Police state potential
In a post-9/11 dragnet, the Bush administration swept up 1200 people, mostly on
immigration charges, and held them in secret. An unknown number of others are being held in secret as material witnesses. It has never disclosed their names or where they were being held. Their hearings, if they got them, were unannounced and closed to families, press and public.
On Friday, a federal judge gave the Justice Department 15 days to make public their names. Doing so, said Judge Gladys Kessler, &uot;is essential to verifying whether the government is operating within the bounds of the law.&uot; Exactly.
Challenged in its unbridled use of authority, the secrecy-obsessed Justice Department
lost it. In a statement after the ruling, the department said the order &uot;impedes one of
the most important federal law-enforcement investigations in history&uot; and &uot;increases
the risk of future terrorist threats to our nation.&uot; How so? The department didn’t say.
This is the administration’s all-purpose justification for avoiding judicial accountability.
Of the 1200, only 147 were still in custody as of July, 74 for immigration violations and 73 on criminal charges. The rest have either been deported or released, seemingly with no harm to the investigation or threat of further terrorism. None of the detainees has been charged with terrorism.
The administration also argued, implausibly, that it was keeping the names secret out of concern for the privacy of the detainees. Fine, said the judge, let the detainees decide for themselves whether they want their names released -- but that’s their call, not the government’s.
A related issue is the case of material witnesses, people held because they mighthave information vital to an investigation. At some stage, they are supposed to be brought before a grand jury. The government -- and here it has a point -- said that
disclosing the identity of the witnesses could compromise its investigations. The judge said if the government could establish that in individual cases she would make
Kessler made her ruling under the Freedom of Information Act, which might be a bit of a legal stretch -- the department may yet appeal -- but she is right in principle. By
the time the government finally accedes to releasing the names, the case is likely to be moot because the few remaining detainee cases will have been resolved and the material witnesses discharged.
However, the government is now on notice that under our laws, it simply cannot make people disappear.
August 12, 2002