United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2002 Decided June 17, 2003
No. 02-5254
& No. 02­5300

CENTER FOR NATIONAL SECURITY STUDIES, ET AL.,
APPELLANTS/CROSS­APPELLEES
v.
U.S. DEPARTMENT OF JUSTICE,
APPELLEES/CROSS­APPELLANTS

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.
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.
Kate A. Martin argued the cause for appellees/crossappellants.
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 crossmotions
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 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 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 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.

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 compre-

hensive 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
(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 the detainees.
The parties filed cross-motions for summary judgment. In
its motion, the government contended that FOIA Exemptions
7(A), 7(C), and 7(F), 5 U.S.C. § 552(b)(7)(A), (C) & (F), allow
the government to withhold the requested documents as to all
three categories of detainees. These exemptions permit withholding
information ''compiled for law enforcement purposes''
whenever disclosure:
(A) could reasonably be expected to interfere with enforcement
proceedings, TTT (C) could reasonably be expected
to constitute an unwarranted invasion of personal
privacy, TTT or (F) could reasonably be expected to
endanger the life or physical safety of any individual.
5 U.S.C. § 552(b)(7)(A), (C), (F). As to the material witness
detainees, the government also invoked Exemption 3, 5
U.S.C. § 552(b)(3), which exempts from FOIA requirements
matters that are ''specifically exempted from disclosure by
[other statutes] TTT,'' contending that Federal Rule of Criminal
Procedure 6(e), which limits the disclosure of grand jury
matters, bars the release of information concerning material
witnesses.

 

In support of its motion, the government submitted affidavits
from James Reynolds, Director of the Terrorism and
Violent Crime Section of the Department of Justice, and Dale
Watson, FBI Executive Assistant Director for Counterterrorism
-officials with central responsibility for the ongoing terrorist
investigation. See Reynolds Decl., Reynolds Supp.
Decl., Reynolds Second Supp. Decl., and Watson Decl.
As to Exemption 7(A), the declarations state that release of
the requested information could hamper the ongoing investigation
by leading to the identification of detainees by terrorist
groups, resulting in terrorists either intimidating or cutting
off communication with the detainees; by revealing the
progress and direction of the ongoing investigation, thus
allowing terrorists to impede or evade the investigation; and
by enabling terrorists to create false or misleading evidence.
As to Exemption 7(C), the declarations assert that the detainees
have a substantial privacy interest in their names and
detention information because release of this information
would associate detainees with the September 11 attacks,
thus injuring detainees' reputations and possibly endangering
detainees' personal safety. Finally, as to Exemption 7(F), the
government's declarations contend that release of the information
could endanger the public safety by making terrorist
attacks more likely and could endanger the safety of individual
detainees by making them more vulnerable to attack from
terrorist organizations. For these same reasons, the counterterrorism
officials state that the names of the detainees'
lawyers should also be withheld.


C. The Judgment
On August 2, 2002, the district court rendered its decision,
ruling in part for the plaintiffs and in part for the government.
Ctr. for Nat'l Sec. Studies v. United States Dep't of
Justice, 215 F. Supp. 2d 94 (D.D.C. 2002) (CNSS). Briefly
put, the court ordered the government to disclose the names
of the detainees and detainees' lawyers, but held that the
government was entitled to withhold all other detention information
under Exemptions 7(A) and 7(F). Id. at 113.


Addressing the names of the detainees, the court held that
disclosure could not reasonably be expected to interfere with
ongoing enforcement proceedings, and thus the names were
not exempt under 7(A). The court rejected the government's
argument that disclosure of detainees' names would deter
them from cooperating with the government because terrorist
groups likely already know which of their cell members have
been detained. Id. at 101. Moreover, the court reasoned
that the government's voluntary disclosure of the names of
several detainees undermined the force of its argument about
the harms resulting from disclosure. Id. at 101­02. The
court further held that ''the government has not met its
burden of establishing a 'rational link' between the harms
alleged and disclosure'' because its declarations provided no
evidence that the detainees actually have any connection to,
or knowledge of, terrorist activity. Id. at 102 (quoting Crooker
v. Bureau of Alcohol, Tobacco and Firearms, 789 F.2d 64,
67 (D.C. Cir. 1986)).


The court next rejected the government's 7(A) argument
that disclosure of names would allow terrorist groups to map
the course of, and thus impede, its investigation. Id. at 103.
The government had advanced a ''mosaic'' argument, contending
that the court should consider the aggregate release of
the names under 7(A) rather than the release of each in
isolation, on the reasoning that the release of the names in
toto could assist terrorists in piecing together the course,
direction and focus of the investigation. Id. at 103. The
district court rejected this argument, holding, inter alia, as a
matter of law that FOIA Exemption 7(A) requires an individualized
assessment of disclosure, and that the government's
mosaic theory could not justify a blanket exclusion of information
under Exemption 7(A). Id. at 103­04. In the district
court's view, the mosaic theory is only cognizable under
Exemption 1, which protects information authorized by Executive
Order to be kept secret in the interest of national
defense or foreign policy. Id. The court further rejected the
government's final 7(A) argument, concluding that there was
insufficient evidence that disclosure would enable terrorist
groups to create false and misleading evidence. Id. at 104­
05.


Turning to Exemptions 7(C) and 7(F), the court rejected
the government's claims, holding that the admittedly substantial
privacy and safety interests of the detainees do not
outweigh the vital public interest in ensuring that the government
is not abusing its power. Id. at 105­06. The court
noted that plaintiffs have raised ''grave concerns'' about the
mistreatment of detainees and have provided evidence of
alleged mistreatment in the form of media reports, and firsthand
accounts given to Congress and human rights groups.
Id. at 105 & n.17. While rejecting the government's attempt
to withhold detainees' names, the court ruled that it would
permit detainees to opt out of disclosure by submitting a
signed declaration within fifteen days. Id. at 106. The court
did not address the government's argument that disclosure
could harm public safety.


Having rejected the government's Exemption 7 claims, the
court further held that Exemption 3 does not bar the release
of the names of material witnesses. Id. at 106­07. Specifically,
the court held that Exemption 3 does not apply, reasoning
Federal Rule of Criminal Procedure 6(e) does not bar the
disclosure of the identities of persons detained as material
witnesses, but only bars ''disclosure of a matter occurring
before a grand jury.'' Fed. R. Crim. P. 6(e)(6). The government's
evidence did not establish that any of the detainees
were actual grand jury witnesses or were scheduled to testify
before a grand jury. Further, the government's disclosure of
the identities of twenty-six material witness detainees undercut
its argument that disclosure is barred by statute. 215 F.
Supp. 2d at 106­07. As to the government's contention that
court sealing orders prevent the government from releasing
the names of material witnesses, the court ordered the government
to submit such orders for in camera review or to
submit a ''supplemental affidavit explaining the nature and
legal basis for these sealing orders.'' Id. at 108.


For reasons not unlike its rejection of the government's
attempt to withhold the names of detainees, the court also
held that the government must reveal the names of the
detainees' lawyers.1 The court determined that the names of
1 The government has withheld the names of the attorneys for
both INS detainees and material witness detainees; it has revealed
the names of the attorneys for the criminally charged detainees.
the attorneys were not covered by Exemptions 7(A), 7(C), or
7(F) for the same reason it had rejected the government's
attempt to withhold the names of detainees; because attorneys
have no expectation of anonymity; and because any
concerns about physical danger were purely speculative. Id.
at 109.


Turning to the other information sought by plaintiffs-the
dates and locations of arrest, detention, and release-the
court granted summary judgment for the government on its
claim that such detention information was covered under 7(A)
and 7(F). Id. at 108. The court credited the counterterrorism
officials' judgment that the detention information ''would
be particularly valuable to anyone attempting to discern
patterns in the Government's investigation and strategy,'' and
that disclosure would make detention facilities ''vulnerable to
retaliatory attacks.'' Id. Finally, the court rejected plaintiffs'
claim that the First Amendment and common law entitle
them to the dates and locations of arrest, detention, and
release. Id. at 111­12.


The court ordered the government to release the names of
detainees and their lawyers in fifteen days, subject to the
right of detainees to opt out of disclosure. Id. at 113­14. On
August 15, 2002, the district court stayed its order pending
appeal. The government timely appealed. Plaintiffs crossappealed
the district court's ruling that the detention information
was properly withheld and the district court's ruling
that detainees could opt out of disclosure. The appeals were
consolidated.


II. The FOIA Claims
We review de novo the district court's grant of summary
judgment, Johnson v. Executive Office for United States
Attorneys, 310 F.3d 771, 774 (D.C. Cir. 2002), and therefore
consider anew each of the claims and defenses advanced
before the district court. We turn first to the government's
claims of exemption from disclosure under FOIA of the
names of the detainees and their lawyers.

A. Names of Detainees
''Public access to government documents'' is the ''fundamental
principle'' that animates FOIA. John Doe Agency v.
John Doe Corp., 493 U.S. 146, 151 (1989). ''Congress recognized,
however, that public disclosure is not always in the
public interest.'' CIA v. Sims, 471 U.S. 159, 166­67 (1985).
Accordingly, FOIA represents a balance struck by Congress
between the public's right to know and the government's
legitimate interest in keeping certain information confidential.
John Doe Agency, 493 U.S. at 152. To that end, FOIA
mandates disclosure of government records unless the requested
information falls within one of nine enumerated
exemptions, see 5 U.S.C. § 552(b). While these exemptions
are to be ''narrowly construed,'' FBI v. Abramson, 456 U.S.
615, 630 (1982), courts must not fail to give them ''a meaningful
reach and application,'' John Doe Agency, 493 U.S. at 152.
The government bears the burden of proving that the withheld
information falls within the exemptions it invokes. 5
U.S.C. § 552(a)(4)(b).


