Secret Arrests Following 9/11:
Balancing Terrorism Investigations
and Freedom of Information

11 Eylül Sonrası Gizli Tutuklamalar: Terör Soruşturmaları ve
Bilgi Alma Hakkının Dengelenmesi

Murat CEYHAN

11 Eylül 2001 tarihinde gerçekleşen terör saldırılarının artçıları kendisini Amerika Birleşik Devletleri ceza yargılama hukukunda da göstermiştir. Devletin ve toplumun yaşadığı korku halini takiben koruma tedbirlerinin uygulamaya konmasında temel hak ve özgürlükler göz ardı edilmiştir. Bu durumun en çarpıcı örneklerinden biri ise 11 Eylül soruşturmaları sırasında benimsenen gizli tutuklama tedbiri olarak karşımıza çıkmaktadır. Center for Nat. Sec. Studies v. United States Department of Justice kararında gizli tutuklamaların farklı boyutları ele alınmış bulunmaktadır. Tutuklu haklarının yanında toplumun bilgi alma hürriyetinin de terör soruşturmaları kapsamında kısıtlandığı anlaşılmaktadır. ABD hukukunda, özellikle 11 Eylül sonrasında, Mahkemelerin yürütme kanadından gelen raporlara (affidavit) yaklaşımı değişmiş, toplumun bilgi alma hakkının sınırları yeniden çizilmiştir. Temel hak ve özgürlükleri koruma yönünde farklı içtihatların tartışıldığı makale boyunca hem Office of Inspector General raporları hem de Freedom of Information Act kapsamında açıklamalarda bulunacağız. En nihayetinde 11 Eylül sonrası terör soruşturmaları temelinde devlet uygulamalarına yönelik bilgi alma hakkının sağladığı denetim mekanizmasının önemini ortaya koymuş olacağız.

11 Eylül, Amerika Birleşik Devletleri, Tutuklama, Gizlilik, Bilgi Alma Hürriyeti.

The terrorist attacks on September 11, 2001 proved to create an enormous aftermath for US criminal procedure law. The state of fear on the part of the government and the society played an important role on the adopted investigative measures and held back fundamental rights and freedoms. One of the striking examples of such September 11 measures was the secret arrests. The decision of Center for Nat. Sec. Studies v. United States Department of Justice deals with several aspects of the secret arrests. Alongside rights of the detained, the people’s right to access information had also been limited with regards to terror investigations. The Courts’ approaches to government affidavits have changed and the borders of right to information had been re-established. This article discusses case-law with regards to the protection of fundamental rights and freedoms, and thereby discusses the Office of Inspector General reports and the Freedom of Information Act. Consequently, based on the post 9/11 terror investigations and the adopted measures of the US government, the article will set forth the importance of the supervision mechanism established by the right to access information.

September 11, United States of America, Arrest, Secrecy, Freedom of Information.

Introduction

This paper contemplates on the subject of secret arrests in the post 9/11 era and accordingly focuses on the Office of Inspector General’s report on treatment of the 9/11 detainees¹ and the adversarial arguments presented in the 2003 case of Center for Nat. Sec. Studies v. U.S. DOJ² . The affidavit presented to the Court, by James S. Reynolds the Chief of Terrorism Division of the DOJ, will establish the basis for our discussion. As can be observed throughout the District of Columbia Circuit’s decision, Reynolds’ affidavit is accepted as a mere factual hypothesis. If quoted directly from the wording of the Court, the executive branch (the affidavit) can’t get to be “second-guessed”.³ After the Court’s unquestionable trust to executive’s discretion, there is no way our analysis can overlook the arguments proposed by Reynolds’ affidavit. The other material I will be relying on is the mentioned OIG report on the 9/11 arrest procedures and detainees’ treatments following these arrests. The OIG report will play a crucial role in determining the accuracy of the Court’s and thereby the affidavit’s assumptions in relation to the secret arrests pending 9/11. On the other hand, pursuant to the legal basis of the plaintiffs, the principles of the Freedom of Information Act and its 7(A) Exemption will be analyzed. As our discussion goes forward, I will also be referring to several cases including the two secret deportation cases in 2002⁴ that will provide similar 9/11 dilemmas of the US Courts in balancing terrorism investigations and fundamental rights and freedoms. And finally, to add a comparative analysis to our discussion, I will be providing the rationale of the European Court of Human Rights judgments in balancing criminal investigations and public’s right to receive information.

