Give names of detainees, judge orders

Federal judge tells U.S. to ID those held after 9-11

Rights groups sued for data

Government said secrecy needed to fight terrorism

August 03, 2002|By Laura Sullivan | Laura Sullivan,SUN NATIONAL STAFF

WASHINGTON - In a blow to the Justice Department, a federal judge ruled yesterday that the government must release the names of the nearly 1,200 people it detained after the Sept. 11 terrorist attacks.

U.S. District Judge Gladys Kessler, in a sharply worded order, rejected the department's argument that identifying the detainees could hand al-Qaida a "roadmap" to the U.S. investigation.

She gave the government 15 days to produce the names of both the detainees and their lawyers.

Most of the detainees have already been released or deported, and none has been charged with terrorism-related crimes.

"Unquestionably," the judge wrote, "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."

Justice officials are expected to appeal the ruling. But last night, they said only that they would review "all options."

In a statement, Robert McCallum, an assistant attorney general, said: "The Department of Justice believes today's ruling impedes one of the most important federal law enforcement investigations in history.

"The information sought by the plaintiffs, if released," McCallum said, "could jeopardize the investigation and provide valuable information to terrorists seeking to cause even greater harm to the safety of the American people."

Kessler did side with the government on one issue. She agreed that the groups that filed suit, seeking the information, had no right to know the dates and locations of the arrests or where any detainee is being held. Such information, the judge said, might reveal investigative patterns or endanger detention facilities.

Kessler also ruled that detainees could withhold their own names from the public if they chose.

But she took serious issue with the government's arguments that al-Qaida operatives would not already know by now which of their comrades had been detained. The government, the judge declared, "totally fails to explain" how such information could be used to thwart its terrorism investigation.

Kessler noted that the government itself has already identified some of the detainees and their lawyers, thereby undercutting its own arguments. And she described the detainees' lawyers as a "hardy brand of professionals" who have no expectation of anonymity in the legal system.

In December, 23 public interest groups filed suit, seeking the names, and details of the arrests, of more than 1,000 people in the aftermath of Sept. 11.

The government detained 751 people on immigration violations and 129 on criminal charges, mostly immigration-related. It held the rest largely as "material witnesses," who are suspected of having information crucial to an investigation.

Of those detained, only one, Zacarias Moussaoui, the suspected would-be 20th hijacker, has been charged in connection with the attacks. Moussaoui, though, was arrested before Sept. 11 on immigration violations.

As of June 13, the most recent date for which information was provided, 74 people were still being held on immigration violations by the Immigration and Naturalization Service; 73 others were in federal custody on criminal charges.

It is unclear how many people are still in detention as material witnesses - something Kessler said she found "deeply troubling."

Kessler was pointedly critical of the government's response to the initial request by the public interest groups under the Freedom of Information Act. That request sought the detainees' names and any related information. Once the Justice Department denied the request, the groups filed suit.

The Justice Department, which includes the INS and the FBI, produced only two items: an e-mail to judges reminding them that the detainees' hearings were to be closed; and two pages of mostly blacked-out "talking points" for the attorney general's use.

Kessler ordered the department to try again to find more documents in response to the request.

"It is simply not credible that no other documents are responsive to the plaintiffs' request," she said.

"Somehow," the judge wrote, "all the United States Attorneys Offices, all FBI offices, all INS offices, and all DOJ offices throughout the United States were told that matters ... were to remain secret.

"How was this directive communicated? The government never explains how widespread notification was accomplished without the use of a single document" that could be produced under the Freedom of Information Act.

Her admonishment is particularly notable in light of a memo that Attorney General John Ashcroft sent to Justice employees in October. He urged them to err on the side of withholding documents and said the department would defend their decisions.

Yesterday, civil liberties groups hailed the judge's ruling as a major victory. Those groups had complained that the federal government had unjustly expanded its own power over public information.

"This decision vindicates basic liberties and shows that the tragic events of Sept. 11 cannot be used as an excuse to suspend basic rights and round up the most vulnerable members of our society - immigrants and non-citizens," said Kate Martin, director of the Center for National Security Studies and the lead counsel for the plaintiffs.

The groups that filed suit also included the American Civil Liberties Union, Amnesty International, the American Immigration Law Foundation and the First Amendment Foundation. Their lawsuit follows two similar cases brought in Michigan and New Jersey that are winding their way through the federal appellate courts.

"This repudiates the Justice Department's efforts to shroud much of their investigation in secrecy," said Lucas Guttentag, director of the Immigration Rights Project at the ACLU, who also argued the case for the plaintiffs.

"Secret arrests and jailings are fundamentally inconsistent with American justice."

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