The government invokes four exemptions-7(A), 7(C), 7(F),
and 3-to shield the names of detainees from disclosure.
Upon review, we hold that Exemption 7(A) was properly
invoked to withhold the names of the detainees and their
lawyers. Finding the names protected under 7(A), we need
not address the other exemptions invoked by the government
and reserve judgment on whether they too would support
withholding the names.


Exemption 7(A) allows an agency to withhold ''records or
information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement
records or information TTT could reasonably be expected to
interfere with enforcement proceedings.'' 5 U.S.C.
§ 552(b)(7)(A). In enacting this exemption, ''Congress recognized
that law enforcement agencies had legitimate needs to
keep certain records confidential, lest the agencies be hindered
in their investigations.'' NRLB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 232 (1978). Exemption 7(A) does
not require a presently pending ''enforcement proceeding.''

Rather, as the district court correctly noted, it is sufficient
that the government's ongoing September 11 terrorism investigation
is likely to lead to such proceedings. See CNSS, 215
F. Supp. 2d at 101 n.9 (citing Bevis v. Dep't of State, 801 F.2d
1386 (D.C. Cir. 1986)).


The threshold question here is whether the names of
detainees were ''compiled for law enforcement purposes.'' 5
U.S.C. § 552(b)(7). Because the DOJ is an agency ''specializ[
ing] in law enforcement,'' its claim of a law enforcement
purpose is entitled to deference. Campbell v. Dep't of Justice,
164 F.3d 20, 32 (D.C. Cir. 1998); Quinon v. FBI, 86 F.3d
1222, 1228 (D.C. Cir. 1996); Pratt v. Webster, 673 F.2d 408,
419 (D.C. Cir. 1982). To establish a law enforcement purpose,
DOJ's declarations must establish (1) ''a rational nexus
between the investigation and one of the agency's law enforcement
duties;'' and (2) ''a connection between an individual
or incident and a possible security risk or violation of
federal law.'' Campbell, 164 F.3d at 32 (citations and quotations
omitted); see also Quinon, 86 F.3d at 1228. The
government's proffer easily meets this standard. The terrorism
investigation is one of DOJ's chief ''law enforcement
duties'' at this time, see Reynolds Decl. ¶ 2, and the investigation
concerns a heinous violation of federal law as well as a
breach of this nation's security. Moreover, the names of the
detainees and their connection to the investigation came to
the government's attention as a result of that law enforcement
investigation. Reynolds Decl. ¶ ¶ 2­5.


Nonetheless, plaintiffs contend that detainees' names fall
outside Exemption 7 because the names are contained in
arrest warrants, INS charging documents, and jail records.
Since these documents have traditionally been public, plaintiffs
contend, Exemption 7 should not be construed to allow
withholding of the names. We disagree. Plaintiffs are seeking
a comprehensive listing of individuals detained during
the post-September 11 investigation. The names have been
compiled for the ''law enforcement purpose'' of successfully
prosecuting the terrorism investigation. As compiled, they
constitute a comprehensive diagram of the law enforcement
investigation after September 11. Clearly this is information
compiled for law enforcement purposes.


Next, plaintiffs urge that Exemption 7(A) does not apply
because disclosure is not ''reasonably likely to interfere with
enforcement proceedings.'' 5 U.S.C. § 552(b)(7)(A). We disagree.
Under Exemption 7(A), the government has the
burden of demonstrating a reasonable likelihood of interference
with the terrorism investigation. The government's
declarations, viewed in light of the appropriate deference to
the executive on issues of national security, satisfy this burden.
It is well-established that a court may rely on government
affidavits to support the withholding of documents under
FOIA exemptions, King v. United States Dep't of Justice, 830
F.2d 210, 217 (D.C. Cir. 1987), and that we review the
government's justifications therein de novo, 5 U.S.C.
§ 552(a)(4)(B); Summers v. Dep't of Justice, 140 F.3d 1077,
1080 (D.C. Cir. 1998). It is equally well-established that the
judiciary owes some measure of deference to the executive in
cases implicating national security, a uniquely executive purview.
See, e.g., Zadvydas v. Davis, 533 U.S. 678, 696 (2001)
(noting that ''terrorism or other special circumstances'' might
warrant ''heightened deference to the judgments of the political
branches''); Dep't of the Navy v. Egan, 484 U.S. 518, 530
(1988) (''courts traditionally have been reluctant to intrude
upon the authority of the executive in military and national
security affairs''). Indeed, both the Supreme Court and this
Court have expressly recognized the propriety of deference to
the executive in the context of FOIA claims which implicate
national security.


In CIA v. Sims, 471 U.S. 159 (1985), the Supreme Court
examined the CIA's claims that the names and institutional
affiliations of certain researchers in a government-sponsored
behavior modification program were exempt from disclosure
under FOIA Exemption 3, 5 U.S.C. § 552(b)(3). Id. at 163­
64. The agency claimed that the information was protected
from disclosure by a statute charging the CIA to prevent
unauthorized disclosure of ''intelligence sources and meth-
ods,'' 50 U.S.C. § 403(d)(3). In accepting the CIA Director's
judgment that disclosure would reveal intelligence sources
and methods, the Court explained that ''[t]he decisions of the
Director, who must of course be familiar with 'the whole
picture,' as judges are not, are worthy of great deference
given the magnitude of the national security interests and
potential risks at stake.'' Sims, 471 U.S. at 179. The Court
further held that ''it is the responsibility of the Director of
Central Intelligence, not that of the judiciary, to weigh the
variety of subtle and complex factors in determining whether
disclosure of information may lead to an unacceptable risk of
compromising the Agency's intelligence-gathering process.''
Id. at 180.


The same is true of the Justice Department officials in
charge of the present investigation. We have consistently
reiterated the principle of deference to the executive in the
FOIA context when national security concerns are implicated.
In McGehee v. Casey, we examined the standard of review for
FOIA requests of classified documents. 718 F.2d 1137, 1148
(D.C. Cir. 1983). We observed:
[C]ourts are to ''accord substantial weight to an agency's
affidavit concerning the details of the classified status of
the disputed record'' because ''the Executive departments
responsible for national defense and foreign policy
matters have unique insights into what adverse affects
[sic] might occur as a result of a particular classified
record.''
Id. (quoting S. Rep. No. 1200, 93d Cong., 2d Sess. 12,
U.S.C.C.A.N. 1974, p. 6267 (1974) (Conference Report on the
FOIA Amendments)). Moreover, in the FOIA context, we
have consistently deferred to executive affidavits predicting
harm to the national security, and have found it unwise to
undertake searching judicial review. See, e.g., King, 830 F.2d
at 217 (''the court owes substantial weight to detailed agency
explanations in the national security context''); Gardels v.
CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982) (''Once satisfied
that proper procedures have been followed and that the
information logically falls into the exemption claimed, the
courts need not go further to test the expertise of the agency,
or to question its veracity when nothing appears to raise the
issue of good faith.''); Halperin v. CIA, 629 F.2d 144, 148
(D.C. Cir. 1980); Weissman v. CIA, 565 F.2d 692, 697­98
(D.C. Cir. 1977).


Given this weight of authority counseling deference in
national security matters, we owe deference to the government's
judgments contained in its affidavits. Just as we have
deferred to the executive when it invokes FOIA Exemptions 1
and 3, we owe the same deference under Exemption 7(A) in
appropriate cases, such as this one. Id. Plaintiffs provide no
valid reason why the general principle of deference to the
executive on national security issues should apply under
FOIA Exemption 3, as in Sims and Halperin, and Exemption
1, as in our earlier cases, but not under Exemption 7(A). Nor
can we can conceive of any reason to limit deference to the
executive in its area of expertise to certain FOIA exemptions
so long as the government's declarations raise legitimate
concerns that disclosure would impair national security.
The need for deference in this case is just as strong as in
earlier cases. America faces an enemy just as real as its
former Cold War foes, with capabilities beyond the capacity
of the judiciary to explore. Exemption 7(A) explicitly requires
a predictive judgment of the harm that will result from
disclosure of information, permitting withholding when it
''could reasonably be expected'' that the harm will result. 5
U.S.C. § 552(b)(7)(A). It is abundantly clear that the government's
top counterterrorism officials are well-suited to make
this predictive judgment. Conversely, the judiciary is in an
extremely poor position to second-guess the executive's judgment
in this area of national security. Cf. Krikorian v. Dep't
of State, 984 F.2d 461, 464 (D.C. Cir. 1993) (quoting Halperin,
629 F.2d at 148) (''Judges TTT lack the expertise necessary to
second-guess such agency opinions in the typical national
security FOIA case.''). We therefore reject any attempt to
artificially limit the long-recognized deference to the executive
on national security issues. Judicial deference depends
on the substance of the danger posed by disclosure-that is,
harm to the national security-not the FOIA exemption
invoked.


In light of the deference mandated by the separation of
powers and Supreme Court precedent, we hold that the
government's expectation that disclosure of the detainees'
names would enable al Qaeda or other terrorist groups to
map the course of the investigation and thus develop the
means to impede it is reasonable. A complete list of names
informing terrorists of every suspect detained by the government
at any point during the September 11 investigation
would give terrorist organizations a composite picture of the
government investigation, and since these organizations
would generally know the activities and locations of its members
on or about September 11, disclosure would inform
terrorists of both the substantive and geographic focus of the
investigation. Moreover, disclosure would inform terrorists
which of their members were compromised by the investigation,
and which were not. This information could allow
terrorists to better evade the ongoing investigation and more
easily formulate or revise counter-efforts. In short, the
''records could reveal much about the focus and scope of the
[agency's] investigation, and are thus precisely the sort of
information exemption 7(A) allows an agency to keep secret.''
Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir. 1996).


