The courts are our last line of defense against unaccountableexecutive power, but they continue to bow to Attorney GeneralJohn Ashcroft at the mention of "national security."
Published June 25, 2003
Secrecy in government inevitably leads to abuse of power. A government that operates in the open will be far more accountable to its people. But Attorney General John Ashcroft isn't interested in accountable government, just the arrogation of power to the executive branch. He has taken every opportunity to close off avenues for the public to know what its government is up to, including advising all federal agencies that his department will assist any effort to resist Freedom of Information Act requests.
One hope for counteracting Ashcroft's assault on liberties has been the federal courts. But last week, a divided federal appeals court approved the secret detention of the hundreds of immigrants arrested and detained following the Sept. 11 terrorist attacks. The ruling severely handicaps the public's ability to oversee the way the government is exercising its powers of detention. It allows Ashcroft to continue to arrest people without disclosing their names or their whereabouts - tactics worthy of a totalitarian government.
The case arose after Ashcroft denied a FOIA request submitted by civil liberties groups and some news organizations seeking the names of the more than 700 immigrants detained in the post-Sept. 11 sweeps of immigrants, mostly Muslim and Arab men. There had been allegations of abuse of the detainees. The Justice Department refused even to identify the detainees, or to allow them to communicate with family members or lawyers. Ashcroft claimed that releasing the names could compromise antiterrorism investigations and expose potential witnesses and their families to intimidation. Those concerns may justify withholding some information, but not the blanket secrecy the D.C. Circuit of the U.S. Court of Appeals upheld.
As it turns out, Ashcroft's need for secrecy may have more to do with avoiding the disclosure of shoddy investigative work and abusive department practices than with protecting national security. According to a report by the Justice Department's own inspector general, most of the immigrants detained during the post-Sept. 11 sweeps were picked up in an "indiscriminate and haphazard manner," without any basis for concluding they were involved in terrorist activities. And none, except for Zacarias Moussaoui, whose name we all know, was charged with a terrorism-related offense.
Judge David Tatel, the only member of the appellate panel appointed by a Democratic president, authored a blistering dissent. Tatel wrote: "(B)y accepting the government's vague, poorly explained allegations, and by filling in the gaps in the government's case with its own assumptions about the facts absent from the record, this court has converted deference into acquiescence." Tatel said the department should have had to justify the withholding of the name of each detainee.
This dreadful decision is the latest in a series of wrongheaded appellate court rulings related to the "war on terrorism." All the administration has to do is say "national security," and the courts roll over and affirm the government's power to conduct secret immigration hearings and to hold U.S. citizens as enemy combatants without charge or access to an attorney.
The courts are our last line of defense against unaccountable executive power, and so far they have let us down more times than not. The full appeals court or the Supreme Court should hear this case and set the administration straight on the limits of its powers.