12Jan04

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Justices Refuse to Review Case on Secrecy and 9/11 Detentions.

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In a significant victory for the Bush administration, the Supreme Court declined today to review the secrecy that has surrounded foreigners held after the terror attacks of Sept. 11, 2001.

The justices let stand a ruling by a federal appeals court, which concluded last June that the Justice Department was within its rights when it refused to release the names of more than 700 people, most of them Arabs or Muslims, arrested for immigration violations in connection with the attacks.

Many of those arrested have been deported. Some were charged with crimes and others were held as witnesses. But so far only one person, Zacarias Moussaoui, is being prosecuted in connection with the attacks, and he was detained before Sept. 11.

The case that the justices declined today to review, Center for National Security Studies v. Justice Department, 03-472, pitted two fundamental values against each other the right of the public to know details of how its government operates versus the government's need to keep some information secret to protect national security.

With today's refusal by the justices, the last word in the case apparently belongs to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit. In his opinion for the 2-to-1 majority on June 17, he noted that courts had always shown deference to executive branch officials in the field of national security.

"The need for deference in this case is just as strong as in earlier cases," Judge Sentelle wrote in the opinion that was joined by Judge Karen LeCraft Henderson and reversed a lower court finding. "America faces an enemy just as real as its former cold war foes."

Judge David S. Tatel offered a blistering dissent last June. "By accepting the government's vague, poorly explained allegations, and by filling in the gaps in the government's case with its own assumptions about facts absent from the record, this court has converted deference into acquiescence," he asserted.

The case revolved around an effort by several civil liberties groups that had asserted the Freedom of Information Act required the Justice Department to disclose the names of those detained on immigration charges.

In arguing the government's case, Solicitor General Theodore B. Olson declared that "requiring the police to open their investigative files and provide a comprehensive list of the persons interviewed and detained and by the same token to reveal which persons they have not interviewed and detained would necessarily interfere with the investigation by providing a road map of law enforcement's activities, strategies and methods."

Given the continuing debate over the appropriate response to terrorist threats, the case is surely not the last whose underlying theme, when stripped of the legalese, is how much extra power the government should be given, and how much liberty Americans should be willing to give up, in times of crisis.

Just three days ago the Supreme Court dealt an important setback to the administration. It accepted the case of Yaser Esam Hamdi, an American citizen of Saudi descent who was captured on a battlefield in Afghanistan and has been held in a Navy brig without being charged.

The justices have also agreed to decide whether prisoners at the United States naval base at Guantánamo Bay, Cuba, are entitled to access to civilian courts to challenge their open-ended detention. The administration had urged the justices not to accept that case or the Hamdi case.

The Center for National Security Studies, founded in 1974, describes itself as "a nongovernmental advocacy and research organization" dedicated to preventing "violations of civil liberties in the United States."

A report last year by the Inspector General's office of the Justice Department found dozens of "credible" reports of detainees being abused. The department countered that instances of abuse were infrequent, given the number of detainees, and promised to investigate the accusations.

The history of the case that the Supreme Court declined today to take, including last June's appellate court decision and legal documents filed by both sides, can be read on the center's web site: www.cnss.gwu.edu

[Source: By David Stout, The New York Times, USA, 12Jan04]

This document has been published on 21ene04 by the Equipo Nizkor and Derechos Human Rights, in accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.