As the district court noted, courts have relied on similar
mosaic arguments in the context of national security. CNSS,
215 F. Supp. 2d at 103 & n.13. In Sims, for example, the
Supreme Court cautioned that ''bits and pieces'' of data
'' 'may aid in piecing together bits of other information even
when the individual piece is not of obvious importance in
itself.' '' 471 U.S. at 178 (quoting Halperin, 629 F.2d at 150).
Thus, ''[w]hat may seem trivial to the uninformed, may appear
of great moment to one who has a broad view of the
scene and may put the questioned item of information in its
proper context.'' Id. (quotations omitted). Such a danger is
present here. While the name of any individual detainee may
appear innocuous or trivial, it could be of great use to al
Qaeda in plotting future terrorist attacks or intimidating
witnesses in the present investigation. Cf. United States v.
Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) (''[t]hings that did
not make sense to the District Judge would make all too
much sense to a foreign counter-intelligence specialist who
could learn much about this nation's intelligence-gathering
capabilities from what these documents revealed about
sources and methods.''). Importantly, plaintiffs here do not
request ''bits and pieces'' of information, but rather seek the
names of every single individual detained in the course of the
government's terrorism investigation. It is more than reasonable
to expect that disclosing the name of every individual
detained in the post-September 11 terrorism investigation
would interfere with that investigation.


Similarly, the government's judgment that disclosure would
deter or hinder cooperation by detainees is reasonable. The
government reasonably predicts that if terrorists learn one of
their members has been detained, they would attempt to
deter any further cooperation by that member through intimidation,
physical coercion, or by cutting off all contact with the
detainee. A terrorist organization may even seek to hunt
down detainees (or their families) who are not members of
the organization, but who the terrorists know may have
valuable information about the organization.


On numerous occasions, both the Supreme Court and this
Court have found government declarations expressing the
likelihood of witness intimidation and evidence tampering
sufficient to justify withholding of witnesses' names under
Exemption 7(A). See NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 239­42 (1978) (allowing withholding pursuant to
Exemption 7(A) based on the risk of witness intimidation that
would attend releasing witness statements prior to NLRB
proceedings); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d
309, 312­13 (D.C. Cir. 1988) (upholding 7(A) claim based on
government declaration that disclosure would enable corporation
under investigation to intimidate or coerce informing
employees); accord Mapother v. Dep't of Justice, 3 F.3d 1533,
1542­43 (D.C. Cir. 1993) (recognizing that government affidavits
predicting witness intimidation and evidence fabrication
''have achieved recognition in Exemption 7 caselaw''); Manna
v. Dep't of Justice, 51 F.3d 1158, 1165 (3d Cir. 1995) (allowing
withholding of names of all ''interviewees, informants, [and]
witnesses'' in criminal investigation based on fears of retaliation
from organized crime). Most recently, we addressed in
Swan a FOIA request that would have resulted in the disclosure
of, inter alia, the identities of witnesses in an SEC
investigation. 96 F.3d at 499. The SEC's declaration alleged
that disclosure would risk allowing the subjects of the investigation
to ''intimidate witnesses, manufacture favorable evidence,
and conceal damaging evidence.'' Id. We accepted
the SEC's declaration and allowed the documents to be
withheld. Id. at 499, 500. The risks of witness intimidation
and evidence tampering alleged here are at least as great as
those in Swan and our other precedents. We see no reason
to assume that terrorists are less likely to intimidate the
detainees here than were the subjects of the SEC investigation
in Swan. Consequently, we hold that disclosure of
detainees' names could ''reasonably be expected to interfere''
with the ongoing terrorism investigation.


For several reasons, plaintiffs contend that we should
reject the government's predictive judgments of the harms
that would result from disclosure. First, they argue that
terrorist organizations likely already know which of their
members have been detained. We have no way of assessing
that likelihood. Moreover, even if terrorist organizations
know about some of their members who were detained, a
complete list of detainees could still have great value in
confirming the status of their members. Cf. Gardels, 689
F.2d at 1105 (rejecting a similar argument in the FOIA
national security context and stating that ''[o]fficial acknowledgment
ends all doubt and gives the foreign organization a
firmer basis for its own strategic or tactical response.''). For
example, an organization may be unaware of a member who
was detained briefly and then released, but remains subject
to continuing government surveillance. Reynolds Supp. Decl.
¶ ¶ 3, 5. After disclosure, this detainee could be irreparably
compromised as a source of information.


More importantly, some detainees may not be members of
terrorist organizations, but may nonetheless have been detained
on INS or material witness warrants as having infor-
mation about terrorists. Terrorist organizations are less
likely to be aware of such individuals' status as detainees.
Such detainees could be acquaintances of the September 11
terrorists, or members of the same community groups or
mosques. See Rachel L. Swarns, Oregon Muslims Protest
Monthlong Detention Without a Charge, N.Y. TIMES, April 20,
2003, at A16 (describing material witness detainee who attended
same mosque as indicted terrorism suspects). These
detainees, fearing retribution or stigma, would be less likely
to cooperate with the investigation if their names are disclosed.
Moreover, tracking down the background and location
of these detainees could give terrorists insights into the
investigation they would otherwise be unlikely to have. After
disclosure, terrorist organizations could attempt to intimidate
these detainees or their families, or feed the detainees false
or misleading information. It is important to remember that
many of these detainees have been released at this time and
are thus especially vulnerable to intimidation or coercion.
While the detainees have been free to disclose their names to
the press or public, it is telling that so few have come
forward, perhaps for fear of this very intimidation.
We further note the impact disclosure could have on the
government's investigation going forward. A potential witness
or informant may be much less likely to come forward
and cooperate with the investigation if he believes his name
will be made public. Cf. Sims, 471 U.S. at 172 (noting
Congress's concern that intelligence sources will ''close up
like a clam'' unless the government maintains complete confidentiality);
Manna, 51 F.3d at 1165 (''disclosure TTT could
result in a chilling effect upon potential cooperators and
witnesses'').


Plaintiffs next argue that the government's predictive judgment
is undermined by the government's disclosure of some
of the detainees' names. The Supreme Court confronted a
similar argument in Sims, in which respondents contended
that ''because the Agency has already revealed the names of
many of the institutions at which [behavior modification]
research was performed, the Agency is somehow estopped
from withholding the names of others.'' 471 U.S. at 180. In
rejecting the argument, the Court stated that ''[t]his suggestion
overlooks the political realities of intelligence operations
in which, among other things, our Government may choose to
release information deliberately to 'send a message' to allies
or adversaries.'' Id. We likewise reject the plaintiffs' version
of this discredited argument. The disclosure of a few
pieces of information in no way lessens the government's
argument that complete disclosure would provide a composite
picture of its investigation and have negative effects on the
investigation. Furthermore, as the Sims Court recognized,
strategic disclosures can be important weapons in the government's
arsenal during a law enforcement investigation. Id.
(''The national interest sometimes makes it advisable, or even
imperative, to disclose information that may lead to the
identity of intelligence sources.''). The court should not
second-guess the executive's judgment in this area. ''[I]t is
the responsibility of the [executive] not that of the judiciary''
to determine when to disclose information that may compromise
intelligence sources and methods. Id.


Contrary to plaintiffs' claims, the government's submissions
easily establish an adequate connection between both the
material witness and the INS detainees and terrorism to
warrant full application of the deference principle. First, all
material witness detainees have been held on warrants issued
by a federal judge pursuant to 18 U.S.C. § 3144. Reynolds
Decl. ¶ 4. Under this statute, a federal judge may issue a
material witness warrant based on an affidavit stating that
the witness has information relevant to an ongoing criminal
investigation. Consequently, material witness detainees have
been found by a federal judge to have relevant knowledge
about the terrorism investigation. It is therefore reasonable
to assume that disclosure of their names could impede the
government's use of these potentially valuable witnesses.
As to the INS detainees, the government states that they
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.


Reynolds Decl. ¶ 10. ''Other INS detainees may have been
questioned because of their association with an organization
believed to be involved in providing material support to
terrorist organizations.'' Watson Decl. ¶ 8. Moreover, ''[i]n
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.'' Reynolds Decl. ¶ 10; Watson Decl. ¶ 8. Furthermore,
the Watson Declaration speaks of the INS detainees
being subject to ''public hearings involving evidence about
terrorist links,'' ¶ 16, and states that ''concerns remain'' about
links to terrorism, ¶ 19. The clear import of the declarations
is that many of the detainees have links to terrorism. This
comes as no surprise given that the detainees were apprehended
during the course of a terrorism investigation, and
given that several detainees have been charged with federal
terrorism crimes or held as enemy combatants. Accordingly,
we conclude that the evidence presented in the declarations is
sufficient to show a rational link between disclosure and the
harms alleged.


In support of this conclusion, we note that the Third Circuit
confronted a similar issue involving the INS detainees when it
considered the constitutionality of closed deportation hearings
in North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198
(3d Cir. 2002), cert. denied, No. 02­1289 (May 27, 2003). The
court was faced with the same Watson Declaration in evidence
here and the same government prediction that harm
would result from the disclosure of information about the INS
detainees. See id. at 218. That court acknowledged that the
''representations of the Watson Declaration are to some degree
speculative.'' Id. at 219. But the court did not search
for specific evidence that each of the INS detainees was
involved in terrorism, nor did it embark on a probing analysis
of whether the government's concerns were well-founded.
Id. Rather, it was ''quite hesitant to conduct a judicial
inquiry into the credibility of these security concerns, as
national security is an area where courts have traditionally
extended great deference to Executive expertise.'' Id. The
court concluded: ''To the extent that the Attorney General's
national security concerns seem credible, we will not lightly
second-guess them.'' Id. We think the Third Circuit's approach
was correct and we follow it here. Inasmuch as the
concerns expressed in the government's declarations seem
credible-and inasmuch as the declarations were made by
counterterrorism experts with far greater knowledge than
this Court-we hold that the disclosure of the names of the
detainees could reasonably be expected to interfere with the
ongoing investigation.


