Center for Nat. Sec. Studies v. Dept. of Justice, No. 02-5254.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSentelle
Citation331 F.3d 918
PartiesCENTER FOR NATIONAL SECURITY STUDIES, et al., Appellees/Cross-Appellants, v. U.S. DEPARTMENT OF JUSTICE, Appellant/Cross-Appellee.
Docket NumberNo. 02-5254.,No. 02-5300.
Decision Date17 June 2003
331 F.3d 918
CENTER FOR NATIONAL SECURITY STUDIES, et al., Appellees/Cross-Appellants,
v.
U.S. DEPARTMENT OF JUSTICE, Appellant/Cross-Appellee.
No. 02-5254.
No. 02-5300.
United States Court of Appeals, District of Columbia Circuit.
Argued November 18, 2002.
Decided June 17, 2003.

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COPYRIGHT MATERIAL OMITTED

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Appeals from the United States District Court for the District of Columbia (No. 01cv02500).

Gregory G. Katsas, Deputy Assistant Attorney General, argued the cause for appellant/cross-appellee. With him on the briefs were Roscoe C. Howard, Jr., U.S. Attorney, Mark B. Stern, Robert M. Loeb, and Eric D. Miller, Attorneys, U.S. Department of Justice.

Daniel J. Popeo and Paul D. Kamenar were on the brief for amici curiae Washington Legal Foundation and the Jewish Institute for National Security Affairs in support of appellant urging partial reversal and cross-appellee urging partial affirmance.

Kate A. Martin argued the cause for appellees/cross-appellants. With her on the briefs were David L. Sobel, Elliot M. Mincberg, Arthur B. Spitzer, Steven R. Shapiro, and Lucas Guttentag.

Laura R. Handman, Eric N. Lieberman, Henry S. Hoberman, Nathan E. Siegel, Richard M. Schmidt, Jr., Slade R. Metcalf, David E. McCraw, Rene Milam, Bruce W. Sanford and Robert D. Lystad were on the brief for amici curiae The Washington Post Company, et al., in support of appellees/cross-appellants.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge TATEL.

SENTELLE, Circuit Judge:


Various "public interest" groups (plaintiffs) brought this Freedom of Information Act (FOIA) action against the Department of Justice (DOJ or government) seeking release of information concerning persons detained in the wake of the September 11 terrorist attacks, including: their names, their attorneys, dates of arrest and release, locations of arrest and detention, and reasons for detention. The government objected to release, and asserted numerous exceptions to FOIA requirements in order to justify withholding the information. The parties filed cross-motions for summary judgment. The district court ordered release of the names of the detainees and their attorneys, but held that the government could withhold all other detention information pursuant to FOIA Exemption 7(A), which exempts "records or information compiled for law enforcement purposes ... to the extent that the production" of them "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A) (2000). Attorneys filed cross-appeals. Upon de novo review, we agree with the district court that the detention information is properly covered by Exemption 7(A); but we further hold that Exemption 7(A) justifies withholding the names of the detainees and their attorneys. We also reject plaintiffs' alternate theories that the First Amendment and the common law mandate disclosure of the contested information. We therefore affirm in part, reverse in part, and remand the case to the district court for the entry of a judgment of dismissal.

I. Background

A. The Investigation

Consistent with the mutual decision of the parties to seek resolution to this controversy on summary judgment, the facts

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are not in serious dispute. In response to the terrorist attacks of September 11, 2001, President George W. Bush ordered a worldwide investigation into those attacks and into "threats, conspiracies, and attempts to perpetrate terrorist acts against United States citizens and interests." The Department of Justice, defendant in this action, has been conducting the investigation in conjunction with other federal, state and local agencies. The investigation continues today.

In the course of the post-September 11 investigation, the government interviewed over one thousand individuals about whom concern had arisen. The concerns related to some of these individuals were resolved by the interviews, and no further action was taken with respect to them. Other interviews resulted in the interviewees being detained. As relevant here, these detainees fall into three general categories.

