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Federal appeals court defers on national security Original Source Link: (May no longer be active)
http://www.abanet.org/journal/ereport/j20detain.htmlhttp://www.abanet.org/journal/ereport/j20detain.html
DETAINEES REMAIN NAMELESS
D.C. Federal Appeals Court Defers to Administration on National Security
BY MOLLY McDONOUGH
A federal appeals court ruled Tuesday that the Bush administration may keep secret names of hundreds of aliens detained by investigators after the Sept. 11, 2001, terrorist attacks. The decision goes against an ABA resolution urging the government to release the names and whereabouts of detainees, especially foreign nationals kept in undisclosed locations.
In a divided opinion, the U.S. Court of Appeals for the District of Columbia Circuit ruled the Justice Department is exempt from Freedom of Information Act requests filed by public interest groups seeking the names of some 1,200 terrorism suspects. Center for National Security Studies v. U.S. Department of Justice, Nos. 02-525/02—5300.
"This is precisely the thing that the resolution was looking to address," says Edwin C. Yohnka, vice chair of the ABA’s Commission on Immigration Policy, Practice and Pro Bono. Yohnka acknowledges there may be good reason for detentions, but he says the government shouldn’t be allowed to operate in secret.
Judge David Sentelle wrote for the majority that courts should defer to the executive, especially now that "America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore."
The majority hinged much of its opinion on a 1985 U.S. Supreme Court case, CIA v. Sims, 471 U.S. 159, which held that names associated with a government-sponsored behavior modification program were exempt from disclosure under FOIA because revealing the names would compromise the CIA’s intelligence sources and methods.
Attorney General John Ashcroft hailed the decision in a statement. "We are pleased the court agreed we should not give terrorists a virtual roadmap to our investigation that could allow terrorists to chart a potentially deadly detour around our efforts," he said.
The opinion reverses part of a lower court decision by U.S. District Judge Gladys Kessler. She had ruled the names of detainees should be made public so people could determine for themselves whether the government was operating within the law.
Kate Martin, director of the Center for National Securities Studies, the named plaintiff in the case, plans to seek an en banc review or petition the U.S. Supreme Court for certiorari. The decision, she says, "leaves the courts with little more to do than act as a rubber stamp instead of protecting constitutional rights."
ABA President Alfred P. Carlton Jr. agrees the issue is ripe for supreme court review. "It’s a difficult call to have to balance the needs of national security with individual rights," he says.
Sentelle, a Bush appointee, reasons that "the judiciary is in an extremely poor position to second-guess the executive’s judgment in this area of national security." Judge Karen Henderson, appointed by the first President Bush, joined in the majority.
In a dissent, Judge David Tatel, a Clinton appointee, criticized the lack of meaningful judicial review. "The court sustains the government’s vague, ill-explained decision to withhold information, invoking principles of deference and engaging in its own speculation to fill in the gaps in the government’s showing," Tatel opined. "In my view, the court’s approach drastically diminishes, if not eliminates, the judiciary’s role in FOIA cases that implicate national-security interests."
The decision caps a series of federal appeals court wins for the Bush administration during its anti-terrorism campaign. The Philadelphia-based 3rd U.S. Circuit Court of Appeals has upheld the administration’s right to hold immigration hearings in secret, though that decision created a split with the 6th Circuit in Cincinnati. The 7th Circuit, based in Chicago, has upheld a provision of the USA Patriot Act authorizing ex parte use of classified evidence in proceedings to freeze assets of terrorist organizations. And the Richmond, Va.-based 4th Circuit has said the government may indefinitely detain a citizen enemy combatant.
The D.C. Circuit majority acknowledged the split with the 6th Circuit on openness, but rejected that court’s reasoning. It sided with the 3rd, 4th and 7th Circuits in deferring to the executive on decisions of national security.
"In so deferring, we do not abdicate the role of the judiciary," Sentelle wrote. "We simply recognize the different roles underlying the constitutional separation of powers."
Paul D. Kamenar, senior executive counsel to the Washington Legal Foundation, which filed an amicus brief siding with the administration, says the majority was correct and that plaintiffs have overreacted to the decision and the administration’s investigation. "This is not all about secret arrests with people being swept off the streets," he says.
Kamenar argues the government did release some information, including the number of arrests, detainees’ countries of origin, dates of charges, and even more detailed information when criminal charges were leveled. Detainees also were free to contact attorneys and disclose their detentions to anyone they wanted, he says.
A DOJ inspector general’s report on the detainees’ treatment released earlier this month raises questions about the detainees’ treatment, however. Critics say the report reveals the abuses they feared, including denial of counsel.
"The attorney general and his deputies at the time [of the detentions] flatly denied that anyone was being denied access to counsel," Martin says. "The inspector general’s report makes clear that the attorney general’s statements were completely inaccurate. It raises questions about what else we don’t know because the arrests are still secret."
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