Center for National Security Studies v. U.S. Department of Justice

331 F.3d 918, 356 U.S. App. D.C. 333

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 17, 2003
• Docket: Nos. 02-5254 & 02-5300
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge TATEL.

SENTELLE, Circuit Judge:

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

I. Background

A. The Investigation

Consistent with the mutual decision of the parties to seek resolution to this controversy on summary judgment, the facts 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. Zacarías 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 comprehensive list of detainees’ names and other detention information sought by plaintiffs, the government has from time to time publicly revealed names and information of the type sought by plaintiffs regarding a few individual detainees, particularly those found to have some connection to terrorism.

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

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). Mat 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 101-02. 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 investígation. 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 thiq 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 103-04. 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 105-06. 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 106-07. 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 106-07. 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 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 111-12.

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 113-14. On August 15, 2002, the district court stayed its order pending appeal. The government timely appealed. Plaintiffs cross-appealed 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, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989). “Congress recognized, however, that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166-67, 105 S.Ct. 1881, 1886, 85 L.Ed.2d 173 (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, 110 S.Ct. at 475. 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 “narrow-ly construed,” FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 2064, 72 L.Ed.2d 376 (1982), courts must not fail to give them “a meaningful reach and application,” John Doe Agency, 493 U.S. at 152, 110 S.Ct. at 475. 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 ... 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.” NLRB v. Robbins Tire & Rubber Co., 487 U.S. 214, 282, 98 S.Ct. 2311, 2322, 57 L.Ed.2d 159 (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 “specializing] 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. ¶ ¶ 2-5.

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, 121 S.Ct. 2491, 2502, 150 L.Ed.2d 653 (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, 108 S.Ct. 818, 825-26, 98 L.Ed.2d 918 (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, 105 S.Ct. 1881, 85 L.Ed.2d 173 (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, 105 S.Ct. at 1884-85. The agency claimed that the information was protected from disclosure by a statute charging the CIA to prevent unauthorized disclosure of “intelligence sources and methods,” 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, 105 S.Ct. at 1893. 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, 105 S.Ct. at 1893-94.

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:

[Cjourts 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”); Cardels 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, 697-98 (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 ... 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, 105 S.Ct. at 1892 (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, 239-42, 98 S.Ct. 2311, 2325-27, 57 L.Ed.2d 159 (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, 312-13 (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, 1542-43 (D.C.Cir.1993) (recognizing that government affidavits predicting witness intimidation and evidence fabrication “have achieved recognition in Exemption 7 case-law”); 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 “[official 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 information 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. Swams, 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, 105 S.Ct. at 1889 (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 ... 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, 105 S.Ct. at 1893. 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 Deck ¶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 Deck ¶ 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 Deck ¶ 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 Deck ¶ 10; Watson Deck ¶ 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, — U.S.-, 123 S.Ct. 2215, 155 L.Ed.2d 1106 (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 second-guess 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. Of Sims, 471 U.S. at 179-80, 105 S.Ct. at 1893-94 (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 922, 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, 100 S.Ct. 2814, 65 L.Ed.2d 973 (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 ... 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, 98 S.Ct. 2588, 2597, 57 L.Ed.2d 553 (1978) (plurality opinion); id. at 16, 98 S.Ct. at 2597-98 (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, 98 S.Ct. at 2596-97 (quoting Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975)). Rather, disclosure of government information generally is left to the “political forces” that govern a democratic republic. Id. at 14-15, 98 S.Ct. at 2596-97.

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, 100 S.Ct. 2814. 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 575-77, 100 S.Ct. at 2826-27. The Court expanded this limited right somewhat in the years after Richmond Newspapers. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) {Press-Enterprise I) (holding that the public has a First Amendment right to attend voir dire examinations during criminal trial); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise 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 Press-Enterprise 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 public____ 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, 106 S.Ct. at 2740 (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 Press-Enterprise 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. El-Sayegh, 131 F.3d 158, 160-61 (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, 120 S.Ct. 483, 489, 145 L.Ed.2d 451 (1999) (holding that there is no First Amendment right to receive addresses of arrestees); Houchins, 438 U.S. at 13-15, 98 S.Ct. at 2596-97 (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, 98 S.Ct. at 2597. 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, 120 S.Ct. at 489. 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, 98 S.Ct. at 2596-97). 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 ... 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 696-99, 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 Neiuspapers 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, 98 S.Ct. 1306, 55 L.Ed.2d 570 (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, 98 S.Ct. at 1312. 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, 903-04 (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, 98 S.Ct. at 1312-13. Nonetheless, the Court denied disclosure because the Presidential Recordings Act provided a statutory scheme for seeking access to the tapes. Id. at 603-06, 98 S.Ct. at 1314-1316. 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, 98 S.Ct. at 1316. In El-Sayegh, 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 605-06, 98 S.Ct. at 1316).

The principles of Nixon and El-Sayegh 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 El-Sayegh, we cannot craft federal common law when Congress has spoken directly to the issue at hand. Milwaukee v. Illinois, 451 U.S. 304, 314, 101 S.Ct. 1784, 1791, 68 L.Ed.2d 114 (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.

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.