A complaisant US Judiciary

[Dave Farber <dave () farber net>]

Date: Thu, 19 Jun 2003 12:25:47 -0400
From: Ted Bridis <tbridis () ap org>

>>Unlikely that this strong a stand would be taken in an American paper.<<

http://www.washingtonpost.com/wp-dyn/articles/A7662-2003Jun17.html

Washington Post
Wednesday, June 18, 2003; Page A24

Indefensible Secrecy

THE U.S. COURT of Appeals for the District of Columbia Circuit handed down a
dreadful decision yesterday affirming the government's authority to keep
secret basic information concerning the hundreds of people detained during
the Sept. 11 investigation -- information such as their names, dates of
arrest and release and the names of their lawyers. The government has
publicly tallied the number of people detained on immigration charges, few
of whom remain in custody. Others it has charged criminally, and it has
detained an unknown number of people as material witnesses. But to this day,
even in the face of allegations of abuse, the public lacks any comprehensive
sense of who was arrested and how they were treated. When a coalition of
civil liberties and other groups sued under the Freedom of Information Act
for better information, supported in a friend of the court brief by The
Washington Post Co. and other media organizations, a district court judge
ordered disclosure of the names of the detainees and their attorneys. Now
the court of appeals has reversed in a 2 to 1 decision that sets an ugly
precedent: The government need only whisper the words "national security,"
the court says in effect, and the courts will roll over.

The government argues that making information about detainees public could
give al Qaeda a road map to the investigation and expose potential witnesses
to intimidation. Such concerns may justify shielding some information, but
they can't justify blanket secrecy, for not even the government contends
that every detainee has connections to terrorism or information about it.
Yet Judge David B. Sentelle, writing for himself and Judge Karen L.
Henderson, finds an adequate basis for blacking out everything. The law
exempts from disclosure law enforcement material that could reasonably be
expected to compromise an investigation. In light of the deference courts
owe the government in national security matters, Judge Sentelle writes, it
should not second-guess the government's claims.

It is a mark of the decision's weakness that the majority does not even
attempt a real response to Judge David S. Tatel's persuasive dissent. The
purpose of the Freedom of Information Act, Judge Tatel writes, is
disclosure, not secrecy, and the burden is on the government to establish
that law enforcement material is exempt. While "the government's reasons for
withholding some of the information may well be legitimate," he writes, its
arguments are far too sweeping to establish that information about the
detainees is categorically exempt. Why does it need to protect the names of
innocent detainees who have no information to provide and from whose
detention al Qaeda could learn nothing? And even as it worries that
releasing information about detainees risks compromising its investigation,
he notes, the government releases information about detainees when doing so
suits its purposes. The court does not demand of the government a rational
relationship between its genuine needs and the shield it requests. It simply
accepts the government's "vague, poorly explained allegations, and by
filling in the gaps in the government's case with its own assumptions . . .
convert[s] deference into acquiescence."

In writing the Freedom of Information Act, Congress expected judges to hold
the executive branch's feet to the fire when it wishes to keep information
under wraps. The act does not always require disclosure. But it becomes
meaningless if the government can keep secret the names of hundreds of
people it has rounded up without giving a detailed and specific explanation
of the harm that a bit of sunshine would cause. The full appeals court or
the Supreme Court should clarify that the law in this country does not
permit intrusive government actions without accountability.


C 2003 The Washington Post Company



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