WASHINGTON — A federal appeals court ruled Tuesday that the Bush administration is not obligated to publicly identify the 762 foreigners it detained in the weeks and months after the Sept. 11 terror attacks.
In a 2–1 ruling, a panel from the U.S. Circuit Court of Appeals for the District of Columbia rejected arguments that the Justice Department should have publicly provided the names of detainees, names of their lawyers, dates they were picked up and the reasons why they were being detained.
The court affirmed that the information can properly be withheld from the public under an existing exemption from the Freedom of Information Act. That provision exempts information from disclosure if it is compiled for law enforcement purposes and if revealing it "could reasonably be expected to interfere with enforcement proceedings."
The case was brought by the Center for National Security Studies and other public interest groups. Lawyers for the groups had objected to the Justice Department's denial of their request for detailed information about the foreigners detained during the government's investigation of the Sept. 11 attacks.
U.S. District Judge Gladys Kessler last August ordered the government to release the names but delayed enforcing her order to give the government time to appeal. Kessler said the Justice Department could withhold other information under the Freedom of Information Act exemption.
The appeals panel, however, went further in Tuesday's ruling, permitting the Bush administration to withhold from public disclosure of even the names of the foreigners and the names of their lawyers.
Federal appellate Judges David B. Sentelle and Karen Lecraft Henderson wrote the prevailing opinion, holding that the names of the foreigners detained after the attacks "constitute a comprehensive diagram of the law enforcement investigation after September 11."
They noted the government's claims that the list was sufficiently sensitive that its disclosure could threaten the terrorism investigation.
"America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore," Sentelle wrote.
He added: "A complete list of names informing terrorists of every suspect detained by the government at any point during the September 11 investigation would give terrorist organizations a composite picture of the government investigation, and since these organizations would generally know the activities and locations of its members on or about September 11, disclosure would inform terrorists of both the substantive and geographic focus of the investigation."
Sentelle wrote that judges are "in an extremely poor position to second-guess the executive's judgment in this area of national security."
In a harsh dissenting opinion, U.S. Circuit Court of Appeals Judge David S. Tatel wrote that his colleagues' "uncritical deference to the government's vague, poorly explained arguments for withholding broad categories of information about the detainees ... eviscerates both FOIA itself and the principles of openness in government that FOIA embodies."
Tatel acknowledged "uniquely compelling" government interests in the Sept. 11 investigation. But he said the decision overlooks the interest of citizens to know whether the Bush administration "is violating the constitutional rights of the hundreds of persons whom it has detained in connection with its terrorism investigation."
"Just as the government has a compelling interest in ensuring citizens safety, so do citizens have a compelling interest in ensuring that their government does not, in discharging its duties, abuse one of its most awesome powers, the power to arrest and jail," Tatel wrote.
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