Court - Government correct not to publicly identify detainees

WASHINGTON -- The government properly withheld names and other details about hundreds of foreigners who were detained in the months after the Sept. 11 attacks, a federal appeals court ruled Tuesday, deferring to administration warnings about continued threats from terrorists.

In a 2-1 ruling that represented a victory for President Bush and Attorney General John Ashcroft, a panel from the U.S. Circuit Court of Appeals for the District of Columbia determined that disclosing information could give terrorists dangerous insight into the government's Sept. 11 investigation.

Federal judges who are asked to compel such disclosures should defer to White House concerns that they might help the nation's enemies, the appeals panel said.

"America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore," wrote U.S. Circuit Judge David B. Sentelle.

He said judges are "in an extremely poor position to second-guess the executive's judgment in this area of national security."

Ashcroft called the ruling "a victory for the Justice Department's careful measures to safeguard sensitive information about our terrorism investigations."

In a harsh dissenting opinion, Circuit Judge David S. Tatel accused his colleagues of "uncritical deference to the government's vague, poorly explained arguments for withholding broad categories of information about the detainees."

Tatel, appointed by President Clinton in 1994, said the decision to withhold the information prevents U.S. citizens from learning whether the Bush administration "is violating the constitutional rights of the hundreds of persons whom it has detained in connection with its terrorism investigation."

Sentelle, appointed in 1987 by President Reagan, and Circuit Judge Karen LeCraft Henderson, appointed by Bush's father in 1990, ruled that the list of names could "constitute a comprehensive diagram of the law enforcement investigation."

The decision was the latest in a string of legal victories in U.S. courts for the administration.

The government has so far largely withstood challenges to its broad use of a powerful surveillance law, its closing of immigration hearings and its use of enemy combatant laws to prosecute U.S. citizens accused of ties to terrorists.

The latest courtroom battle focused on information about at least 762 foreigners who were inside the United States illegally and were detained following the Sept. 11 terror attacks. More than 500 have been deported so far.

A recent audit by the inspector general at the Justice Department found "significant problems" with the detentions, including allegations of physical abuse. Civil liberties groups have noted that only one of those detained, Zacarias Moussaoui, has been charged with any terrorism-related crime.

Ashcroft told lawmakers this month that some of the foreigners "had strong links to the terrorists," but that in some cases evidence was insufficient or too sensitive to bring criminal charges.

Ashcroft has publicly described one detainee as a roommate of one of the hijackers; another acknowledged training in a terrorist camp in Afghanistan; another traveled from New York on Sept. 11 with a pilot's license and flight materials; and another was found with 30 photographs of the World Trade Center and papers that Ashcroft described as "Jihad materials."

The new appeals decision rejected arguments by the Center for National Security Studies and other public interest groups that the Justice Department should publicly provide the names of the detainees, names of their lawyers, dates they were picked up and the reasons they were detained.

"We're disappointed that for the first time ever, a U.S. court has sanctioned secret arrests," said Kate Martin, a lawyer for the center. She said the organization plans to pursue the case.

The court affirmed that the information can properly be withheld under an existing exemption in the U.S. Freedom of Information Act. That provision exempts information if it's compiled for law enforcement purposes and if revealing it "could reasonably be expected to interfere with enforcement proceedings."

"It's disturbing that the court takes the position that the war on terrorism trumps all other considerations," said David B. Sobel of the Electronic Privacy Information Center, who also participated in the case.

Said dissenting judge Tatel: "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."

The appeals decision did not refer directly to the inspector general's findings critical of the detentions, although lawyers said they sent a copy of the audit report to the appeals court before Tuesday's ruling.

U.S. District Judge Gladys Kessler ordered the government last August to release detainees' names but delayed enforcing her order to let the government appeal. Kessler also had ruled that the Justice Department could withhold the other information.

Tuesday's appeals decision, however, permits the Bush administration to withhold the names of the foreigners and their lawyers.