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Keeping Detentions Secret

New York Times

January 14, 2004

The Supreme Court made it easier this week for the government to drape a cloak of secrecy over the imprisonment of people accused of crimes when it rejected an appeal seeking the identity of hundreds of men rounded up after the Sept. 11 attacks. The freedom of all Americans is diminished.

In the days after the terrorist attacks, nearly 1,000 suspects, most of them Muslim men, were detained. A vast majority proved to have no connection to terrorism. Many were deported for immigration violations. The government released the names of the 129 who were accused of crimes, but it refused to identify the hundreds who were not charged.

The Center for National Security Studies and other groups sued under the Freedom of Information Act to learn their names and the circumstances of their arrests. The
government invoked an exemption to the act. But the plaintiffs, backed by news organizations, including The New York Times, contended that the exemption did not apply because this sort of information was given out in ordinary police investigations. They argued that the public needs to monitor detentions to ensure that the government is not trampling on constitutional rights.

The trial court agreed, and ordered most names released. But an appeals court reversed that decision, 2 to 1. In dissent, Judge David Tatel warned that the court was ignoring the public's interest in knowing whether detainees' rights had been denied by "detaining them mainly because of their religion or ethnicity, holding them in custody for extended periods without charge, or preventing them from seeking or communicating with legal counsel."

The Supreme Court's decision not to hear this appeal comes as the Bush administration is increasingly asserting the right to conduct law enforcement in secret. It argues in the case of Jose Padilla, an American citizen accused of being part of a dirty bomb plot, that merely by labeling him an "enemy combatant," it can hold him in secret indefinitely. In a Florida case involving Mohamed Kamel Bellahouel, a post-Sept. 11 detainee, the federal courts have sealed the court records and decisions, listing the defendant only by his initials.

The Supreme Court will soon confront the larger issue of civil liberties after Sept. 11. It has agreed to hear the case of Yaser Esam Hamdi, an American citizen being held as an enemy combatant, and accepted the appeal of 16 foreigners being held in Guantánamo Bay. We hope that beginning with these cases, it will start reining in the disturbing excesses of the administration's war on terror.

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