Government: Releasing detainees' names could be 'dangerous'
By The Associated Press
HACKENSACK, N.J. Justice Department lawyers argued this week that allowing the release of post-Sept. 11 detainees' names would threaten national security by identifying cooperating witnesses and other details of the government's investigation into terrorists.
"This is not secrecy for secrecy's sake," Assistant U.S. Attorney General Robert McCallum told a three-judge state appeals panel May 20.
The judges heard arguments for a lawsuit filed in January by the American Civil Liberties Union of New Jersey. The group wants to have names released for hundreds of federal detainees held in New Jersey jails.
The appellate panel issued no decision May 20.
The ACLU argues that state law requires the Hudson and Passaic County jails to release the names of all inmates, even those detained by the U.S Immigration and Naturalization Service. The ACLU has said it wants the names so it can offer legal representation and assess how well they are being treated while in custody.
Superior Court Judge Arthur D'Italia ruled in the ACLU's favor in March. The U.S. Justice Department intervened and appealed to the Appellate Division.
McCallum said May 20 that disclosing the names of some detainees could deter them from cooperating in the investigation and could let terrorists know what information the government has gathered, leading to "potentially extraordinarily dangerous" consequences.
Unlike a separate federal lawsuit seeking the release of detainees' names around the country, the New Jersey lawsuit uses state laws to back up its argument for the identification of all federal detainees staying in state and county jails. The INS houses detainees in hundreds of jails around the country, although right-to-know laws vary from state to state.
Appellate judge Howard Kestin asked another Justice Department lawyer, Thomas Bondy, why the government had not anticipated the conflict between state and federal laws earlier.
"It never occurred to us that a court would actually do this," Bondy replied, referring to D'Italia's order to release the names of detainees in New Jersey jails.
Bondy argued that federal law, and an INS directive to county and state jails issued April 17, should be followed in all detainee cases. "It doesn't matter what state law provides here," he said.
Ronald Chen, a Rutgers professor arguing for the ACLU, said that the state laws are clear and offer the public "an absolute unqualified right to access" to the names of inmates residing in state or county jails.
Chen also argued that the government's arguments about national security are speculative, which prompted criticism by Kestin.
"You can't say that (the government's argument) is a contrivance," Kestin said. "The concerns expressed are real."
But the judge later questioned the April 17 ruling by INS Commissioner James Ziglar. It was created after D'Italia issued a ruling against the Justice Department.
Bondy acknowledged that the regulation was issued to prevent the immediate release of detainees' names in New Jersey, but argued that it currently supersedes any state law.
"For a government to say we lost in this case and we're going to cure it by promulgating a regulation," Kestin said, "it's troubling."
Arlene Turinchak, representing the North Jersey Media Group, argued that keeping detainees' names secret is threatening the public's right of government oversight, which she called "a principal foundation of our democracy."
The media group owns The Record of Hackensack and the Herald News of West Paterson.
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