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CENTER FOR NATIONAL SECURITY )
STUDIES, et al., )
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Plaintiffs, )
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v. )
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UNITED STATES DEPARTMENT OF )
JUSTICE, )
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Defendant. )
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Judge Kessler

Civil Action No. 01-2500

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR
STAY PENDING APPEAL

On August 2, 2002, this Court granted summary judgment to the plaintiffs and ordered the government to produce a list of the identities of all individuals it has detained who are or were considered to have a relationship with the investigation of the September 11, 2001, terrorist attacks and related terrorist conspiracies. A stay of that order pending an expedited appeal to the D.C. Circuit is fully warranted. Unless the Court's order is stayed, the release of information it requires will moot the government's right to appeal. It also will cause severe harm to the public safety by granting terrorist organizations the ability to map the government's investigation. This harm will be irreparable: once the information is in the public domain, nothing can be done to reverse the disclosure. On the other hand, the most plaintiffs will "suffer" is the delay occasioned by an appeal. The government has filed a notice of appeal today, and it will ask the Court of Appeals to expedite its consideration of the case. This case has already been pending for eight months, and a stay pending an expedited appeal will not cause a significant additional delay. Although this Court disagreed with the government's arguments on the merits, plainly the legal issues presented here are substantial and the stakes at issue are of the highest order. See May 29, 2002 Hearing Transcript at 24, ll. 18-19 (court noting that this is an "important" case). Under these circumstances a stay to permit the government to pursue its right of appeal is required.

I. THE COURT'S ORDER SHOULD BE STAYED PENDING DEFENDANT'S APPEAL

Under Fed. R. Civ. P. 62(c), this Court is to consider four factors in considering whether to grant a stay pending appeal: "(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay." Cuomo v. United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985) (citing Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)); accord Hilton v. Braunskill, 481 U.S. 770, 776 (1987). These factors are not prerequisites to be met, but rather considerations to be balanced. Thus, "[a] stay may be granted with either a high probability of success and some injury, or vice versa." Cuomo, 772 F.2d at 974. Thus, where the movant has established substantial irreparable harm and the balance of harms weighs heavily in its favor, it needs only raise "serious legal questions going to the merits" to obtain a stay pending appeal. Population Institute v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986) (quoting Holiday Tours, 559 F.2d at 844). As is demonstrably clear in this case, the government's appeal will present serious questions, and the government unquestionably will suffer irreparable harm if a stay is not issued, while a stay while the government pursues an expedited appeal will have little to no impact on plaintiffs' current position and would be in the public interest. Therefore, a stay is fully warranted here.

A. In the Absence of a Stay, Defendant Will Suffer Irreparable Injury.

1. In a case involving the release of information, the issuance of a stay pending appeal is of paramount importance because disclosure of the information will effectively moot any appeal. Accordingly, courts routinely grant stays in FOIA cases. See, e.g., Rosenfeld v. United States Dep't of Justice, 501 U.S. 1227, 1227 (1991) (granting full stay pending appeal); John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1309 (1989) (Marshall, J., in chambers); see also Martin v. IRS, 857 F.2d 722, 724 (10th Cir. 1988); Acumenics Research & Tech. v. Department of Justice, 843 F.2d 800, 803 (4th Cir. 1988); Taylor v. Department of the Army, 684 F.2d 99, 102 (D.C. Cir. 1982); Coastal Gas Corp. v. Department of Energy, 644 F.2d 969, 973 (3d Cir. 1981); Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979); Maine v. United States Dep't of the Interior, 2001 WL 98373 (D. Me. 2001); Antonelli v. FBI, 553 F. Supp. 19, 25 (N.D. Ill. 1982). As the First Circuit explained in Providence Journal:

[T]he Constitution and laws entitle litigants to have their cases independently reviewed by an appellate tribunal. Meaningful review entails having the reviewing court take a fresh look at the decision of the trial court before it becomes irrevocable. Appellants' right of appeal here will become moot unless the stay is continued pending determination of the appeals. Once the documents are surrendered pursuant to the lower court's order, confidentiality will be lost for all time. The status quo could never be restored.

