Reporters battle for information in War on Terrorism

From the Fall 2002 issue of The News Media & The Law, page 11.

By Josh Meyer

That was a statement by Barbara Comstock, director of public affairs for the Justice Department, in September. It was issued in reference to the government’s arguments that day in a federal appeals court in New Jersey as to why it shouldn’t have to disclose virtually anything about who it has detained in the year-long investigation into the September 11 attacks, and why.

As usual, there was little else coming out of the Justice Department that day, either officially or unofficially, to help reporters stay up to speed on that case.

It is but one of many skirmishes — legal and otherwise — between lawyers and journalists and the Justice Department in response to its near-complete blackout on any information regarding the detainees.

The government so far has “won” the New Jersey case, since the appellate panel ruled the government can, indeed, keep the hearings secret. It has lost a similar case in Detroit’s federal court system, but has asked the full appellate court to reconsider the decision.

And in Washington, D.C., a federal judge ruled in August that the Bush administration must reveal the names of roughly 1,200 people detained in the investigation into the September 11 attacks even though all but a few dozen have been released from custody and most have been deported.

The judge, Gladys Kessler, said she didn’t buy the Justice Department’s argument that revealing the names of those detained would help Osama Bin Laden’s Al Qaeda network elude capture and launch more strikes, as the Justice Department contends.

Kessler emphasized that she appreciated that “difficult times such as these have always tested our fidelity to the core democratic values of openness, government accountability and the rule of law.” But, she said, an open government is what distinguishes “a democracy from a dictatorship.”

The U.S. Court of Appeals in Cincinnati (6th Cir.) took another step toward openness when it said that the immigration hearing for Rabih Haddad must be open.

“Democracies die behind closed doors,” said Judge Damon J. Keith.

The Justice Department has indicated that it will fight such adverse rulings all the way to the Supreme Court. It has appealed Kessler’s ruling and has not released the names of any detainees, although some recent court proceedings have been opened to the public. And newspapers (including the Los Angeles Times and its parent Tribune Company) continue to pursue legal efforts to force the Bush administration to be more forthcoming with information.

In the meantime, for the reporters on the ground covering the War on Terrorism, the legal battles are almost academic. They are left to do battle with a Justice Department, Federal Bureau of Investigation and an overarching Bush administration bent on shrouding every aspect of its vaunted War on Terrorism in near-total secrecy.

More than one reporter has quipped that the War on Terrorism might as well be renamed the War on Reporters or on the public’s right to know. Most would concur that no matter how the courts are ruling, the Justice Department and the FBI essentially have blocked the release of virtually every scrap of information that reporters need to do their jobs.

Nearly every aspect of the War on Terrorism has been subject to an information blackout, including how many people are being held on criminal charges, immigration violations and even as material witnesses.

Key aspects of the Justice Department’s newly expanded powers, as approved by Congress as part of the USA PATRIOT Act, are shrouded in almost complete secrecy as well.

And there has been even less information released about what is happening to the two U.S. citizens charged as “enemy combatants” and held by the military.

Because there have been few official releases of information — not even on who has been released from custody and who has been cleared of wrongdoing — reporters are forced to grovel for unofficial leaks of information from unnamed sources.

In recent months there has been a chilling effect on that too, as the Bush administration pursues aggressive investigations into who has leaked information to the media.

Justice Department officials say privately that they don’t even want to take incoming calls from reporters, for fear of raising the suspicion of internal investigators and Atty. Gen. John Ashcroft’s inner circle of political appointees.

Indeed, these are unusual times and some of the government’s reactions are understandable. As a reporter who has spent more than a decade covering federal law enforcement, terrorism and other matters that affect national security, it is easy to understand why some pieces of information are being withheld.

But there is a growing chorus of concern being echoed by journalistic institutions that the Justice Department and the FBI have gone too far in restricting the flow of information.

Never has there been a time, according to many journalists, civil libertarians and legal scholars, where there has been such a denial of even the most basic types of information that journalists usually take for granted under the public’s right to know.

The Justice Department disagrees. Said one official: “What might seem innocuous to the public, or even to a reporter, could actually pose a serious threat to the nation’s security without them even knowing it.”

Meyer is a staff writer in the Los Angeles Times’ Washington bureau, covering terrorism and law enforcement issues. His work about Al Qaeda and other terrorism issues before and after September 11 was included in several awards won by the paper. He has covered federal law enforcement from Los Angeles, Los Angeles County government and investigative beats.