To understand the general outline of the secret arrests following 9/11 and the foundation of Center for Nat. Sec. Studies v. U.S. DOJ, I will briefly refer to the findings of scholars studying in this context and particularly the OIG report. After 9/11, it is argued that hundreds of non-citizens were arrested, held incommunicado for several months and were denied important due process rights.⁵ According to the numbers of the Inspector General, 762 non-citizens were arrested and assigned as 9/11 detainees under FBI’s terrorism task force.⁶ The majority of these arrests were dependent on immigration charges and information leading to the arrests and the names, locations of the arrestees were kept secret. The lack of information surrounding these arrests have eventually formed the basis for the plaintiff’s challenges in the case CNSS v. DOJ. As I will elaborate the arguments of the case in the next chapter, one has to know about how these arrests were initially made by the executive. The background of these arrests is really important in the sense that the Appeals Court attributes a lot of discretion to the Executive in terrorism related investigations. With the disclosure of the reasoning behind some of these arrests, the credibility of the executive branch can ultimately be tested.

Pursuant to the Inspector General’s interviews, one of the arrestees was arrested in his apartment when a caller told FBI that “two Arabs” rented a truck and acted “extremely nervous” returning the car back minutes later.⁷ Another non-citizen was arrested after another caller warned FBI that a grocery store was operated 24/7 by numerous Middle Eastern men with 2 or 3 men shifts. The caller stressed that it was suspicious that too many people ran a small store.⁸ Another striking example is when three men were arrested because they had plans of a public school in their cars. It turned out that these men were actually working in a school construction, but they were nonetheless subject to arrest and detained as 9/11 detainees.⁹

After 9/11, it is obvious that law enforcement was in a panic mode and acted ferociously on any reliable or unreliable call. The attack had a huge impact on both the policing and the societal culture of United States. In the months following September 11, the need to capture “somebody” and to publicly declare arrest “numbers” seemed to be the primary concern of law enforcement. In a crisis mode like this, there rises the necessity of judicial regulation. It is the last hope of a vulnerable person facing the threat of an arbitrary executive policy. Therefore, when Courts defer all authority to executive and give up on “second guessing” in national security, it becomes inexplicable with regards to the notion of rule of law. On the other hand, there are times when law enforcement’s all-out-attack mode pays off. Accordingly, I would like to give two last examples about the initial background of two arrests in national security. The first one of these examples will again be from the OIG Report. On September 24, 2001 a non-citizen was arrested because a caller told FBI that a male licensed pilot was saving to go to flight school to learn to fly commercial jets in United States. The report underlines that the arrestee was not cleared until February 12, 2002.¹⁰ As soon as I read the circumstances of this arrest, I recalled the capture of Zacarias Moussaoui who was convicted as an Al Qaeda member that explicitly declared war on United States. The second example I will provide is the tip on Moussaoui, his arrest and the initial charges brought against him. This process should make us realize the dilemma of law enforcement’s tendency to act or not to act on reliable and sometimes unreliable calls. Zacarias Moussaoui was an Al Qaeda trained operative who was charged with immigration violations. The charge’s initial reason was that his flight school instructor reported that Moussaoui was acting suspiciously and he eventually enrolled in flight lessons for Boeing 747s without any significant experience on smaller aircrafts.¹¹ Moussaoui was later on charged with conspiring in deadly attacks with other Al Qaeda members. He was eventually convicted while having expressed his intentions to levy war against United States several times in court.¹² In sum, I do not agree upon following up tips lacking reliability or using immigration charges as pretext to preventive prosecution policies. Nevertheless, as can be seen in the case of Moussaoui, there is never a clear-cut guideline that one can abide by in law enforcement. Sometimes a simple tip may lead to a capture of a dangerous terrorist. And this rationale keeps the executive branch always restless and causes them to make arbitrary decisions. At moments like this, a supervision mechanism has to be there and regulate these arbitrary decisions. This is the job of the judiciary. The prolonged detention of the secret arrestees should have been monitored and regulated by judiciary in a short-term review basis. And the arbitrary “hold until cleared” process adopted by the executive branch should have been struck down by the US Courts. Before moving onto the arguments discussed in front of the CNSS v. DOJ Court, one shall also have an idea about how the secret arrestees were processed under the clearance policy.

