A divided federal Court of Appeals (D.C. Cir.) panel ruled this summer that exemptions to the federal Freedom of Information Act (FOIA) allow the government to withhold the names of detainees taken into custody following the September 11, 2001 terrorist attacks.
The ruling in Center for National Security Studies v. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003), raised concerns among some human-rights and civil-liberties groups that the government may avoid disclosing public information simply by invoking national security grounds, regardless of whether those grounds are legitimate.
The case began in late October 2001, when a coalition of public interest groups led by the Center for National Security Studies filed a FOIA request with the U.S. Department of Justice seeking records regarding more than 700 people taken into government custody following the attacks.
The vast majority of those in custody faced deportation for immigration violations. Some, like Zacarias Moussaoui, were criminally charged. At least a handful of others were held as material witnesses to the terrorist attacks. At the time the request was filed, nearly two months after the unprecedented roundup began, the federal government had not released the names of those it was holding. The government's subsequent denial of the FOIA request prompted the litigation in U.S. District Court for the District of Columbia. The district court ordered the government to disclose the names of individuals detained in the days and weeks following the Sept. 11, 2001, attacks. (See "Center for National Security Studies v. U.S. Department of Justice" in the Fall 2002 Silha Bulletin.)
The D.C. Circuit reversed the district court ruling, allowing the government to withhold detainees' names. The panel majority held that FOIA exemptions allow the government to withhold the names of detainees and their attorneys, as well as other information that could identify the detainees. Judge David Sentelle, joined by Judge Karen Henderson, wrote that where issues of national security are concerned, courts should defer to the executive branch when considering whether to allow the government to withhold information.
Judge Tatel dissented, writing that the court's willingness to defer to the government "eviscerates both FOIA itself and the principles of openness in government that FOIA embodies." He asserted that the approach taken by his colleagues risked eliminating judicial review of any executive decisions to withhold information on national security grounds. Such a stance, he argued, endangers the public's ability to keep tabs on its government. In this particular case, Tatel wrote, there was a strong public interest in knowing whether the government was violating the Constitutional rights of the hundreds of detainees whose identifying information was withheld.
Tatel's concerns have been echoed by human-rights and civil-liberties organizations, which have criticized the decision. In a release by Human Rights Watch on the day the court announced its decision, the organization's U.S. program director, Jamie Fellner, said the decision gave the government a potential end-run around the requirements of FOIA.
"The government," Fellner said, "shouldn't be able to justify secret arrests simply by invoking the words Ônational security.'"
Human Rights Watch's release on the decision is available online at: http://www.hrw.org/press/2003/06/us061703.htm.
At issue in the case were exemptions in FOIA that allow the government to withhold law enforcement records for selected purposes. In seeking to withhold the information, the government invoked four separate FOIA exemptions. The court, however, based its decision on only Exemption 7(A), which states that the government may withhold records if disclosure could "reasonably be expected to interfere" with law enforcement investigations.
The government contended, and the court agreed, that identifying those individuals swept up by government investigators in the weeks and months after the terrorist attacks could provide terrorists with a roadmap to the government's investigation. Providing further information sought by the plaintiffs, including date and location of arrest, could offer even more insight into how the government had organized and orchestrated its investigation, which in turn could allow terrorist organizations to adjust their methods and avoid detection, the government argued.
Attorney General John Ashcroft issued a statement calling the ruling "a victory for the Justice Department's careful measures to safeguard sensitive information about our terrorism investigations . . .."
"We are pleased the court agreed we should not give terrorists a virtual roadmap to our investigation that could allow terrorists to chart a potentially deadly detour around our efforts," Ashcroft said.
Ashcroft's statement can be found online at http://www.usdoj.gov/opa/pr/2003/June/03_ag_358.htm
The groups seeking the information contended that they had a common-law right of access to government records. The court panel agreed with earlier Supreme Court precedent that such a right exists, but held that in this case, any common law right was superseded by FOIA. The court also rejected the plaintiffs' argument that they had a First Amendment right to the information. The First Amendment, the panel stated, prevents the government from curtailing speech, but "does not expressly address the right of the public to receive information. Indeed, in contrast to FOIA's statutory presumption of disclosure, the First Amendment does not mandate a right of access to government information or sources of information within the government's control." (Internal quotation marks and citation omitted).