Associated Press v. United States Department of Defense

Filing 19

Associated Press v. United States Department of Defense

Doc. 19

Case 1:05-cv-05468-JSR

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Filed 03/03/2006

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK __________________________________________ : : : Plaintiff, : - against : : UNITED STATES DEPARTMENT OF : DEFENSE, : : Defendant. : __________________________________________: ASSOCIATED PRESS, ECF Case No. 05 Civ. 5468 (JSR)

RULE 56.1 STATEMENT

Pursuant to Local Rule of Civil Procedure 56.1, the Associated Press hereby asserts that the following material facts are not in genuine dispute: 1. The Associated Press is a not-for-profit, news sharing co-operative that gathers and

disseminates the news to newspapers, magazines, broadcasters, cable television operators and Internet content providers throughout the United States and around the world. See Compl. ¶ 6. 2. Following the attacks of September 11, 2001, the United States government

captured and took custody of many "enemy combatants" during military operations in Afghanistan against al-Qaeda and the Taliban regime. The government also detained individuals in other countries who it considers also to be enemy combatants due to perceived connections to al-Qaeda and other terrorist groups. 3. Since January 2002, hundreds of these detainees have been housed at the Naval

Base in Guantanamo Bay, Cuba ("Guantanamo"). About 750 detainees have been held at one time or another at Guantanamo. See Department of Defense ("DOD") News Release No. 12306, entitled "Detainee Release Announced" (Declaration of Adam J. Rappaport ("Rappaport Dec.") Ex. C).

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4.

At least 267 detainees held at Guantanamo have been transferred out, and some 490

detainees remain confined there today. See id. 5. DOD has contended that the detainees being held at Guantanamo are "enemy

combatants" of the United States and may be held indefinitely until the war on terrorism ends. Public Concerns Over Treatment of Detainees 6. Several former detainees have publicly alleged that they were abused at

Guantanamo, see, e.g., Glenn Frankel, Three Allege Guantanamo Abuse, Wash. Post, Aug. 5, 2004, at A12, and others have conveyed allegations of abuse through their attorneys, see Josh White, Guantanamo Desperation Seen in Suicide Attempts, Wash. Post, Nov. 1, 2005, at A1. 7. Human rights organizations have charged that some of the handling and

interrogation of detainees was "tantamount to torture." See Neil A. Lewis, Red Cross Finds Detainee Abuse in Guantanamo, N.Y. Times, Nov. 30, 2004, at A1. The United Nations has reported that the treatment of detainees in some cases "amounted to torture." See Warren Hoge, Investigators for U.N. Urge U.S. to Close Guantanamo, N.Y. Times, Feb. 17, 2006, at A6. 8. Military officers and FBI agents who have worked at Guantanamo have questioned

the treatment of detainees and the conditions under which they are being held. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 474 (D.D.C. 2005) (recounting FBI agent's allegations of detainee mistreatment); Neal A. Lewis & Eric Schmitt, Inquiry Finds Abuses at Guantanamo Bay, N.Y. Times, May 1, 2005, at A35. 9. Joint Task Force-Guantanamo ("JTF-Guantanamo") is the military unit responsible

for overseeing the detainees. JTF-Guantanamo consists of several thousand U.S. service members, including the DOD personnel who serve as guards. See Declaration of Karen Hecker ("Hecker Dec.") ¶ 6.

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10.

When there is an allegation of mistreatment of a detainee, the JTF-Guantanamo

commander normally orders an officer to conduct an investigation. See id. ¶ 17a. 11. At the completion of the investigation, the officer reviews the documents generated

and determines whether to hold the subject criminally responsible. See id. 12. JTF-Guantanamo maintains files of these disciplinary actions. See id. ¶ 7.

13. These files normally consist of a record of the disciplinary action and a report of the investigation in the alleged conduct. See id. ¶ 8. 14. JTF-Guantanamo also maintains an automated database to "help it keep track of nearly every aspect of a detainee's daily life." See American Forces Information Service News Article entitled "Automated System Helps Guantanamo Guards Track Detainees" (Rappaport Dec. Ex. D). 15. The Detainee Information Management System ("DIMS") contains information about individual detainees, such as medical and behavioral notes, and detainee requests and refusals, as well as information about cells and cellblocks. See id. A "journal" section of DIMS keeps track of significant activities and noteworthy events in each cellblock. See id. 16. When an incident of physically or verbally abusive conduct between detainees

occurs, the DOD personnel who observe the incident record their observations and the results of any investigation into DIMS as a "Detainee Report." See Hecker Dec. ¶ 19a. 17. When an allegation of abuse was raised by a detainee during a CSRT, JTF-

Guantanamo's legal staff generated memoranda and other records of investigations into these allegations.

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The ARB Process 18. In June 2004, DOD created an Administrative Review Board ("ARB") to conduct

an annual review of the status of each detainee designated an enemy combatant. See May 11, 2004 Order of Deputy Secretary of Defense Paul Wolfowitz ("Wolfowitz Order"); Hecker Dec. Ex. 1. 19. A Designated Civilian Officer ("DCO") is designated by the Secretary of Defense

to operate and oversee the administrative review process. See Wolfowitz Order ¶ 2B; Hecker Dec. ¶ 3D. 20. The ARB is charged with determining on an annual basis whether each detainee

should continue to be held or instead should be released or transferred to the custody of another country, based primarily on whether the detainee is considered a threat to the United States. See Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba ("Implementation Mem.") ¶ 1 (Hecker Dec. Ex. 2). 21. DOD, through a Designated Military Officer, presents evidence concerning the

detainee to a session of the ARB. See Implementation Mem., Encl. (4) ¶¶ 1g, 2e. 22. Detainees are provided with an Assisting Military Officer ("AMO") and given an

opportunity to appear and make an oral or written statement to their ARB. See id. ¶ 2c. 23. No witnesses are allowed to testify before an ARB, but detainees may provide documents directly to the ARB or via their AMO. See id. ¶ 2d. 24. After a session where facts concerning a detainee are presented, the ARB meets

privately and votes to recommend whether the detainee should be released, transferred, or further detained. See id. ¶¶ 2g; 3a-b. 25. The ARB prepares a record of the entire proceeding. See id. ¶ 3c.