In upholding the government's invocation of Exemption
7(A), we observe that we are in accord with several federal
courts that have wisely respected the executive's judgment in
prosecuting the national response to terrorism. See Hamdi
v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (dismissing the
habeas corpus petition of a United States citizen captured in
Afghanistan challenging his military detention and designation
as an enemy combatant); Global Relief Found. v.
O'Neill, 315 F.3d 748 (7th Cir. 2002) (upholding against
constitutional challenge a portion of the USA PATRIOT Act,
50 U.S.C. § 1702(c), which authorizes the ex parte use of
classified evidence in proceedings to freeze the assets of
terrorist organizations); North Jersey Media Group, 308
F.3d 198 (holding that closure of ''special interest'' deportation
hearings involving INS detainees with alleged connections
to terrorism does not violate the First Amendment);
Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002) (reversing
district court's order that allowed alleged enemy combatant
unmonitored access to counsel). We realize that not all
courts are in agreement. In Detroit Free Press v. Ashcroft,
303 F.3d 681 (6th Cir. 2002), the Sixth Circuit acknowledged
the necessity of deferring to the executive on terrorism issues
but held that the First Amendment prohibits a blanket closure
of ''special interest deportation hearings.'' We do not
find the Sixth Circuit's reasoning compelling, but join the
Third, Fourth, and Seventh Circuits in holding that the courts
must defer to the executive on decisions of national security.
In so deferring, we do not abdicate the role of the judiciary.
Rather, in undertaking a deferential review we simply recognize
the different roles underlying the constitutional separation
of powers. It is within the role of the executive to
acquire and exercise the expertise of protecting national
security. It is not within the role of the courts to secondguess
executive judgments made in furtherance of that
branch's proper role. The judgment of the district court
ordering the government to disclose the names of the detainees
is reversed.


B. Identity of Counsel
We next address whether the government properly withheld
the names of the attorneys for INS and material witness
detainees under Exemptions 7(A), 7(C), and 7(F). As with
the identities of the detainees, we hold that their attorneys'
names are also protected from disclosure by Exemption 7(A).
The government contends that a list of attorneys for the
detainees would facilitate the easy compilation of a list of all
detainees, and all of the dangers flowing therefrom. It is
more than reasonable to assume that plaintiffs and amici
press organizations would attempt to contact detainees' attorneys
and compile a list of all detainees. As discussed above,
if such a list fell into the hands of al Qaeda, the consequences
could be disastrous. Having accepted the government's predictive
judgments about the dangers of disclosing a comprehensive
list of detainees, we also defer to its prediction that
disclosure of attorneys' names involves the same danger. Cf.
Sims, 471 U.S. at 179­80 (upholding under FOIA Exemption
3 the government's withholding of the institutional affiliations
of researchers in a secret government program; deferring to
government's judgment that disclosure would lead to identification
of the researchers themselves and the consequent loss
of confidential intelligence sources).


C. Other Detention Information
Having held that the government properly withheld the
names of the detainees pursuant to Exemption 7(A), we easily
affirm the portion of the district court's ruling that allowed
withholding, under Exemption 7(A), of the more comprehensive
detention information sought by plaintiffs.


As outlined above, supra at 5, plaintiffs sought the dates
and locations of arrest, detention, and release for each of the
detainees. Even more than disclosure of the identities of
detainees, the information requested here would provide a
complete roadmap of the government's investigation. Knowing
when and where each individual was arrested would
provide a chronological and geographical picture of the government
investigation. Terrorists could learn from this information
not only where the government focused its investigation
but how that investigation progressed step by step.
Armed with that knowledge, they could then reach such
conclusions as, for example, which cells had been compromised,
and which individuals had been cooperative with the
United States. They might well be able to derive conclusions
as to how more adequately secure their clandestine operations
in future terrorist undertakings. Similarly, knowing
where each individual is presently held could facilitate communication
between terrorist organizations and detainees and
the attendant intimidation of witnesses and fabrication of
evidence. As explained in detail above, these impediments to
an ongoing law enforcement investigation are precisely what
Exemption 7(A) was enacted to preclude. Accordingly, we
affirm the district court and hold that the government properly
withheld information about the dates and locations of
arrest, detention, and release for each detainee.


III. Alternative Grounds
We turn now to plaintiffs' alternative grounds for seeking
disclosure of the detainees' names and detention information.
Although FOIA does not mandate disclosure, plaintiffs contend
that disclosure is independently required by both the
First Amendment and the common law right of access to
government information. We address these contentions in
turn, and conclude that neither is meritorious.

A. The First Amendment
As outlined above, the government voluntarily released the
names of all criminally charged detainees. Therefore, as in
its FOIA request, plaintiffs seek the names of INS and
material witness detainees, and the dates and location of
arrest, detention, and release for all detainees. Plaintiffs
characterize the information they seek as ''arrest records,''
and contend that the public has a right of access to arrest
records under the First Amendment, as interpreted in Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). We
disagree. Plaintiffs seek not individual arrest records, but a
comprehensive listing of the individuals detained in connection
with a specified law enforcement investigation as well as
investigatory information about where and when each individual
was arrested, held, and released. The narrow First
Amendment right of access to information recognized in
Richmond Newspapers does not extend to non-judicial documents
that are not part of a criminal trial, such as the
investigatory documents at issue here.


The First Amendment states that ''Congress shall make no
law TTT abridging the freedom of speech, or of the press.''
U.S. CONST. amend. I. In accord with its plain language, the
First Amendment broadly protects the freedom of individuals
and the press to speak or publish. It does not expressly
address the right of the public to receive information. Indeed,
in contrast to FOIA's statutory presumption of disclosure,
the First Amendment does not ''mandate[ ] a right of
access to government information or sources of information
within the government's control.'' Houchins v. KQED, 438
U.S. 1, 15 (1978) (plurality opinion); id. at 16 (Stewart, J.,
concurring in the judgment) (the First Amendment ''do[es]
not guarantee the public a right of access to information
generated or controlled by the government''). Thus, as the
Court explained in Houchins: ''[t]he public's interest in
knowing about its government is protected by the guarantee
of a Free Press, but the protection is indirect. The Constitution
itself is neither a Freedom of Information Act nor an
Official Secrets Act.'' Id. at 14 (quoting Potter Stewart, Or of
the Press, 26 HASTINGS L.J. 631, 636 (1975)). Rather, disclo-
sure of government information generally is left to the ''political
forces'' that govern a democratic republic. Id. at 14­15.
Two years after Houchins, the Court recognized a limited
First Amendment right of access to a criminal trial. See
Richmond Newspapers, 448 U.S. 555. In Richmond Newspapers,
the Court explained that the First Amendment ''was
enacted against the backdrop of the long history of trials
being historically open'' and thus incorporated the notion of
public access to criminal trials. Id. at 576­77. The Court
expanded this limited right somewhat in the years after
Richmond Newspapers. See Press­Enterprise Co. v. Superior
Court, 464 U.S. 501 (1984) (Press­Enterprise I) (holding
that the public has a First Amendment right to attend voir
dire examinations during criminal trial); Press­Enterprise
Co. v. Superior Court, 478 U.S. 1 (1986) (Press­Enterprise II)
(holding that the public has a First Amendment right to
access transcripts of adversarial preliminary hearings that
occur prior to a criminal trial). In Press­Enterprise II, the
Supreme Court first articulated what has come to be known
as the Richmond Newspapers ''experience and logic'' test, by
which the Court determines whether the public has a right of
access to ''criminal proceedings'':


First, because a tradition of accessibility implies the
favorable judgment of experience, we have considered
whether the place and process have historically been
open to the press and general publicTTTT Second, in this
setting the Court has traditionally considered whether
public access plays a significant positive role in the
functioning of the particular process in question.
Id. at 8 (citations omitted).


Neither the Supreme Court nor this Court has applied the
Richmond Newspapers test outside the context of criminal
judicial proceedings or the transcripts of such proceedings.
When the ''experience and logic'' test has been applied beyond
the trial itself, as in Press­Enterprise II, it has been
limited to judicial proceedings that are part of the criminal
trial process. See also Washington Post v. Robinson, 935
F.2d 282, 290 (D.C. Cir. 1991) (holding that First Amendment
protects public access to plea agreement on which judgment
has been entered); but see United States v. El­Sayegh, 131
F.3d 158, 160­61 (D.C. Cir. 1997) (applying ''experience and
logic test'' but finding no First Amendment right of access to
withdrawn plea agreement). Moreover, neither this Court
nor the Supreme Court has ever indicated that it would apply
the Richmond Newspapers test to anything other than criminal
judicial proceedings. Indeed, there are no federal court
precedents requiring, under the First Amendment, disclosure
of information compiled during an Executive Branch investigation,
such as the information sought in this case.


Indeed, to the extent the Supreme Court has addressed the
constitutional right of access to information outside the criminal
trial context, the Court has applied the general rule of
Houchins, not Richmond Newspapers. See LAPD v. United
Reporting Publ'g Corp., 528 U.S. 32, 40 (1999) (holding that
there is no First Amendment right to receive addresses of
arrestees); Houchins, 438 U.S. at 13­15 (holding that press
has no First Amendment right of access to prisons). In
Houchins, the Court observed that the press had ample
means for obtaining information about prison conditions, ''albeit
not as conveniently as they prefer.'' Id. at 15. For
example, the Court noted that members of the press could
receive letters from inmates and interview inmates' attorneys,
prison visitors, or former inmates. Id. The same is true
here. According to the government's declarations, detainees
are free to contact family members as well as members of the
press. Detainees' attorneys are presumably free to do the
same. In LAPD, the Court rejected a facial challenge to a
state law restricting access to the addresses of arrestees.
528 U.S. at 40. The Court explained that ''this is not a case
in which the government is prohibiting a speaker from conveying
information that the speaker already possesses.'' Id.
Rather, ''what we have before us is nothing more than a
governmental denial of access to information in its possession.
California could decide not to give out arrestee information at
all without violating the First Amendment.'' Id. (citing
Houchins, 438 U.S. at 14). Similarly here, the First Amendment
is not implicated by the executive's refusal to disclose
the identities of the detainees and information concerning
their detention.


