Ctr Natl Sec Studies vs. DOJ, 061703 FEDDC, 02-5254a

Docket Nº:02-5254a
Party Name:Ctr Natl Sec Studies vs. DOJ
Case Date:June 17, 2003
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Ctr Natl Sec Studies vs. DOJ




United States Court of Appeals


Argued November 18, 2002 Decided June 17, 2003

No. 02-5254 & No. 02–5300





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 appellants/cross-appellees. 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.

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.


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

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. Hober- man, 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 appel- lees/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 govern- ment) seeking release of information concerning persons de- tained 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 justi- fy 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 ex- empts ‘‘records or information compiled for law enforcement purposes TTT 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 cov- ered 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.

  1. Background A. The Investigation Consistent with the mutual decision of the parties to seek resolution to this controversy on summary judgment, the facts 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 De- partment of Justice, defendant in this action, has been con- ducting 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 inter- views resulted in the interviewees being detained. As rele- vant 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 de- tained 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 Septem- ber 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 indi- viduals 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 crimi- nal 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 pro- ceedings. The government has not revealed how many indi- viduals were detained on material witness warrants. At least two individuals initially held as material witnesses are now being held for alleged terrorist activity.


    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.

    1. The Litigation On October 29, 2001, plaintiffs submitted a FOIA request to the Department of Justice seeking the following informa- tion about each detainee: 1) name and citizenship status; 2) location of arrest and place of detention; 3) date of deten- tion/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 di- rectives 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 mistreat- ment 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 informa- tion requested. As to INS detainees, the government with- held 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...

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