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26.

The ARB submits the assessment, the record of proceedings, and its

recommendations (collectively the "ARB Record") to the DCO. Id. ¶ 3d. 27. The ARB Record is submitted to the DCO through the Director of the Office of Administrative Review of the Detention of Enemy Combatants, who attaches to the ARB Record an "Action Memo" that summarizes the proceedings. See Rappaport Dec. Ex. F. 28. Based on the ARB Record and Action memo, "[t]he DCO decides whether to

release, transfer with conditions, or continue to detain the enemy combatant." Implementation Mem., Encl. (4) ¶ 5c. 29. From December 14, 2004 to December 23, 2005, DOD completed this ARB review

process for 463 detainees. See DOD News Release No. 124-06, entitled "Guantanamo Bay Detainee Administrative Review Board Decisions Completed" (Rappaport Dec. Ex. G). 30. Of the 463 reviews completed in 2005, the DCO decided to release 14 detainees,

transfer 120, and continue to detain 329. See id. An additional 18 ARB have been completed as of February 20, 2006. See "Administrative Review Board Summary" (Rappaport Dec. Ex. H). 31. Once the DCO has made his decision, the DCO is required to coordinate within DOD and with the Department of State and Department of Homeland Security (if necessary) "to implement any enemy combatant release or transfer according to established Deputy Secretary of Defense Policy." Implementation Mem., Encl. (4) ¶ 5d. 32. As of February 22, 2006, 20 Guantanamo detainees had been physically released or transferred through the ARB process. See Hecker Dec. ¶ 3o. 33. The DCO has decided to release or transfer 130 more detainees, pending foreign government assurances. See id.

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The AP Requests for Information 34. On November 16, 2004, AP submitted a FOIA request to DOD for a number of

records. In pertinent part, AP asked to obtain copies of all records of: (1) disciplinary actions initiated since January 2002 as the result of an allegation of mistreatment at Guantanamo; and (2) allegations of detainee-against-detainee abuse. See Rappaport Dec. Ex. A. 35. On January 18, 2005, AP submitted a FOIA request to DOD. In pertinent part, the

January 18 request sought: (1) transcripts of testimony given at the ARBs; (2) documents provided by detainees to their AMOs; and (3) details and explanations of the decisions made to release or transfer detainees. See Rappaport Dec. Ex. B. 36. Beginning in June 2005, DOD produced approximately 1400 pages of documents

responsive to these requests. The production included redacted copies of: (1) the transcripts of 85 ARBs that had been held as of June 6, 2005; (2) correspondence between two detainees and their families that the detainees had provided to their AMOs and were presented to the ARBs; (3) Action Memos for 23 detainees that the DCO had decided to release or transfer, along with the associated ARB Records; (4) eight files of disciplinary actions that resulted from allegations of abuse by DOD personnel against detainees; and (5) 20 "Detainee Reports" of altercations between detainees from DIMS, and records concerning four allegations of threats of harm made by detainees at CSRTs. See Hecker Dec. ¶¶ 5-14. 37. DOD's production of documents relating to the release or transfer of any detainee

was limited to documents generated out of decisions to release or transfer detainees following the ARB process; DOD produced no documents concerning detainees released or transferred from Guantanamo other than by a decision of the DCO following the completion of the ARB process. See id. ¶ 5f.

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Information Withheld by DOD 38. DOD is withholding detainee identifying information contained in the records of

disciplinary actions arising from allegations of detainee abuse by DOD personnel, and in documents concerning detainee-against-detainee abuse. DOD asserts the right to withhold this information on the ground that is lies within the privacy provisions of Exemption 6, which permits an agency to withhold "personnel and medical files and similar files" when disclosure "would constitute a clearly unwarranted invasion of personal privacy," and the law enforcement provision of Exemption 7(C), which permits an agency to withhold records "compiled for law enforcement purposes" where disclosure "could reasonably be expected to constitute an unwarranted invasion of privacy." See Hecker Dec. ¶¶ 17, 19. 39. DOD is withholding detainee identifying information from the Action Memos and

the ARB assessment and release or transfer decisions. DOD primarily asserts that it may withhold this information primarily under a deliberative process privilege recognized by FOIA's Exemption 5. See Hecker Dec. ¶ 16c. 40. DOD also claims that this information is protected under FOIA's Exemption 6. See

Hecker Dec. at 16b. 41. DOD is withholding information identifying the members of two detainees'

families contained in correspondence submitted to the ARBs. DOD asserts that information identifying family members in those two cases may be withheld under the privacy provisions of Exemption 6, and purports to make the particularized showing this Court has said is required under that Exemption. See Hecker Dec. ¶ 15.

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Dated:

March 3, 2006

Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. By: /s/ David A. Schulz David A. Schulz (DS-3180) Adam J. Rappaport

230 Park Avenue, Suite 1160 New York, NY 10169 [phone] Counsel for The Associated Press

To:

Sarah S. Normand Assistant United States Attorney 86 Chambers Street, Third Floor New York, NY 10007 Tel: [phone] Fax: [phone]

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