U.S. Court Allows Secret Arrests


(New York, June 17, 2003) - Tuesday's federal court decision on
post-September 11 arrests opens the door to widespread secret
detentions on immigration charges, Human Rights Watch said today.
The ruling overturns a lower court decision ordering the
government to release the names of detainees swept up in the
investigation of the September 11 attacks.

"Secret detentions have no place in a democracy," said Jamie
Fellner, U.S. Program Director for Human Rights Watch. "Yet the
court has given the government permission to cast a mantle of
darkness over its arrests."

Under today's 2-1 decision by the Court of Appeals for the
District of Columbia Circuit in Center for National Security
Studies v. Ashcroft, the Department of Justice will not have to
release the names of and other information about the hundreds it
arrested on immigration charges and material witness warrants in
the aftermath of the September 11th attacks. Plaintiffs,
including Human Rights Watch, sought release of their names under
the Freedom of Information Act (FOIA). The court ruled that all
of the information sought was statutorily exempt from disclosure
because it was information compiled for law enforcement purposes,
and disclosure "could reasonably be expected to interfere with
enforcement proceedings."

Despite formal requests from Congress and advocacy groups, the
Department of Justice has refused to release the names of the
detainees. Instead, it has asserted broad authority to keep all
of the names secret, arguing that revealing them would compromise
national security by providing terrorists with a roadmap of its
investigations. Today's decision accepted the government's
assertions at face value, overruling a lower court decision that
had dismissed the government's claims of harm to national
security as "pure speculation." Refusing to look closely at the
government's vague assertions of harm, the court asserted the
importance of judicial deference to the executive branch in
matters of national security. The court said it would not "second
guess" the executive branch on such matters.

"The government shouldn't be able to justify secret arrests
simply by invoking the words `national security,'" said Fellner.

In a harsh dissent, Judge Tatel takes the majority to task for
eviscerating FOIA, and ignoring the principles of openness in
government that FOIA embodies. Judge Tatel recognized that some
of the information sought, e.g. the names of certain detainees
and their places of arrest, might be legitimately withheld. But
he criticized the majority for not requiring the government to
provide for each detainee or category of detainees, the specific
basis for withholding their names, and each additional item of
information sought. For example, Judge Tatel questioned how
releasing the names of detainees whom the government found to be
wholly innocent of any connection to or knowledge about terrorist
groups could possibly harm national security.

Judge Tatel acknowledged the "uniquely compelling" public
interest in the September 11 investigation. But he said the
majority decision overlooked the interest of citizens knowing
whether their government "is violating the constitutional rights
of the hundreds of persons whom it has detained in connection
with its terrorism investigation."

As part of the federal government's post-September 11
investigation, the Immigration and Naturalization Services (INS)
arrested 762 non-citizens on immigration charges and treated them
as "special interest" cases. A recent report by the Justice
Department's Office of the Inspector General (OIG) strongly
criticized the Department for including among the special
interest detainees Muslim men from middle-eastern countries who
the Federal Bureau of Investigation and the INS encountered
coincidentally or by happenstance with no indication they had any
ties to terrorism. All the "special interest" detainees were
subjected to numerous measures that deprived them of basic
rights, including delays in filing charges following arrest,
restrictions on access to counsel, the INS' refusal to release
them on bond and refusal to implement promptly judicial
deportation orders and unnecessarily harsh conditions of
confinement.

Human Rights Watch documented these abuses in "Presumption of
Guilt," a report issued in August of 2002. (Available online at:
<http://www.hrw.org/reports/2002/us911/>) The OIG report confirmed
Human Rights Watch's conclusion that the government was using INS
charges to secure the "preventive detention" of persons that is
not permitted under criminal law.

The court's decision also sanctions the practice of withholding
the names of the fifty or so people arrested and detained as
material witnesses in connection with the September 11
investigation. Ostensibly detained to ensure their testimony
before grand juries, many of the material witness detainees were
never brought before grand juries, but were held for weeks and
months in solitary confinement while being interrogated by
government agents. Human Rights Watch believes the Department of
Justice misused material witness warrants to secure the detention
of persons when it had no grounds to arrest them on criminal or
immigration charges.

To read more on human rights issues in the United States, please
see: <http://www.hrw.org/us/usdom.php>