“Hold until cleared” policy has been secretly established through the Attorney General’s office (and under DOJ’s awareness) according to the OIG Report.¹³ Following an arrest, FBI could single-handedly determine the level of interest of the non-citizen as “high interest”. Unrelated to the immigration charges brought against these non-citizens, until the clearance investigation initiated by FBI and CIA was over and the arrestee was demoted to “no interest”, an arrestee could never be eligible for release. According to the OIG report, the “interest” level was not based on the evidences in hand, but rather on the leads of the law enforcement officers. For example, if any arrestee was picked up in the New York City area, then it would automatically be deemed as “of interest” and be “held until cleared”.¹⁴ I think that this whole prolonged and unsubstantiated clearance progress proves our point in the arbitrary measures taken by the Government following 9/11. The more effective approach (current European civil law approach) would have been to place a supervisory Magistrate Judge in the middle of this investigatory process. Simplifying the adopted clearance procedure; first, the Government decides whom to arrest. This is a regular law enforcement measure and there is nothing unusual about it. But, second, they are the ones who decide to label a person “of interest”. Third, they are the ones who decide that that person is not “of interest” anymore. Fourth, they are the ones who clear the person. Until then, the arrestee has no effective remedy to be released and I have referred to some of the unjustified reasonings behind the arrests above. The government obviously lacked the resources to go through all of these procedures; and without any proper judicial remedy, innocent arrestees were kept in de facto incommunicado detention for months. The “hold until cleared” policy should have been made public and the people of this country should have been aware of the conditions of the detainees.

Finally, relevant to Reynolds’ affidavit and his presentation of the treatment of the detainees, I should briefly cite some of OIG’s observations with regards to the conditions of the detentions. This will enable us to understand the accuracy and the sincerity of the affidavit’s factual presentations, giving us a glimpse of how secret arrestees were handled in detention facilities. One shall remember that these observations were provided by the Office of Inspector General through an official report. Nevertheless, because of the report’s timing, these issues were never taken into account during the CNSS v. DOJ proceedings.

“14 of the (interviewed) 19 detainees were not offered their first legal phone calls within 7 days of arrival.”¹⁵

“Five New York area attorneys told (OIG) that they were unable to meet with their September 11 detainee clients for many weeks because MDC staff told them that their clients were not housed at the MDC… the (pro bono attorney) lists they eventually received contained… wrong telephone numbers and… (attorneys) who were unwilling or unable to take the September 11 detainees as clients”¹⁶

“BOP’s decision to destroy or reuse (security) videotapes after 30 days hampered the usefulness of the videotape system to prove or disorive allegations of abuse raised by individual detainees”¹⁷

“MDC staff subjected the September 11 detainees to having both lights illuminated in their cells 24 hours a day for several months longer than necessary… 18 of the 19 detainees… interviewed complained to the OIG about the difficulty of sleeping with both lights illuminated 24 hours a day, citing exhaustion, depression, stress, and sleep deprivation”¹⁸

