"...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
JUDGE RULES U.S. MUST Release Detainees' Names
By Steve Fainaru and Dan Eggen
Washington Post Staff Writers
Saturday, August 3, 2002; Page A01
A federal judge in Washington yesterday ordered the Justice Department to release the names of more than 1,000 people
detained in the investigation of the Sept. 11 terrorist attacks, saying the information was essential to verifying that the
government is "operating within the bounds of the law."
If upheld, the decision would reverse a central tenet of the Bush administration's secrecy policy, which also has included closed
court hearings and prohibitions on release of otherwise routine criminal justice information. Authorities have said release of the
names could aid future terror plots, affect the ongoing investigation and violate the detainees' privacy.
Judge Gladys Kessler of the U.S. District Court for the District of Columbia gave the Justice Department 15 days to release the
names of the detainees and their attorneys. The government can leave out the names of any detainees who request in writing
that their names be kept private, Kessler ruled.
The government does not have to disclose when and where people were arrested and jailed -- "or in the bloodless language of
the law 'detained,' " Kessler said in her ruling. She also ordered the government to disclose the names of all "material witnesses"
-- people who the government says may possess information critical to the probe -- but said authorities could ask her to make
"The Court fully understands and appreciates that the first priority of the executive branch in a time of crisis is to ensure the
physical security of its citizens," Kessler wrote. "By the same token, 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
The Justice Department, which usually withholds comment on judicial rulings, issued a statement charging that Kessler's
decision heightened the dangers posed by terrorists.
"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 September 11 and increases the risk of
future terrorist threats to our nation," Assistant Attorney General Robert D. McCallum Jr. said in the statement.
Justice officials declined to say whether the government would appeal the ruling, but a government source said an appeal is
likely. The Justice Department is also expected to request a stay preventing the names from being released.
McCallum said only that Justice Department lawyers would be "evaluating all options."
Kate Martin, the lead attorney in the case for the Center for National Security Studies, called the decision "a total rejection of
the attorney general's rationale for secretly arresting over 1,000 people. It's a vindication of the proposition that the courts will
stop abuses even in times of crisis."
The ruling came in response to a lawsuit filed by the Center for National Security Studies and 21 other organizations, including
Human Rights Watch, Amnesty International USA, the American Civil Liberties Union and the Council on American Islamic
Relations. Under the Freedom of Information Act, the organizations requested the names of the detainees, the identities of their
lawyers, the identities of courts presiding over their cases and all government documents relating to the policy.
In June, a New Jersey appellate court rejected a similar lawsuit filed there. Most of those arrested for immigration violations
have been held in New Jersey jails.
From the beginning of the investigation, the government's handling of the detainees has been the focal point of the conflict
between national security and civil liberties. More than 1,200 people, most of Arab and South Asian descent, have been
detained in the Sept. 11 terror dragnet, including 751 held on immigration violations, according to the most recent figures
released by the Justice Department.
Most were arrested by federal agencies, but some were detained by state and local authorities. It is unclear whether Kessler's
ruling applies to those detainees.
As of June 11, when the government released its latest figures, 74 people were still held on immigration violations and 73 were
in custody on criminal charges. None of the people detained since Sept. 11 has been charged with terrorism.
The vast majority have been released or deported, though an unknown number are still held as material witnesses. Kessler
called the government's use of the material witness statute "deeply troubling" and said the public "has no idea whether there are
40, 400 or possibly more people in detention on material witness warrants."
Kessler wrote that the identities of 26 material witnesses have been disclosed publicly and questioned whether the witnesses
were actually being held to testify before grand juries investigating terrorism, as the government has claimed. At least eight such
material witnesses were released "and never testified before a grand jury," she wrote.
The government has argued repeatedly that releasing the detainees' names could undermine the terror investigation and national
security. Disclosure would subject the detainees to possible intimidation or coercion, the government argued, and provide a
potential "road map" of the investigation to terrorists.
Kessler, a Clinton appointee who has come under fire from conservatives for previous decisions, including a February ruling
that ordered the release of thousands of pages of records about Vice President Cheney's energy task force, called the
government's argument "unpersuasive.
"Unquestionably," she wrote, "the public's interest in learning the identities of those arrested and detained is essential to verifying
whether the government is operating within the bounds of the law."
Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said Kessler's order "puts the rule of law over the
Justice Department's unilateralism." Leahy and other Judiciary Committee members have frequently complained about a lack of
information about the Bush administration's strategies to combat terrorism since Sept. 11.
But Ruth Wedgwood, a Yale University law professor and terrorism expert, said Kessler's ruling is open to criticism on several
grounds. Legislators and the courts have staked out relatively broad exceptions to the Freedom of Information Act based on
threats to national security, she noted.
"If you asked whether Congress intended FOIA to be used to undermine the conduct of a war, I doubt that the answer would
be yes," she said.