We will not convert the First Amendment right of access to
criminal judicial proceedings into a requirement that the
government disclose information compiled during the exercise
of a quintessential executive power-the investigation and
prevention of terrorism. The dangers which we have catalogued
above of making such release in this case provide
ample evidence of the need to follow this course. Cf. Global
Relief Found., 315 F.3d at 754 (''The Constitution would
indeed be a suicide pact TTT if the only way to curtail
enemies' access to assets were to reveal information that
might cost lives.'') (citation omitted). To be sure, the Sixth
Circuit recently held that the public has a constitutional right
of access to INS deportation hearings involving the same INS
detainees at issue in this case. See Detroit Free Press, 303
F.3d 681; but see North Jersey Media Group, 308 F.3d 198
(finding no right of access). However, the Sixth Circuit
applied Richmond Newspapers only after extensively examining
the similarity between deportation proceedings and criminal
trials, Detroit Free Press, 303 F.3d at 696­99, and noting
the crucial distinction between ''investigatory information''
and ''access to information relating to a governmental adjudicative
process,'' id. at 699. Inasmuch as plaintiffs here
request investigatory-not adjudicative-information, we find
Detroit Free Press distinguishable. We therefore will not
expand the First Amendment right of public access to require
disclosure of information compiled during the government's
investigation of terrorist acts.


Accordingly, we conclude that the information sought by
plaintiffs falls within the general principle announced in
Houchins and affirmed in LAPD, rather than the Richmond
Newspapers exception to that rule. Plaintiffs have no First
Amendment right to receive the identities of INS and material
witness detainees, nor are they entitled to receive information
about the dates and locations of arrest, detention, and
release for each detainee.

B. The Common Law
We also reject plaintiffs' final claim that disclosure is
required by the common law right of access to public records.
The Supreme Court held in Nixon v. Warner Communications,
Inc., 435 U.S. 589 (1978), that ''the courts of this
country recognize a general right to inspect and copy public
records and documents, including judicial documents.'' Id. at
597. Plaintiffs, citing several state court cases finding a
common law right of access to arrest records, urge us to
recognize a federal common law right to receive the information
they seek. In response, the government claims that the
common law right of access is limited to judicial records.
Even if the common law right applies to executive records,
the government contends, FOIA has displaced the common
law right. While we question the government's first contention,
we accept its second.


This Court has held that the common law right of access
extends beyond judicial records to the ''public records'' of all
three branches of government, Washington Legal Found. v.
United States Sentencing Commission, 89 F.3d 897, 903­04
(D.C. Cir. 1996), and we are bound by our precedent. We
need not decide, however, whether the information sought by
plaintiffs is a public record. Even if it is, the common law
right of access is preempted by FOIA.
In Nixon, the Supreme Court assumed arguendo that the
common law right of access covered the tapes sought by the
media. 435 U.S. at 599. Nonetheless, the Court denied
disclosure because the Presidential Recordings Act provided
a statutory scheme for seeking access to the tapes. Id. at
603­06. The Court held that the presence of this ''alternative
means for public access tip[ped] the scales in favor of denying
release.'' Id. at 606. In El­Sayegh, this Court applied
Nixon's principle that a statutory disclosure scheme
preempts the common law right. See 131 F.3d at 163. The
Court found no common law right of access to a withdrawn
plea agreement because ''[t]he appropriate device'' for access
to the records ''is a Freedom of Information Act request
addressed to the relevant agency.'' Id. (citing Nixon, 435


U.S. at 605­06).
The principles of Nixon and El­Sayegh apply with full
force here. FOIA provides an extensive statutory regime for
plaintiffs to request the information they seek. Not only is it
uncontested that the requested information meets the general
category of information for which FOIA mandates disclosure,
but for the reasons set forth above, we have concluded that it
falls within an express statutory exemption as well. It would
make no sense for Congress to have enacted the balanced
scheme of disclosure and exemption, and for the court to
carefully apply that statutory scheme, and then to turn and
determine that the statute had no effect on a preexisting
common law right of access. Congress has provided a carefully
calibrated statutory scheme, balancing the benefits and
harms of disclosure. That scheme preempts any preexisting
common law right.

 

In accordance with Nixon and El­Sayegh, we cannot craft
federal common law when Congress has spoken directly to
the issue at hand. Milwaukee v. Illinois, 451 U.S. 304, 314
(1981) (''when Congress addresses a question previously governed
by a decision rested on federal common law the need
for such an unusual exercise of lawmaking by federal court
disappears''). Consequently, we reject plaintiffs' claim that
the common law right of access requires disclosure of the
requested information.


IV. Conclusion
For the reasons set forth above, we conclude that the
government was entitled to withhold under FOIA Exemption
7(A) the names of INS detainees and those detained as
material witnesses in the course of the post-September 11
terrorism investigation; the dates and locations of arrest,
detention, and release of all detainees, including those
charged with federal crimes; and the names of counsel for
detainees. Finally, neither the First Amendment nor federal
common law requires the government to disclose the information
sought by plaintiffs.
Affirmed in part, reversed in part and remanded.



TATEL, Circuit Judge, dissenting: Disregarding settled
principles governing the release of government records under
the Freedom of Information Act, 5 U.S.C. § 552 et seq., this
court holds that the government may keep secret the names
of hundreds of persons whom it has detained in connection
with its investigation of the September 11, 2001 terrorist
attacks without distinguishing between information that can,
in FOIA's words, ''reasonably be expected to interfere'' with
the investigation and information that cannot. 5 U.S.C.
§ 552(b)(7)(A). While the government's reasons for withholding
some of the information may well be legitimate, the
court's uncritical deference to the government's vague, poorly
explained arguments for withholding broad categories of information
about the detainees, as well as its willingness to fill
in the factual and logical gaps in the government's case,
eviscerates both FOIA itself and the principles of openness in
government that FOIA embodies.


I.
I begin with some preliminary observations about the
principles that govern this case. First, no one can doubt that
uniquely compelling governmental interests are at stake: the
government's need to respond to the September 11 attacks-
unquestionably the worst ever acts of terrorism on American
soil­­and its ability to defend the nation against future acts of
terrorism. But although this court overlooks it, there is
another compelling interest at stake in this case: the public's
interest in knowing whether the government, in responding to
the attacks, is violating the constitutional rights of the hundreds
of persons whom it has detained in connection with its
terrorism investigation­­by, as the plaintiffs allege, detaining
them mainly because of their religion or ethnicity, holding
them in custody for extended periods without charge, or
preventing them from seeking or communicating with legal
counsel. The government claims that the detainees have
access to counsel and freedom to contact whomever they
wish, see Op. at 5, but the public has a fundamental interest
in being able to examine the veracity of such claims. Just as
the government has a compelling interest in ensuring citizens'
safety, so do citizens have a compelling interest in ensuring
that their government does not, in discharging its duties,
abuse one of its most awesome powers, the power to arrest
and jail.


Second, while the governmental interests in this case may
be uniquely compelling, the legal principles that govern its
resolution are not at all unique. The court's opinion emphasizes
the national-security implications of the September 11
investigation, but as the government conceded at oral argument,
this case is not just about September 11. The law that
governs this case is the same law that applies whenever the
government's need for confidentiality in a law enforcement
investigation runs up against the public's right to know ''what
[its] government is up to.'' United States Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773
(1989) (internal quotation marks omitted). In all such situations,
FOIA fully accommodates the government's concerns
about the harms that might arise from the release of information
pertaining to its investigations. To be sure, the statute
strongly favors openness, since Congress recognized that an
informed citizenry is ''vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed.'' NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978). But Congress
also recognized that ''legitimate governmental and private
interests could be harmed by release of certain types of
information.'' John Doe Agency v. John Doe Corp., 493 U.S.
146, 152 (1989) (internal quotation marks omitted). It therefore
''provided TTT specific exemptions under which disclosure
could be refused,'' id., including the four exemptions relevant
to this case: Exemption 7(A), for information that ''could
reasonably be expected to'' interfere with ongoing law enforcement
efforts, 5 U.S.C. § 552(b)(7)(A); Exemptions 7(C)
and 7(F), for information that ''could reasonably be expected
to'' unjustifiably compromise an individual's privacy or physical
safety, id. § 552(b)(7)(C), (b)(7)(F); and Exemption 3, for
information that other statutes exempt from disclosure, id.
§ 552(b)(3). But '' 'these limited exemptions do not obscure
the basic policy that disclosure, not secrecy, is the dominant
objective of the Act.' '' John Doe Agency, 493 U.S. at 152
(quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)).
Accordingly, courts must ''narrowly construe[ ]'' the exemptions,
and ''the burden is on the agency to sustain its action.''
Id. (internal quotation marks and citations omitted). The
government may in some situations withhold entire categories
of records from disclosure, as it seeks to do here by withholding
names and other information pertaining to all terrorisminvestigation
detainees. In order to sustain its burden, however,
the government must demonstrate that ''the range of
circumstances included in the category 'characteristically support[
s] an inference' that the statutory requirements for
exemption are satisfied.'' Nation Magazine v. United States
Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995) (citing
United States v. Landano, 508 U.S. 165, 176­80 (1993)).
The third principle relates to the level of deference we owe
the government. Invoking the ''heightened deference to the
judgments of the political branches with respect to matters of
national security,'' Zadvydas v. Davis, 533 U.S. 678, 696
(2001), the government refuses to identify the specific categories
of information that would actually interfere with its
investigation, but rather asks us simply to trust its judgment.
This court obeys, declaring that ''the judiciary is in an extremely
poor position to second-guess the executive's judgment
in this area of national security.'' Op. at 15. But
requiring agencies to make the detailed showing FOIA requires
is not second-guessing their judgment about matters
within their expertise. And in any event, this court is also in
an extremely poor position to second-guess the legislature's
judgment that the judiciary must play a meaningful role in
reviewing FOIA exemption requests. Neither FOIA itself
nor this circuit's interpretation of the statute authorizes the
court to invoke the phrase ''national security'' to relieve the
government of its burden of justifying its refusal to release
information under FOIA.


