“Secret detentions have no place in a democracy,” said Jamie Fellner, U.S. Program Director for Human Rights Watch. “Yet the court has given the government permission to cast a mantle of darkness over its arrests.”
Under today’s 2-1 decision by the Court of Appeals for the District of Columbia Circuit in Center for National Security Studies v. Ashcroft, the Department of Justice will not have to release the names of and other information about the hundreds it arrested on immigration charges and material witness warrants in the aftermath of the September 11th attacks. Plaintiffs, including Human Rights Watch, sought release of their names under the Freedom of Information Act (FOIA). The court ruled that all of the information sought was statutorily exempt from disclosure because it was information compiled for law enforcement purposes, and disclosure “could reasonably be expected to interfere with enforcement proceedings.”
Despite formal requests from Congress and advocacy groups, the Department of Justice has refused to release the names of the detainees. Instead, it has asserted broad authority to keep all of the names secret, arguing that revealing them would compromise national security by providing terrorists with a roadmap of its investigations. Today’s decision accepted the government’s assertions at face value, overruling a lower court decision that had dismissed the government’s claims of harm to national security as “pure speculation.” Refusing to look closely at the government’s vague assertions of harm, the court asserted the importance of judicial deference to the executive branch in matters of national security. The court said it would not “second guess” the executive branch on such matters.
“The government shouldn’t be able to justify secret arrests simply by invoking the words ‘national security,’” said Fellner.
In a harsh dissent, Judge Tatel takes the majority to task for eviscerating FOIA, and ignoring the principles of openness in government that FOIA embodies. Judge Tatel recognized that some of the information sought, e.g. the names of certain detainees and their places of arrest, might be legitimately withheld. But he criticized the majority for not requiring the government to provide for each detainee or category of detainees, the specific basis for withholding their names, and each additional item of information sought. For example, Judge Tatel questioned how releasing the names of detainees whom the government found to be wholly innocent of any connection to or knowledge about terrorist groups could possibly harm national security.
Judge Tatel acknowledged the “uniquely compelling” public interest in the September 11 investigation. But he said the majority decision overlooked the interest of citizens knowing whether their government “is violating the constitutional rights of the hundreds of persons whom it has detained in connection with its terrorism investigation.”
As part of the federal government’s post-September 11 investigation, the Immigration and Naturalization Services (INS) arrested 762 non-citizens on immigration charges and treated them as “special interest” cases. A recent report by the Justice Department’s Office of the Inspector General (OIG) strongly criticized the Department for including among the special interest detainees Muslim men from middle-eastern countries who the Federal Bureau of Investigation and the INS encountered coincidentally or by happenstance with no indication they had any ties to terrorism. All the “special interest” detainees were subjected to numerous measures that deprived them of basic rights, including delays in filing charges following arrest, restrictions on access to counsel, the INS’ refusal to release them on bond and refusal to implement promptly judicial deportation orders and unnecessarily harsh conditions of confinement.
Human Rights Watch documented these abuses in Presumption of Guilt, a report issued in August of 2002. The OIG report confirmed Human Rights Watch’s conclusion that the government was using INS charges to secure the “preventive detention” of persons that is not permitted under criminal law.
The court’s decision also sanctions the practice of withholding the names of the fifty or so people arrested and detained as material witnesses in connection with the September 11 investigation. Ostensibly detained to ensure their testimony before grand juries, many of the material witness detainees were never brought before grand juries, but were held for weeks and months in solitary confinement while being interrogated by government agents. Human Rights Watch believes the Department of Justice misused material witness warrants to secure the detention of persons when it had no grounds to arrest them on criminal or immigration charges.