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Court withholds detainee names in 'deference' to agency expertise

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    NMU         D.C. CIRCUIT         Freedom of Information    

Court withholds detainee names in ‘deference’ to agency expertise

  • The government can withhold unclassified information about detainees because it says disclosure might interfere with “national security” investigations of them, an appeals court ruled.

June 17, 2003 — The Department of Justice can withhold the names of the hundreds of detainees it held in connection with the events of September 11, the names of their attorneys, and other information about their arrests and detention, a divided panel of the U.S. Court of Appeals in Washington, D.C. ruled today, reversing a lower court decision.

For the first time in a Freedom of Information Act case, the court deferred to the executive branch’s claim that the FOI Act’s law enforcement exemption applies because “national security” investigations were underway. Writing that the exemption applies because disclosure could interfere with those investigations, Judge David Sentelle said that the Justice Department was in a better position than the court to know what should be withheld in a “national security” probe.

Judges routinely defer to agency expertise in deciding whether information is properly classified under the national security exemption, or if it can be withheld under another national security law protecting sources and methods. But in the past judges have decided whether the law enforcement exemption applies to unclassified records without citing any “deference” to agency expertise.

In his dissent, Judge David Tatel wrote that the court’s approach “drastically diminishes, if not eliminates, the judiciary’s role in FOIA cases that implicate national security interests.” He accused the majority on the three-judge panel of “abdicating” the court’s responsibility to apply the FOI Act as Congress wrote it.

The Washington, D.C.- based Center for National Security Studies and 20 other public interest and human rights groups including the Reporters Committee for Freedom of the Press, sought the information in October 2001. Their request was denied and they sued for the information in federal district court in Washington, D.C. The district court judge in August ruled that, although some details of the arrests could be withheld, names of the detainees and their attorneys must be disclosed. Learning their identities “is essential” to verifying whether the government is acting lawfully, the lower court said.

The government told the court that the requested information was exempt under three different arms of the law enforcement exemption and under the “catch-all” exemption that gives agencies the authority to withhold information made confidential by other laws. It said that the law enforcement exemption applied because disclosure could reasonably be expected to interfere with an ongoing investigation, intrude upon personal privacy and endanger the life or safety of the detainees.

Sentelle’s opinion for the court addressed only the argument that disclosure might interfere with an ongoing investigation.

Tatel’s dissent addressed each of the claims for denying information, including the privacy arm of the law enforcement exemption. It kicks in when a court finds that intrusion on personal privacy from disclosures outweighs the public’s interest in the records — at least the public’s interest in the operations and activities of government.

Tatel said that the public has an interest in the government’s conduct of the terrorism investigation and its treatment of the detainees, especially because the requesters offered ample evidence of agency wrongdoing. That interest clearly outweighs the detainees’ privacy interests, he said.

The majority opinion parroted often-repeated claims by Justice Department officials that each of the detainees has had access to counsel, access to the courts and the freedom to contact the press or the public at large. Since the oral argument before the court, the Inspector General at the Justice Department has raised serious questions about those claims.

(Center for National Security Studies v. Department of Justice; Counsel: Kate Martin, Washington, D.C.) RD

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© 2003 The Reporters Committee for Freedom of the Press

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