As we look through the Reynolds affidavit in the next chapter, there will be lots of contradictions with regards to cited Inspector General observations and the facts presented in the affidacit. I believe that the pressing public need to receive information about arrestees and their whereabouts derives from such factual deceptions of Governments. If a society knows nothing about the way its Government works, how its officials treat detainees, then there will be no effective deterrence mechanism. No one should realistically expect from any executive branch to create a just internal checks and balances regime. That is unfortunately not how a government works, especially following a crisis such as 9/11. Thereby, deferring all the authority to the executive branch and avoiding any judicial supervision creates an obscure legal field where law enforcement officials can take arbitrary measures without any accountability. Following 9/11, it is argued that the executive branch declared the Al Qaeda threat as a “new type of war” and strived for an adoption of “unprecedented secrecy”.¹⁹ This unprecedented secrecy proved to be detrimental to the fundamental rights and freedoms of the detainees. In CNSS v. DOJ, an opportunity was provided to the District of Columbia Appeals Court to make things right. And as we begin analyzing the arguments therein, the court’s own words in that decision have to be reiterated:

“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 second-guess executive judgments made in furtherance of that… role”²⁰

Accordingly, we shall allocate and interpret all the adversarial arguments presented leading up to this diffident decision of the Court of Appeals.

Plaintiffs asserted their arguments based on a Freedom of Information Act request. They have initially sent this request to the DOJ and wanted the learn the following information about the detainees held under 9/11 investigations: 1) name and citizenship status; 2) location of arrest and place of detention; 3) date of arrest, date of release; 4) basis for detention 5) names and addresses of lawyers; 6) identities of courts sealing any proceedings in connection with detainees and the legal authorities relied upon by the government; 7) all policy directives issued to officials about making public statements or disclosures. We should add that the request from DOJ was made on October 29, 2011, just over a month after the September 11 attack. The plaintiffs argued that there were striking reports of “imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury.”²¹ The government withheld most of the requested information including INS detainees’ names, location of detention, criminal detainees’ location of arrest, dates of release and any kind of information with respect to material witnesses. After the plaintiffs filed an action in district court, the government invoked the FOIA exemptions 7(A), 7(C) and 7(F) for withholding the mentioned information. The Reynolds affidavit, that we mentioned in the first chapter, was submitted by the government in support of its motion for summary judgment. Similar to the order of the Court of Appeals’ decision, we’ll mostly weigh on FOIA’s 7(A) exception that prioritizes “law enforcement purposes”.

Quoting from the affidavit, Reynolds pointed out that “disclosing the information in question could result in significant harm to the interests of the United States and compromise the September 11… investigations.”²² He further proposes a mosaic theory because he believes that “releasing the names of the detainees… would reveal the direction and progress of the investigations by identifying where DOJ is focusing its efforts… This may cause terrorists… to alter their plans in a way that presents an even greater threat to the United States.”²³ The mosaic theory is based on the fact that “disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information.”²⁴ Simply, the government is asserting that any kind of information they give could prove to be useful for terrorists. In his affidavit, Reynolds adds that even the names of detainees who have been released could create a compromise for the investigation. In his article, Arnold says that the administration pressed for an across the board secrecy in the aftermath of 9/11 and tried to convince the Courts that the threat they were facing was a very sophisticated terrorist organization that can capitalize on any possible data.²⁵ The same rationale of the government can also be observed in two other 9/11 cases, this time dealing with secret deportation hearings. In Detroit Free Press v. Ashcroft, the dispute was about the government’s Creppy directive foreseeing a blanket closure rule on every deportation hearing. The Sixth Circuit held that the directive was not narrowly tailored and the all out closure of the government was found to be in violation of the first amendment. The Court was aware of the government’s concern in battling terrorism, nevertheless held that the adopted measure was over-inclusive and the precautions could have been taken on a case-by-case basis. The Court specifically referred to the “mosaic theory” in its decision:

