Court Upholds Detainee Secrecy

A divided federal appellate court ruled Tuesday that the Bush administration was justified in refusing to identify hundreds of foreigners charged with immigration violations after the Sept. 11 attacks.

The 2-1 decision by a panel of the U.S. Circuit Court of Appeals for the District of Columbia reversed an August ruling by a lower court that the government had failed to offer evidence that disclosure of the names alone would harm its anti-terror campaign.

Plaintiffs in the case, brought by a group of human rights and civil liberties organizations, said they would appeal. They said a June 2 report by the Justice Department’s inspector general, which found significant abuses in the treatment of the post-Sept. 11 detainees, illustrated the problems that can occur when people are charged and held in secret.

The court decision “completely ignores” the inspector general, said Steven Shapiro, legal director of the American Civil Liberties Union. The inspector general’s report “makes clear that many people with no connection whatsoever to terrorism were picked up indiscriminately and haphazardly in the government’s post 9-11 sweep.”

In its opinion, the court said it was relying on government affidavits that many of the people being detained had links to terrorism. The inspector general also found evidence that some immigration and Justice Department officials had felt that the government had overreached in its investigations.

For now, the ruling stands as another legal victory for Justice Department officials and the tactics they have employed to root out and prevent further terror attacks. In other cases, courts have upheld challenges to the department’s use of closed-door immigration hearings and to a law loosening standards for obtaining secret warrants to wiretap or search suspected terrorists.

“Today’s ruling is a victory for the Justice Department’s careful measures to safeguard sensitive information about our terrorism investigations as well as the privacy of individuals who chose not to make public their connection to the government’s probe,” Atty. Gen. John Ashcroft said in a prepared statement.

“The Justice Department is working diligently to prevent another catastrophic attack on America. We are pleased the court agreed we should not give terrorists a virtual roadmap to our investigation that could allow terrorists to chart a potentially deadly detour around our efforts.”

The ruling stems from a December 2001 lawsuit filed against the Justice Department by a group of 20 advocacy groups, including the Center for National Security Studies, the ACLU and the American Immigration Lawyers Assn.

At the time, department officials said more than 1,200 people had been interviewed as part of an intensive post-Sept. 11 manhunt.

Eventually, 762 people were detained across the country. Most of them were subsequently deported after being charged with immigration law violations, such as carrying a false or expired passport.

The groups had asked the Justice Department, under the Freedom of Information Act, to disclose the names of the detainees, their lawyers and other information. The Justice Department had agreed to disclose the names of 108 people who had been criminally charged as part of the roundup. But it declined to disclose the rest. The department claimed it was exempt from having to divulge the names, citing a provision in the law allowing withholding of documents whose publication would harm ongoing law-enforcement proceedings.

In August 2002, U.S. District Judge Gladys Kessler rebuffed the department, saying that the secret arrests were “odious to a democratic society,” and she ordered the government to release the names, pending appeal.

But the appellate court held that Kessler gave short shrift to the government’s position, and it said courts since the 1970s have sided with the executive branch in cases where they assert that disclosure of information would threaten national security.

“America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore,” the court said.

It added: “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.”

The advocacy groups and the court’s dissenting member said the decision rests on a faulty assumption -- that many or most of the people being detained were terrorists. The majority on the appellate court also seemed reassured by Justice Department claims that the detainees had ready access to lawyers and were free to contact whomever they wished.

The inspector general found that even mid-level Justice Department lawyers were concerned that many of the detainees had no terrorist connections. The report said that some Justice Department officials encouraged federal prison authorities to “not be in a hurry” to provide detainees with access to communications, including legal and social calls or visits. The report also cited instances of physical and emotional abuse of detainees at a federal prison in Brooklyn.

“Keeping the arrests secret allowed the Justice Department to cover up its abuses,” said Kate Martin, director of the Center for National Security Studies, and the lead plaintiffs’ counsel in the case. She said the ruling was the first time in history that a U.S. court had approved secret arrests.

“There is every reason to fear that the attorney general continues to cover up the fact that people were jailed because of their religion or ethnicity,” Martin said.