To begin with, I think it not at all obvious that we owe
heightened deference to the government in this case. Citing
the legislative history of the 1974 amendments to FOIA's
Exemption 1, 5 U.S.C. § 552(b)(1), the exemption for nation-
al-security matters, we have held that in evaluating Exemption
1 claims, '' 'substantial weight' is to be accorded to
detailed agency affidavits setting forth the basis for exemption.''
Weissman v. CIA, 565 F.2d 692, 697 n.10 (D.C. Cir.
1977); see also S. REP. NO. 93­1200, at 12 (1974) ('' '[T]he
conferees recognize that the Executive departments responsible
for national defense and foreign policy matters have
unique insights into what adverse effects might occur as a
result of public disclosure of a particular classified record.
Accordingly, the conferees expect that the federal courts, in
making de novo determinations in section 552 (b)(1) cases
under the Freedom of Information law, will accord substantial
weight to an agency's affidavit concerning the details of the
classified status of the disputed record.' ''). We have also
extended this heightened deference to cases involving Exemption
3 as it incorporates the National Security Act of
1947, which requires the CIA Director to protect ''intelligence
sources and methods'' from unauthorized disclosure, 50 U.S.C
§ 403­3(c)(7). E.g., Halperin v. CIA, 629 F.2d 144 (D.C. Cir.
1980) (National Security Act); Weissman, 565 F.2d 692 (Exemption
1 and National Security Act). The government,
however, relies on neither Exemption 1 nor the National
Security Act in this case, and contrary to the court's suggestion,
see Op. at 15, we have never held that such heightened
deference is also appropriate in Exemption 7 cases. Indeed,
in Weissman, which the court cites for the proposition that
''we owe the same deference under Exemption 7(A) in appropriate
cases,'' we found Exemption 7 inapplicable in the case
of the CIA's investigation into the FOIA requester's background
''except under special collateral circumstances,'' for
instance, to protect the identities of FBI personnel named in
requested materials. We instead focused on the deference
owed the agency under Exemption 1, as well as Exemption 3
as it incorporates the National Security Act. 565 F.2d at
694­96, 698 & n.15.


In any event, the government's case fails even under the
heightened deference we have applied in Exemption 1 and
National Security Act cases. No matter the level of deference,
our review is not ''vacuous.'' Pratt v. Webster, 673 F.2d
408, 421 (D.C. Cir. 1982). Even when reviewing Exemption
1's applicability to materials classified in the interest of
national security, we have made clear that no amount of
deference can make up for agency allegations that display, for
example, a ''lack of detail and specificity, bad faith, [or] failure
to account for contrary record evidence,'' since ''deference is
not equivalent to acquiescence.'' Campbell v. U.S. Dep't of
Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). By accepting the
government's vague, poorly explained allegations, and by
filling in the gaps in the government's case with its own
assumptions about facts absent from the record, this court
has converted deference into acquiescence.


With these principles in mind, I examine each of the
government's arguments for withholding the detainee information.
Part II explains why Exemption 7(A), which forms
the basis of the court's holding, cannot justify the government's
refusal to disclose the bulk of the requested information
about the detainees. Part III shows why the government's
alternative arguments under Exemptions 7(C), 7(F),
and 3 as it incorporates Federal Rule of Criminal Procedure
6(e) likewise fail. Finally, Part IV demonstrates why, on the
basis of the record before us, the government has no basis
under any exemption for withholding the names of the detainees'
attorneys.


II.
Although FOIA permits agencies to craft rules exempting
certain categories of records from disclosure under Exemption
7(A) instead of making a record-by-record showing, see
Robbins Tire, 437 U.S. at 236, an agency's ability to rely on
categorical rules has limits. Specifically, the government
must divide information it seeks to withhold into ''categories
TTT [that are] sufficiently distinct to allow a court to grasp
'how each TTT category of documents, if disclosed, would
interfere with the investigation.' '' Crooker v. Bureau of
Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986)
(quoting Campbell v. Dep't of Health & Human Servs., 682
F.2d 256, 265 (D.C. Cir. 1982)). An acceptable category is
''functional,'' that is, it ''allows the court to trace a rational
link between the nature of the document and the alleged
likely interference.'' Id.; see also Nation Magazine, 71 F.3d
at 893 (''There are limits TTT to when categorical rules may
be employed. Only when the range of circumstances included
in the category 'characteristically support[s] an inference'
that the statutory requirements for exemption are satisfied is
such a rule appropriate.'').


Although I have no doubt that some of the requested
information is exempt from FOIA's mandatory disclosure
requirement, the court treats disclosure as an all-or-nothing
proposition, repeatedly emphasizing the breadth of the plaintiffs'
request-the fact that they seek the names and other
information pertaining to ''every single individual detained in
the course of the government's terrorism investigation,'' Op.
at 17­­as a justification for accepting the government's own
very broad, categorical refusal to release the bulk of the
requested information. This all-or-nothing approach runs
directly counter to well-established principles governing
FOIA requests. Nothing in the statute requires requesters
to seek only information not exempt from disclosure. To the
contrary, the government bears the burden of reviewing the
plaintiffs' request, identifying functional categories of information
that are exempt from disclosure, and disclosing any
reasonably segregable, non-exempt portion of the requested
materials. 5 U.S.C. § 552(b). The government fails to satisfy
that burden in this case, for the range of circumstances
included in the government's exemption request do not ''characteristically
support'' an inference that the information
would interfere with its terrorism investigation.


In support of its exemption request, the government offers
declarations from two senior officials with responsibility for
the terrorism investigation. One of those declarations, by
Dale L. Watson, a Federal Bureau of Investigation official
charged with supervising the investigation, was prepared not
for this case, but for cases involving the closure of deportation
hearings. See N. Jersey Media Group, Inc. v. Ashcroft, 308
F.3d 198 (3d Cir. 2002), cert. denied, 2003 WL 1191395 (May
27, 2003); Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th
Cir. 2002). Watson's declaration thus speaks not to the harm
that would flow from disclosing detainees' names or other
information, but instead to the harm that would flow from
publicly airing evidence about particular detainees at such a
hearing­­i.e., ''what evidence led to the detention of each
individual,'' ''[i]nformation about how any given individual
entered the country,'' and ''what evidence the United States
has against members of a particular cell.'' Watson Decl.
¶ ¶ 12­13. Plaintiffs in this case request no such information.
The court nevertheless relies on the Watson declaration, as
well as North Jersey Media Group, see Op. at 22­23, despite
the fact that neither has anything to do with the release of
detainee names.


The other declaration, by Department of Justice Terrorism
and Violent Crime Section chief James S. Reynolds, does in
fact outline the harms that might result from release of some
detainee names. But it does not support the government's
request for a 7(A) exemption, since that request treats all
detainees the same, even though Reynolds tells us that the
only common thread among the detainees is that they were
''originally questioned because there were indications that
they might have connections with, or possess information
pertaining to, terrorist activity against the United States.''
Reynolds Decl. ¶ 10; see also id. ¶ ¶ 27, 36. As Reynolds
himself acknowledges, this group includes some detainees
who have turned out to be innocent of any involvement with
terrorist activity and have ''no information useful to the
investigation.'' Id. ¶ 36.


Ignoring this important concession, the court declares that
''[t]he clear import of the declarations is that many of the
detainees have links to terrorism''­­which the court considers
''no surprise given that the detainees were apprehended
during the course of a terrorism investigation, and given that
several detainees have been charged with federal terrorism
crimes or held as enemy combatants.'' Op. at 21. The
court's approach is unconvincing for two reasons.
To begin with, it rests on what seems to be a faulty
assumption about facts not in evidence. As of November 5,
2001, the last time the government released a tally, there
were 1,182 detainees. See Dan Eggen & Susan Schmidt,
Count of Released Detainees Is Hard to Pin Down, WASH.
POST, Nov. 6, 2001, at A10 (quoting Justice Department
spokeswoman Mindy Tucker). Nothing in the record tells us
how many of those 1,182 detainees have been charged with
federal terrorism crimes or held as enemy combatants. What
little information the record does contain, however, suggests
that the number may be relatively small. A list of federally
charged detainees attached to the government's motion for
summary judgment reports that as of the time this suit was
filed, only one detainee had been criminally charged in the
September 11 attacks and only 108 detainees had been
charged with any federal crime-primarily violations of antifraud
statutes. Reynolds Decl. ¶ 27; Def. Mot. for Summary
Judgment, Ex. 8.


In any event, the court concedes the point­­even if ''many''
of those ''apprehended during the course of a terrorism
investigation'' have links to terrorism, not all of them do. As
the court itself notes, the declarations establish that many of
the INS detainees were held because law enforcement agents
determined in the course of questioning them that they were
in violation of federal laws; only '' 'in some instances' '' did
agents ''also determine[ ] that they had links to other facets of
the investigation.'' Op. at 21 (quoting Reynolds Decl. ¶ 10).
Furthermore, although the court assumes that all those detained
on material witness warrants ''have relevant knowledge
about the terrorism investigation'' because a federal
judge issues such warrants ''based on an affidavit stating that
the witness has information relevant to an ongoing criminal
investigation,'' Op. at 20, that assumption seems unwarranted
given the government's concession that ''it may turn out that
these individuals have no information useful to the investigation,''
Reynolds Decl. ¶ 36.


