A federal appeals court panel ruled yesterday that the Bush administration acted legally in withholding the identities of at least 762 persons detained after the September 11 attacks.
Rejecting arguments by civil liberties groups and media interests, the 2-1 decision by the U.S. Circuit Court of Appeals for the District of Columbia said a terrorism investigation justifies the secrecy, citing an exemption in the Freedom of Information Act.
“The Constitution would indeed be a suicide pact if the only way to curtail enemies’ access to assets were to reveal information that might cost lives,” the majority said in an opinion written by Circuit Judge David B. Sentelle, who was nominated by President Reagan.
In declaring that tactical decisions in the war on terror must be made by “the government’s top counterterrorism officials,” not judges, Judge Sentelle was joined by Circuit Judge Karen LeCraft Henderson, a nominee of President Bush in 1990.
Dissenting Circuit Judge David S. Tatel, who was nominated by President Clinton, said it may be legitimate to withhold information, but that the Justice Department should not get blanket deference and can be required to distinguish what can “reasonably be expected to interfere” with an investigation.
The action overruled District Judge Gladys Kessler’s August ruling, which called the secrecy “profoundly antithetical” to democracy and ordered the government to identify 762 of those who had been held and to name their lawyers.
Judge Kessler’s order was stayed during the appeal and was not implemented.
Attorney General John Ashcroft called the ruling “a victory for … careful measures to safeguard sensitive information” and the privacy of the detainees.
“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,” Mr. Ashcroft said.
The lawsuit was filed by 23 groups, including the Center for National Security Studies, the American-Arab Anti-Discrimination Committee and the American Civil Liberties Union. ACLU legal director Steven R. Shapiro said the ruling allowed “the wholesale denial of rights.”
“The ruling ignored mounting evidence of the government’s misconduct in its treatment of detainees held in the months after the attacks,” the ACLU said in a statement.
Mr. Shapiro said a June 2 report by Justice Department Inspector General Glenn Fine criticized the practices that, according to the decision yesterday, involved a roundup of “over 1,000 individuals about whom concern had risen.”
Kate Martin, a lawyer for the Center for National Security Studies, promised a further appeal and said the decision marked “the first time in U.S. history a court has approved secret arrests.”
“Secrecy is what allowed the Justice Department to abuse the rights of those who were arrested, as was documented in the IG’s report,” Miss Martin said.
The lawsuit filed Oct. 29, 2001, demanded the name and citizenship of each person held, the location and date of arrest and detention, nature of any charges, identification of each detainee’s attorneys, and information on court action and policy decisions regarding the detentions.
By June 13 last year, 74 remained in custody. Many others were deported, the court said.
The majority opinion said the courts consistently defer to the executive branch in making Freedom of Information Act decisions that implicate national security. The court accepted the government’s contention that every detainee had access to a lawyer, had received a court hearing and could contact the press.
“We will not convert the First Amendment right of access to criminal judicial proceedings into a requirement that the government disclose information compiled during the exercise of a quintessential executive power — the investigation and prevention of terrorism,” the opinion said.
“We therefore will not expand the First Amendment right of public access to require disclosure of information compiled during the government’s investigation of terrorist acts,” the panel ruled.