BTL: Federal Court Upholds Secret Detentions

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In a 2 to 1 ruling on June 17, a federal appeals court in Washington, D.C. upheld the Bush administration's right to keep secret the names of some 700 immigrants arrested by the Justice Department after the Sept. 11 attacks in New York City and Washington, D.C.

The ruling, expected to be appealed, is yet another victory for the Bush administration, whose rewriting of judicial procedures has been challenged by civil liberties groups. Speaking for the White House, Attorney General John Ashcroft has cited the war against terrorism as the justification for a steady erosion of rights accorded to immigrants and citizens. Recent court decisions have affirmed the Bush administration's right to hold secret hearings; indefinitely detain and deny access to attorneys to U.S. citizens labeled "enemy combatants" and declared that Afghan prisoners held at the U.S. Guantanamo Naval base in Cuba are not subject to protections embodied in U.S. constitutional law.

Last month, the Justice Department's own inspector general released a report documenting many abuses committed against immigrants held in secret detention, confirming the fears many opponents of these measures had expressed about the dangers inherent in secret imprisonment. Between The Lines' Scott Harris spoke with Arthur Spitzer, legal director of the ACLU's National Capitol Area Office, who examines the long term impact these series of court decisions may have on America's judicial system and civil liberties guaranteed under the Bill of Rights.

Arthur Spitzer: We were certainly disappointed, although not surprised because we knew from months ago that we had the two most conservative judges on this particular court of appeals on our panel, along with one liberal judge, so it was really not a shock to us that the 2 to 1 majority bought the administration's argument that it was somehow going to be a serious blow to the war against terrorism for the government to tell us who they had had arrested and were holding in detention here. It almost surely won't be the end of the line. The lawyers working on the case haven't made any final decisions but I would say it's likely that we will be taking the case to the next step. The people we were trying to identify were hundreds of people who had been rounded up, mostly in the fall of 2001, people from Middle Eastern countries and Muslims -- all men as far as I know -- who had been picked up at the same time as the FBI was trying to determine whether they were other al Qaeda cells in the United States. In the course of that investigation, they got thousands and thousands of tips, including things that were just, you know, "There are some Middle Eastern men who live in my apartment complex and they often come home late at night," or "They talk to each other in Arabic and I'm suspicious about them." Or they picked up people who just happened to be caught for a traffic violation or for some other minor offense and were taken into custody because they were Middle Eastern men. If they discovered that such a person had a technical violation of immigration status, like they had overstayed their visa or they were here on a student visa and they were no longer a registered student, then they were detained.

Even as we now know from the inspector general's report from the Justice Department, even if it were quickly determined that the person had no connection to terrorism, they were not released. They were held in many cases for months under very extreme conditions in solitary confinement with virtually no access to their family or to a lawyer until the FBI got around to clearing them and deciding that it had no interest in them any more. And the FBI, the inspector general has told us, gave that a very low priority. They had better things to do as far as they were concerned than to check up on these people who the attorney general was telling us were, you know, being detained because they were part of the anti-terrorism investigation. You'd think that would be a high priority. So they wound up sitting in jail for a long time before most of them were finally deported.

We had filed this lawsuit in December of 2001 when these people were mostly still in detention and we said, "We have reason to think that these people have no connection to terrorism. We have reason to believe that they really haven't had access to lawyers. We have reason to believe they're being held in very onerous conditions." Secret arrests have never been part of the American judicial system. They've been part of the judicial system of totalitarian countries, and we want the government to tell us who it's arrested and who it's holding so that we can help them get lawyers if they want lawyers and so that we can help the American people know what the government is up to here. The government strongly resisted that request and tried to persuade the court that any interference with its anti-terrorism investigation would be bad for national security. The trial judge agreed with us and ordered the government to release the names. But that decision was stayed, "put on hold," pending the appeal and now the court of appeals says essentially when the government claims "national security," the courts should defer to that assertion. The courts really have no strong independent role to play in forcing the government to obey the law if the government says national security would be harmed. I think that's really the gist of their decision and of course that's a very a poor decision from our point view because we think the courts do have a very important role to play in preventing the excesses of the executive branch which finds it very easy to say "national security," especially if it knows that all it has to do is say that to avoid any oversight of its activities.

Between The Lines: Where do you think public opinion is at visa-vis these erosions of civil liberties for non-citizens and citizen alike, and what is the possibility of reversing this erosion?

Arthur Spitzer: My sense is that the pendulum is swinging back toward common sense. I'm certainly not a public opinion researcher and you may know the facts about this better than I do, but I certainly have the sense that people around the country and editorial pages around the country are beginning to realize that a lot of innocent people are being harmed in this anti-terrorism crusade. And that important as the crusade is, it's equally important to conduct it in a way that's a) effective and b) minimizes the collateral damage to people in the United States and people abroad. Nobody's perfect and of course the ACLU doesn't expect perfection from any government, but what we see in this administration is very little effort to care about the civil liberties of Americans and almost an exclusive focus on fighting terrorism without a lot of attention. You know it's sort of a "shoot first and ask questions later" attitude. I think the American people are beginning to get that idea.

It's very disappointing to us that the courts have not been more willing to put the brakes on, because we think that's a very important part of their constitutional duty. But more and more communities around the country have begun to pass resolutions calling upon Congress to repeal the worst parts of the USA Patriot Act, and I think as that political message gets heard on Capitol Hill and heard in the newspapers -- judges read the newspapers too -- and maybe that will give them a little more backbone.

For more information, call the ACLU at (212) 549-2500 or visit their website at: http://www.aclu.org

Related links

"U.S. Can Withhold Names of 9/11 Detainees," by Ted Bridis, Associated Press, June 17, 2003

"US Plans Death Camp at Guantanamo," The Courier-Mail, May 26, 2003

Scott Harris is the executive producer of Between The Lines. This interview excerpt was featured on the award-winning, nationally syndicated weekly radio newsmagazine, Between The Lines ( http://www.btlonline.org), for the week ending June July 4, 2003.

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