NEW TORK TIMES (Editorial): Ending Secret Detentions
August 6, 2002
One of the most disturbing elements of the Bush administration's
post-Sept.-11 policies has been its detention of hundreds of people whose
identities have not been revealed. Judge Gladys Kessler of Federal
District Court in Washington was right to declare last week that such
secret arrests are "odious to a democratic society," and to order the
government to release the names of those it has detained since the
The hundreds detained - the government has never given an exact number -
fall into three categories: those charged with federal crimes, those
facing immigration charges and those being held as material witnesses. The
government has released the names of almost all the detainees charged with
federal crimes, but has refused to identify those in the two other groups.
There are two main flaws in the government's position. First, many of the
detainees probably have no connection to terrorism. The government would
like the public to think of the detainees as a group as linked to
terrorism, but the documents filed in court do not make the case. The
affidavits from key officials avoid saying that all, or even a significant
number, of those detained are involved with terrorism. Nor has the
government explained how it decided to detain the particular people it
Second, the government's assertions that terrorist groups could exploit
the release of the names are specious. The government argues that
releasing the names will allow terrorist groups to learn that some of
their operatives are in custody. But since detainees are allowed to notify
anyone they want that they are being held, it is hard to believe that any
actual terrorists have not found a way of informing their organizations of
Judge Kessler was not blind to the impact that release of information
could have on law enforcement. The civil liberties groups that brought the
suit also asked for other data about the detainees, including the dates
and locations of their arrests. The court, in turning down the request,
accepted the government's argument that the information would help anyone
looking for patterns in law enforcement's antiterrorism investigation and
Civil liberties advocates worry that whatever victories they manage to eke
out at the trial court level will be reversed by more conservative appeals
courts. That has already happened in the case of Yasser Esam Hamdi, an
American labeled an "enemy combatant" who was given the right by a trial
judge to meet with his lawyer and was later denied that right on appeal.
Judge Kessler's decision is correct on the law, and helps define a sphere
of freedom that, even in these difficult times, the government must
respect. The Justice Department should comply with her order. If it
appeals, her decision should be affirmed.
LOS ANGELES TIMES (EDITORIAL): Secrecy vs. the Republic Information
blackout on arrests in post-9/11 sweep undermines American values.
August 6 2002
A federal judge in Washington had no hesitation last week in ordering the
Justice Department to reveal the names of almost 1,200 people it jailed
after the Sept. 11 terrorist attacks. "Secret arrests are 'a concept
odious to a democratic society,' and profoundly antithetical to the
bedrock values that characterize a free and open one such as ours," said
U.S. District Judge Gladys Kessler, quoting an earlier ruling in her own
Atty. Gen. John Ashcroft should let the matter rest there. He's likely to
appeal, however, just as he has in related challenges since the
Lawyers with two dozen human rights and civil liberties groups filed the
Freedom of Information Act challenge late last year after the Justice
Department rebuffed request after request to say whom it had rounded up
and why, and where it had jailed these men and women.
The department insisted--and continues to insist--that secrecy was
necessary to keep information from Osama bin Laden and other terrorists
still at large. If terrorists don't know who's in jail, such logic goes,
they can't know what the government knows about their plans for attacks.
Kessler, like most people who care about civil liberties, didn't buy that
argument. The vast majority of those swept up after the World Trade Center
and Pentagon attacks have been released from jail or deported on
immigration violations. None of those rounded up, including the 73
believed to remain behind bars, have been charged publicly with
But even if the U.S. had nabbed Bin Laden himself, the ends don't justify
the means. Americans depend on the transparency of their legal and
political institutions to protect what Kessler called America's "core
values of openness, government accountability and the rule of law." For
that reason, "the public's interest in learning the identity of those
arrested and detained is essential to verifying whether the government is
operating within the bounds of law."
Kessler gave the Justice Department 15 days to turn over a list of the
people jailed since 9/11. She said she would consider requests to keep
some names under wraps if prosecutors could demonstrate that a detainee
had knowledge of a terrorist conspiracy or specifically requested secrecy.
In recent months, federal judges in Detroit and New Jersey have ordered an
end to secret deportation hearings, and a Manhattan federal judge in April
limited the government's use of the federal material witness law to hold
suspects indefinitely and secretly.
Ashcroft has appealed each decision.
Right after the attacks on the World Trade Center and the Pentagon, it was
impossible to know what else terrorists might be planning. There was an
understandable impulse to cast a broad net for people and information. But
the post-Sept. 11 emergency does not justify long-term changes that would
snuff out the light and openness that distinguish our democracy from the
tyrannies that would destroy it.
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