WASHINGTON, Aug. 2 — A federal judge ruled today that the Bush administration
had no right to conceal the identities of hundreds of people arrested after the
Sept. 11 terror attacks, and she ordered that most of their names be released
within 15 days.
The ruling by Judge Gladys Kessler of Federal District Court dealt a significant
setback to the government's policy of secret detentions, mostly of immigrants,
in connection with the Sept. 11 investigation. Judge Kessler rejected the Justice
Department's arguments that disclosure of the names would impede its investigation
She said that while it was the obligation of the executive branch to ensure
the physical security of American citizens, "the first priority of the judicial
branch must be to ensure that our government always operates within the statutory
and constitutional constraints which distinguish a democracy from a dictatorship."
"Unquestionably," she added, "the public's interest in learning the identity
of those arrested and detained is essential to verifying whether the government
is operating within the bounds of law."
Judge Kessler's opinion in the case, which had been brought by a broad coalition
of groups, including some civil liberties organizations, was the latest ruling
issued in the handful of cases now making their way up the federal court system
challenging some of the government's policies put in place after the Sept. 11
In some cases, the courts have been receptive to the government's arguments,
but in several others judges have resisted claims of broad executive authority.
In one case, both a district court and an appeals court panel ruled against
the government in Michigan, saying the Justice Department could not close deportation
proceedings to the public and the news media.
The government gained a victory elsewhere in the courts this week when a federal
judge ruled that the more than 560 prisoners detained at the Guantánamo Naval
Base in Cuba were beyond the reach of United States courts.
Justice Department officials will probably ask a federal appeals court to
delay Judge Kessler's ruling from taking effect while it appeals, but officials
there said today that they had not yet decided to do so. Nevertheless, Robert
McCallum, the assistant attorney general for the civil division, had harsh words
for Judge Kessler's ruling.
"The Department of Justice believes today's ruling impedes one of the most
important federal law enforcement investigations in history, harms our efforts
to bring to justice those responsible for the heinous attacks of Sept. 11, and
increases the risk of future terrorist threats to our nation," Mr. McCallum said.
He said the F.B.I. and the department's criminal division "firmly believe
that the information sought by the plaintiffs, if released, could jeopardize the
investigation and provide valuable information to terrorists seeking to cause
even greater harm to the safety of the American people."
The opinion noted that the government said on Nov. 5 that it had detained
1,182 people in connection with the Sept. 11 investigation. But Judge Kessler
suggested that the numbers were confusing and that the Justice Department has
never given a full accounting of who had been arrested.
"As of this moment," she said, "the public does not know how many persons
the government has arrested and detained as part of its Sept. 11 investigation,
nor does it know who most of them are, where they are and whether they are represented
Amid the uncertainty, the judge noted that the Justice Department had provided
some numbers, notably that 751 people were arrested for immigration violations.
As of June 13, only 74 remained in custody, the rest having been released or deported.
That is the category most directly affected by Judge Kessler's order. If her
ruling stands, the government would have to release the names of at least those
751, even those who have left the country.
The government has also said that it arrested and charged 129 people on federal
criminal charges and that it has already released those names.
The last category encompasses people arrested as material witnesses. The government
has never disclosed the number or identities of those people but it has been estimated
to be about two dozen, most of whom have been released. Judge Kessler asked the
government to provide further evidence why the names of materials witnesses should
not be released.
The suit asking for disclosure of the immigration detainees' names was brought
by 22 advocacy groups, including the Center for National Security Studies, the
American Civil Liberties Union, the Reporters Committee for Freedom of the Press,
the American-Arab Anti-Discrimination Committee and People for the American Way
Kate Martin, of the Center for National Security Studies and the lead lawyer
for those challenging the government's policy, called the ruling "a vindication
of our basic liberties and a demonstration that the courts are there to stop government
Ms. Martin said it showed that the events of Sept 11 "may not be used as an
excuse to suspend basic rights."
Although most of the people who would be affected are no longer in custody,
she said, the ruling still has great value.
"It will prevent the government from doing this again," she said. "Moreover,
it will give us the information to evaluate how these people were treated and
whether this was a random roundup of Arabs and Muslims or a legitimate targeted
investigation of terrorism as the government has claimed."
The Justice Department had argued that the disclosure of the names of those
arrested for immigration violations would hinder the investigation. It would,
they said, reduce the inclination of detainees to help authorities because the
terrorist groups would intimidate or cut off contact with them once their names
were known. Judge Kessler said that argument was unpersuasive since the terrorist
groups must already know who was arrested as those in custody have always been
free to disclose their situation to the public.
Judge Kessler dismissed as too speculative the government's argument that
the release of the names would allow terrorist groups to track the progress of
its investigation. The government put forward a so-called "mosaic theory" of the
investigation, arguing that there are bits of information like the names of the
detainees that may seem useless by themselves but can form part of a larger, revealing
Attorney General John Ashcroft has been the most vocal defender of the government's
refusal to identify everyone who had been arrested. He has repeatedly said he
was prevented from disclosing the names because it would violate the privacy of
Judge Kessler said that the government might ask detainees if any wanted their
name excluded from the list and that if any asked for confidentiality, it would
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