The government gives us no reason to think that releasing
the names of these innocent detainees could interfere with its
investigation. Indeed, the government never really asks us
to believe that disclosure of the names of innocent persons
having no knowledge of terrorist activity would in any way
impede its ability to gather information from those who do
have such knowledge. Instead, it asserts that ''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.'' Reynolds Decl. ¶ 15. Although the court accepts
this argument, Op. at 19, it is ultimately not an argument for
withholding detainees' names, but rather for withholding the
names of people who have information that might be helpful
to law enforcement officials. These are two different categories
of people, for as Reynolds acknowledges, many detainees
have no information to provide. Reynolds Decl. ¶ 36. These
two groups thus merit different treatment. In fact, several
statutory provisions address precisely the problem the government
identifies, but all of them are aimed at protecting the
identities of those people who provide information, not people
the government questions because it thinks they might have
information but who turn out not to. FOIA Exemption 7(A)
protects the identities of witnesses where disclosure might
pose a risk of interference in the form of witness intimidation
or coercion, Robbins Tire, 437 U.S. at 239­40; FOIA Exemption
7(D) protects the identities of sources who choose to
provide information to law enforcement agents on a confidential
basis, 5 U.S.C. § 552(b)(7)(D); and the National Security
Act protects the identity of intelligence sources in order to
prevent those sources from ''clos[ing] up like a clam,'' CIA v.
Sims, 471 U.S. 159, 172 (1985) (internal quotation marks
omitted). The government can and should rely on these
provisions to protect the names of detainees who provide
information to law enforcement agents or whom the government
believes will be able to provide such information in the
future. The government may not, however, preemptively
withhold the identities of innocent detainees who do not now,
and may never, have any information of use to the terrorism
investigation.


The only argument that could conceivably support withholding
innocent detainees' names is the assertion that disclosure
of the names ''may reveal details about the focus and
scope of the investigation and thereby allow terrorists to
counteract it.'' Reynolds Decl. ¶ 16 (emphasis added). That
Reynolds believes these harms may result from disclosure is
hardly surprising-anything is possible. But before accepting
the government's argument, this court must insist on
knowing whether these harms ''could reasonably be expected
to'' result from disclosure­­the standard Congress prescribed
for exemption under 7(A). Nothing in Reynolds's declaration
suggests that these harms are in fact reasonably likely to
occur.


To begin with, Reynolds never explains how a list of names
of persons unknown to terrorist organizations would tell the
terrorists anything at all about the investigation, much less
allow them to ''map [its] progress.'' Id. For example, if the
government tells us that it detained men named Mohammed
Mubeen, Osama Elfar, Ghassan Dahduli, Fathi Mustafa, Nacer
Fathi Mustafa, and Hady Omar, Jr., none of whom has
any connection to terrorist organizations, see Amy Goldstein,
A Deliberate Strategy of Disruption: Massive, Secretive Detention
Effort Aimed Mainly at Preventing More Terror,
WASH. POST, Nov. 4, 2001, at A1, what could that information
possibly tell terrorists about the government's investigation?
Though Reynolds's declaration provides no answer, the court
speculates that the names of these innocent detainees could
be valuable to terrorist organizations because ''[s]uch detainees
could be acquaintances of the September 11 terrorists, or
members of the same community groups or mosques.'' Op. at
19. That may well be true in some cases, but if it is,
Reynolds should tell us so under oath, thus providing a record
basis for the government to claim an exemption for those
detainees who pose such concerns. But the court's speculation,
supported only by a newspaper article describing a
single detainee who attended a mosque that two terrorism
suspects also attended, see id. (citing Rachel L. Swarns,
Muslims Protest Monthlong Detention Without a Charge,
N.Y. TIMES, April 20, 2003, at A16), falls far short of satisfying
the government's burden under FOIA.


The government's failure to provide an adequate explanation
is all the more glaring given that the detainees represent
only a subset-and quite possibly a very small subset-of
persons questioned in connection with this investigation.
Reynolds Supp. Decl. ¶ 2. As a result, even if releasing
detainee names were to provide some insight into the terrorism
investigation, that insight would be limited. Releasing
the names of the detainees, but not the names of those
questioned in connection with the investigation, can paint only
a partial-and possibly misleading-picture of the government's
investigative strategy. For example, if the government
detains two people in Detroit but questions a thousand
in Chicago, wouldn't release of the detainee information
wrongly lead terrorist organizations to believe that the government
was focusing on Detroit, not Chicago?


The second failing in both the government's request and
the court's analysis is that they treat all detainee information
the same, despite the fact that each item of information that
plaintiffs seek about the detainees-names, attorneys' names,
dates and locations of arrest, places of detention, and dates of
release-is clearly of very different value to terrorists attempting
to discern the scope and direction of the government's
investigation. Although the Reynolds declaration tells
us that ''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,''
Reynolds Decl. ¶ 16, it does not tell us, for example, whether
releasing the detainees' names and dates of arrest, but not
their places of arrest­­or even releasing the dates of arrest
alone­­would involve the same danger. The Reynolds declaration,
moreover, contains no justification at all for withholding
dates of release. Indeed, the government has already
disclosed the release dates of detainees who had been held on
federal criminal charges. Id. ¶ 8. This information may
seem unimportant, but from the FOIA requesters' point of
view, it could be highly relevant to the question of how the
government is treating the persons it has detained. Taken
together, arrest and release dates can tell the public how long
persons have been detained, raising concerns about possible
constitutional violations. See Appellees' Br. at 27.

The government's allegations of harm are also undercut by
the fact that it has itself provided several other means by
which this information can become public. Not only do
detainees remain free to inform whomever they choose of
their detention, Reynolds Decl. ¶ 23, but on numerous occasions
since September 11, the government itself has disclosed
precisely the kind of information it now refuses to provide
under FOIA. For example, on April 17, 2002, the government
announced the arrest of Issaya Nombo, whom government
officials said they suspected of connections to terrorism,
although he was arrested on immigration charges. Officials
revealed Nombo's name and the date and place of his arrest.
Philip Shenon, African Held After Name Is Left in Cave,
N.Y. TIMES, Apr. 18, 2002, at A15. At a June 10, 2002 press
conference, the Attorney General announced the arrest of one
Abdulla Al Muhajir, born Jos´e Padilla, for suspected terrorism
involvement, revealing not only Al Muhajir's two names,
but also the date and place of his arrest, and the events
leading to his capture. Attorney General Ashcroft News
Conference, June 10, 2002, available at http:/www.usdoj.
gov/ag/speeches/2002/061002agtranscripts.htm. And on July
26, 2002, government officials announced they were holding
Mohammad Mansur Jabarah on a material witness warrant
after his arrest in connection with a terrorist plot in Singapore.
William K. Rashbaum, Captured Qaeda Member
Gives Details on Group's Operations, N.Y. TIMES, July 27,
2002, at A8.


Nothing in the record explains why the government's concerns
about interference with the investigation do not apply
with respect to detainees such as Abdulla Al Muhajir, Issaya
Nombo, and Mohammad Mansur Jabarah, but do nevertheless
apply with respect to the other detainees. In its reply
brief, the government explains that it may have strategic
reasons for disclosing certain information, since its disclosures
to date ''have identified specific individuals in a manner
unlikely, in the view of the law enforcement experts, to
impede the progress of the investigation.'' Appellant's Reply
Br. at 18. While this may well be so, it is an argument of
counsel, and though the court accepts it, FOIA requires that
the agency­­not counsel­­explain such judgments under oath.
The reason for this requirement is clear: We owe deference
to agency expertise, not to lawyers defending the agency in
litigation. See, e.g., Church of Scientology v. IRS, 792 F.2d
153, 165­166 (D.C. Cir. 1986) (citing SEC v. Chenery Corp.,
318 U.S. 80 (1943)). If there are legitimate investigative
reasons for releasing the names of some detainees, but not
others, then Mr. Reynolds or others responsible for the
terrorism investigation should explain those reasons under
oath­­in an in camera affidavit, if necessary to protect the
information­­and that explanation would probably warrant
judicial deference.


It is true, as the court points out, that the Supreme Court
in CIA v. Sims acknowledged ''the political realities of intelligence
operations in which, among other things, our Government
may choose to release information deliberately to 'send
a message' to allies or adversaries'' when it upheld the CIA's
right to withhold intelligence information even if the CIA has
already released some part of it. 471 U.S. at 180. Unlike
this court, however, the Supreme Court did not simply assume
it understood the government's strategy; it reached its
conclusion on the basis of the CIA Director's affidavit explaining
that strategy. Id. at 180 & n.24. The record in this case
contains no similar explanation. Moreover, counsel's argument
suggests that the government itself differentiates
among detainees on a case-by-case basis for purposes of
assessing how disclosure might harm its investigation. If the
government itself makes such distinctions in deciding what
information to release, then why, particularly in light of
FOIA's exacting standards, doesn't it make those distinctions
in its exemption request before this court?


By asking these questions, the court would not, as it warns,
be ''second-guessing'' the government's judgments about matters
of national security. Op. at 15. It would, rather, be
doing the job Congress assigned the judiciary by insisting
that the government do the job Congress assigned to it:
provide a rational explanation of its reasons for claiming
exemption from FOIA's disclosure requirements.

III.
Because the court concludes that Exemption 7(A) applies to
the government's entire request, it never addresses the government's
alternative arguments under Exemptions 7(C),
7(F), and 3. In my view, none of these provisions supports
the government's refusal to disclose the detainee information
either.


