Supreme Court Roundup: Justices Allow Policy of Silence on 9/11 Detainees
The Supreme Court on Monday turned down an appeal challenging the secrecy surrounding the arrest and detention of hundreds of people, nearly all Muslim men, in the weeks after the Sept. 11, 2001, terrorist attacks.
Without comment, the court let stand a ruling by a federal appeals court here that had accepted the Bush administration’s rationale for refusing to disclose either the identities of those it arrested, most of whom have since been deported for immigration violations unrelated to terrorism, or the circumstances of the arrests.
A complete list of the names “would give terrorist organizations a composite picture of the government investigation,” a panel of the United States Court of Appeals for the District of Columbia Circuit said in a 2-to-1 ruling last June. “The judiciary owes some measure of deference to the executive in cases implicating national security,” the majority said.
The dissenting judge, David S. Tatel, said the majority had “converted deference into acquiescence” by accepting a categorical secrecy policy without requiring the government to show why the names of those who had been cleared of terrorist connections could not be made public. Of the nearly 1,000 people arrested, the government eventually released the names of 129 against whom it brought criminal charges.
The Supreme Court’s action on Monday brought an end to one of the biggest court cases related to the Sept. 11 attacks. Even though the justices gave no reason for declining to take the appeal, the development was undoubtedly a welcome one for the administration after several recent judicial setbacks.
Over the administration’s opposition, the Supreme Court recently agreed to hear appeals on behalf of 16 foreigners held at Guantánamo Bay and an American citizen, Yaser Esam Hamdi, confined to a naval brig in South Carolina, all designated “enemy combatants” by the government.
The case the court turned down on Monday had in fact been the occasion for one of those judicial setbacks when a federal district judge, Gladys Kessler, ruled in August 2002 in response to a Freedom of Information Act suit brought by a coalition of civil liberties groups that the government had to disclose most of the names. This was the ruling that the appeals court overturned nearly a year later.
The lawsuit filed in October 2001 by the 22-member coalition, which included the Center for National Security Studies, the American Civil Liberties Union, Amnesty International USA and the Council of American Islamic Relations, cited the Freedom of Information Act as well as the First Amendment. The group sought the names of the people and those of the lawyers representing them, the dates and circumstances of each arrest, any criminal charges filed and the basis for keeping the records of each case under seal.
In response to the lawsuit, the government invoked an exemption provided by the Freedom of Information Act for “law enforcement records,” arguing that the plaintiffs were seeking investigatory material that would not be made available even in routine cases. The plaintiffs argued that to the contrary, much of the information they wanted was routinely available on police blotters and was necessary for an informed public evaluation of the administration’s policies.
In their Supreme Court appeal, Center for National Security Studies v. United States Department of Justice, No. 03-472, the plaintiffs said that “times of crisis and fear demand vigilance from citizens and their courts to assure that the countermeasures adopted by the executive are consistent with our fundamental values and constitutional principles.” The brief said the court should grant review “to ensure that even after Sept. 11, the judiciary will continue to fulfill its constitutional and statutory obligation to provide meaningful review of the exercise of executive power.”
Kate Martin, director of the Center for National Security Studies, said in an interview Monday that the issues in the case remained important despite the release of most of those who had been arrested. Ms. Martin said the appeals court had given its blessing to “a secrecy regime in which arrests are off the public docket, people are held in secret, deported in secret, and two and a half years later, we still don’t know the names.”
The Supreme Court declined last year to hear a challenge to the closed-door deportation hearings that the government used for many of the same people. The administration at the time made a similar argument, that information about whom the government had selected for deportation could provide a “mosaic” that would reveal to watching terrorists what investigators knew and did not know.
Attorney General John Ashcroft said Monday that he was “pleased that the court let stand a decision that clearly outlined the danger of giving terrorists a virtual road map to our investigation that could have allowed them to chart a potentially deadly detour around our efforts.”
These were among the other developments at the court:
Pledge of Allegiance
The court set an argument date of March 24 for one of the term’s most closely watched cases, on the constitutionality of the recitation of the Pledge of Allegiance in public school classrooms. The court also granted permission to Sandra L. Banning, the mother of the 9-year-old child at the center of the case, to file a brief as a “friend of the court” supporting the pledge.
The girl’s father, Michael A. Newdow, an atheist, brought the lawsuit arguing that the inclusion of the phrase “under God” in the pledge harmed his daughter and, derivatively, himself. A lawyer, he will argue his own case, Elk Grove Unified School District v. Newdow, No. 02-1624.
Mr. Newdow refused to allow Ms. Banning, whom he never married, to file her own brief, necessitating a request by her lawyer, Kenneth W. Starr, to the court for permission. In the brief, she argued that as a “committed Christian” and the custodial parent, she wanted her daughter to recite the pledge and objected to Mr. Newdow’s pursuit through this case of “his own private agenda of imposing certain beliefs on the nation’s schoolchildren.”
Without comment, the court rejected a First Amendment challenge to a 1991 federal law that prohibits the transmission of unsolicited commercial advertisements over fax machines, or “junk faxes.”
The case, Fax.Com Inc. v. Missouri, No. 03-507, grew out of a case brought by the Missouri attorney general’s office charging two companies with violating the law, the Telephone Consumer Protection Act. After the Federal District Court in St. Louis declared the law unconstitutional, the federal government joined Missouri in defending it. On appeal, the United States Court of Appeals for the Eighth Circuit upheld the law as an acceptable regulation of commercial speech.