A complaisant US Judiciary

[Dave Farber <dave () farber net>]

Date: Thu, 19 Jun 2003 09:09:42 -0400
From: "Kobrin, Steve" <KobrinS () wharton upenn edu>


From today's Financial Times.  Unlikely that this strong a stand would be 
taken in an American paper.

 Comment & analysis / Editorial comment Print article | Email





Intolerable secrecy

Published: June 19 2003 5:00 | Last Updated: June 19 2003 5:00

Case by case, week by week, a complaisant US judiciary is gradually 
abdicating its responsibility to uphold basic freedoms guaranteed by the 
constitution and the law.


The latest egregious example came on Tuesday when the US Court of Appeals 
overturned a lower court ruling that the government must release the names 
of people it detained in the months after the terrorist attacks of 
September 11 2001.

More than 900 suspects were arrested and held on immigration violation 
investigations as law enforcement worked feverishly in the wake of the 
attacks to head off the risk of further terrorist plots. While it released 
the names of those eventually charged with criminal offences, the 
government declined to give basic details - names, places of arrest - of 
more than 700 who were not criminally charged but merely found in breach of 
immigration laws. The government argued that making such information public 
could give al-Qaeda and other terrorist operatives valuable knowledge about 
the scope of the investigations.

But such a blanket refusal to provide information, as a lower court judge 
ruled last year, impeded the ability of the public to know whether the 
government was operating within "the statutory and constitutional 
constraints that distinguish a democracy from a dictatorship."

This week's reversal by a split three-judge appeals panel in effect handed 
over all judgments in such cases to the government on the old cold war 
grounds that only the authorities could determine whether the threat to 
national security was so grave as to warrant secrecy.

But while there might indeed be a case for making specific exemptions to 
the well-established principle of open disclosure, the burden should be on 
the government to demonstrate that releasing information about individual 
detainees would be harmful to its investigation. The idea that the 
authorities should simply arrest people and keep all their identities 
secret on a catch-all defence of national security undermines the most 
basic principles of accountable law enforcement.

Worse, we know - thanks to a report this month by the Justice Department's 
own inspector-general - that many of the detainees were indeed mistreated 
by the government: some were physically abused. Many have since been deported.

The very idea of secret arrests conjures up images of the police state; 
democracies should only ever use them in the most extreme of cases. They 
should not be a routine exercise justified by some general and vague 
assertion of national security interests. The only protection against such 
abuse is judicial scrutiny. As David Tatel, the dissenting judge in the 
case, said, by its decision this week the court "has converted deference 
into acquiescence". It is not too late for the Supreme Court to overturn 
this latest erosion of American liberties.








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