High Court Refuses to Take Up Case on Post-Sept. 11 Arrests

The Supreme Court turned away a final challenge Monday to the Bush administration’s policy of keeping secret the names of hundreds of Middle Eastern men who were picked up for questioning after the Sept. 11, 2001, terrorist attacks.

Without comment, the justices refused to hear a dispute that was largely overtaken by events.

At least 750 men were arrested in a government roundup following the attacks, but nearly all of them had been deported or released by June 2002.

The only person charged in connection with the Al Qaeda attacks was actually arrested in August 2001. Zacarias Moussaoui’s prosecution has stalled over a dispute about potential witnesses.

Bush administration officials hailed the court’s decision not to hear the case as a validation of their efforts in fighting the war on terrorism.

“We are pleased the court let stand a decision that clearly outlined the dangers of giving terrorists a virtual road map to our investigation that could have allowed them to chart a potentially deadly detour around our efforts,” said Atty. Gen. John Ashcroft.

The case that ended Monday highlighted two trends that civil libertarians said they found disturbing.

First, immigrants who violate the law have few rights. They may be deported for a minor, technical violation of their immigration status, and they do not have a right to a lawyer to fight the charge. Since most of the Middle Eastern men detained for questioning were immigrants who had violated the terms of their stays here, the Justice Department gave them the choice of being deported or staying in custody for questioning. Ashcroft also ordered that their immigration hearings be closed to the public.

Secondly, the media and the public do not have a right to know who has been arrested for questioning during a government investigation, at least until the individuals are officially charged with a crime. For example, when a violent drug gang is being investigated, police need not release the names of those who have been picked up for questioning.

In November 2001, Ashcroft refused to release the names of those questioned after the attacks on the World Trade Center and the Pentagon. He contended that releasing a list of the detained men would tip off terrorists who were operating in the United States and give them a “road map” to where the investigation was headed.

In praising the decision, Ashcroft noted that although his office refused to release “sensitive information about our terrorism investigation,” the detained men or their families were free to make public the circumstances of their detention. Many of them did so in subsequent news reports.

Nonetheless, civil libertarians said they were disappointed by the court’s refusal to take up the case and to require the release of the names of all the detainees. They said allowing the government to operate behind a veil of secrecy set a dangerous precedent. It also undercuts the principle of accountability, they said.

“I think they are covering up their misconduct in arresting hundreds of innocent men,” said Kate Martin of the Center for National Security Studies, a public interest group which had filed the suit seeking the names of those who had been detained. “They were in a panic after Sept. 11, and they began arresting Arabs and Muslims. They may have overstayed their visas, but these men were not linked to terrorism. And the Justice Department went to extraordinary lengths to keep it all secret.

“I am feeling kind of discouraged now,” Martin said, “but Congress could remedy this by prohibiting secret deportation hearings.”

In recent months, the high court has taken up two challenges to the Bush administration’s policies in the war on terrorism. In the first, the court will decide whether the nearly 600 foreign fighters who were captured abroad and imprisoned at the U.S. Naval Base at Guantanamo Bay, Cuba, are entitled to a hearing to assert their innocence.

Last week, the court also agreed to decide whether U.S. citizens can be imprisoned by the military and held without charges if the president says they are “unlawful enemy combatants.”

One of these men, Yaser Esam Hamdi -- a Saudi who was born in Louisiana -- was picked up on a battlefield in Afghanistan; a second, Jose Padilla -- a Bronx-born Muslim -- was arrested at Chicago’s O’Hare International Airport after disembarking from a flight that had originated in Pakistan.

The court will hear both cases -- on the Guantanamo detainees and the “enemy combatants” -- in the spring and issue rulings by July.

By contrast, none of the high court justices dissented from the court’s refusal to hear the Freedom of Information Act suit seeking the names of the Middle Eastern men held after Sept. 11.

Although the Freedom of Information Act sets a general policy of public disclosure, it also contains exceptions. One of them allows the government to withhold information “compiled for law enforcement purposes” if its release “could reasonably be expected to interfere with enforcement proceedings.”

The 1st Amendment also has been interpreted as giving the media and the public access to information about how the government operates. But the courts have shied away from an absolute rule, one that either always requires the government to release information about arrested persons, or that always allows the government to maintain secrecy.

In response to the lawsuit, the Justice Department released the names of 129 people who were charged with a criminal offense. The department said more than 750 men had been detained originally for immigration violations, but only 74 were still in custody as of June 2002.

A federal judge in Washington, siding with civil libertarians, had ruled that at least the names of the other men who were detained originally must be released.

But last year, the U.S. court of appeals in Washington, in a 2-1 decision, upheld Ashcroft’s policy and ruled that the emergency created by the Sept. 11 attacks justified the government’s refusal to disclose who had been held for questioning. “The judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive function,” said Judge David B. Sentelle.

Amnesty International, People for the American Way and the American Civil Liberties Union joined in appealing the case to the Supreme Court. They argued that the principle of “democratic oversight” bars the government from operating in secret. They were supported by 23 media organizations, including Tribune Co., which publishes the Los Angeles Times. They argued that “basic arrests and jail logs” have been traditionally open to scrutiny by the press and the public.

Disagreeing, Solicitor Gen. Theodore B. Olson responded that while the public and the media have “a right of access to criminal proceedings,” there is not a public right to inspect “executive branch records,” including records of those who were questioned but not charged.

On Monday, the court issued a one-line order refusing to hear the case of Center for National Security Studies vs. Department of Justice.