John Ashcroft's Lazy Critics
Jun 30, 2003, Vol. 8, No. 41 • By DAVID TELL, FOR THE EDITORS
EARLY LAST WEEK, the U.S. Circuit Court of Appeals here in Washington, refereeing yet another legal skirmish over the civil liberties implications of Bush administration anti-terrorism policy, handed down yet another ruling favorable to the government. This is what usually happens: With fewer exceptions than you can count on the fingers of one hand, the Justice Department has prevailed in every such lawsuit--there've been dozens--since the World Trade Center was destroyed. This most recent decision has occasioned a fair bit of agonized hair-pulling in certain circles, which is also what usually happens. Rapidly growing bald, the American Civil Liberties Union, for example, one of roughly two dozen plaintiffs in the latest case, calls the D.C. Circuit's majority opinion "unprecedented" and "odious."
And this magazine is disappointed, too, as we usually are--though not because we think it clear that the court's verdict will harm the common weal. As a matter of fact, we have no firmer view today on the merits of the underlying policy at issue than we did back in December 2001, when the ink on that policy was not yet dry and the suit was first filed. And that's the disappointment: unresolved confusion. Which is a more obvious and chronic--one might even say "odious"--"security vs. liberty" problem in the war on terrorism than any rights-encroaching depredation the ACLU has so far persuasively alleged against the government. In this respect, as well, Center for National Security Studies, et al. v. U.S. Department of Justice is just the usual, tired business, the same old warmed-over argument about whether Attorney General John Ashcroft is supervising an anti-constitutional police-state regime. That argument has been singularly unilluminating--stupid, even--from the very start.
In October 2001, by means of a Freedom of Information Act (FOIA) request, an outfit called the Center for National Security Studies demanded that the Justice Department hand over a large chunk of individualized data about any and all persons "arrested or detained" in connection with the 9/11 investigation: their names, what charges had been lodged against them, where they were being held, and so forth. Some of the requested information was already publicly available in one form or another, and some of the rest Justice soon saw fit to release. But the department declined to provide full, case-specific details about those detainees being held for criminal or immigration violations. And about those detainees being held on "material witness" warrants, Justice declined to say anything specific at all. Thus rebuffed, the Center for National Security Studies--joined by a broad coalition of civil liberties and human rights watchdog organizations, Arab and Muslim advocacy groups, criminal defense and immigration attorneys, and other critics of the government's terror-related law-enforcement programs--then filed suit in federal district court. The government was defying its statutory FOIA responsibilities, the plaintiffs claimed--and was trampling the First Amendment in the bargain.
This latter claim was not a serious one, and neither the district court nor even the eventual circuit court dissenter, Judge David Tatel, paid it much mind. The Constitution protects public access to a variety of criminal proceedings and documents, but only those involving a defendant who's already been indicted. Pre-indictment announcements about that defendant's law-enforcement status are discretionary; the government, the Supreme Court explained as recently as 1999, "could decide not to give out arrestee information"--of any kind--"without violating the First Amendment."
But whether, short of the Constitution, there might be some statutory enactment that obliges the government to give out arrestee and similar information is another question altogether. And the particular version of that question presented in the case at hand--whether FOIA obliges the Justice Department to make public a complete and detailed accounting of its September 11 detainees--is an ambiguous one, the answer dependent, according to the law's plain terms, on a subjective judgment about what could "reasonably be expected" to result from release of the information. Not every subjective judgment is the same, of course. Some are intelligent, and others are ill-informed and arbitrary. And here, one might have hoped that the Center for National Security Studies litigation would cast some clarifying light on which is which. But one's hopes would only have been dashed.