U.S. Ordered to Disclose Names of Detainees in Sept. 11 Inquiry

A federal judge dealt the Justice Department a significant legal setback Friday by ruling that the United States must reveal the names of almost 1,200 people it has detained since the Sept. 11 terrorist attacks.

In a decision expected to be appealed, U.S. District Judge Gladys Kessler rejected the Justice Department’s argument that the names of the detainees should be kept secret in the interest of national security and to protect the privacy of those taken into custody.

Nearly all of the detainees have been men of Middle Eastern and South Asian origin who were swept up in the dragnet that followed the deadly attacks on the World Trade Center and the Pentagon.

Most have been released from custody and deported because of immigration violations. None of those detained--including 73 believed to remain in custody--have been charged publicly with crimes related to terrorism.

Citing a 1969 federal court ruling, Kessler wrote: “Secret arrests are ‘a concept odious to a democratic society,’ and profoundly antithetical to the bedrock values that characterize a free and open one such as ours.”

Kessler wrote that she understood and appreciated that “difficult times such as these have always tested our fidelity to the core democratic values of openness, government accountability and the rule of law.”

But she added: “By the same token, the first priority of the judicial branch must be to ensure that our government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship.”

Kessler ordered the Justice Department to turn over the names within 15 days. But she said Justice Department officials may petition her for an exemption on a case-by-case basis for detainees believed to have knowledge of terrorist conspiracies. And she said the government may withhold the name of a detainee if that person specifically requests it.

Justice Department officials reacted swiftly and sharply to Kessler’s 45-page decision.

“The Department of Justice believes today’s ruling impedes one of the most important federal law enforcement investigations in history, harms our efforts to bring to justice those responsible for the heinous attacks of Sept. 11, and increases the risk of future terrorist threats to our nation,” said Robert McCallum, assistant attorney general for the civil division.

Release of the names, McCallum said, “could jeopardize the investigation and provide valuable information to terrorists seeking to cause even greater harm to the safety of the American people.”

Terrorists could track the progress of the U.S. investigation and shift strategies based on who has been arrested, Justice Department officials said.

A Justice Department official, speaking on the condition of anonymity, said the government probably will seek an immediate stay of the order and appeal it.

Lawyers who sued the Justice Department to force the release of the names rejoiced at the ruling, saying it justified their concerns that U.S. authorities had overstepped their bounds in aggressively pressing post-Sept. 11 investigations.

“The ruling is a vindication of our basic liberties: The government may not arrest people in secret, the courts will stop government abuses, and the tragic events of Sept. 11 may not be used as an excuse to suspend basic rights and round up the most vulnerable members of our society,” said Kate Martin, lead lawyer for the legal coalition.

In all, 23 civil rights, human rights and civil liberties organizations filed suit Dec. 6 after repeated requests for the names of the detainees from the Justice Department had failed.

Other plaintiffs included the American Civil Liberties Union, the American-Arab Anti-Discrimination Committee, Amnesty International USA, the National Assn. of Criminal Defense Lawyers and the National Black Police Assn.

Martin predicted that the release of the names would result in a massive review of the Justice Department’s actions, showing that many people were detained in violation of their civil rights.

“It opens the door to a public examination of whether the investigation focused on terrorists or simply rounded up Arabs and Muslims,” said Martin, director of the Washington-based Center for National Security Studies. “The judge did a very thorough job of examining the government’s rationales and carefully rejected their overheated rhetoric that we have to abandon our basic democratic principles at this moment in history.”

The ruling follows months of legal wrangling, in which the Justice Department bitterly opposed demands that it release the names amid a growing chorus of calls for it to do so.

The ruling is the latest legal setback for the Justice Department on the terrorism front--federal judges in Michigan and New Jersey recently rejected the government’s policy that immigration hearings should be closed.

Kessler’s ruling, however, has no guarantee of being upheld on appeal.

Appointed by President Clinton, she is widely considered to be a liberal. The federal court of appeals for the District of Columbia contains many conservative judges who could easily reject her argument for full disclosure in favor of the Justice Department’s position that the nation’s security is at stake.

“It would not surprise me either way,” one former Justice Department official said of the ruling’s chance of being reversed.

The appellate court’s decision then can be appealed to the U.S. Supreme Court.

The government detention of people suspected of having links to terrorism began within hours of the Sept. 11 attacks, which killed more than 3,000 people. By November, Atty. Gen. John Ashcroft said, at least 1,182 people had been detained.

Ashcroft has insisted that to release the names of the detainees would compromise his department’s investigation and assist Osama bin Laden, the Al Qaeda terrorist network and others who want to harm the United States.

As the debate over the detainees intensified, Justice Department officials acknowledged that few if any of those being held had direct complicity in, or knowledge of, the Sept. 11 attacks--or any other terrorism conspiracies. Nevertheless, they said, the detainees had violated immigration laws and should be deported.

By mid-June, government officials said only 73 people remained in detention, with most facing immigration charges.

Kessler took note of that, saying in her opinion that the government affidavits “nowhere declare that some or all of the detainees have connections to terrorism. Nor do they provide facts that would permit the court to infer links to terrorism.”

Kessler did uphold the government’s right to withhold the locations of facilities where detainees were being held, saying that publicizing them would create a significant risk that the sites could be targeted by terrorists or people angered by the detentions.