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.
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.
We're pretty sure this isn't the right way to settle disclosure policy about American anti-terrorism programs. And so we're not especially surprised that the D.C. Circuit Court of Appeals, forced to choose between such a self-evidently crackpot, speculative "all," on the one hand, and the Justice Department's "nothing" on the other, has chosen to go with Justice. What if the right answer lies somewhere in the middle, though: How would we, or the courts, or anybody else be able to tell? We'd first need to hear from Justice Department critics prepared to engage such questions in good faith, with abundant care for the facts, and without hysterical hostility to the people who currently populate the executive branch. The war on terrorism's almost two years old. Where on earth are these necessary critics, anyhow?
--David Tell, for the Editors