The first category of detainees consists of individuals who were questioned in the course of the investigation and detained by the INS for violation of the immigration laws (INS detainees). INS detainees were initially 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 or organizations who perpetrated them." Based on the initial questioning, each INS detainee was determined to have violated immigration law; some of the INS detainees were also determined to "have links to other facets of the investigation." Over 700 individuals were detained on INS charges. As of June 13, 2002, only seventy-four remained in custody. Many have been deported. INS detainees have had access to counsel, and the INS has provided detainees with lists of attorneys willing to represent them, as required by 8 U.S.C. § 1229(b)(2) (2000). INS detainees have had access to the courts to file habeas corpus petitions. They have also been free to disclose their names to the public.

The second category of detainees consists of individuals held on federal criminal charges (criminal detainees). The government asserts that none of these detainees can be eliminated as a source of probative information until after the investigation is completed. According to the most recent information released by the Department of Justice, 134 individuals have been detained on federal criminal charges in the post-September 11 investigation; 99 of these have been found guilty either through pleas or trials. While many of the crimes bear no direct connection to terrorism, several criminal detainees have been charged with terrorism-related crimes, and many others have been charged with visa or passport forgery, perjury, identification fraud, and illegal possession of weapons. Zacarias Moussaoui, presently on trial for participating in the September 11 attacks, is among those who were detained on criminal charges.

The third category consists of persons detained after a judge issued a material witness warrant to secure their testimony before a grand jury, pursuant to the material witness statute, 18 U.S.C. § 3144 (2000) (material witness detainees). Each material witness detainee was believed to have information material to the events of September 11. The district courts before which these material witnesses have appeared have issued sealing orders that prohibit the government from releasing any information about the proceedings. The government has not revealed how many individuals were detained on material witness warrants. At least two individuals initially held as material witnesses are now being held for alleged terrorist activity.

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The criminal detainees and material witness detainees are free to retain counsel and have been provided court-appointed counsel if they cannot afford representation, as required by the Sixth Amendment to the Constitution. In sum, each of the detainees has had access to counsel, access to the courts, and freedom to contact the press or the public at large.

B. The Litigation

On October 29, 2001, plaintiffs submitted a FOIA request to the Department of Justice seeking the following information about each detainee: 1) name and citizenship status; 2) location of arrest and place of detention; 3) date of detention/arrest, date any charges were filed, and the date of release; 4) nature of charges or basis for detention, and the disposition of such charges or basis; 5) names and addresses of lawyers representing any detainees; 6) identities of any courts which have been requested to enter orders sealing any proceedings in connection with any detainees, copies of any such orders, and the legal authorities relied upon by the government in seeking the sealing orders; 7) 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. To support its FOIA request, plaintiffs cited press reports about mistreatment of the detainees, which plaintiffs claimed raised serious questions about "deprivations of fundamental due process, including imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury."

In response to plaintiffs' FOIA request, the government released some information, but withheld much of the information requested. As to INS detainees, the government withheld the detainees' names, locations of arrest and detention, the dates of release, and the names of lawyers. As to criminal detainees, the government withheld the dates and locations of arrest and detention, the dates of release, and the citizenship status of each detainee. The government withheld all requested information with respect to material witnesses. Although the government has refused to disclose a comprehensive list of detainees' names and other detention information sought by plaintiffs, the government has from time to time publicly revealed names and information of the type sought by plaintiffs regarding a few individual detainees, particularly those found to have some connection to terrorism.

On December 5, 2001, plaintiffs filed this action in district court seeking to compel release of the withheld information pursuant to the Freedom of Information Act, 5 U.S.C. § 552. Plaintiffs also argued that the First Amendment, as interpreted in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) and its progeny, and the common law doctrine of access to public records require the government to disclose the names and detention information of...

