Secrecy vs. the Republic

A federal judge in Washington had no hesitation last week in ordering the Justice Department to reveal the names of almost 1,200 people it jailed after the Sept. 11 terrorist attacks. “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,” said U.S. District Judge Gladys Kessler, quoting an earlier ruling in her own decision.

Atty. Gen. John Ashcroft should let the matter rest there. He’s likely to appeal, however, just as he has in related challenges since the detentions.

Lawyers with two dozen human rights and civil liberties groups filed the Freedom of Information Act challenge late last year after the Justice Department rebuffed request after request to say whom it had rounded up and why, and where it had jailed these men and women.

The department insisted--and continues to insist--that secrecy was necessary to keep information from Osama bin Laden and other terrorists still at large. If terrorists don’t know who’s in jail, such logic goes, they can’t know what the government knows about their plans for attacks.

Kessler, like most people who care about civil liberties, didn’t buy that argument. The vast majority of those swept up after the World Trade Center and Pentagon attacks have been released from jail or deported on immigration violations. None of those rounded up, including the 73 believed to remain behind bars, have been charged publicly with terrorism-related crimes.

But even if the U.S. had nabbed Bin Laden himself, the ends don’t justify the means. Americans depend on the transparency of their legal and political institutions to protect what Kessler called America’s “core values of openness, government accountability and the rule of law.” For that reason, “the public’s interest in learning the identity of those arrested and detained is essential to verifying whether the government is operating within the bounds of law.”

Kessler gave the Justice Department 15 days to turn over a list of the people jailed since 9/11. She said she would consider requests to keep some names under wraps if prosecutors could demonstrate that a detainee had knowledge of a terrorist conspiracy or specifically requested secrecy.

In recent months, federal judges in Detroit and New Jersey have ordered an end to secret deportation hearings, and a Manhattan federal judge in April limited the government’s use of the federal material witness law to hold suspects indefinitely and secretly.

Ashcroft has appealed each decision.

Right after the attacks on the World Trade Center and the Pentagon, it was impossible to know what else terrorists might be planning. There was an understandable impulse to cast a broad net for people and information. But the post-Sept. 11 emergency does not justify long-term changes that would snuff out the light and openness that distinguish our democracy from the tyrannies that would destroy it.