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Keep detainee names secret, government urges panel

By The Associated Press

11.19.02

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WASHINGTON — The government told a federal appeals court yesterday that releasing the names of hundreds of detainees in the terrorism investigation could help al-Qaida.

Gregory Katsas, deputy assistant attorney general, argued before a federal panel that releasing the names could provide terrorists with information they couldn't get elsewhere.

"This list of names will give al-Qaida clues as to how it is we seek out terrorists," Katsas told a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia. "It shows where we looked. That reveals a strategy."

Kate Martin, a lawyer for the Center for National Security Studies, one of 22 public-interest groups seeking the names, said that the United States should not be conducting secret arrests.

"This is the first time the United States government has secretly arrested and detained hundreds of people," Martin said. "The concept of secret arrests is odious to a democratic society."

The government rounded up more than 1,200 people after the Sept. 11, 2001, terrorist attacks, many on immigration charges and some believed to have information to help the terrorism investigation. The government has refused to release the names of detainees or the charges they are being held on.

Meanwhile, the American Civil Liberties Union and several other groups are criticizing a federal court ruling that Attorney General John Ashcroft says ensures that the Justice Department can take full advantage of broad new surveillance powers to track suspected spies and terrorists.

Yesterday's unprecedented ruling by a specially appointed three-judge review panel overturned a decision by the ultra-secret Foreign Intelligence Surveillance Court, which had sought to impose restrictions on how and when the surveillance authority could be used under the USA Patriot Act passed by Congress after the Sept. 11 attacks.

"This will greatly enhance our ability to put pieces together that different agencies have. I believe this is a giant step forward," Ashcroft said.

But the civil liberties groups contend the ruling will harm free-speech and due-process protections by giving the government far greater ability to listen to telephone conversations, read e-mail and search private property.

A key part of the ruling removes legal barriers between FBI and Justice Department intelligence investigators and prosecutors and law enforcement personnel. The upshot, Ashcroft said, is improved coordination and cooperation between federal agencies, which have drawn heavy criticism for failing to detect and stop terrorists within the United States.

An appeal to the Supreme Court was unlikely, at least any time soon. The Justice Department is the sole party to the case, and as the winner had no plans to appeal, officials said. The ACLU and others would have to find another option, such as a criminal case involving intelligence surveillance, to ask the high court for a hearing.

"This is a major constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court," said Ann Beeson, who argued the case for the ACLU.

Meanwhile in the matter of secret detentions, the Justice Department told the D.C. appeals court yesterday that fewer than 20 people remained in custody.

"When the Sept. 11 investigation leads us to those who have violated our nation's laws, we enforce those laws and appropriately detain those individuals," said Justice Department spokeswoman Barbara Comstock. "However, all detainees have the rights afforded by the Constitution, are informed of the charges against them, are provided access to counsel and can disclose their identity to the public at any time."

Several public interest groups filed a Freedom of Information Act request for the information. In August, U.S. Circuit Judge Gladys Kessler ordered the government to release the names. Kessler delayed enforcing her order to give the government time to appeal.

Since the terrorist attacks, the Bush administration has tried to hold several proceedings behind closed doors on grounds of national security, claiming that public hearings could let terrorist groups like al-Qaida, blamed for Sept. 11, learn who the government has arrested and how it found them.

The government has a mixed record so far. Last month, a three-member panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that immigration hearings in New Jersey could be closed to the press and public. But in August, a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati ruled that the government could not hold secret deportation hearings in Michigan for a Lebanese man accused of funneling money to terrorists from a charitable foundation he founded.

In this case, Kessler ruled in August that the government had not shown that releasing the names would hinder the investigation or help the terrorists.

Appeals Court Judge David Sentelle asked Martin if releasing the names could aid terrorists. Sentelle suggested al-Qaida could discern a pattern from the arrests. "What would be sufficient for the government to show that a pattern of these arrests could be an intelligence source?" Sentelle asked.

Martin said the Justice Department already had released some details of the investigation, and the government needed to specifically show how publicizing the names would hurt the war on terrorism when this other information did not.

Another appeals judge, David Tatel, cited reports that some detainees were held without charges and could not hire lawyers.

Katsas said the people picked up were able to get legal representation. "There are not allegations that people were locked up in dungeons and held incommunicado," he said.

Previous

Federal judge stays order, says detainees' names can be withheld
Government can keep secret the identities until Bush administration's appeal is settled.  08.16.02

Related

Government can close deportation hearings, rules federal appeals panel
3rd Circuit panel finds attorney general has right to keep press, public out of proceedings for national security reasons; conflict with 6th Circuit ruling increases likelihood of Supreme Court appeal.  10.08.02

Federal judge to government: Open detention hearing or let man go
Meanwhile, 3rd Circuit judges echo Justice Department concern that making proceedings public could help terrorists stage more attacks.  09.18.02

N.J. appeals court rules against secret hearing
Panel orders lower court to hold hearing again in public for man accused of selling phony driver's licenses used by two Sept. 11 hijackers.  01.15.03

U.S. to disclose which surveillance documents it will release
Justice Department agrees to tell ACLU by Jan. 15 what it will and will not make public on how it is implementing Patriot Act.  11.29.02

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