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371 practice notes
  • Al Bahlul v. United States, No. 11–1324
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 20, 2016
    ...role of the political branches is both necessary and proper.”); Center for National Security Studies v. United States Dep't of Justice , 331 F.3d 918, 927 (D.C. Cir. 2003) (“[T]he judiciary owes some measure of deference to the executive in cases implicating national security[.]”).Nor do I ......
  • Judicial Watch, Inc. v. U.S. Dept. of Commerce, No. CIV.A. 95-133(RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2004
    ...certain classes of documents compiled for law enforcement purposes. 5 U.S.C. § 552(b)(7); Ctr. for Nat'l Sec. Studs. v. Dep't of Justice, 331 F.3d 918, 926 (D.C.Cir.2003). A "law enforcement purpose" exists where there is a "rational nexus" between the compiled document and a law enforcemen......
  • Heffernan v. Azar, Civil Action No. 15–2194 (RBW)
    • United States
    • U.S. District Court — District of Columbia
    • June 27, 2018
    ...the government's legitimate interest in keeping certain information confidential." Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) ; see also McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F.Supp.2d 47, 55–56 (D.D.C. 2012) ("Congress reco......
  • In re Nat'l Sec. Letter, No. C 11–02173 SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 14, 2013
    ...government must release its own classified or national security information. See, e.g., Ctr. for Nat'l Sec. Studies v. United States DOJ, 331 F.3d 918 (D.C.Cir.2003) (deferring to government position on release of records under FOIA); McGehee v. Casey, 718 F.2d 1137 (D.C.Cir.1983) (upholdin......
  • Request a trial to view additional results
370 cases
  • Al Bahlul v. United States, No. 11–1324
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 20, 2016
    ...role of the political branches is both necessary and proper.”); Center for National Security Studies v. United States Dep't of Justice , 331 F.3d 918, 927 (D.C. Cir. 2003) (“[T]he judiciary owes some measure of deference to the executive in cases implicating national security[.]”).Nor do I ......
  • Judicial Watch, Inc. v. U.S. Dept. of Commerce, No. CIV.A. 95-133(RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2004
    ...certain classes of documents compiled for law enforcement purposes. 5 U.S.C. § 552(b)(7); Ctr. for Nat'l Sec. Studs. v. Dep't of Justice, 331 F.3d 918, 926 (D.C.Cir.2003). A "law enforcement purpose" exists where there is a "rational nexus" between the compiled document and a law enforcemen......
  • Heffernan v. Azar, Civil Action No. 15–2194 (RBW)
    • United States
    • U.S. District Court — District of Columbia
    • June 27, 2018
    ...the government's legitimate interest in keeping certain information confidential." Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) ; see also McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F.Supp.2d 47, 55–56 (D.D.C. 2012) ("Congress reco......
  • In re Nat'l Sec. Letter, No. C 11–02173 SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 14, 2013
    ...government must release its own classified or national security information. See, e.g., Ctr. for Nat'l Sec. Studies v. United States DOJ, 331 F.3d 918 (D.C.Cir.2003) (deferring to government position on release of records under FOIA); McGehee v. Casey, 718 F.2d 1137 (D.C.Cir.1983) (upholdin......
  • Request a trial to view additional results
2 books & journal articles
  • National Security and Access, a Structural Perspective
    • United States
    • Journal of National Security Law & Policy Nbr. 11-3, January 2021
    • January 1, 2021
    ...the “confusion and inconsistency regarding the right of access”). 187. See, e.g., Ctr. for Nat’l Security Stud. v. U.S. Dep’t of Just., 331 F.3d 918, 935 (D.C. Cir. 2003) (stating that Houchins’ rule that there is no First Amendment right to government-controlled information survived Richmo......
  • Resolving National Security Questions: a Comparative Analysis of Judicial Review in the United States, Israel, and Europe
    • United States
    • Georgetown Journal of International Law Nbr. 51-3, April 2020
    • April 1, 2020
    ...148. See Barceleau, supra note 9, at 890. 149. Id.; see also Ctr. for Nat’l Sec. Studies v. United States Dep’t of Justice, 331 F.3d 918, 928 (D.C. Cir. 2003) (“[T]he judiciary is in an extremely poor position to second-guess the executive’s judgment in [the] area of national security.”). 1......

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