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."
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.
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