“The Government offers no persuasive argument as to why the Government's concerns cannot be addressed on a case-by-case basis... the Government seeks to protect from disclosure the bits and pieces of information that seem innocuous in isolation, but when pieced together with other bits and pieces aid in creating a bigger picture of the Government's anti-terrorism investigation… While the risk of ‘mosaic intelligence’ may exist, we do not believe speculation should form the basis for such a drastic restriction of the public's First Amendment rights”²⁶

In contrast to the Detroit Free Press decision by the Sixth Circuit, the Third Circuit in North Jersey Media Group has chosen the opposite direction deferring all authority to the executive branch in national security measures.

“The assessments before us have been made by senior government officials responsible for investigating the events of September 11th and for preventing future attacks. These officials believe that closure of special interest hearings is necessary to advance these goals… To the extent that the Attorney General's national security concerns seem credible, we will not lightly second-guess them... we are unable to conclude that openness plays a positive role in special interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension”²⁷

I believe that both of these decisions’ fact patterns are in line with the issues we are dealing with in CNSS v. DOJ. Obviously an ongoing criminal investigation has a heightened protection in comparison to a court hearing, but the “mosaic” defense of the government stands on the same grounds. There is no individual case-by-case defense by the government in neither of the three cases and there is a consistent demand for unaccountability for their actions. I cannot agree with a judgment that relies upon an affidavit such as Reynolds’ and accept all the information therein as credible evidence just because they are from “senior government officials” dealing with complex 9/11 cases. Similar to the dissenting Judge Tatel’s opinion in CNSS v. DOJ, I agree that if Reynolds had concerns about releasing the names of detainees, he could have specified those concerns under oath in an “in camera affidavit”.²⁸ From a perspective of criminal law, I can understand that criminal investigations have to go forward under certain protections. There is a legitimate need for secrecy so that law enforcement can protect the evidence and further its interest in finding accurate information about the ongoing investigation. Nevertheless, the demanded all-out blanket can not be justified under these circumstances. If there is a need for utmost secrecy for a specific case the reasons had to be highlighted by the executive branch so that an impartial judicial mechanism could oversee the evidences in hand. However, the Reynolds affidavit simply reiterates how 9/11 attacks were so complicated and agonizing to United States at large and he expects not to be questioned for the duration of the whole investigation. And apparently the affidavit reaches its goal.

At this moment, one shall also take a look at how FOIA Exemption 7(A) can be properly satisfied. According to well-established guidelines of FOIA, there is a two-step test for fulfilling the 7(A) exemption. First, there has to be a “law enforcement proceeding that is pending or prospective” and second, there has to be a request for “release of information that can reasonably expect to cause some articulable harm”.²⁹ The Reynolds affidavit mostly refers to the “mosaic theory”. However, it also refers to the possibility of using detainees for cooperation and future investigations. It categorizes the detainees into three groups and especially demands less scrutiny for the INS and material witness detainees. I think the plaintiffs lack a strong basis for the material witness detainees because of the way material witness statutes were intentionally built for exploitation by the Government. There is always a court order behind every material witness and the District of Columbia Court refers to this practice for avoiding the discussion. This analogy can be applicable to the criminal detainees as well. They are already arraigned by a criminal proceeding and their names are already out there, nevertheless the government is trying to keep other relevant information (such as place of detention) to themselves. Even though for the purposes of 7(A) the Reynolds affidavit should have pointed out a “distinct harm”³⁰ on a case-by-case basis, nevertheless, the government should be able to come up with more concrete arguments for the “material witnesses” and “criminal detainees”. On the other hand, it is obvious that the hundreds of INS secret arrestees are being held under a preventive detention format. Lacking evidence, the government cannot charge them with a criminal conduct and they cannot deem them as material witnesses because they can’t even slightly tie them with an actual terrorist. The government is simply detaining these persons under a “fishing expedition” and waiting for months and years to come up with something useful in the future. It is underlined that Exemption 7(A) is temporal and not intended to endlessly protect prospective investigative plans of the government.³¹ Therefore, I think that both the requirements of 7(A) (“the pending investigation” and the “articulable harm”) can easily be dismissed for the INS detainees. More than 600 people were charged with immigration violations as a pretext for 9/11 investigations and they were eventually excluded from attorneys, families and friends.³² The plaintiffs’ goal was to reveal the conditions of these secret arrestees based on FOIA and at least create a slight deterrence effect on the executive policies. However, the bare-bone affidavit of Reynolds sufficed for the DC Court to come up with an absolute deferral to the executive in national security investigations. The affidavit’s all-around accuracy should also be questioned with regards to the findings of the Inspector General report we mentioned in the first chapter.

