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LEADER: Intolerable secrecy

Financial Times; Jun 19, 2003

Case by case, week by week, a complaisant US judiciary is gradually abdicating its responsibility to uphold basic freedoms guaranteed by the constitution and the law.

The latest egregious example came on Tuesday when the US Court of Appeals overturned a lower court ruling that the government must release the names of people it detained in the months after the terrorist attacks of September 11 2001.

More than 900 suspects were arrested and held on immigration violation investigations as law enforcement worked feverishly in the wake of the attacks to head off the risk of further terrorist plots. While it released the names of those eventually charged with criminal offences, the government declined to give basic details – names, places of arrest – of more than 700 who were not criminally charged but merely found in breach of immigration laws. The government argued that making such information public could give al-Qaeda and other terrorist operatives valuable knowledge about the scope of the investigations.

But such a blanket refusal to provide information, as a lower court judge ruled last year, impeded the ability of the public to know whether the government was operating within “the statutory and constitutional constraints that distinguish a democracy from a dictatorship.”

This week’s reversal by a split three-judge appeals panel in effect handed over all judgments in such cases to the government on the old cold war grounds that only the authorities could determine whether the threat to national security was so grave as to warrant secrecy.

But while there might indeed be a case for making specific exemptions to the well-established principle of open disclosure, the burden should be on the government to demonstrate that releasing information about individual detainees would be harmful to its investigation. The idea that the authorities should simply arrest people and keep all their identities secret on a catch-all defence of national security undermines the most basic principles of accountable law enforcement.

Worse, we know – thanks to a report this month by the Justice Department’s own inspector-general – that many of the detainees were indeed mistreated by the government: some were physically abused. Many have since been deported.

The very idea of secret arrests conjures up images of the police state; democracies should only ever use them in the most extreme of cases. They should not be a routine exercise justified by some general and vague assertion of national security interests. The only protection against such abuse is judicial scrutiny. As David Tatel, the dissenting judge in the case, said, by its decision this week the court “has converted deference into acquiescence”. It is not too late for the Supreme Court to overturn this latest erosion of American liberties.

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