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From Deference To Acquiescence

by Elizabeth Reichard

On June 17th, the Court of Appeals for the District of Columbia ruled that Department of Justice ("DOJ") was justified in withholding the names of INS detainees, criminal detainees, and those detained as material witnesses in the post post-September 11 terrorism investigations, as well as the names of the attorneys representing the detained. This case is important to note as it demonstrates the federal judiciary's indifference to the recent internal DOJ report documenting the department's own misconduct in the post 9/11 investigations and its acquiescence to the Bush administration where matters of "national security" are concerned.

The case, Center for National Security Studies v. U.S. Department of Justice, was brought forward in December 2001 by various civil liberties and human rights organizations, including Center for National Security Studies, Human Rights Watch, Amnesty International, and the American Civil Liberties Union. The plaintiffs argued that the DOJ and its component Immigration and Naturalization Service ("INS") are required under the Freedom of Information Act ("FOIA"), the first amendment and the common law to make public certain information regarding the 762 immigrants secretly arrested and detained as suspects and material witnesses in post- 9/11 investigations. The plaintiffs did not question the importance of the President Bush's call to investigate the "threats, conspiracies, and attempts to perpetrate terrorist acts against United States citizens and interests," nor did they consider merits of the grounds upon which many of the detainees were ultimately deported. Rather, they focused exclusively on the public's right to know whether the government, had, as had been alleged, violated the rights of those detained in connection to the terrorist attacks.

The DOJ, in response to the allegations, asserted that it was not required to disclose the requested information because certain FOIA exceptions applied to these detentions and arrests. Under FOIA, the government can withhold information if it "(A) could reasonably be expected to interfere with enforcement proceedings,. . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, or (F) could reasonably be expected to endanger the life or physical safety of an individual." 5 USC 552(b)(A)(A),(C),(E). Specifically, the DOJ argued that in the interest of national security, disclosure would (1) provide a road map for terrorists seeking to piece together the "course, direction and focus of the investigation;" (2) infringe on the privacy rights of the detained who may face humiliation for being connected with terrorism; and (3) place the detainees in danger of those seeking revenge for the 9/11 attacks.

The D.C. Circuit, in a 2-1 divisive decision, held that the DOJ properly withheld the names of the detainees and their attorneys. In its decision written by Judge Sentelle, the court focused on FOIA's exemption that allows withholding disclosure in circumstances where it interferes with enforcement proceedings. Judge Sentelle, citing FOIA, wrote that the DOJ had the burden of proving that disclosure "could reasonably be expected to interfere" with the proceedings or the investigation. (Emphasis added). Relying on affidavits from government officials, the court held that the DOJ met this burden because it is reasonable to expect that disclosure would "enable the al Qaeda or other terrorist groups to map the course of the investigation and thus develop a means to impede" the investigation. It reasoned, "America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore." Further, the court "is in a poor position to second-guess the executive's judgment in this area of national security." Judge Sentelle explained that courts typically defer to the executive branch and executive affidavits in matters involving national security, and in instances where terrorism is concerned, heightened deference may even be required.

On the surface, Judge Sentelle's rationale seems more than reasonable. There is, in fact, a compelling public interest in vigorously investigating the 9/11 attacks. However, there also is, as Judge Tatel asserts in his dissent, an equally compelling public interest in knowing whether in the government "is violating the constitutional rights of hundreds of persons whom it has detained in connection with its terrorism investigation." The majority clearly ignored this public interest that lies at the heart of this case.

Government misconduct against INS detainees has been documented by numerous human rights organizations and the DOJ itself. Two weeks ago, the DOJ's Office of the Inspector General released a report on the treatment of aliens held on immigration charges in connection with the investigation of the September 11 terrorist attacks. (See for report). The report asserts that many of the detainees had no connection to terrorism. It further criticizes the INS for taking more than a month before providing detainees with charging documents, thus keeping them unaware of why they were held, and unable to obtain counsel and request a bond hearing. (See Chapter 3). It also refers to the "no bond" or "hold until clear" policy, which kept detainees in custody, often under restrictive conditions, for months before being totally cleared and released. (See Chapters 4 and 5). With regard to access to attorney, the report documents further misconduct by explaining that a list of pro bono attorneys was provided to the detainees, but it contained inaccurate and outdated information. Further, the report documents some of the restrictive conditions that the detainees lived in, such as living in small cells that were illuminated by two lights 24 hours each day. (See Chapter 7).

Still, even with the DOJ's admitted misconduct and the public interest in being able to monitor the government's actions, one can argue that the national security interest reigns supreme and disclosing the names of the secret detainees only further threatens that security. Justice Tatel, in his vigorous dissent, dismantles this argument. He asserts that the DOJ's "very broad, categorical refusal" to release all of the names of the detainees, rather than just those that actually threaten security, runs counter to FOIA guidelines. "[N]othing in the record supports the government's contention that releasing the names of innocent detainees would harm the investigation." By treating all detainees the same, and by categorizing all of the requests for information together, the government makes no attempt to discern what information could threaten national security and what information could have no such effect.

Further, Judge Tatel criticizes the majority, claiming that "[b]y 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." Deference to the executive, even if it is heightened deference, does not mean that the court should just "trust its [the executive's] judgment." Deference, even in the wake of 9/11, requires some detailed showing for why the court should accept the agency's decision. In this case, no such detailed showing was given. Of the two government affidavits relied upon to show that national security would be compromised, one mentioned the harm that would ensue from disclosing evidence from the cases, not the names of the detainees. The other affidavit mentioned only the harm that may ensue as the result of certain, not all, detainees' names.

The D.C. Circuit's decision is troubling in light of the information included in the DOJ report as well as the insufficiency of the DOJ's rationale for withholding the names of detainees. Essentially, the court has given the executive branch carte blanche to withhold all information whenever a "national security" rationale is provided. In the future, withholding names and information will be problematic because it will further hinder efforts to provide representation to the detained and to prevent and address government misconduct.

About The Author

Elizabeth Reichard is a summer associate at Cyrus Mehta & Associates, PLLC. She just completed her second year at Case Western Reserve University Law School, where she is the Editor-in-Chief of the Journal of International Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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