595 F.2d at 890. The need to preserve the government's right to appellate review of a disclosure
order is "perhaps the most compelling justification" for the grant of a stay in FOIA cases generally. John Doe Agency, 488 U.S. at 1309 (Marshall, J., in chambers).

2. Furthermore, there can be no dispute that once the information is made public, there is no relief that any court could provide that would restore the status quo. Even in a run-of-the-mill FOIA case that concern is generally deemed sufficient to warrant the issuance of a stay pending appeal. Here, however, the effect of the disclosure is potentially far greater. The mass release of the identities of the hundreds of individuals that the government has detained in the course of its September 11 terrorism investigation would enable those who planned the September 11 terror attacks and their followers to map the nature, extent and direction of the government's investigation. Such a list of names would also tell the terrorist organizations whom the government has identified and detained in the investigation and who it thinks may have some information related to the past terror attacks and future planned attacks.

The Court erroneously assumed that the individuals at issue here were all detained by the government because they were deemed "cell members," and the Court speculated that the terrorist groups must already know that their fellow cell members have been detained. Slip op. 15. Thus, the Court mistakenly assumed that no valuable information would be imparted to our enemies.

The government, however, has never claimed or asserted that all of the individuals who would be identified under this Court's Order are or were suspected of being terrorist cell members. For example, the more than 700 immigration detainees at issue are or were detained because they are subject to removal and detention under the applicable provisions of the Immigration and Nationality Act. They are, or were, categorized as being of special interest in connection with the ongoing investigation because "there were indications that they might have connections with, or possess information pertaining to, terrorist activity against the United States." Reynolds Dec. 10; see also id. 19, 27; Watson Dec. 8. Thus, many of the individuals are not on the list because they themselves are suspected terrorists or "cell" members, but because they were believed to have or have had some association with terrorists or terrorist organizations, and may possess valuable information about them. Even if we assume, arguendo, that a terrorist organization would already be aware of the identity of every actual cell member who was detained, there is no basis to assume that a terrorist organization would be aware of the detentions of every individual who had such associations or information.

To date, terrorist organizations, although monitoring the government's investigation, have had no way of collecting en masse a list of the names of individuals who have been deemed by the U.S. Government to be potentially useful. While some information may have been available to our enemies, a compendium of the entire universe of information regarding the identities of detainees has never been provided, much less officially confirmed. Now such a list is to be disclosed, absent a stay to permit the government to pursue its appeal rights. As explained in the declaration of James S. Reynolds, the Chief of the Terrorism and Violent Crime Section in the Criminal Division of the United States Department of Justice, such a mass release of names of the detainees could impede the government's terrorism investigation and put the national security at risk. 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. Reynolds Decl. 14. Disclosure also may cause terrorists, who learn that their associates or even people who know their associates have been detained or questioned, to alter their plans in a way that presents an even greater threat to the United States. Reynolds Decl. 16.

This Court described these concerns as "speculation." Slip op. 19. As the declarations filed by the government show, however, it is the considered judgment of the law enforcement officials charged with protecting the public that the release of such a list of names would aid terrorist organizations and undermine the national security. See Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) (courts owe deference to predictive judgments of harm from agency officials even though "any affidavit or other agency statement of harm to national security will always be speculative to some extent, in the sense that it describes a potential future harm rather than an actual past harm"). By contrast, plaintiffs' own theory that this information must already be known to terrorist organizations finds no support in the record but instead rests on pure speculation. Although this Court did not believe defendant's evidence was adequate for the purposes of summary judgment, it certainly is sufficient evidence of potential irreparable harm to make a stay appropriate while the government pursues its right of appeal. In light of the gravity of the risk, prudence counsels that a stay be issued to protect the public until the issues have been fully litigated through the appellate process.

