Civil liberties advocates say U.S. District Court Judge Gladys Kessler’s Aug. 2 order that the Justice Department must release the names of detainees held since Sept. 11 is a significant repudiation of the Bush administration’s secret detention policies.
Kessler termed the secret arrests “odious to a democratic society,” and said “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.” Her decision was on a Freedom of Information Act (FOIA) suit filed by 23 civil rights and liberties organizations.
Lucas Guttentag, director of the national American Civil Liberties Union’s (ACLU) Immigrant Rights Project and a co-counsel in the lawsuit, called the decision “a significant repudiation of the Attorney General’s continued attempts to shroud the government’s actions in secrecy.” He added, “This decision confirms that arresting and jailing people in secret is contrary to fundamental American values.”
Ed Yohnka, ACLU of Illinois communications director, told the World Kessler’s decision “does two things that are incredibly important: One, it re-establishes the notion that the judiciary has an important role in evaluating the actions of the executive branch. Two, it sets up boundaries beyond which the administration can’t go in engaging in secret proceedings.”
He termed the administration’s secrecy “antithetical to our system of government, to the First Amendment, and to FOIA requirements,” and said the judiciary’s independent role, which is “absolutely critical to constitutional government,” has been “greatly eroded” by the Bush administration since Sept. 11.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) said Kessler’s decision “puts the rule of law over the Justice Department’s unilateralism.”
People for the American Way Foundation (PFAWF) Legal Director Elliot Mincberg said the Kessler ruling “demonstrates that the government cannot casually detain hundreds of people – often on routine immigration violations or as material witnesses – while keeping the American people in the dark about the detentions.”
“The American people have a right to know what the government is doing in their name,” Mincberg said. “By sweeping an unknown number of people into open-ended detentions without releasing so much as their names, the government minimizes the role of oversight in protecting rights in America.”
Calling to mind stories of families of the “disappeared” under dictatorships in Argentina and Chile, Monami Maulik of Desis Rising Up and Moving (DRUM), an organization of low-income South Asians in New York City, told the World detainees’ relatives and groups like hers have devoted enormous time and resources to learning the whereabouts and status of those being held. They are transferred from one jail to another almost weekly, she said, and there have been mass deportations, most recently of a group of Pakistanis.
These detainees have lived in the U.S. anywhere from several months to 25 years, she said. With few exceptions, they have not been charged with involvement in terrorism or terrorist groups. Most are accused of immigration violations, often trivial ones. These are civil offenses that do not warrant imprisonment.
Yohnka said he expects to see more court challenges like this, noting that a number of such cases are moving through the courts. Also, he said, “you begin to see a real sense of hesitancy about going along with anything [from the Bush administration] among members of Congress.” He cited objections by Republicans to the adminstration’s proposed TIPS program, which would have Americans spy on each other.
Yohnka told the World he sees three broad themes in the Bush administration’s attack on civil liberties. One is “to operate law enforcement without the traditional oversight of an independent judiciary.”
The second is “ever farther-reaching intrusive authority,” as shown in the Patriot Act, loosening of FBI spying restrictions, and Attorney General Ashcroft’s moves to monitor attorney-client communications. “There is no evidence that Sept. 11 in any way, shape or form could have been prevented by additional intelligence gathering,” he said. “Yet everything is moving in that direction.”
The third Bush administration theme is “ongoing secrecy.” It is “fundamental to the First Amendment that we have an open government,” he commented. “We can’t have a full debate on government actions if we don’t know what is going on.”
Maulik urged public pressure to ensure detainees get hearings, access to legal services, and proper treatment, citing reports of physical and verbal abuse of New York area detainees.
The organizations filing the lawsuit included the ACLU, the American-Arab Anti-Discrimination Committee, the Center for National Security Studies, PFAWF and the Reporters Committee for Freedom of the Press.
The court gave the Justice Department 15 days to produce the names. The government is expected to appeal the decision.
The author can be reached at suewebb@pww.org
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