The Magazine

John Ashcroft's Lazy Critics

Jun 30, 2003, Vol. 8, No. 41 • By DAVID TELL, FOR THE EDITORS
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Responding to the lawsuit, Justice Department attorneys have consistently argued that FOIA's "Exemption 7" positively prohibits the government from publicizing the detainee information under dispute. Exemption 7 precludes disclosure of information "compiled for law enforcement purposes" that could "reasonably be expected," for example, "to interfere with enforcement proceedings," "constitute an unwarranted invasion of personal privacy," or "endanger the life or physical safety of any individual." Release of systematic data about the 9/11 detainees, the argument continues, would likely do all of these things: It would provide al Qaeda with a "mosaic" road map of the government's investigative techniques and progress, unfairly besmirch the reputations of those detainees who are entirely innocent of wrongdoing, deter other detainees from candidly cooperating with the FBI, and subject all the detainees--as presumed informants--to the risk of terrorist retaliation.

In rebuttal, however, the Center for National Security Studies plaintiffs have called attention to some apparent logical inconsistencies in the Justice Department's consistently argued theory--at least where real-world applications are concerned. As mandated by both statute and the Constitution, Justice has itself already disclosed the names of more than a hundred detainees charged with federal crimes. And though each of these defendants is innocent until proven guilty, Justice has released this information without complaint, and sometimes with considerable enthusiasm, concern for private reputations and "mosaic" road maps notwithstanding. Justice has withheld, on the other hand, all citizenship-status data about these criminal defendants--while publicizing the very same information about its 700-plus immigration detainees, whom the department has nevertheless declined to name, even while acknowledging that the vast majority of them have proved to have no 9/11 connection whatsoever. Moreover, the Justice Department has made no effort to deter any of its detainees from going public about their detentions unilaterally. Why doesn't that threaten to "interfere with enforcement proceedings"? And if it doesn't, how could identical disclosures by the government be forbidden by FOIA?

These are details, it must be admitted, that our government's explanatory submissions to the district and appeals courts do not waste much sweat on. The department has its reasons, Justice's attorneys offer. In the considered judgment of experienced, career anti-terrorism experts, that information which has already and inconsistently been made available is relatively harmless, and that information which remains inconsistently withheld would represent a significant gift to Osama bin Laden.

Which may be true. And it may be, too, as we have sometimes previously suggested, that precise public argument just isn't the Ashcroft Justice Department's strong suit.

Or it may be, simply and instead, that anybody's Justice Department would naturally be inclined to give the stiff-arm to a lawsuit, like this one, that proceeds from an assumption that the United States government has lately transformed itself into a quasi-fascist enterprise.

The Center for National Security Studies plaintiffs--hyperbolically, absurdly, and with multiple inconsistencies all their own--contend that there are "extensive" and "credible" reports that federal officials have detained hundreds of people in "secret confinement," and subjected them to "widespread abuse," physical and otherwise, based only on the fact that they share "the ethnic background, religion, or national origin of the September 11 hijackers." The government's "mosaic" road-map fig-leaf theory must be rejected, plaintiffs insist--so that they may obtain the evidence necessary to construct...well, a "mosaic" road map of the detention policy, a means by which to substantiate that policy's suspected "lawless roundup." And to vindicate the rights of that roundup's victims, their names must be made public--if need be, against their wills.

Granted, the plaintiffs concede, it's always a remote possibility that the detainees aren't "lawless roundup" victims at all, but rather the subjects of a legitimate, "focused law enforcement investigation." Still, we've got this mountain of Ashcroft-is-a-Nazi newspaper clippings, see. Which represents a sufficiently "compelling" indication that the government is out of control. Which means that the courts must pry loose from confidential Justice Department files, and deliver unto the New York Times, an enormous collection of information that career prosecutors are warning will compromise the integrity of a massive criminal investigation into an unprecedented act of mass murder.