the material witnesses have
appeared have issued sealing orders prohibiting the government from releasing
any information about these proceedings. Hence, this information is not under
the control of the Department of Justice, which therefore cannot release it
to plaintiffs.
33. Moreover, this information is also protected from disclosure by Exemption
3 of the FOIA, 5 U.S.C. * 552(b)(3). This exemption protects information exempted
from disclosure by statute. In this case, information pertaining to material
witnesses was withheld pursuant to Federal Rule of Criminal Procedure 6(e).
34. Rule 6(e) prohibits the disclosure of information that would reveal the
inner workings of the grand jury. This prohibition includes the identities of
witnesses and the substance of testimony, as well as information that would
reveal the scope, focus and direction of the grand jury proceedings. To reveal
any information pertaining to the material witnesses, including their identities
and any information which would lead to their identities, would violate Rule
6(e) by revealing witness names as well as the scope and direction of the grand
jury proceedings.
35. Disclosure of this information about material witnesses could also reveal
the strategy or direction of the investigation as described above. These justifications
are particularly compelling for the material witnesses, as they are believed
to have evidence directly relevant to acts of terrorism. Therefore the information
is also being withheld pursuant to 5 U.S.C. * 552(b)(7)(A).
36. Those individuals who are being held on material witness warrants also
have a substantial privacy interest in their names and the requested personal
information connected with their status as a material witness. As with the INS
detainees, these individuals were apprehended as a result of the terrorist investigation
and they have a strong interest in not being identified with the investigation.
Even more significantly, these material witnesses would be assumed by many people
to have significant information relevant to the events of September 11. In fact,
it may turn out that these individuals have no information useful to the investigation
or that they are innocent people who are able to assist the government in its
investigations. To reveal their identities in connection with these investigations
could stigmatize them and subject them to harassment and possibly even retaliation.
We can discern no public interest that outweighs their strong privacy interests.
Exemption 7(F) of the FOIA
37. FOIA Exemption 7(F), 5 U.S.C. * 552(b)(7)(F) also protects the identities
of the INS detainees, the identities of those being held on material witness
warrants, the detention location of those who have been charged with a federal
crime, and the identities of the detainees* lawyers. Exemption 7(F) protects
information the disclosure of which "could reasonably be expected to endanger
the life or physical safety of any individual." As discussed above, all
of the detainees were apprehended in connection with the investigation emanating
from the September 11 attacks. Revealing their identities could subject them
to physical danger both in the United States and in their home countries if
they are deported. Detainees who are, in fact affiliated with a terrorist group
may be perceived by such groups as informants for the United States and be killed
to preclude their future cooperation. In addition, the detainees* family members
and friends could face threats of physical violence by terrorists to deter the
detainees from cooperating. Moreover, revealing the detention facilities where
these individuals are being detained could place at risk not only those detainees,
but the facilities themselves and their employees.
38. For these same reasons, attorneys who are representing the detainees could
also face physical harm if their identities are revealed. Some might construe
the attorneys as working against the interests of the United States and seek
to retaliate against them. Also, members of terrorist organizations may fear
that detainees are supplying their attorneys with too much information and,
lacking the ability to get at the detainees while they are imprisoned, may instead
choose to harm their attorneys. In light of the brutality of the acts committed
against the United States, even the mere possibility of retaliation against
these lawyers justifies withholding their identities.
PLAINTIFFS' FOIA REQUEST NO. 3 (COMPLAINT * 29(c))
39. DOJ has denied plaintiffs' request for the identity of any courts which
have been requested to enter orders sealing any proceedings in connection with
individuals arrested or detained in the wake of the September 11 attack, any
such orders which have been entered, and the legal authorities that the government
has relied upon in seeking any such secrecy orders. Nationwide, there are ten
orders responsive to plaintiffs' request. However, neither the orders nor any
of the other information requested is under DOJ's control. Rather, the orders
have been sealed by the relevant United States District Courts and prohibit
the government from releasing any information. Thus, the Department of Justice
cannot properly provide the information plaintiffs request.
40. Even if the information could be disclosed, it is exempt from disclosure
pursuant to 5 U.S.C. * 552(b)(7)(A). Publicizing this information would reveal
investigative strategy or an unusual level of law enforcement interest in a
detainee which would impair investigative efforts, as further described herein.
41. As has been described above, the Department of Justice has made every effort
to segregate and release all non-exempt information requested by plaintiffs.
Toward that end, defendant has released entire categories of information. The
information defendant continues to withhold cannot be disclosed without causing
or risking the serious and substantial harms outlined herein.
I declare under penalty of perjury that the foregoing is true and correct.
________________________ ________________________
DATE JAMES S. REYNOLDS