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Court Backs Secrecy for 9/11 Detainees
WASHINGTON - The Justice Department (news - web sites) properly
withheld the names and other details about hundreds of foreigners detained
in the months after the Sept. 11 attacks, a federal appeals court ruled
Tuesday. The powerful decision was deferential to the Bush administration's
arguments over continued threats to America from terrorists.
In a 2-1 ruling that represents a major victory for President Bush (news -
web sites) and Attorney General John Ashcroft (news - web sites), a panel
from the U.S. Circuit Court of Appeals (news - web sites) for the District of
Columbia determined that disclosing such information could provide a
roadmap of the government's Sept. 11 investigation for international
terrorists.
Federal judges asked to compel such disclosures should defer to White
House concerns that it might help the nation's enemies, the appeals panel
said.
"America faces an enemy just as real as its former Cold War foes, with
capabilities beyond the capacity of the judiciary to explore," wrote U.S.
Circuit Judge David B. Sentelle. He said judges are "in an extremely poor
position to second-guess the executive's judgment in this area of national
security."
In a harsh dissenting opinion, Circuit Judge David S. Tatel accused his
colleagues of "uncritical deference to the government's vague, poorly
explained arguments for withholding broad categories of information about
the detainees."
Tatel said the decision to withhold the information prevents U.S. citizens
from learning whether the Bush administration "is violating the constitutional
rights of the hundreds of persons whom it has detained in connection with
its terrorism investigation."
The courtroom battle focused on information about at least 762 foreigners
who were inside the United States illegally and were detained following the
Sept. 11 terror attacks as part of the FBI (news - web sites)'s investigation.
More than 500 have been deported so far.
A recent audit by the inspector general at the Justice Department found
"significant problems" with the detentions, including allegations of physical
abuse. Civil liberties groups have noted that only one of those detained,
Zacarias Moussaoui, has been charged with any terrorism-related crime.
Ashcroft told lawmakers earlier this month that some of the foreigners "had
strong links to the terrorists," but that in some cases evidence was
insufficient or too sensitive to bring criminal charges against them in public
courts.
Ashcroft has publicly described one detainee as a roommate of one of the
hijackers; another acknowledged training in a terrorist camp in Afghanistan;
another traveled from New York on Sept. 11 with a pilot's license and flight
materials; and another was found with 30 photographs of the World Trade
Center and papers that Ashcroft described as "Jihad materials."
The new appeals decision rejected arguments by the Center for National
Security Studies and other public interest groups that the Justice
Department should publicly provide the names of the detainees, names of
their lawyers, dates they were picked up and the reasons they were
detained.
"We're disappointed that for the first time ever, a U.S. court has sanctioned
secret arrests," said Kate Martin, a lawyer for the center. She said the
organization plans to pursue the case.
The court affirmed that the information can properly be withheld under an
existing exemption in the U.S. Freedom of Information Act. That provision
exempts information from disclosure if it's compiled for law enforcement
purposes and if revealing it "could reasonably be expected to interfere with
enforcement proceedings."
"It's disturbing that the court takes the position that the war on terrorism
trumps all other considerations," said David B. Sobel of the Electronic
Privacy Information Center, who also participated in the case.
The appeals decision did not refer directly to the inspector general's findings
critical of the detentions, although lawyers said they privately sent a copy of
the audit report to the appeals court before Tuesday's ruling.
U.S. District Judge Gladys Kessler ordered the government last August to
release detainees' names but delayed enforcing her order to let the
government appeal. Kessler also had ruled that the Justice Department
could withhold the other information.
Tuesday's appeals decision, however, permits the Bush administration to
withhold even the names of the foreigners and their lawyers. Sentelle and
Circuit Judge Karen LeCraft Henderson ruled that the list of names could
"constitute a comprehensive diagram of the law enforcement investigation."
Disclosing the list "would give terrorist organizations a composite picture of
the government investigation," Sentelle wrote. "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."
Tatel, in his dissenting opinion, said the ruling "eviscerates" the Freedom of
Information Act and principles of openness in government.
"Just as the government has a compelling interest in ensuring citizens
safety, so do citizens have a compelling interest in ensuring that their
government does not, in discharging its duties, abuse one of its most
awesome powers, the power to arrest and jail," Tatel wrote. |
