Appeals court must decide whether detainee identities will be released

From the Fall 2002 issue of The News Media & The Law, page 9.

By Rebecca Daugherty

Whether or not the public and the press will ever le arn the identities of the more than 1,100 people detained by the U.S. government will be up to the U.S. Court of Appeals in Washington, D.C., (D.C. Cir.). The court scheduled a Nov.18 hearing on whether names of the individuals held at some point in connection with the events of September 1l, the names of their attorneys, and information about their arrests, detentions and release would be disclosed under the Freedom of Information Act.

Journalists have been able to interview some detainees and their attorneys because they learned their identities in other ways. But without comprehensive information about who the detainees are, reporters cannot tell the public anything about the government’s actions and its effects on the people it has detained and their families. Without that information, the public has little understanding of what these actions mean.

Twenty-one civil liberties and human rights groups, as well as The Reporters Committee for Freedom of the Press, jointly filed FOI requests for the information. The Center for National Security Studies in Washington, D.C., a watchdog organization that deals with litigation, surveillance and intelligence reform, coordinated the efforts.

“We want to know as much as we can,” said CNSS policy analyst Sarah Margon. “We want to know because the public has a right to know.”

In early August, U.S. District Judge Gladys Kessler in Washington, D.C., ruled that the names of the detainees and their attorneys must be disclosed under the federal FOI Act. She ruled that the exemption to the act that protects some law enforcement records would not apply across the board and would not protect most of the records sought in the case before her.

Given the substantial evidence of government misconduct, “the public’s interest in learning the identities of those arrested and detained is essential to verifying whether the Government is operating within the bounds of the law,” she wrote.

Even before her decision, the government had conceded that it could not withhold all of the detainees’ names. It released the names of detainees actually charged with federal criminal offenses and names of their attorneys, but not until the lawsuit for the names was filed.

Kessler held that, for the most part, disclosure would not interfere with investigations or endanger anyone. However, she wrote, the government could continue to withhold the locations of the detainees’ arrests and detentions and the dates of their release.

In general, disclosure would not interfere with the detainees’ privacy, she wrote, and the names of their attorneys would certainly not be protected. But some detainees might feel threatened by disclosures that they were detained. If so, they could “opt out” of having their identities disclosed.

The groups in the lawsuit argued that the public has a strong interest in knowing who is arrested and how the government makes those arrests.

At the government’s request, Kessler stayed her order Aug. 15 so that the government could make an “expeditious” appeal.

The government appealed. It insisted that release of detainee identities would interfere with the government’s investigation. Disclosure would show terrorist groups who had and had not been investigated. If terrorists got this information, they could alter plans and provide misinformation. They could undermine the usefulness of information the detainees gave the government, it said.

And, as it had claimed before Kessler, the government said the detainees had a privacy interest in having their identities withheld. Held in connection with the worst acts of terrorism “ever to occur on American soil,” they surely had a strong interest in not having their identities disclosed, the government postured.

The court’s concession — that individuals could opt out of having their identities disclosed — would not rectify that privacy interest. Already, many of the individuals had been deported or become difficult to contact, leaving their privacy interests unprotected, the government said.

The government said the attorneys for the detainees could not be identified for the same reasons that the detainee names must be secret — to protect the government’s investigation and the detainees’ privacy. And, it said, the attorneys have an additional, independent, privacy interest in not being linked to persons questioned in connection with the events of September 11.

Names of material witnesses could not be released, the government said, because of the federal rule requiring grand jury secrecy.

The Center for National Security Studies brief told a different story. Neither government investigations nor detainee or attorney privacy interests would be harmed by the disclosures, it argued. The center also cross-appealed Kessler’s decision, objecting to the opt-out provisions and to the withholding of locations of arrest and detention and the dates of detainees’ release.

There were extensive and credible reports of government misconduct in connection with the secret detentions, the center told the court: the Justice Department’s inspector general had launched an investigation; there was Congressional testimony and numerous press reports about mistreatment of the detainees; and four detainees had filed lawsuits about abuses.

The government had been accused of holding detainees for long periods during which they were not charged, not allowing them to talk to their lawyers, placing them in solitary confinement and other offenses.

Information about the government bombards Margon on a daily basis, she said. The information is “really frightening, to me, to see the way the government responded to the tragedy.”

The government itself has released numerous details about numerous detainees. It identifies arrested individuals and provides copious details when it chooses to do so, the center wrote.

But the information the center has, either through the government or other sources, is incomplete and unverifiable, Margon said. “These individuals have been detained and a lot of them are not charged for months on end — it seems. We can’t be sure of any of it, because we don’t know.”

The government had conceded that it was required by the constitutional guarantees of the First and Sixth amendments to release the identities of persons charged with crimes. Detainees who are held without being charged face equally serious liberty deprivations, the center said.

The government’s argument would allow secret arrests and detentions whenever the government claimed harm to law enforcement interests, the center said, arguing in its brief to the court that not only does the FOI Act require disclosure, so too do the common law and First Amendment prohibitions against keeping basic arrest information secret.

In this case, the government simply did not show any direct relationship between disclosure and the harms it alleges will come about from disclosure. The government only admitted, the center said, to finding that detainees had violated immigration laws and “in some instances” determined that they had links to “other facets of the investigation.” Identifying persons detained on immigration violations would tell terrorists nothing about the thousands of persons who were questioned but not detained, the center said.

The public’s interest in the power of the government to detain individuals is overwhelming and far outweighs any privacy interest at stake, the center said. Government conduct that results in arrests needs public scrutiny.

The detainees were taken away from their families, their neighbors and their jobs, already causing them embarrassment and humiliation. The arrests are not secret to the people that really matter. So the detainees probably have a lesser privacy interest remaining in disclosure of their names than would usual witnesses, the center said.

But even if there were substantial privacy interests, the public interest in confirming or refuting the compelling evidence of government misconduct far outweighs them, the center told the court.

The center also argued that attorney names cannot be withheld because of the government’s speculations that disclosure might harm investigatory or privacy interests. (Center for National Security Studies v. Department of Justice)