Indefensible Secrecy

Wednesday, June 18, 2003; Page A24

THE U.S. COURT of Appeals for the District of Columbia Circuit handed down a dreadful decision yesterday affirming the government's authority to keep secret basic information concerning the hundreds of people detained during the Sept. 11 investigation -- information such as their names, dates of arrest and release and the names of their lawyers. The government has publicly tallied the number of people detained on immigration charges, few of whom remain in custody. Others it has charged criminally, and it has detained an unknown number of people as material witnesses. But to this day, even in the face of allegations of abuse, the public lacks any comprehensive sense of who was arrested and how they were treated. When a coalition of civil liberties and other groups sued under the Freedom of Information Act for better information, supported in a friend of the court brief by The Washington Post Co. and other media organizations, a district court judge ordered disclosure of the names of the detainees and their attorneys. Now the court of appeals has reversed in a 2 to 1 decision that sets an ugly precedent: The government need only whisper the words "national security," the court says in effect, and the courts will roll over.

The government argues that making information about detainees public could give al Qaeda a road map to the investigation and expose potential witnesses to intimidation. Such concerns may justify shielding some information, but they can't justify blanket secrecy, for not even the government contends that every detainee has connections to terrorism or information about it. Yet Judge David B. Sentelle, writing for himself and Judge Karen L. Henderson, finds an adequate basis for blacking out everything. The law exempts from disclosure law enforcement material that could reasonably be expected to compromise an investigation. In light of the deference courts owe the government in national security matters, Judge Sentelle writes, it should not second-guess the government's claims.

It is a mark of the decision's weakness that the majority does not even attempt a real response to Judge David S. Tatel's persuasive dissent. The purpose of the Freedom of Information Act, Judge Tatel writes, is disclosure, not secrecy, and the burden is on the government to establish that law enforcement material is exempt. While "the government's reasons for withholding some of the information may well be legitimate," he writes, its arguments are far too sweeping to establish that information about the detainees is categorically exempt. Why does it need to protect the names of innocent detainees who have no information to provide and from whose detention al Qaeda could learn nothing? And even as it worries that releasing information about detainees risks compromising its investigation, he notes, the government releases information about detainees when doing so suits its purposes. The court does not demand of the government a rational relationship between its genuine needs and the shield it requests. It simply accepts the government's "vague, poorly explained allegations, and by filling in the gaps in the government's case with its own assumptions . . . convert[s] deference into acquiescence."

In writing the Freedom of Information Act, Congress expected judges to hold the executive branch's feet to the fire when it wishes to keep information under wraps. The act does not always require disclosure. But it becomes meaningless if the government can keep secret the names of hundreds of people it has rounded up without giving a detailed and specific explanation of the harm that a bit of sunshine would cause. The full appeals court or the Supreme Court should clarify that the law in this country does not permit intrusive government actions without accountability.

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