The affidavit clearly indicates that all the individuals that have been charged with immigration violations have retained counsel and no one has been denied his right to talk to an attorney.³³ However, as we have cited above, many of the detainees were not even offered their first legal phone call within 7 days of their arrival to the detention facility. Moreover, when questioning the whereabouts of their clients, the MDC staff persuaded several attorneys that there was no such detainee in that facility.³⁴ For a long period of time, families and attorneys didn’t even know where a specific detainee was, let alone providing proper legal consultation. The physical abuse reports, which the plaintiffs discussed, also turned out to be accurate. The OIG report specifically refers to the deliberate 24-hour illumination of the rooms in order to create exhaustion and depression among the detainees. After the circumstances that the OIG report exposes, the plaintiffs’ goal to reveal basic information about the detainees can be better understood.

I have underlined that I do not agree with the Court’s rationale that “America faces and enemy… with capabilities beyond the capacity of the judiciary to explore”³⁵ . The judiciary’s goal is clearly not to unravel the mysteries of an investigation, but rather to protect the fundamental rights and freedoms of the society. On the other hand, I think that the plaintiffs look for an extensive range of information that cannot be coincided with effective law enforcement practices. The FOIA request involved initial arrest locations, the courts sealing any proceedings, legal authorities demanding the sealing orders and all policy directives issued to officials. I believe that the demand for such wide range of information also predetermined the judiciary to dismiss all the FOIA requests with a single stroke. Names of the detainees and their current location of detention had to be revealed for public’s right to know how their government treats detainees. Nevertheless giving out all the background information of the 9/11 investigations, especially after only two months after the attack, would not be rational. Therefore, I believe that minimizing the scope of the FOIA request could have helped the plaintiffs in persuading the DC Court.

One should also take a close look at the “cooperation”, “informant” argument of the government that surprisingly gets to be accepted by the DC Court. The Reynolds affidavit and also the DC Court admits that some detainees may actually have no ties with any terrorist organization.³⁶ However even if they get released they could prove to be valuable for the government’s interests in cooperating and maybe working as an informant for future investigations. Therefore, it is argued that if the government releases these names, they could be stigmatized by the public or coerced by the terrorist groups when they get out. I cannot grasp the government’s motive and how their reasoning gets to be accepted by a Court. The government is simply saying “We know that we are keeping some innocent people inside. They are not dangerous. Some were even cleared and they got released, but we cannot say anything about the proceedings we have gone through because these people can prove to be valuable in the future as they may share the same community or mosque with actual terrorists”. After the evidences presented in the OIG Report, this analogy indicates that following 9/11 the government has apprehended hundreds of innocent people with unreliable tips, interrogated them without due process, released them 6 to 7 months later and nobody in US knew anything about who those detainees were and how they were treated. And frankly, other than the press reports and OIG inspections, they still don’t. On the other hand, the fiercely defended all-out secrecy has been compromised several times by the government itself. And the dissent in CNSS v. DOJ points out to this dichotomy:

“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 Mohammed Mansur Jabarah… In its reply brief, the government explains that it may have strategic reasons for disclosing certain information”³⁷