3. Notably, faced with these same concerns and acting on the basis of the principal declarations submitted in this case, the United States Supreme Court recently granted a stay pending appeal in a case involving similar legal and harm issues. In May 2002, a federal district court in New Jersey ordered that immigration proceedings in cases relating to the September 11 terrorism investigation be opened to the public - an order that would have resulted in the disclosure of the identities of many of the detainees involved in this case. See North Jersey Media Group, Inc. v. Ashcroft, 205 F. Supp. 2d 288 (D.N.J. 2002). The Supreme Court then entered a stay pending appeal. See 122 S.Ct. 2655 (2002).

Also of note, the New Jersey appellate court granted a stay pending appeal in a state court action in which plaintiffs sought the identities of the September 11 immigration detainees held in New Jersey state jails -- a substantial subset of the same information sought here. See American Civil Liberties Union of N.J. v. County of Hudson, 799 A.2d 629 (N.J. Super. Ct. App. Div.), cert. denied (N.J. July 9, 2002). As is the case here, a stay was necessary in the New Jersey state case to preserve the status quo pending appeal, and to prevent the harm that would ensue from providing the terrorist groups such a list of names. The Appellate Division of the New Jersey Superior Court stayed the trial court's order pending appeal and then proceeded to rule in the government's favor. Id. A stay is similarly warranted in this case.

B. The Government's Appeal Presents Serious Legal Questions.

Given both the gravity of the irreparable harm that the government has demonstrated, and the fact that the denial of a stay will in essence deny the government its right to appeal, it is not necessary for the government to show that it is certain to succeed on appeal, or even that it has "a mathematical probability of success." Holiday Tours, 559 F.2d at 844. Instead, it is sufficient that there be "a serious legal question" in the case. Id (emphasis added); see also Providence Journal, 595 F.2d at 890 (where "the denial of a stay will utterly destroy the status quo, irreparably harming appellants, but the granting of a stay will cause relatively slight harm to appellee, appellants need not show an absolute probability of success in order to be entitled to a stay"). Although the Court did not deem the government's arguments persuasive, we respectfully suggest that at the very least they raise serious questions.

1. For example, in its analysis of the government's right to withhold the list of names under Exemption 7(A), this Court did not question that the information was "compiled for law enforcement purposes." Nor did this Court question that the information relates to "law enforcement proceedings." This Court instead found that the government had not adequately demonstrated that harm would "flow" from the release of the list of names. However, this is not a benign list of names, such as a bare list of INS detainees not labeled as being of any other interest to the government. Rather, it a list of the persons who were originally identified because they were believed to have information relevant to the terrorist attacks. As discussed above, however, to release such a collected list of names would grant the terrorist groups the ability to map how the investigation has progressed, and would provide them valuable insights into what the government knows, and does not know, about their operations and thereby assist them in planning future attacks. The need to protect the identities is particularly clear where the investigation concerns not merely past activities, but ongoing terrorist activities. That palpable harm would flow directly from the disclosure mandated by this Court's order, and the prospect of harm is more than adequate to support withholding the list of names under Exemption 7(A).

Although this Court is correct that many of those detained in connection with the investigation are no longer in custody and that not "one of these has been charged with terrorist activities," that does not mean that they did not possess or impart valuable information related to the subject of the ongoing investigation.

Furthermore, the fact that a detainee has been deported from the United States on grounds unrelated to terrorism does not necessarily indicate that he or she had no knowledge of or connection to terrorism. Rather, it simply means that his or her presence in the United States was unlawful on other grounds. Even if any given detainee in that category might also have been charged with removability on terrorism grounds, the INS was not required to include such a charge and to do so could itself jeopardize the ongoing investigation. Moreover, even in cases where it later turned out that particular detainees did not have helpful information, the mere fact that they were considered by the government to be relevant to the September 11 investigation would tell the terrorist groups about the paths of investigation that are or were being pursued by the United States. See Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996) (information may be withheld under Exemption 7(A) where disclosure would reveal the "focus" or "scope" of the investigation). It would, in particular, identify which individuals in immigration proceedings have been thought by the government - because of real or apparent associations with terrorist organizations, their members, operatives, or intermediaries, or their modes of operation - to be of investigative interest.

