- The Washington Times - Monday, June 23, 2003

The United States is warring against global terrorism. Law enforcement’s chief mission is to thwart, not to punish after civilian carnage.

The terrible danger of terrorists justifies extreme caution in the release of public records that could facilitate their abominations or law enforcement evasions. The price of an inadvertent clue could be staggering. Accordingly, terrorism linked documents should enjoy the same confidentiality as military secrets. Public disclosure should be required only if a court finds frivolous the government’s claim that secrecy is needed to foreclose the possibility of enlightening terrorists to further evil ends.

That understanding informed the Freedom of Information Act (FOIA) decision last week of the United States Court of Appeals for the District of Columbia Circuit in Center for National Security Studies v. U.S. Department of Justice (June 17, 2003). Several self-labeled “public interest” groups sued the Justice Department under FOIA demanding the release of particular information concerning persons detained in the aftermath of the September 11 villainies, including: their names, their attorneys, dates of arrest and release, locations of arrest and detention, and reasons for detention.

The department resisted by invoking FOIA Exemption 7(A), which protects confidentiality when disclosure “could reasonably be expected to interfere with enforcement proceedings.” The district court denied the exemption as to the names of the detainees and their attorneys, but the court of appeals ruled that none of the detainee-related records should be disclosed.

Writing for a 2-to-1 panel majority, Judge David B. Sentelle divided the detainee records into three categories: detainees questioned in the course of the post-September 11 terrorism investigation who were determined to have violated immigration laws; detainees held on federal criminal charges; and, detainees held pursuant to a material witness warrant issued by a judge to secure their testimony before a grand jury.

James Reynolds, director of the terrorism and violent crime section of the Justice Department, and Dale Watson, FBI executive assistant for counterterrorism — officials with prime responsibility for the ongoing terrorism investigation — both submitted affidavits in support of Exemption 7(A). The two terrorism experts declared that disclosing the detainee information could invite multiple dangers.

Terrorist groups might identify detainees and either cut off contact or intimidate to deter cooperation. The progress and direction of the ongoing investigation might be deduced, thus enabling terrorists to impede or evade the investigation. Or terrorists might be clued as to how to create false or misleading evidence.

With regard to detainee names, Judge Sentelle underscored the need for extreme deference to executive branch predictions of investigative harms when terrorism is afoot: “America faces an enemy just as real as its former Cold War foes with capabilities beyond the capacity of the judiciary to explore. Exemption 7(A) explicitly requires a predictive judgment of the harm that will result from disclosure of information. … It is abundantly clear that the government’s top counterterrorism officials are well-suited to make this predictive judgment. Conversely, the judiciary is in an extremely poor position to second-guess the executive’s judgment in this area of national security. … Judicial deference depends on the substance of the danger posed by disclosure — that is, harm to the national security. … ”

Judge Sentelle thus bowed to the Justice Department’s reasonable fear that disclosure of the detainee names would enable al Qaeda or companion terrorist organizations to map the course of the ongoing investigation and to plan countermeasures. A complete list would reveal a composite investigatory picture indicating which members or cells of a terrorist organization had been compromised; and, the substantiveandgeographic focus of the investigation. Detainee information that might seem innocuous to the uninitiated could be illuminating to an enemy workingwith a comprehensive background of facts.

Disclosure of detainee names could also endanger the investigation by inviting terrorist retaliation for detainee cooperation. A terrorist organization might seek to intimidate or assassinate the detainee or family members to staunch the flow of incriminating information.

Judge Sentelle acknowledged the absence of clear proof that all the detainees either arrested for immigration violations or held as material witnesses to testify before grand juries were linked to terrorism.

Conceivably the disclosure of some names might not have jeopardized the ongoing post-September 11 terrorism investigation. But the government’s resistance to disclosure was not in conjunction with a criminal prosecution or civil enforcement proceeding where due process would require an exacting showing of probable and imminent harm because of what the government was doing to the defendants.

In contrast, here the government’s claim of confidentiality responded to a FOIA suit brought by organizations unthreatened by government action and whose need for the information was attenuated.

The burden on the government of demonstrating a clear and present danger from disclosure was accordingly relaxed. Judge Sentelle reasoned: “Inasmuch as the concerns expressed in the government’s declarations are credible — and inasmuch as the declarations were made by counterterrorism experts with far greater knowledge than this court — we hold that the disclosure of the names of the detainees could reasonably be expected to interfere with the ongoing investigation.”

Isn’t foiling terrorism too important to tolerate leaving pivotal decisions to amateurs?

Bruce Fein is a founding partner of Fein & Fein.

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