Justices Refuse to Review Case on Secrecy and 9/11 Detentions

WASHINGTON, Jan. 12 — In a significant victory for the Bush administration, the Supreme Court declined today to review the government’s refusal to release information about foreigners held after the terror attacks of Sept. 11, 2001.

The justices let stand a ruling by a federal appeals court, which concluded last June that the Justice Department was within its rights when it refused to release the names of more than 700 people, most of them Arabs or Muslims, arrested for immigration violations in connection with the attacks.

Many of those arrested have been deported. Some were charged with crimes and others were held as witnesses. But so far only one person, Zacarias Moussaoui, is being prosecuted in connection with the attacks, and he was detained before Sept. 11.

The case that the justices declined today to review, Center for National Security Studies v. Justice Department, 03-472, pitted two fundamental values against each other — the right of the public to know details of how its government operates versus the government’s need to keep some information secret to protect national security.

With today’s refusal by the justices, the last word in the case apparently belongs to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit. In his opinion for the 2-to-1 majority on June 17, he noted that courts had always shown deference to executive branch officials in the field of national security.

“The need for deference in this case is just as strong as in earlier cases,” Judge Sentelle wrote in the opinion that was joined by Judge Karen LeCraft Henderson. “America faces an enemy just as real as its former cold war foes.”

Judge David S. Tatel offered a blistering dissent last June. “By accepting the government’s vague, poorly explained allegations, and by filling in the gaps in the government’s case with its own assumptions about facts absent from the record, this court has converted deference into acquiescence,” he asserted.

The case revolved around an effort by several civil liberties groups that had asserted the Freedom of Information Act required the Justice Department to disclose the names of those detained on immigration charges. The government argued that it was entitled to an exception in the law, and that disclosing too much would give Al Qaeda terrorists a window into law enforcement.

Given the continuing debate over the appropriate response to terrorist threats, the case is surely not the last whose underlying theme, when stripped of the legalese, is how much extra power the government should be given, and how much liberty Americans should be willing to give up, in times of crisis.

Just three days ago the Supreme Court dealt two important setbacks to the administration. It accepted the case of an American citizen of Saudi descent who was captured on a battlefield in Afghanistan and has been held in a Navy brig without being charged. It also took a case involving the rights of foreigners held indefinitely in a Navy prison camp at Guantánamo Bay, Cuba. The administration had urged the justices not to accept either case.

The Center for National Security Studies, founded in 1974, describes itself as “a nongovernmental advocacy and research organization” dedicated to preventing “violations of civil liberties in the United States.”

The history of the case, including last June’s appellate court decision and legal documents filed by both sides, can be read on the center’s web site: www.cnss.gwo.edu.

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