WASHINGTON The Justice Department properly withheld the names and other details about hundreds of foreigners detained in the months after the Sept. 11 attacks, a federal appeals court ruled yesterday. The decision
was deferential to the Bush administration's arguments over continued threats to America from terrorists.
In a 2-1 ruling that represents a major victory for President Bush and Attorney General John Ashcroft, a panel from the U.S. Circuit Court of Appeals for the District of Columbia determined that disclosing such information could provide a roadmap of the government's Sept. 11 investigation for international terrorists.
Federal judges asked to compel such disclosures should defer to White House concerns that it might help the nation's enemies, the appeals panel majority said.
"America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore," wrote U.S. Circuit Judge David B. Sentelle. He said judges are "in an extremely poor position to second-guess the executive's judgment in this area of national security."
In a harsh dissenting opinion, Circuit Judge David S. Tatel accused his colleagues of "uncritical deference to the government's vague, poorly explained arguments for withholding broad categories of information about the detainees."
Tatel said the decision to withhold the information prevents U.S. citizens from learning whether the Bush administration "is violating the constitutional rights of the hundreds of persons whom it has detained in connection with its terrorism investigation."
The courtroom battle focused on information about at least 762 foreigners who were inside the United States illegally and were detained following the Sept. 11 terror attacks as part of the FBI's investigation. More than 500 have been deported so far.
A recent audit by the inspector general at the Justice Department found "significant problems" with the detentions, including allegations of physical abuse. Civil liberties groups have noted that only one of those detained, Zacarias Moussaoui, has been charged with any terrorism-related crime.
Ashcroft told lawmakers earlier this month that some of the foreigners "had strong links to the terrorists," but that in some cases evidence was insufficient or too sensitive to bring criminal charges against them in public courts.
Ashcroft has publicly described one detainee as a roommate of one of the hijackers; another acknowledged training in a terrorist camp in Afghanistan; another traveled from New York on Sept. 11 with a pilot's license and flight materials; and another was found with 30 photographs of the World Trade Center and papers that Ashcroft described as "Jihad materials."
The new appeals decision rejected arguments by the Center for National Security Studies and other public interest groups that the Justice Department should publicly provide the names of the detainees, names of their lawyers, dates they were picked up and the reasons they were detained.
"We're disappointed that for the first time ever, a U.S. court has sanctioned secret arrests," said Kate Martin, a lawyer for the center. She said the organization plans to pursue the case.
The court affirmed that the information can properly be withheld under an existing exemption in the federal Freedom of Information Act. That provision exempts information from disclosure if it's compiled for law enforcement purposes and if revealing it "could reasonably be expected to interfere with enforcement proceedings."
"It's disturbing that the court takes the position that the war on terrorism trumps all other considerations," said David B. Sobel of the Electronic Privacy Information Center, which also participated in the case.
The appeals decision did not refer directly to the inspector general's findings critical of the detentions, although lawyers said they privately sent a copy of the audit report to the appeals court before yesterday's ruling.
U.S. District Judge Gladys Kessler ordered the government last August to release detainees' names but delayed enforcing her order to let the government appeal. Kessler also had ruled that the Justice Department could withhold the other information.
Yesterday's decision, however, permits the Bush administration to withhold even the names of the foreigners and their lawyers. Sentelle and Circuit Judge Karen LeCraft Henderson ruled that the list of names could "constitute a comprehensive diagram of the law enforcement investigation."
Disclosing the list "would give terrorist organizations a composite picture of the government investigation," Sentelle wrote. "And since these organizations would generally know the activities and locations of its members on or about September 11, disclosure would inform terrorists of both the substantive and geographic focus of the investigation."
Tatel, in his dissenting opinion, said the ruling "eviscerates" the Freedom of Information Act and principles of openness in government.
"Just as the government has a compelling interest in ensuring citizens safety, so do citizens have a compelling interest in ensuring that their government does not, in discharging its duties, abuse one of its most awesome powers, the power to arrest and jail," Tatel wrote.