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Federal court orders release of some detainee information From the Fall 2004 issue of The News Media & The Law,…

Federal court orders release of some detainee information

From the Fall 2004 issue of The News Media & The Law, page 10.

By Ryan Lozar

Information about Iraq&#146s Abu Ghraib prison and other U.S. detention facilities overseas was released under federal court order in October, a year after the information was first requested under the Freedom of Information Act.

&#147If the documents are more of an embarrassment than a secret, the public should know of our government&#146s treatment of individuals captured and held abroad,&#148 U.S. District Judge Alvin K. Hellerstein of New York wrote in a Sept. 15 ruling in American Civil Liberties Union v. Department of Defense, ordering the Department of Defense and other federal agencies to respond to an FOI Act request.

The American Civil Liberties Union, on behalf of a coalition of public interest organizations, filed the FOI request in October 2003 seeking information about treatment and deaths of detainees while in U.S. custody and the transfer of detainees to countries known to use torture or illegal interrogation methods. The coalition&#146s request was made several months before pictures of prisoner abuse at Abu Ghraib were published.

Despite the 20-day response time called for in the FOI Act, the government largely ignored the request for almost a year. Since Sept. 11, 2001, FOI Act requests for information about detainee treatment have frequently been met with government resistence. &#147It is very difficult to eke out information from the government without litigation,&#148 said Jameel Jaffer, an ACLU staff attorney in New York.

On Oct. 20, the coalition of public interest organizations received 6,000 documents; Web links to these documents are catalogued on the ACLU Web site. Among them are previously unpublished supporting documents to the report written by Maj. Gen. Antonio M. Taguba detailing abuses at U.S. detention facilities, particularly Abu Ghraib. The original Taguba report, never meant for public release, was leaked to the media in the spring.

One of the newly released Taguba documents provides a psychological assessment of the conditions that contributed to the Abu Ghraib abuses: &#147A lack of proper training and supervision was present.&#148 In such an environment, &#147men and women desiring dominance may be drawn to fields such as corrections and interrogation, where they can be in absolute control over others.&#148 Another document is an investigative report into enemy prisoner abuse at yet another U.S. detention facility, Camp Bucca. In that report, the investigating officer found overwhelming evidence that one soldier&#146s actions against a detainee were &#147cruel&#148 and &#147unlawful.&#148

Also released was a list of documents the government withheld under national security and other exemptions to the FOI Act.

Courts can be deferential when a claimed FOI Act exemption implicates national security. A divided June 2003 decision by the U.S. Court of Appeals in Washington, D.C., for instance, quashed a request for detainee records when the government said their release would inhibit its terror investigations.

In that case, Center for National Security Studies v. Department of Justice, a coalition of public interest organizations, including The Reporters Committee for Freedom of the Press, submitted an FOI Act request for a comprehensive list of data on U.S. detainees. The organizations requested, among other things, detainee names, their attorneys&#146 names, the dates and locations of detainee arrests, the dates of their releases and the reasons for their detainments.

The Justice Department released some of the information, but many facts &#151 including most of the names and arrest locations &#151 were withheld under the FOI Act exemption that permits withholding records where release could be &#147reasonably expected&#148 to interfere with enforcement proceedings.

The government said the information should be withheld under a &#147mosaic theory.&#148 It claimed that access to individual detainee names and arrest locations would permit terrorists to identify patterns of arrests, undermining terrorism investigations.

&#147It is abundantly clear that the government&#146s top counterterrorism officials are well-suited to make this predictive judgment,&#148 Judge David B. Sentelle noted in his opinion for the 2-1 majority. &#147Conversely, the judiciary is in a very poor position to second-guess the executive&#146s judgment in this area of national security.&#148

The Justice Department had claimed that information on the detainees should be withheld because of their privacy interests. They should be protected against the &#147stigma&#148 of having their detentions known, it said. The appeals court did not address that claim.

The U.S. Supreme Court refused to consider the D.C. Circuit&#146s decision in January.

The court&#146s validation of the government&#146s argument, which failed to identify a specific harm that would result from the release of each particular record, is a departure from long-standing FOI Act precedents, Jaffer said.

CNSS Director Kate Martin wants reporters who may feel disheartened by the ruling to know that the coalition&#146s request and subsequent lawsuit &#147in fact succeeded in obtaining much useful information.&#148

&#147As a result of public pressure created by our FOIA demand, the Justice Department released the names and charges against those [detainees] who were charged with crimes,&#148 she said. &#147Through the affidavits filed by the government in the lawsuit, it became clear that the round-up of hundreds of individuals was not focused on terrorist suspects, but was a dragnet aimed at Arabs and Muslims. We learned that the Justice Department had adopted a policy of preventive detention, which turns the presumption of innocence on its head.&#148

Reporters seeking records in the post-Abu Ghraib era may experience a positive change in judicial receptivity to their FOI Act requests in the wake of the U.S. prison abuses in Iraq, Jaffer said.

&#147After the Abu Ghraib scandal . . . I think that judges are probably more sympathetic to our arguments about why the information needs to be made public,&#148 he said.