Exemption 7(C)
Exemption 7(C) permits the government to withhold law
enforcement records where their release ''could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.'' 5 U.S.C. § 552(b)(7)(C). Like Exemption 7(A), the
application of Exemption 7(C) is subject to a set of wellestablished
standards. Because the statute refers not to
invasions of privacy generally, but to ''unwarranted'' invasions
of privacy, courts evaluating claims for 7(C) exemption must
do more than simply identify a privacy interest that will be
compromised by disclosure of information. Instead, they
must ''balance the public interest in disclosure against the
interest Congress intended the Exemption to protect.'' Reporters
Committee, 489 U.S. at 776.


Relying on our decision in Nation Magazine, the government
argues that the detainees have '' 'an obvious privacy
interest cognizable under Exemption 7(C) in keeping secret
the fact that they were subjects of a law enforcement investigation,'
'' and that these privacy concerns are ''particularly
acute given the nature and magnitude of the September 11
attacks.'' Appellant's Br. at 39­40 (quoting Nation Magazine,
71 F.3d at 894). This argument is unconvincing. For
one thing, if the government is so concerned with the detainees'
privacy, why has it released so much information about
them? What about Abdulla Al Muhajir's privacy, or Issaya
Nombo's, or Mohammad Mansur Jabarah's? Nothing in the
Reynolds declaration explains how the government's press
conferences releasing the names of these detainees demonstrate
any respect for their privacy.


In any event, we have never held that individuals who have
been not only investigated, but also arrested and jailed, have
a similar privacy interest in avoiding ''unwarranted association
with criminal activity or reputational harm.'' Nation
Magazine, 71 F.3d at 894. Even though being arrested
subjects a person suspected of criminal activity to embarrassment
and potentially more serious reputational harm, the law
is nevertheless clear that no right of privacy ''is violated by
the disclosure of 'an official act such as an arrest.' '' Am.
Fed'n of Gov't Employees, AFL-CIO v. Dep't of Housing &
Urban Dev., 118 F.3d 786, 794 (D.C. Cir. 1997) (quoting Paul
v. Davis, 424 U.S. 693, 713 (1976)).


To be sure, detainees may have a unique interest in avoiding
association with the crimes of September 11. Even so,
that interest is clearly outweighed by the public interest in
knowing whether the government, in investigating those heinous
crimes, is violating the rights of persons it has detained.
And while FOIA asks only whether the public interest in
disclosure outweighs the private interest in secrecy, it bears
noting that the private interests in this case weigh on both
sides of the balance: Plaintiffs' request for disclosure of the
detainees' names seeks to vindicate not only the public's right
to know what its government is up to, but also the detainees'
own rights, including the right to counsel and to speedy trial.
Nothing in SafeCard Services, Inc. v. SEC, 926 F.2d 1197
(D.C. Cir. 1991), requires a different result. SafeCard establishes
that names appearing in law enforcement files will
often fall within the scope of Exemption 7(C), since records
containing such information are generally far less probative of
an agency's behavior or performance than of the behavior of
the persons whose names appear in the records. Id. at 1205;
see also Nation Magazine, 71 F.3d at 895 (''In some, perhaps
many, instances where a third party asks if an agency has
information regarding a named individual in law enforcement
files, the cognizable public interest in that information will be
negligible; the requester will be seeking records about a
private citizen, not agency conduct.''). The SafeCard court
therefore formulated a categorical rule exempting disclosure
of such information unless the requester can show (1) compel-
ling evidence that the agency is engaged in illegal activity,
and (2) that the information is necessary to confirm or refute
that evidence. SafeCard, 926 F.2d at 1205­06. Plaintiffs'
FOIA request satisfies both elements of this rule.


To begin with, this case does not implicate SafeCard's
concern that disclosure of names in law enforcement files will
generally shed less light on the government's behavior than it
does on the behavior of private citizens. In SafeCard, the
FOIA requester sought information relating to organizations
and individuals whom the SEC had suspected of manipulating
the requester's stock and who might be witnesses or litigants
in the SEC's investigations. 926 F.2d at 1200, 1205. Similarly,
in many other Exemption 7(C) cases, FOIA requesters
seek names in law enforcement files primarily in order to
attack their convictions or otherwise exculpate themselves­­a
''personal stake'' in disclosure that ''does not count in the
calculation of the public interest.'' Oguaju v. United States,
288 F.3d 448, 450 (D.C. Cir. 2002); see also Billington v.
United States Dep't of Justice, 233 F.3d 581, 582 (D.C. Cir.
2000). Here, in contrast, plaintiffs have little if any personal
stake in their FOIA request, which aims solely to glean
information relating to the government's conduct of its terrorism
investigation and its treatment of the detainees. Designed
to ''shed[ ] light on an agency's performance of its
statutory duties,'' this request implicates precisely the kind of
public interest lying at the heart of Exemption 7(C)'s balancing
test. Reporters Committee, 489 U.S. at 773.


Moreover, plaintiffs offer ample evidence of agency wrongdoing.
The record includes hundreds of pages of newspaper
articles, human rights reports, and congressional testimony
reporting alleged governmental abuses such as holding detainees
for long periods without allowing them to seek or
communicate with counsel and without charging them. See,
e.g., Alison Leigh Cowen, Detainees' Lawyers Complain of
Unfair Treatment, N.Y. TIMES, Oct. 21, 2001, at B1; Richard
A. Serrano, Many Held in Terror Probe Report Rights Being
Abused, L.A. TIMES, Oct. 15, 2001, at A1; Amnesty International,
Amnesty International's Concerns Regarding Post
September 11 Detentions in the USA, available at
http://web.amnesty.org/aidoc/aidoc pdf.nsf; Human Rights
Watch, Presumption of Guilt: Human Rights Abuses of
Post­September 11 Detainees, available at http://www.hrw.
org/reports/2002/us911/USA0802.pdf; Department of Justice
Oversight: Preserving Our Freedoms While Defending
Against Terrorism: Hearing Before the Senate Judiciary
Comm., 107th Cong. (2001) (statement of Gerald H. Goldstein,
Attorney, National Ass'n of Criminal Defense Lawyers),
available at http://judiciary.senate.gov/hearing.cfm?=28; id.
(statement of Michael Boyle, Attorney, American Immigration
Lawyers Ass'n). To be sure, none of this evidence has
been tested and proved in a court of law. But SafeCard
requires only ''compelling'' evidence-not tested evidence, and
not even evidence that would be admissible at trial. If
hundreds of pages of first-hand reports of governmental
abuses do not qualify as ''compelling'' evidence sufficient to
justify an investigation into the government's conduct, then I
cannot imagine what would. After all, FOIA's purpose, as
SafeCard recognizes, is to allow the public access to records
necessary to ascertain whether the government has acted
illegally. If requesters already had tried and tested proof of
such illegal activity, then resort to FOIA would be unnecessary.
History, moreover, is full of examples of situations in
which just these sorts of allegations led to the discovery of
serious government wrongdoing-from Teapot Dome in the
1920s to the FBI's COINTELPRO counterintelligence program
in the 1960s to Watergate in the 1970s.


In short, by interpreting SafeCard to require anything
more than compelling ''allegations of illegal agency activity,''
Nation Magazine, 71 F.3d at 896, the government would
transform the SafeCard test into a categorical ban on the
disclosure of names contained in law enforcement records.
That result finds justification in neither FOIA nor our cases
interpreting Exemption 7(C). See Nation Magazine, 71 F.3d
at 896 (holding that a blanket exemption for all names in law
enforcement records ''would be contrary to FOIA's overall
purpose of disclosure, and thus is not a permissible reading of
Exemption 7(C)''); Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984)
(ordering the disclosure of the name of a high-ranking FBI
official in internal reports concerning the agency's investigation
of a cover-up).


Finally, plaintiffs need the information they request to
confirm or refute the compelling evidence of agency wrongdoing
­­the SafeCard test's second requirement. While it is
true that a list of names alone would shed no light on whether
the government has respected detainees' constitutional rights,
plaintiffs need the names in order to gather information about
the government's treatment of the detainees. Appellees' Br.
at 30. In this respect, plaintiffs' request differs from the vast
majority of FOIA requests for information concerning named
individuals in law enforcement files, where the only plausible
public interest is knowing to what extent an agency believed
the named individuals were involved in illegal activity. Cf.
Rosenfeld v. United States Dep't of Justice, 57 F.3d 803, 812
(9th Cir. 1995) (holding that Exemption 7(C) does not justify
withholding the identities of persons investigated for subversive
activities in FBI files, where the names would make it
possible to determine whether the FBI had investigated
student activists for participating in political protests by
comparing the FBI's investigations to a roster of a student
activist group's leadership).


Amici Washington Legal Foundation and the Jewish Institute
for National Security Affairs contend that release of the
information is not necessary to evaluate whether the government
is operating within the bounds of the law in detaining
persons in connection with its terrorism investigation, since
the public has other means of obtaining the information:
Individual detainees can bring individual lawsuits, the Department's
Inspector General has investigated allegations of misconduct,
and media reports and congressional investigations
all tell the public what its ''government is up to.'' Washington
Legal Found. Br. in Support of Appellant at 17. But
Amici's argument has no basis in FOIA. If Congress had
intended for individual lawsuits, internal investigations, or
newspaper reports to relieve the government of its obligations
under FOIA, then it would have expressed that intent
in the law.

Exemption 7(F)
The government next invokes Exemption 7(F), which permits
withholding law enforcement records where their release
''could reasonably be expected to endanger the life or physical
safety of any individual.'' 5 U.S.C. § 552(b)(7)(F). Here
again, the government's evidence fails to establish that the
entire range of records encompassed in the plaintiffs' FOIA
request ''could reasonably be expected'' to endanger the
detainees.


The government's declarations tell us only that (1) ''[d]etainees
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,''
Reynolds Decl. ¶ 37, and (2) ''[i]f prisoners learn that an
individual who was detained as a result of the investigation
emanating from the September 11 att