As discussed above, this Court's rationale in discounting this harm was largely based upon the false premise that the detainees at issue are all suspected cell members that would have already "self-disclosed" their detention to the terrorist groups. That same error led this Court to erroneously discount the possibility that the disclosure of their names would affect the level of cooperation by the detainees. Slip op. 15. The undeniable fact is that detainees who have valuable information regarding the terrorist groups would be unlikely to provide that information if they knew that the terrorist groups would be given their names. See CIA v. Sims, 471 U.S. 159, 172 (1985) (noting that intelligence sources will "'close up like a clam'" unless the government maintains complete confidentiality). This Court recognized that fact in its ruling on Exemptions 7(C) and Exemption 7(F). The Court found that the individuals may have good reason not to want to have their names disclosed - because it might endanger their personal safety. Slip op. 26-27. For that same reason, it will deter them, and others in their position in the future, from cooperating with the government. Cf. Manna v. United States Dep't of Justice, 51 F.3d 1158, 1165 (3d Cir. 1995) (because La Cosa Nostra is "so violent and retaliatory," names of all "interviewees, informants, [and] witnesses" in criminal investigation may be withheld under Exemption 7(A)).

2. As to this Court's ruling concerning Exemptions 7(C) and 7(F), the Court in fact agreed that the individual privacy and personal safety interests are implicated here and that they may outweigh the public interest in disclosure. Cf. Department of State v. Ray, 502 U.S. 164, 176-77, 178-79 (1991). The Court, however, refused to protect the privacy rights absent a sworn statement from each individual seeking to "opt out" from public disclosure. This ruling raises several serious legal questions.

First, as this Court recognized, hundreds of the individuals have been removed from this Country, and hundreds more have been released to the general public. It is not possible to track down the individuals in this Country and abroad (all within 15 days) in order to obtain such sworn statements. Furthermore, there was no prohibition against self disclosure by any detainee, yet the great majority of the detainees chose not to make their status public, thereby preserving their privacy interests. That choice should be respected. Indeed, those detainees who have been deported or released presumably expected that their privacy would continue to be preserved. It would be unfair to the individuals who were released or deported with that expectation to condition the continuation of their privacy - not to mention protection of their personal safety - on their submitting a sworn statement requesting confidentiality when that condition would now be essentially impossible to fulfill.

More fundamentally, Exemptions 7(C) and 7(F) do not mandate that the government track down and obtain sworn statements from the persons whose privacy and personal safety is at stake. To the contrary, the Supreme Court and the D.C. Circuit have read the exemption to operate with categorical rules and common sense assumptions. See Nation Magazine v. United States Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (portions of records in investigatory files which would reveal subjects, witnesses, and informants in law enforcement investigations are categorically exempt). As the D.C. Circuit held in Keys v. United States Dep't of Justice, 830 F.2d 337, 346 (D.C. Cir. 1987), in order to withhold information under Exemption 7(C) the "government need not 'prove to a certainty that release will lead to an unwarranted invasion of personal privacy.'" Rather, the question is whether the invasion of privacy rights is "likely to materialize." Nishnic v. Dep't of Justice, 671 F. Supp. 776, 788 (D.D.C. 1987). That standard is plainly met by the current record in this case. The Court's directive that the government obtain a signed statement from each detainee wishing to "opt out" of public disclosure is, to defendant's knowledge, unprecedented under Exemption 7(C) and Exemption 7(F). The requirement is particularly unjustifiable where, as here, the detainees - most of whom are no longer in custody -- are free to self-disclose and, notably, for the most part have not done so.

Finally, in weighing the pubic interest, the Court misconstrued the significance of the Inspector General's investigation, which will review the allegations and incidents plaintiffs reference and thereby serve the public interest. No wrongdoing can be properly be presumed from the Inspector General investigation, since it is required by statute. See USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272, 391 (2001), to be codified at 5 U.S.C. App. 3 § 8E note.

