From the Fall 2003 issue of The News Media & The Law, page 35.
The petition to the U.S. Supreme Court by the Center for National Security Studies and others asks the high court not only to find that the government has misused the exemptions to the FOI Act to deny information about the hundreds of people detained since Sept. 11, 2001, but that the First Amendment requires the government to make the information available.
The First Amendment prohibits secret arrests and detentions except in the most compelling circumstances, the groups wrote. In Richmond Newspapers, Inc. v. Virginia, the high court first examined what was to become a test for a First Amendment right of access: If the information was traditionally open, and openness served a purpose in democracy, then the First Amendment requires public access to the information.
That test should apply here, the petition says. Public scrutiny is vital, as it is the public’s only restraint on the government’s awesome power to arrest and detain people in these situations.