Apparently, if we apply the mosaic theory to either one of these names, then we can conclude that the terrorists have already gained crucial information about where the government is focusing its efforts. This is obviously not the case in hand. I think that the mosaic theory is basically an excuse that has been invented by the government when it decides not to release information on its own discretion. And, unfortunately most of the Courts turn a blind eye to this unjustifiable process. I think that every Court realizes that the government’s mosaic theory can’t hold up against arguments like the ones raised by the plaintiffs. However, the Courts simply don’t want to be the ones that interfere with the efforts of the government in battling terrorism after 9/11. Otherwise, the contradictive arguments presented in the affidavit and the decision itself cannot be legally clarified.

There needs to be a “transparency of detention” for every detainee to be treated with dignity and seek proper legal help as an effective remedy. It is widely accepted that “a person may only be detained at a ‘recognized’ detention center and he must have a right to contact someone outside that center”.³⁸ Both these safeguards are established for preventing possible ill-treatment, abuse and torture of the detainee.³⁹ With regards to the denied requests in CNSS v. DOJ, this universal safeguard gets to be completely dismissed. And following the observations of the OIG report, we can see that the concerns of the plaintiffs had a substantial basis. Following the secret arrests, even attorneys were deceived by the officials about the presence of their clients in a specific detention facility. The ill-treatment of a detainee and the pressures of custodial interrogation are elevated in the first immediate days after an arrest. Nevertheless according to the interviews of OIG, most of the detainees were held incommunicado in that vulnerable period.⁴⁰ I cannot justify this treatment with any kind of investigative urgency or necessity, let alone justifying an all-out secrecy under the 7(A) exemption. In sum, following the FOIA request, the government should have disclosed at least the names of the detainees and their dates of arrest and release. I agree that this tandem would have led the public to oversee how long a person was detained and thereby clear out the concerns of possible constitutional and human rights violations.⁴¹

Before closing out this chapter, I should briefly refer to the government’s defense based on FOIA’s 7(C) and 7(F) exemptions. The plaintiffs and the dissenting opinion contend that the 7(C) “privacy interest” exemption should be balanced with the public interest in disclosure.⁴² I agree with the opinion that the government has previously released many names in 9/11 investigations such as the ones we cited above. The notable privacy of the detainees was never taken into account for names such as Issaya Nombo or Al Muhajir. And additionally I agree with the dissent’s argument that “an official act such as an arrest” was never considered a subject of privacy in previous practices.⁴³ Disclosure of an arrest process is an essential part of law enforcement practice in that the people’s right to know about its government practices coincides with the detainee’s right to fair and speedy trial and refrainment from torture. Therefore 7(C) exemption cannot form a basis for the all-out secrecy the government has been advocating.

7(F) exemption is based on the fact that if the requested information gets released then there will be a grave “endangerment of life or physical safety of an individual”. I think that the government should have argued every exemption under a case-by-case, threat-by-threat basis. This necessity stands out for the 7(F) exemption as well. If there is a specific threat that a disclosure of information will create, then the Government has to provide some kind of evidence in support of this argument. The mere declaration of “national security danger” shouldn’t be able to convince the Courts in deciding about FOIA exemptions. The government has not provided any concrete evidence (in camera or in public) about how a safety of an individual can be compromised through the disclosure of information. Pursuant to the dissenting opinion, I agree that the government should not be able to invoke FOIA’s 7(F) exemption with such deficient information.⁴⁴

Until now we have broadly discussed the 7(A) arguments of the adversaries and briefly touched upon the 7(C) and 7(F) invocations. After establishing our point of view in CNSS v. DOJ, we shall now have a chance to make a comparative analysis under European Court of Human Rights’ approach to secrecy in criminal investigations. The ECHR case law should provide us a fresh perspective on the public’s “right to receive information” in criminal investigations and the need to balance this right with the needs of the law enforcement.