3. The Court's ruling also disregarded the fact that, pursuant to Exemption 7(F), disclosing the detainees' identities could pose a substantial threat, not only to individual safety, but to the public safety as well. As the Reynolds declarations demonstrate, revealing information about the detainees could allow terrorist organizations to revise their plans, reinforce their "cells," and subvert the government's investigation so as to pose an even greater threat to the United States. Reynolds Dec. 16. The Court's Order was limited to the personal safety concerns of the detainees (which in our view was sufficient to warrant the withholding of their identities) and failed to account for this greater potential public harm.

4. The Court's determination that the government may not rely on Fed. R. Crim. P. 6(e) to justify withholding the names of material witnesses is flawed, because those names pertain to "matters occurring before a grand jury." See Fed. R. Crim. P. 6(e)(5). All of the warrants to detain material witnesses in this case were "issued to procure a witness's testimony before a grand jury." Second Supplemental Declaration of James S. Reynolds at 4. The fact that the witnesses were expected to testify before the grand jury, whether or not they actually did testify or were scheduled to testify, see Slip op. at 30 n.19, is clearly a "matter occurring before a grand jury." See In Re Application of the United States for a Material Witness Warrant, F.Supp.2d , 2002 WL 1592739, at n.1 (S.D.N.Y. July 11, 2002) (Mukasey, J) (where witness was taken into custody pursuant to a warrant issued in aid of a grand jury subpoena, and the proceeding had been sealed as ancillary to grand jury proceedings, neither the witness's name nor any identifying facts about him or the matter would be revealed). Disclosure of the identities of the material witnesses who were detained is therefore prohibited. See Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir. 1981); In re Grand Jury Proceedings, 806 F.Supp. 1176, 1178 (D. Del. 1992); United States v. White Ready-Mix Concrete Co., 509 F.Supp. 747, 750 (N.D. Ohio 1981).

II. ALTERNATIVELY, THIS COURT SHOULD ENTER A SEVEN-DAY STAY TO PERMIT THE COURT OF APPEALS TO CONSIDER GRANTING A STAY.

Under this Court's order, the government is required to disclose information to the plaintiffs within fifteen days. Should this Court decline to enter a stay pending appeal, the government intends to seek a stay from the Court of Appeals. In order to give the Court of Appeals adequate time to consider that request, the government requests that this Court stay its order for a period of seven days.

CONCLUSION

For the foregoing reasons, the Court should stay its order of August 2, 2002, pending an expedited appeal. In the alternative, the Court should stay its order for a period of seven days to permit the government to seek a stay pending appeal from the D.C. Circuit.

Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General

ROSCOE C. HOWARD, JR.
United States Attorney

SHANNEN W. COFFIN
Deputy Assistant Attorney General

JOSEPH H. HUNT
ANNE L. WEISMANN (D.C. Bar No. 298190)
LISA A. OLSON (D.C. Bar No. 384266)
CAROL FEDERIGHI
U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514?5633
Facsimile: (202) 616?8470
E?mail: lisa.olson@usdoj.gov

Dated: August 8, 2002 Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that, on August 8, 2002, copies of Defendant's Notice of Appeal, Motion for Stay Pending Appeal, Memorandum in Support thereof, proposed Order, and Motion to Expedite Consideration of Motion for Stay Pending Appeal and proposed Order were served upon plaintiffs' counsel as follows:

BY HAND-DELIVERY AND TELEFACSIMILE:

Kate Martin, Esq.
Marcia Maack, Esq.
Center for National Security Studies
1120 19th St. NW
Washington, D.C. 20037
fax: (202) 994-7005

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
fax: (202) 483-1248

Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: (202) 452-1868

BY FIRST-CLASS MAIL, POSTAGE PREPAID:

Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004

Elliot M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
__________________________
LISA A. OLSON