Richard B. Schmitt
Court OKs secret imprisonments
Wed Jun 18 03:43:51 2003
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Court OKs secret imprisonments
http://www.orlandosentinel.com/news/nationworld/orl-asecdetainees18061803jun18,0,5249937.story?coll=orl-news-headlines

By Richard B. Schmitt | Washington Bureau
Posted June 18, 2003


WASHINGTON -- 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 here reversed
an August 2002 ruling by a lower court that the
government had failed to offer evidence that
disclosure of the names alone would harm its
antiterror 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 that 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's ruling did not address the report.

For now, the ruling stands as another legal victory
for Justice Department officials and the tactics they
have employed in an attempt to root out and prevent
further terror attacks.

"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,"
Attorney General John Ashcroft said.

"The Justice Department is working diligently to
prevent another catastrophic attack on America," he
said. "We are pleased the court agreed we should not
give terrorists a virtual road map 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 American Civil Liberties Union
and the American Immigration Lawyers Association.

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 and their lawyers, and other
information.

The Justice Department had agreed to disclose the
names of 108 people who had been criminally charged.
But it would not 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 the secret arrests
were "odious to a democratic society," and ordered the
government to release the names, pending appeal.

But the appeals court held that Kessler gave short
shrift to the government's position, and 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 appeals court also
seemed reassured by Justice claims that the detainees
had ready access to lawyers and were free to contact
whomever they wanted.

The inspector general found that even midlevel Justice
Department lawyers were concerned that many detainees
had no terrorist connections.

The report said that some Justice officials encouraged
federal prison authorities to "not be in a hurry" to
provide detainees with access to communications,
including calls or visits.

The report also cited instances of physical and
emotional abuse of detainees at a federal prison in
New York City.

"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 a U.S. court
had approved secret arrests.

Richard B. Schmitt is a reporter for the Los Angeles
Times, a Tribune Publishing newspaper.

Copyright © 2003, Orlando Sentinel