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Judge hears arguments over release of names of September 11 detainees

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    NMU         WASHINGTON, D.C.         Freedom of Information         May 30, 2002    

Judge hears arguments over release of names of September 11 detainees

  • Attorneys argued before a federal court over whether names of detainees held in the wake of the events of September 11 must be released under the federal Freedom of Information Act.

A federal trial judge heard oral arguments May 29 about whether the Department of Justice and Attorney General John Ashcroft should release the names of the more than 1,000 people detained as a result of September 11 investigations.

Judge Gladys Kessler questioned attorneys extensively about the government’s use of the law enforcement exemption to the federal Freedom of Information Act to deny disclosure including its claims that disclosure of the names could potentially cause harm.

Numerous public interest groups on Oct. 29 filed a FOI Act request with the Justice Department seeking the names of the detainees, the names of their attorneys, and the place and length of their incarceration, as well as the nature of the charges made against them. In late November, the Justice Department disclosed the names of persons facing criminal charges and the charges against other detainees, but not their names..

The public interest coalition, led by the Washington, D.C., – based Center for National Security Studies and joined by The Reporters Committee for Freedom of the Press, alleged in the lawsuit that the Justice Department and Ashcroft continued to refuse to provide even enough information to show that they had a constitutionally sound basis for detaining many of the individuals.

At the hearing, Assistant Attorney General Robert McCallum said that disclosure of information regarding the detainees, even those who were shown to be of no special interest in the terrorist investigations, could be so harmful to the United States that the FOI Act exemptions should apply. The court should avoid “wholesale massive distribution to the world at large” of information on the detainees and the terrorist investigations, he argued.

“We’re not making special exemptions to the FOI Act,” McCallum said. “We’re not promoting secrecy.”

The attorneys for the government relied on the affidavits of two government officials that disclosure could cause harm.

Disclosure, they argued, tells terrorists what information the government has and does not have. It would help terrorists map the progress of the U.S. investigations and facilitate future attacks by allowing terrorists to improve upon their past mistakes. Disclosure would also harm detainees because the connection between them and the investigation would stigmatize them for the rest of their lives, the attorneys argued. The FOI Act’s law enforcement exemption protections for safety, investigations and privacy would apply, they said.

Justice attorneys also argued that disclosure would endanger the detainees’ families, who could be threatened by terrorists in an effort to prevent the detainees from cooperating with the government.

“We live in a time where . . . we can’t be accused of overstating the harms,” said Anne Weismann, an attorney for the Department of Justice’s civil division. “The critical issue is that each detainee has a link to this investigation.”

Kate Martin, the attorney arguing on behalf of the Center for National Security Studies, countered that the government had volunteered more information than sought on some of the detainees when it chose to do so.

“The government volunteering the same kind of list that they say would be harmful undercuts its argument that disclosure would be harmful,” she argued before the court. “These additional disclosures in light of what they’ve already released, will not likely cause the harm they propose.”

Attorneys for the government argued that no public interest would be served by the revelation of the names and there was no evidence of wrongdoing by the government that could be illuminated by the disclosure.

But Martin cited numerous times when wrongdoing had been asserted, such as in lawsuits by some detainees, in the Justice Department’s own investigation into allegations of their mistreatment, and in testimony before congress. The information sought would shed light on the process. For instance, showing the irregularities between the dates the detainees were arrested and the dates they were charged would make it easier to determine whether those arrested were lawfully detained, she said.

Martin also argued that the government’s attorneys, when pressed to come up with evidence supporting a need for withholding the information, were able to come up with nothing.

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

© 2002 The Reporters Committee for Freedom of the Press

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